State v. DeLaO

                                                                                      Office of the
                                                                                          Director             New Mexico
                                                                                                               Compilation
                                                                               09:01:39 2022.12.05             Commission
                                                                                            '00'07-
             IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: May 23, 2022

No. A-1-CA-38923

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

JUANA AMADOR DELAO,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                                 OPINION

WRAY, Judge.

{1}     Defendant Juana Amador DeLaO appeals her convictions for four counts of
fraud, contrary to NMSA 1978, Section 30-16-6(E) (2006), and thirteen counts of failing
to disclose facts to obtain public assistance, contrary to NMSA 1978, Section 30-40-
1(D), (E) (2006). 1 The charges related to Defendant’s application for and receipt of
several forms of public assistance benefits: Supplemental Security Income (SSI), Social
Security Disability Insurance (SSDI), Medicaid, and food stamps (SNAP). Defendant
invites us to reverse her convictions based on her contentions that the charges under

1The State charged eighteen counts and dismissed one count before trial. The counts were renumbered

in the jury instructions and the verdicts. In this opinion, we generally refer to the renumbered counts that
the jury considered and decided.
Section 30-16-6 and Section 30-40-1 are either entirely preempted by federal law or
they are duplicative. Alternatively, Defendant seeks remand for “a new and fair trial
before a properly instructed jury.” We conclude that under these circumstances,
convictions pursuant to both Section 30-16-6 (fraud) and Section 30-40-1 (failure to
disclose facts to obtain public assistance) impose multiple unsanctioned punishments.
We therefore affirm in part, reverse in part, and remand for the district court to vacate
Defendant’s convictions under Section 30-40-1. Otherwise, we affirm.

BACKGROUND

{2}     At the outset, we provide general background for SSI, SSDI, Medicaid, and
SNAP benefits. SSI “is a federal income maintenance program for the aged, blind, or
disabled” and eligibility is based on “need and a showing that the applicant’s earning
capacity is impaired by either age, blindness or other disability.” Sheets v. Sheets,

, ¶ 15, 

, 

. To qualify, the applicant must
show income “below the statutory maximum” and awarded benefits “are subject to
periodic review.” 

 SSDI, however, is “an earned insurance proceed” that is “directly
related to the amount the insured has paid into the program.” In re Marriage of Taber,

 (Kan. Ct. App. 2012). A person who has “previously worked and
contributed to the program by paying taxes on earned income” is entitled to benefits if
she subsequently “suffer[s] from a physical or mental disability and [is] no longer able to
work.” 

 Medicaid is a “federal-state program providing medical services to the needy.”
Starko, Inc. v. Gallegos, 

, 

, 

. New
Mexico has adopted a “managed care system to provide cost-efficient, preventive,
primary and acute care for medicaid recipients.” NMSA 1978, § 27-2-12.6(A) (1994).
The state contracts with other entities, “which in turn provide health care to Medicaid
recipients.” Starko, 

. Last, SNAP is “a federal-state program,”
8.139.100.9(A) NMAC, that is “designed to promote the general welfare and to
safeguard the health and well-being of the nation’s population by raising the levels of
nutrition among low-income households.” 8.139.100.11(A) NMAC. With this as
background, we turn to the facts of the present case.

{3}    The evidence at trial established that in 2012, Defendant submitted an
application for and received SSI and SSDI benefits. Defendant reported either only
social security income or did not disclose a current employer. As a result of her SSI
application, Defendant additionally was determined to be eligible for Medicaid and
received Medicaid benefits. In late 2013, Defendant also applied for SNAP benefits but
reported no income or employment on those applications. Defendant, however, had
income and was working for Dollar Cab between 2009 and 2012, and again between
2013 and 2017.

{4}    Defendant received SSDI, SSI, and Medicaid benefits between 2012 and 2017,
and SNAP benefits between 2013 and 2017. Defendant, as a recipient of benefits from
each of these programs, was obligated to report any income or employment changes to
administering agencies. Despite reapplications and notice of her ongoing reporting
obligations, Defendant did not report her Dollar Cab income or employment during the
period that she received benefits from each of the programs. In 2018, Defendant was
charged with multiple counts of fraud and failure to disclose facts to obtain public
assistance. The jury convicted Defendant on all counts. Defendant appeals.

DISCUSSION

{5}     On appeal, Defendant argues that (1) the multiple convictions violate double
jeopardy, and (2) the district court improperly refused to instruct the jury on mistake of
fact. 2 We address each of these arguments in turn.

I.      Double Jeopardy

{6}    Defendant contends that the jury’s seventeen convictions violate constitutional
double jeopardy protections. We review double jeopardy claims de novo. State v.
Bernal, 

, 

, 

. In the context of the present
case, double jeopardy protections prevent citizens from being subject to multiple
punishments. See id. ¶ 7. “Multiple punishment problems can arise from both ‘doubledescription’ claims, in which a single act results in multiple charges under different
criminal statutes, and ‘unit-of-prosecution’ claims, in which an individual is convicted of
multiple violations of the same criminal statute.” Id. Defendant raises both double
description and unit of prosecution claims, but we begin with a brief overview of the
charges.

{7}    The jury considered four counts of fraud and thirteen counts of public assistance
fraud (PA fraud). The following charts summarize the evidence at trial in relation to the
instructions for the charges:

          The Medicaid Counts
          Count/ Charge Date Range/Amount charged                           Amount Obtained
          1: Fraud       1/1/13–12/31/17 > $2,500                           $16,517.83
          2: PA fraud    7/1/12–6/30/13   > $2,500                          $2,527.22
          3: PA fraud    7/1/13–6/30/14  > $2,500                           $5,289.34
          4: PA fraud    7/1/14–6/30/15  > $2,500                           $2,801.34


2Defendant additionally argues that the entire state prosecution was preempted by federal law. Federal

preemption is a principle arising from “the basic structure of our federal system,” dual state and federal
sovereignty, and the limits placed on the states by the Supremacy Clause of the United States
Constitution. State v. Herrera, 

, 

 (internal quotation marks and citation
omitted). Federal preemption can be express or implied, and two distinct forms of implied preemption
involve two separate well-established analyses. Id. ¶¶ 7, 9. All this to say, preemption is complicated.
Defendant, however, neither identified an applicable form of preemption nor applied any specific
preemption analysis to the particular statutes at issue in this case. Defendant has extensively set forth the
law of federal preemption, but has not sufficiently developed any argument that allows us to apply the law
to the circumstances of this case without significant extrapolation. See Elane Photography, LLC v.
Willock, 

, 

 (“To rule on an inadequately briefed issue, this Court would
have to develop the arguments itself, effectively performing the parties’ work for them . . . [and creating] a
substantial risk of error.” (citation omitted)). Accordingly, we decline to address Defendant’s preemption
argument.
         5: PA fraud       7/1/15–6/30/16        > $2,500       $3,169.66
         6: PA fraud       7/1/16–6/30/17        > $2,500       $2,770.27



        The SSI Counts
        Count/Charge   Date Range/Amount charged               Amount Obtained
        7: Fraud       6/1/12–6/30/17  > $2,500                $13,355.92
        8: PA fraud    7/1/13–6/30/14  > $2,500                $2,508.00
        9: PA fraud    7/1/14-6/30/15   > $2,500               $3,180.00
        10: PA fraud   7/1/15–6/30/16  > $2,500                $3,204.00
        11: PA fraud   7/1/16–6/30/17  > $2,500                $2,942.00



                    The SSDI Count
        Count/Charge   Date Range/Amount Charged               Amount Obtained
        12: Fraud      7/1/12–6/30/17  > $2,500                $11,185.00



        The SNAP Counts
        Count/Charge  Date Range/Amount Charged                Amount Obtained
        13: Fraud     11/1/13–10/31/17 > $2,500                $8,168.00
        14: PA fraud  11/1/13–10/31/14 > $2,500                $1,878.00
        15: PA fraud  11/1/14–10/31/15 > $2,500                $1,631.00
        16: PA fraud  11/1/15–10/31/16 > $2,500                $2,328.00
        17: PA fraud  11/1/16–10/31/17 > $2,500                $2,328.00



{8}    With this as background, we consider whether Defendant was subjected to
multiple punishments in violation of her double jeopardy rights, first if the fraud and PA
fraud convictions resulted from wrongful double description and second whether the
seventeen separate counts—multiple convictions under the same statute—are
unacceptable units of prosecution.

A.     The Double Description Claim

{9}    To analyze a double description claim, we first consider “whether the conduct
underlying the offenses was unitary, i.e., whether the same conduct violates both
statutes,” and if the conduct is unitary, we proceed “to analyze whether the [L]egislature
intended to create separately punishable offenses.” State v. Gutierrez, 2011-NMSC-
024, ¶ 51, 

, 

 (internal quotation marks and citation omitted).
“Only if the first part of the test is answered in the affirmative, and the second in the
negative, will the double jeopardy clause prohibit multiple punishment in the same trial.”
Swafford v. State, 

, ¶ 25, 

, 

. Defendant
argues that the PA fraud convictions must be vacated, because the same conduct
supported those convictions that supported the fraud convictions, and the Legislature
“did not intend to punish both general fraud against the government and [PA] fraud for
unitary conduct.” The State responds that the jury was clearly instructed on seventeen
counts for “separate and distinct conduct,” because the fraud instruction related to
misrepresentation of a fact to different agencies during four-year periods and the PA
fraud instruction required a failure to disclose a material fact to different agencies in
single-year periods. We agree with Defendant and begin our analysis with whether the
conduct in question was unitary.

1.     Unitary Conduct

{10} To determine whether conduct is unitary, we look to whether a defendant’s acts
are sufficiently distinct and “separated by time or space, looking to the quality and
nature of the acts, the objects and results involved, and the defendant’s mens rea and
goals during each act.” State v. Saiz, 

, 

, 

, abrogated on other grounds by State v. Belanger, 

, ¶ 36 n.1, 

, 

. We also consider “the elements of the charged offenses, the
facts presented at trial, and the instructions given to the jury,” State v. Sena, 2020-
NMSC-011, ¶ 46, 

, and attempt to discern “an identifiable point at which
one of the charged crimes ha[s] been completed and the other not yet committed.” State
v. DeGraff, 

, 

, 

. For the reasons that
follow, we conclude that Defendant’s conduct supporting the fraud charges and the PA
fraud charges was unitary, because (1) the fraud was not complete before the PA fraud
was committed and the time and space for each overlapped, (2) the quality and nature
of the acts was the same, (3) the object and results of the acts were the same, and (4)
the mens rea for the fraud and the PA fraud were the same. See Saiz, 2008-NMSC-
048, ¶ 30. We begin our explanation with the Medicaid Counts. 3

{11} The fraud count associated with Medicaid, Count 1, related to acts between
January 1, 2013 and December 31, 2017, which resulted in the wrongful receipt of more
than $2,500 in Medicaid benefits. The five Medicaid PA fraud counts related to twelve-month periods within roughly the same time period, July 1, 2012 through December 31,
2017. The fraud count related to Medicaid is therefore not “separated by time” but
instead overlaps the Medicaid PA fraud counts. 

 The quality and nature of the acts
underlying Count 1, and Defendant’s mens rea, are the same as those underlying the
Medicaid PA fraud counts. In closing argument, the State explained that Count 1, for
Medicaid fraud, resulted in a total of $16,517.83 benefits to which Defendant was not
entitled and pointed to State’s Exhibits J-1, J-2, and J-3, which represented the total
overpaid Medicaid benefits. The Medicaid PA fraud counts represent the failure to
disclose information in order to obtain the same benefits for individual twelve-month
periods between 2012 (six months before the fraud date range) and June 30, 2017 (the

3Because the SSDI fraud count, Count 12, has no corresponding PA fraud counts, we do not evaluate

Count 12 for double description problems.
same year the fraud charge was completed). The same Exhibits, J-1 through J-3, used
to calculate the $16,517.83 for Count 1, also provided the year-by-year totals for the
amounts of benefits obtained for Counts 2 through 6, the five Medicaid PA fraud
charges. The Medicaid Counts all achieved the same results—the same benefits. See

 No more than $16,517.83 in Medicaid benefits were overpaid in the time between
January 1, 2013 and December 31, 2017. With the same time, intent, acts, and results,
the Medicaid fraud and Medicaid PA fraud counts in the present case encompass
unitary conduct. See 

{12} The SSI Counts were charged with slightly different time frames. The SSI fraud
charge, Count 7, runs from June 1, 2012 through June 30, 2017. The first SSI PA fraud
charge, Count 8, does not begin to run until July 1, 2013—almost a year after the SSI
fraud count begins. As a result, during the SSI fraud charge time frame, Defendant
received a little over $1,500 in SSI benefits that were not associated with any SSI PA
fraud counts. That amount, however, does not meet the statutory minimum for third
degree fraud as charged, because it is less than $2,500. See § 30-16-6(E). The
overpayment of benefits associated with SSI fraud, Count 7, did not exceed $2,500 until
the PA fraud charging period began, and the amounts of benefits and time periods
attributable to both Counts 7 and 8 overlapped. Thus, despite the period of time in
which the benefits did not overlap, Count 7 was ongoing at the time Count 8 began and,
like the Medicaid fraud count, overlapped the PA fraud time periods. The conduct
charged for the SSI Counts was therefore unitary, like the Medicaid Counts, because
the time periods were the same, the quality and nature of the acts (submitting the
applications) was the same, the objects and results (the benefits obtained) were the
same, and the mens rea was the same. See Saiz, 

.

{13} The time periods and benefits for Count 13 (SNAP fraud) and Counts 14 through
17 (SNAP PA fraud) overlap completely, and again, the acts, benefits obtained, and
mens rea are the same. The conduct for those counts is also unitary. The State argues
that the conduct is not unitary because it presented evidence that Defendant submitted
multiple renewal documents with misrepresentations or omissions related to income and
employment. This evidence, however, does not distinguish the Medicaid, SSI, and
SNAP fraud counts on the one hand from the corresponding PA fraud counts on the
other. Each fraud count (1) covered essentially the same time period as the individual
PA fraud counts, (2) involved the same acts as the PA fraud counts, (3) obtained the
same benefits as the PA fraud counts, and (4) was performed with the same mens rea.
See 

 The conduct was unitary, we therefore consider whether the Legislature
intended for multiple punishments under Section 30-16-6 and Section 30-40-1. See
Swafford, 

, ¶ 25.

2.    Legislative Intent

{14} The Legislature has not expressly authorized multiple punishments for fraud and
PA fraud, and so we apply the test outlined in Blockburger v. United States, 

 (1932), in order to determine whether such Legislative intent can be inferred. See
Gutierrez, 

. In this analysis, we look to the “distinct statutory
provisions . . . to determine . . . whether each provision requires proof of a fact which
the other does not.” Id. ¶ 56 (internal quotation marks and citation omitted). When “the
Blockburger test establishes that one statute is subsumed within the other, the inquiry is
over and the statutes are the same for double jeopardy purposes—punishment cannot
be had for both.” Id. (internal quotation marks and citation omitted). If a statute is “multipurposed and written with many alternatives, or is vague and unspecific,” we apply the
Blockburger test with “reference to the [s]tate’s legal theory of the case.” Gutierrez,

 (emphasis, internal quotation marks, and citation omitted). “The
reason for this approach is that a statute that serves several purposes and has been
written in the alternative may have many meanings and a wide range of deterrent
possibilities.” Id. ¶ 58 (internal quotation marks and citation omitted).

{15} The fraud statute is a vague and unspecific statute. Section 30-16-6(A) defines
“fraud” as “the intentional misappropriation or taking of anything of value that belongs to
another by means of fraudulent conduct, practices or representations.” Our Supreme
Court has explained that ambiguous phrases like “anything of value” render a statute
“vague and unspecific.” Gutierrez, 

. As a result, we must
“ascertain the operation and deterrent purposes of such statutes for double jeopardy
purposes by determining the elements—the legal theory—that constitute the criminal
causes of action in the case at hand.” 

 (internal quotation marks and citation omitted).
Having already laid out the statutory requirements for fraud, we consider the
requirements for PA fraud.

{16}   Section 30-40-1(A) defines PA fraud as follows:

       [K]nowingly failing to disclose a material fact known to be necessary to
       determine eligibility for public assistance or knowingly failing to disclose a
       change in circumstances for the purpose of obtaining or continuing to
       receive public assistance to which the person is not entitled or in amounts
       greater than that to which the person is entitled.

The classifications of the crime are defined by the value of the public assistance
wrongfully received. See § 30-40-1(B)-(F) (ranging from petty misdemeanor to second
degree felony based on the value of public assistance received). Similarly, fraud is
classified by the value of the property misappropriated, see § 30-16-6(B)-(G), and
further requires that the victim rely on the misrepresentation. See UJI 14-1640 NMRA.
We consider the requirements of both crimes more closely as they relate to each other.

{17} To commit PA fraud, an individual must first knowingly either (1) fail to disclose a
material fact necessary to determine eligibility, or (2) fail to disclose a change in
circumstances. See § 30-40-1(A). Either of those PA fraud elements satisfies the
general fraud requirement that the individual act by “means of fraudulent conduct,
practices or representations.” Section 30-16-6(A). Next, for PA fraud, the facts must be
withheld “for the purpose of obtaining or continuing to receive public assistance to which
the person is not entitled or in amounts greater than that to which the person is entitled.”
Section 30-40-1(A). This PA fraud element satisfies two additional general fraud
requirements. First, the nondisclosure must be for the purpose of obtaining benefits to
which the person is not entitled, see § 30-40-1(A), indicating that the benefits would not
be dispersed if the disclosure had been made. Put another way, the government agency
must have relied on the nondisclosure to disperse the benefits. See UJI 14-1640
(requiring reliance for fraud). Second, because the facts were not disclosed in order to
obtain benefits to which the person was not entitled, the withholding of the facts is an
“intentional misappropriation or taking of anything of value that belongs to another.”
Section 30-16-6(A).

{18} Both statutes further require, in the context of the State’s theory in the present
case, that Defendant “obtained” the same benefits. By their language, the statutes
appear to have different requirements: fraud requires only that the defendant obtain
generally “anything of value,” § 30-16-6(A), while PA fraud requires that the defendant
“obtain public assistance.” Section 30-40-1(A). Because, however, fraud is a “vague and
unspecific” statute, in order to determine whether these are the same or different
requirements, we must return to the State’s theory of the case. Gutierrez, 2011-NMSC-
024, ¶ 59. The four fraud convictions (Counts 1, 7, 12, and 13) required proof of the
taking of public assistance benefits—the same public assistance that formed the basis
for the PA fraud charges. Thus, the PA fraud convictions are subsumed within the fraud
convictions, and “punishment cannot be had for both.” Id. ¶ 56 (internal quotation marks
and citation omitted). The PA fraud convictions must therefore be vacated.

B.      Unit of Prosecution

{19} Defendant additionally argues that the four fraud convictions4 also violate double
jeopardy based on multiple units of prosecution. For a unit of prosecution claim, we first
“review the statutory language for guidance on the unit of prosecution,” and if the
statutory language does not spell out the unit of prosecution, “then we move to the
second step, in which we determine whether a defendant’s acts are separated by
sufficient ‘indicia of distinctness’ to justify multiple punishments under the same statute.”
Bernal, 

. As to the first step, the fraud statute “does not clearly
define its unit of prosecution.” State v. Boergadine, 

, 

,

. We therefore turn to Defendant’s argument that “the conduct underlying
the fraud convictions lack these indicia of distinctness.”

{20} To evaluate “distinctness,” the parties do not dispute that we apply the factors set
forth in Herron v. State, 

, ¶ 15, 

, 

, including
“(1) temporal proximity of the acts; (2) location of the victim(s) during each act; (3)
existence of an intervening event; (4) sequencing of acts; (5) [the] defendant’s intent as
evidenced by his [or her] conduct and utterances; and (6) the number of victims.”
Boergadine, 

 (internal quotation marks and citation omitted). We
may additionally consider whether a defendant’s acts “were performed independently of
the other acts in an entirely different manner, or whether such acts were of a different
nature.” 

 (internal quotation marks and citation omitted). In the context of a particular

4Because we have determined the thirteen PA fraud convictions must be vacated, we do not consider

whether those convictions are improper units of prosecution that violate double jeopardy.
case, some factors are not useful in application. Id. ¶ 23. For example, the second and
fourth factors are particularly relevant to sexual assault cases, but are not tailored to
every offense. Id. Defendant contends that she withheld the same information from the
same victim—which she defines as “the United States”—and that these actions
happened “at the same times for each of the programs, with the same intent, conduct
and utterances.” We evaluate the Herron factors and conclude that they support the four
separate charges under these circumstances. We begin by addressing Counts 7, 12,
and 13.

{21} Counts 7, 12, and 13, related to SSI, SSDI, and SNAP benefits, are separated
from each other in time, the first Herron factor. The SSI and SSDI applications relevant
to the charging period were submitted on the same day, May 7, 2012, but the
applications were submitted at different times of day. The SSDI application indicates
submission at just after 9:00 a.m. and the SSI application was submitted at nearly 2:00
p.m., hours later. The trial exhibits further demonstrate that the SNAP applications were
submitted on entirely different dates than the SSI and SSDI applications: September 29,
2013, November 26, 2013, November 25, 2014, September 17, 2015, and October 28,
2016. More than a year separated the first SNAP applications from the SSI and SSDI
applications. See Boergadine, 

 (“The greater the interval between
acts the greater the likelihood of separate offenses.” (alteration, internal quotation
marks, and citation omitted)). The time intervals between the different applications are
all different, but the separations in time nevertheless demonstrate distinct acts by
Defendant.

{22} These three counts—for SSI, SSDI, and SNAP—are also distinguished by
Defendant’s intent, manner of committing the fraud, and the number of victims. See id. ¶
21 (outlining these unit of prosecution considerations). All three applications were for
different benefits, indicating Defendant’s separate intents to obtain different benefits.
See id. ¶ 25 (noting that separate requests for money for different purposes,
accompanied by “various assurances and justifications” supported separate intents to
defraud). Defendant committed the frauds in a different manner, because the three
benefits programs involved different qualifying criteria and imposed separate
requirements on Defendant. See id. ¶ 21 (“We may also consider whether [the
d]efendant’s acts were performed independently of the other acts in an entirely different
manner.” (internal quotation marks and citation omitted)). For example, the Social
Security Administration communicated with Defendant separately about SSI and SSDI
benefits, which caused Defendant to engage in different renewal processes for the two
benefits programs. SNAP involved yet a different renewal process. The manner of
committing each fraud was therefore different against three separate programs, and
three separate programs gave Defendant benefits as a result of her applications and
her failures to report income and employment. See id. ¶ 27 (“[M]ultiple victims will likely
give rise to multiple offenses.” (internal quotation marks and citation omitted)). The
conduct for Counts 7, 12, and 13 was distinct and supported separate fraud charges.

{23} We separately consider whether Counts 1 and 7 were sufficiently distinct,
because at trial, a special agent with the Office of the Inspector General for the Social
Security Administration testified that a successful application for SSI automatically
qualifies a person to receive Medicaid benefits. This raises the question of whether
Defendant’s actions in obtaining Medicaid (Count 1) were sufficiently distinct from her
actions in obtaining SSI benefits (Count 7).

{24} We turn again to those Herron factors that are relevant to determine the
distinctness of the fraud charges. Defendant’s act of applying for Medicaid was
simultaneous with the act of applying for SSI benefits. The conduct is therefore not
temporally distinct. See Boergadine, 

. Defendant, however,
received different Medicaid and SSI benefits, which shows a different manner of
committing an independent fraud. See 

 We explain. The Medicaid billing records
indicate that Defendant received coverage for many individual medical needs—
prescriptions, doctor visits—for many years after the Social Security Administration
forwarded the approved SSI application to the state for Medicaid approval. Those
medical benefits received and accepted by Defendant when she sought medical care,
show “acts of a different nature” than receiving SSI needs-based monthly financial
assistance in the form of a payment. 

 (internal quotation marks and citation omitted).

{25} Defendant further demonstrated distinct intent—another Herron consideration—
by her conduct because it is reasonable to infer that Defendant knew she received
Medicaid coverage, her extensive medical expenses were covered for a period of five
years, and in July 2012 Defendant was explicitly informed that her Medicaid eligibility
was dependent on her income levels, SSI eligibility, and ability to pay. Defendant
received and accepted (1) health coverage and (2) monthly SSI payments, with
knowledge that she was working, had not reported the employment or income, and
eligibility for each of the benefits was income-dependent. Defendant’s acts and intent
were directed at separate benefits programs, indicating separate victims. See id. ¶ 27.
The SSI benefits stemmed from a federal program, and Defendant’s Medicaid benefits
came from both federal and state agencies. Although Defendant obtained separate
benefits from a single application, the remaining factors demonstrate that Defendant’s
acts related to the ongoing receipt of Medicaid and SSI benefits were sufficiently distinct
in intent, manner of receipt, and variety of victims. As a result, the multiple convictions
for fraud related to Medicaid and SSI benefits do not violate double jeopardy.

II.    Jury Instructions

{26} Last, Defendant argues that the district court improperly refused to give the jury a
mistake of fact instruction. “The propriety of jury instructions is a mixed question of law
and fact,” which we review de novo. State v. Romero, 

, 

, 

. Defendant preserved the request for the instruction, and so we
consider whether the refusal to give the instruction was reversible error. State v.
Anderson, 

, 

. The failure to instruct is reversible
error if the “evidence at trial supports the giving of an instruction on a defendant’s theory
of the case.” State v. Contreras, 

, 

, 

(internal quotation marks and citation omitted). “When considering a defendant’s
requested instructions, we view the evidence in the light most favorable to the giving of
the requested instruction.” Romero, 

.

{27} A mistake of fact instruction permits the jury to find that the defendant believed
particular facts and requires the state to prove that “the defendant did not have an
honest and reasonable belief in the existence of those facts at the time of the alleged
conduct.” UJI 14-5120 NMRA. The district court need not “offer duplicate instructions if
the instructions given adequately apprise the jury of the controlling law.” State v. Bunce,

, ¶ 8, 

, 

. Specifically, the district court “need
not give a mistake of fact instruction where the intent element of the crime is adequately
defined by the other instructions given.” Id. ¶ 9. The question before us is whether
fraud 5 instructions adequately define the requisite intent. See id. ¶ 10.

{28} We conclude they do. The fraud instructions, which were modeled on the uniform
jury instruction and are not challenged on appeal, required the jury to find that
Defendant intended to deceive or cheat the Social Security Administration and HSD.
See State v. Hornbeck, 

, 

, 

 (noting the
conviction for fraud required the jury to find the defendant misrepresented a fact “with
intent to deceive or cheat” (citing UJI 14-1640)). Defendant’s mistake of fact theory was
that she mistakenly believed that by separately reporting her income to HSD to satisfy a
child support obligation, she satisfied all of her reporting obligations. The jury heard
evidence that Defendant believed she had appropriately reported. If the jury believed
that Defendant mistakenly did not report specifically to HSD or the Social Security
Administration, the jury could not have convicted Defendant for fraud because the
requisite intent to “deceive or cheat” would have been absent. Thus, the fraud
instruction adequately apprised the jury of the intent element of the crime and allowed it
to consider Defendant’s theory, and the district court did not err by refusing to give
Defendant’s requested instruction.

CONCLUSION

{29} For the reasons stated herein, we affirm in part, reverse in part, and remand for
the district court to vacate Defendant’s convictions for violation of Section 30-40-1.

{30}    IT IS SO ORDERED.

KATHERINE A. WRAY, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

ZACHARY A. IVES, Judge


5Because we have concluded the PA fraud convictions must be vacated, we do not address whether the

PA fraud instructions adequately defined the requisite intent.