The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for comp liance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number:

________________ 2

F iling Date: May 23, 2022 3

No. A

- 1

- CA

- 38923 4

STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7

JUANA AMADOR DELAO, 8

Defendant

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 10 Steven Blankinship, District Judge 11
Hector H. Balderas, Attorney General 12 Maris Veidemanis, Assistant Attorney General 13 Santa Fe, NM 14
for Appellee 15

Bennett J. Baur, Chief Public Defender 16 MJ Edge, Assistant Appellate Defender 17 Sa nta Fe, NM 18
for Appellant 19OPINION 1

WRAY , Judge. 2

{1} Defendant Juana Amador DeLaO appeals her convictions for four counts of 3
fraud, contrary to NMSA 1978, Section 30

- 16

- 6 (E) (2006), and thirteen counts of 4
failing to disclose facts to obtain public assistance, contrary to NMSA 1978, Section 5

30

- 40

- 1 (D), (E) (2006). 1 The charges related t o Defendant’s application for and 6
receipt of several forms of public assistance benefits: Supplemental Security Income 7
(SSI), Social Security Disability Insurance (SSDI), Medicaid, and food stamps 8
(SNAP). Defendant invites us to reverse her convictions bas ed on her contentions 9
that the charges under Section 30

- 16

- 6 and Section 30

- 40

- 1 are either entirely 10
preempted by federal law or they are duplicative. Alternatively, Defendant seeks 11
remand for “a new and fair trial before a properly instructed jury.” We co nclude that 12
under these circumstances, convictions pursuant to both Section 30

- 16

- 6 (fraud) and 13

Section 30

- 40

- 1 (failure to disclose facts to obtain public assistance) impose multiple 14
unsanctioned punishments. We therefore affirm in part, reverse in part
, and remand 15

for the district court to vacate Defendant’s convictions under Section 30

- 40

- 1. 16

Otherwise, we affirm. 17

1 The 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.2 BACKGROUND 1

{ 2 } At the outset, we provide general background for SSI, SSDI, Medicaid, and 2
SNAP benefits. SSI “is a federal income maintenance program for the aged, blind, 3
or disabled” and eligibility is based on “need and a showing that the applicant’s 4
earning capacity is impaired by either age, blindness or other disability.” Sheets v. 5

Sheets , 1987

- NMCA

- 128, ¶ 15, 106 N.M. 451, 744 P.2d 924. To qualify, the 6
applicant must show income “below the statutory maximum” and awarded benefits 7
“are subject to periodic review.” Id. SSDI, however, is “an earned insurance 8
proceed” that is “directly related to the amount the insured has paid into the 9

program.” In re Marriage of Taber , 280 P.3d 234, 238 (Kan. Ct. App. 2012). A 10
person who has “previously worked and contributed to the prog ram by paying taxes 11
on earned income” is entitled to benefits if she subsequently “suffer[s] from a 12
physical or mental disability and [is] no longer able to work.” Id. Medicaid is a 13

“federal

- state program providing medical services to the needy.” Starko, I nc. v. 14
Gallegos , 2006

- NMCA

- 085, ¶ 2, 140 N.M. 136, 140 P.3d 1085. New Mexico has 15
adopted a “managed care system to provide cost

- efficient, preventive, primary and 16

acute care for m edicaid recipients.” NMSA 1978, § 27

- 2

- 12.6(A) (1994). The state 17

contracts wi th other entities, “which in turn provide health care to Medicaid 18
recipients.” Starko , 2006

- NMCA

- 085, ¶ 3. Last, SNAP is “a federal

- state program,” 19
8.139.100.9(A) NMAC, that is “designed to promote the general welfare and to 203 safeguard the health and well

- b eing of the nation’s population by raising the levels 1
of nutrition among low

- income households.” 8.139.100.11(A) NMAC. With this as 2
background, we turn to the facts of the present case. 3

{ 3 } The evidence at trial established that in 2012, Defendant submitte d an 4
application for and received SSI and SSDI benefits. Defendant reported either only 5
social security income or did not disclose a current employer. As a result of her SSI 6
application, Defendant additionally was determined to be eligible for Medicaid and 7
received Medicaid benefits. In late 2013, Defendant also applied for SNAP benefits 8
but reported no income or employment on those applications. Defendant, however, 9
had income and was working for Dollar Cab between 2 009 and 2012
, and again 10

between 2013 and 2017. 11

{ 4 } Defendant received SSDI, SSI, and Medicaid benefits between 2012 and 12
2017, and SNAP benefits between 2013 and 2017. Defendant, as a recipient of 13
benefits from each of these programs, was obligated to report any income or 14
employment changes to adm inistering agencies. Despite reapplications and notice 15
of her ongoing reporting obligations, Defendant did not report her Dollar Cab 16
income or employment during the period that she received benefits from each of the 17
programs. In 2018, Defendant was charged with multiple counts of fraud and failure 18
to disclose facts to obtain public assistance. The jury convicted Defendant on all 19
counts. Defendant appeals. 204 DISCUSSION 1

{ 5 } On appeal, Defendant argues that (1) the multiple convictions violate double 2
jeopardy, and (2) the district court improperly refused to instruct the jury on mistake 3

of fact. 2 We address each of these arguments in turn. 4

I. Double Jeopardy 5

{ 6 } Defendant contends that the jury’s seventeen convictions violate 6
constitutional double jeopardy protections. We review double jeopardy claims de 7

novo. State v. Bernal , 2006

- NMSC

- 050, ¶ 6, 140 N.M. 644, 146 P.3d 289. In the 8
context of the present case, doub le jeopardy protections prevent citizens from being 9
subject to multiple punishments. See id. ¶ 7. “ Multiple punishment problems can 10

arise from both ‘double

- description’ claims, in which a single act results in multiple 11

2 Defendant 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 Const itution. State v. Herrera
, 2014

- NMCA

- 003, ¶ 6, 315 P.3d 311 (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 an y argument that allows us to apply the law to the circumstances of this case without significant extrapolation. See Elane Photography, LLC v. Willock , 2013

- NMSC

- 040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively perfor ming the parties’ work for them

. . . [and creating] a substantial risk of error.” (citation omitted) ). Accordingly, we decline to address Defen dant’s preemption argument.5 charges under different criminal stat utes, and ‘unit

- of

- prosecution’ claims, in which 1
an individual is convicted of multiple violations of the same criminal statute.” Id. 2
Defendant raises both double description and unit of prosecution claims, but we 3
begin with a brief overview of the charges

. 4

{ 7 } The jury considered four counts of fraud and thirteen counts of public 5
assistance fraud (PA fraud). The following charts summarize the evidence at trial in 6
relation to the instructions for the charges: 7

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 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

, 328.006 { 8 } With this as background, we consider whether Defendant was subjected to 1
multiple punishments in violation of her double jeopardy rights, first if the fraud and 2
PA fraud convictions resulted from wrongful double description and second whether 3

the seventeen separate counts

— multiple convictions under the same statute

— are 4
unacceptable units of prosecution. 5

A. The Double Description Claim 6

{ 9 } To analyze a double description claim, we first consider “whether the conduct 7
underlying the offenses was unitary, i.e.
, whether the same conduct violates both 8
statutes,” and if the conduct is unitary, we proceed “to analyze whether the 9
[L]egislature intended to create separately punishable offenses.” State v. Gutierrez
, 10

2011

- NMSC

- 024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and 11
citation omitted). “ Only if the first part of the test is answered in the affirmative, and 12
the second in the negative, will the double jeopardy clause prohibit multiple 13
punishment in the same trial.” Swafford v. State , 1991

- NM SC

- 043, ¶ 25, 112 N.M. 14
3, 810 P.2d 1223. Defendant argues that the PA fraud convictions must be vacated, 15
because the same conduct supported those convictions that supported the fraud 16
convictions, and the Legislature “did not intend to punish both general f raud against 17
the government and [PA] fraud for unitary conduct.” The State responds that the jury 18
was clearly instructed on seventeen counts for “separate and distinct conduct,” 19
because the fraud instruction related to misrepresentation of a fact to differ ent 207 agencies during four

- year periods and the PA fraud instruction required a failure to 1
disclose a material fact to different agencies in single

- year periods. We agree with 2
Defendant and begin our analysis with whether the conduct in question was unitary. 3

1. Unitary Conduct 4

{ 10 } To determine whether conduct is unitary, we look to whether a defendant’s 5
acts are sufficiently distinct and “separated by time or space, looking to the quality 6
and nature of the acts, the objects and results involved, and the defe ndant’s mens 7

rea and goals during each act.” State v. Saiz , 2008

- NMSC

- 048, ¶ 30, 144 N.M. 663, 8

191 P.3d 521, abrogated on other grounds by State v. Belanger , 2009

- NMSC

- 025, 9
¶ 36 n.1, 146 N.M. 357, 210 P.3d 783. We also consider “the elements of the charged 10
offenses, the facts presented at trial, and the instructions given to the jury,” State v. 11

Sena , 2020

- NMSC

- 011, ¶ 46, 470 P.3d 227, and attempt to discern “an identifiable 12
point at which one of the charged crimes ha [ s ] been completed and the other not yet 13

committed.” State v. DeGraff , 2006

- NMSC

- 011, ¶ 27, 139 N.M. 211, 131 P.3d 61. 14
For the reasons that follow, we conclude that Defendant’s conduct supporting the 15
fraud charges and the PA fraud charges was unitary, because (1) the fraud was not 16
complete before the PA fraud was committed and the time and space for each 17
overlapped, (2) the quality and nature of the acts was the same, (3) the object and 18
results of the acts were the same, and (4) the mens rea for the fraud and the PA fraud 198 were the same. See Saiz
, 2008

- NMSC

- 048, ¶ 30. We begin our explanation with the 1

Medicaid Counts. 3 2

{ 11 } The fraud count associated with Medicaid, Count 1, related to acts between 3
January 1, 2013 and December 31, 2017
, which resulted in the wrongful receipt of 4

more than $2,500 in Medicaid benefits. The five Medicaid PA fraud counts related 5

to twelve

- month periods within roughly the same time period, July 1, 2012 through 6

December 31, 2017. The fraud count related to Medicaid is therefore not “separated 7
by time” but instead overlaps the Medicaid PA fraud counts. I d. The quality and 8
nature of the acts underlying Count 1, and Defendant’s mens rea, are the same as 9
those underlying the Medicaid PA fraud counts. In closing argument, t he State 10
explained that Count 1, for Medicaid fraud, resulted in a total of $16,517.83 benefits 11
to which Defendant was not entitled and pointed to State’s E xhibits J

- 1, J

- 2, and J

12
3, which represented the total overpaid Medicaid benefits. The Medicaid PA f raud 13
counts represent the failure to disclose information in order to obtain the same 14

benefits for individual twelve

- month periods between 2012 (six months before the 15
fraud date range) and June 30, 2017 (the same year the fraud charge was completed). 16

The s ame E xhibits, J

- 1 through J

- 3, used to calculate the $16,517.83 for Count 1, 17
also provided the year

- by

- year totals for the amounts of benefits obtained for Counts 18

3 Because the SSDI fraud count, Count 12, has no corresponding PA fraud counts, we do not evaluate Count 12 for double description problems.9 2 through 6, the five Medicaid PA fraud charges. The Medicaid Counts all achieved 1

the same re sults

— the same benefits. See id. No more than $16,517.83 in Medicaid 2
benefits were overpaid in the time between January 1, 2013 and December 31, 2017. 3

With the same time, intent, acts, and results, the Medicaid fraud and Medicaid PA 4
fraud counts in the pre sent case encompass unitary conduct. See id. 5

{ 12 } The SSI Counts were charged with slightly different time frames. The SSI 6
fraud charge, Count 7, runs from June 1, 2012 through June 30, 2017. The first SSI 7
PA fraud charge, Count 8, does not begin to run un til July 1, 2013

— almost a year 8
after the SSI fraud count begins. As a result, during the SSI fraud charge time frame, 9

Defendant received a little over $1,500 in SSI benefits that were not associated with 10
any SSI PA fraud counts. That amount, however, does not meet the statutory 11

minimum for third degree fraud as charged, because it is less than $2,500. See § 30

- 12

16

- 6(E). The overpayment of benefits associated with SSI fraud, Count 7, did not 13
exceed $2,500 until the PA fraud charging period began, and the amounts of benefits 14
and time periods attributable to both Count s 7 and 8 overlapped. Thus, despite the 15
period of time in which the benefits did not overlap, Count 7 was ongoing at the time 16
Count 8 began and, like the Medicaid fraud count, overlapped the PA fraud time 17
periods. The conduct charged for the SSI Counts was therefore unitary, like the 18
Medicaid Counts, because the time periods were the same, the quality and nature of 19

the a cts (submitting the applications) was the same, the objects and results (the 2010 benefits obtained) were the same, and the mens rea was the same. See Saiz
, 2008

- 1

NMSC

- 048, ¶ 30. 2

{ 13 } The time periods and benefits for Count 13 (SNAP fraud) and Counts 14 3
through 17 (SNAP PA fraud) overlap completely, and again, the acts, benefits 4
obtained, and mens rea are the same. The conduct for those counts is also unitary. 5
The State argues that the conduct is not unitary because it presented evidence that 6

Defendant submitted multiple renewal documents with misrepresentations or 7
omissions related to income and employment. This evidence, however, does not 8
distinguish the Medicaid, SSI, and SNAP fraud counts on the one hand from the 9
corresponding PA fraud counts on the other. Eac h fraud count (1) covered essentially 10
the same time period as the individual PA fraud counts, (2) involved the same acts 11
as the PA fraud counts, (3) obtained the same benefits as the PA fraud counts, and 12
( 4 ) was performed with the same mens rea. See id

. Th e conduct was unitary, we 13
therefore consider whether the Legislature intended for multiple punishments under 14

Section 30

- 16

- 6 and Section 30

- 40

- 1. See Swafford , 1991

- NMSC

- 043, ¶ 25. 15

2. Legislative Intent 16

{ 14 } The Legislature has not expressly authorized multiple punishments for fraud 17
and PA fraud, and so we apply the test outlined in Blockburger v. United States , 284 18
U.S. 299 (1932)
, in order to determine whether such Legislative intent can be 19

inferred. See Gut ierrez , 2011

- NMSC

- 024, ¶ 55. In this analysis
, we look to the 2011 “distinct statutory provisions

. . . to determine

. . . whether each provision requires 1
proof of a fact which the other does not.” Id. ¶ 56 (internal quotation marks and 2
citation omitted). When “the Blockburger test establishes that one statute is 3
subsumed within the other, the inquiry is over and the statutes are the same for 4
double jeopardy purposes

— punishment cannot be had for both.” Id. (internal 5
quotation marks and citation omitted). If a statute is “multi

- purposed and written 6
with many alternatives, or is vague and unspecific,” we apply t he Blockburger test 7
with “reference to the [s]tate’s legal theory of the case.” Gutierrez , 2011

- NMSC

8
024, ¶ 59 (emphasis, internal quotation marks, and citation omitted). “The reason for 9
this approach is that a statute that serves several purposes and has been written in 10
the alternative may have many meanings and a wide range of deterrent possibilities.” 11

Id. ¶ 58 (internal quotation marks and citation omitted). 12

{ 15 } The fraud statute is a vague and unspecific statute. Section 30

- 16

- 6(A) defines 13

“fraud” as “ the intentional misappropriation or taking of anything of value that 14
belongs to another by means of fraudulent conduct, practices or representations.” 15
Our Supreme Court has explained that ambiguous phrases like “anything of value” 16
render a statute “vague a nd unspecific.” Gutierrez , 2011

- NMSC

- 024, ¶ 59. As a 17
result, we must “ascertain the operation and deterrent purposes of such statutes for 18
double jeopardy purposes by determining the elements

— the legal theory

— that 19

constitute the criminal causes of action in the case at hand.” I d. (internal quotation 2012 marks and citation omitted). Having already laid out the statutory requirements for 1
fraud, we consider the requirements for PA fraud. 2

{ 16 } Section 30

- 40

- 1(A) defines PA fraud as follows: 3

[K] nowingly failing to d isclose a material fact known to be necessary 4 to determine eligibility for public assistance or knowingly failing to 5 disclose a change in circumstances for the purpose of obtaining or 6 continuing to receive public assistance to which the person is not 7 entit led or in amounts greater than that to which the person is entitled. 8
The classifications of the crime are defined by the value of the public assistance 9
wrongfully received. See § 30

- 40

- 1(B )

- ( F) (ranging from petty misdemeanor to 10
second degree felony based on the value of public assistance received). Similarly, 11
fraud is classified by the value of the property misappropriated, see § 30

- 16

- 6(B )

- 12
( G), and further requires that the victim rely on the misrepresentation. See UJI 14

- 13

1640 NMRA. We consider the requi rements of both crimes more closely as they 14

relate to each other. 15

{ 17 } To commit PA fraud, an individual must first knowingly either (1) fail to 16
disclose a material fact necessary to determine eligibility, or (2) fail to disclose a 17
change in circumstances. See § 30

- 40

- 1(A). Either of those PA fraud elements 18
satisfies the general fraud requirement that the individual act by “means of 19
fraudulent conduct, practices or representations.” Section 30

- 16

- 6(A). Next, for PA 20
fraud, the facts must be withheld “for the pur pose of obtaining or continuing to 21
receive public assistance to which the person is not entitled or in amounts greater 2213 than that to which the person is entitled.” Section 30

- 40

- 1(A). This PA fraud element 1
satisfies two additional general fraud requirements . First, the nondisclosure must be 2
for the purpose of obtaining benefits to which the person is not entitled, see § 30

- 40

- 3
1(A), indicating that the benefits would not be dispersed if the disclosure had been 4
made. Put another way, the government agency must have relied on the 5
nondisclosure to disperse the benefits. See UJI 14

- 1640 (requiring reliance for 6
fraud). Second, because the facts were not disclosed in order to obtain benefits to 7
which the person was not entitled, the withholding of the facts is an “i ntentional 8
misappropriation or taking of anything of value that belongs to another.” Section 30

- 9

16

- 6(A). 10

{ 18 } Both statutes further require, in the context of the State’s theory in the present 11
case, that Defendant “obtained” the same benefits. By their lan guage, the statutes 12
appear to have different requirements: fraud requires only that the defendant obtain 13
generally “ anything of value,” § 30

- 16

- 6(A), while PA fraud requires that the 14
defendant “obtain public assistance.” Section 30

- 40

- 1(A). Because, howeve r, fraud 15
is a “vague and unspecific” statute, in order to determine whether these are the same 16
or different requirements, we must return to the State’s theory of the case. Gutierrez
, 17

2011

- NMSC

- 024, ¶ 59. The four fraud convictions (Counts 1, 7, 12, and 13) required 18
proof of the taking of public assistance benefits

— the same public assistance that 19
formed the basis for the PA fraud charges. Thus, the PA fraud convictions are 2014 subsumed within the fraud convictions
, and “punishment cannot be had for both.” 1

I d. ¶ 56 (internal quotation marks and citation omitted) . The PA fraud convictions 2

must therefore be vacated. 3

B. Unit of Prosecution 4

{ 19 } Defendant additionally argues that the four fraud convictions 4 also violate 5
double jeopardy based on multiple units of prosecution. For a unit of prosecution 6
claim, we first “review the statutory language for guidance on the unit of 7
prosecution,” and if the statutory language does not spell out the unit of prosecutio n, 8

“then we move to the second step, in which we determine whether a defendant’s acts 9
are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments 10

under the same statute.” Bernal , 2006

- NMSC

- 050, ¶ 14. As to the first step, the frau d 11
statute “does not clearly define its unit of prosecution.” State v. Boergadine , 2005

- 12

NMCA

- 028, ¶ 20, 137 N.M. 92, 107 P.3d 532. We therefore turn to Defendant’s 13
argument that “the conduct underlying the fraud convictions lack these indicia of 14

distinctnes s.” 15

{ 20 } To evaluate “distinctness,” the parties do not dispute that we apply the factors 16

set forth in Herron v. State , 1991

- NMSC

- 012, ¶ 15, 111 N.M. 357, 805 P.2d 624, 17
including “(1) temporal proximity of the acts; (2) location of the victim(s) during 18

4 Because 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.15 ea ch act; (3) existence of an intervening event; (4) sequencing of acts; (5) [the] 1
defendant’s intent as evidenced by his [ or her] conduct and utterances; and (6) the 2

number of victims.” Boergadine , 2005

- NMCA

- 028, ¶ 21 (internal quotation marks 3
and citation omitted). We may additionally consider whether a defendant’s acts 4
“were performed independently of the other acts in an entirely different manner, or 5

whether such acts were of a different nature.” Id. (inte rnal quotation marks and 6
citation omitted). In the context of a particular case, some factors are not useful in 7
application. Id. ¶ 23. For example, the second and fourth factors are particularly 8

relevant to sexual assault cases, but are not tailored to eve ry offense. Id. Defendant 9

contends that she withheld the same information from the same victim

— which she 10

defines as “the United States”

— and that these actions happened “at the same times 11
for each of the programs, with the same intent, conduct and utterance s.” We evaluate 12

the Herron factors and conclude that they support the four separate charges under 13
these circumstances. We begin by addressing Counts 7, 12, and 13. 14

{ 21 } Counts 7, 12, and 13, related to SSI, SSDI, and SNAP benefits, are separated 15

from each other in time, the first Herron factor. The SSI and SSDI applications 16
relevant to the charging period were submitted on the same day, May 7, 2012, but 17
the applications were submitted at different times of day. The SSDI application 18
indicates submission at just after 9:00 a.m. and the SSI application was submitted at 19
nearly 2:00 p.m. , hours later. The trial exhibits further demonstrate that the SNAP 2016 applications were submitted on entirely different dates than the SSI and SSDI 1
applications: September 29, 2013, November 26, 2013, November 25, 2014, 2
September 17, 2015, and October 28, 2016. More than a year separated the first 3
SNAP applications from the SSI and SSDI applications. See Boergadine , 2005

- 4

NMCA

- 028, ¶ 22 (“ The greater the interval between acts the greater the likelihood 5
of separate offenses.” (alteration , internal quotation marks, and citation omitted))

. 6
The time intervals between the different applications are all different, but the 7
separations in time neve rtheless demonstrate distinct acts by Defendant. 8

{ 22 } These three counts

— for SSI, SSDI, and SNAP

— are also distinguished by 9
Defendant’s intent, manner of committing the fraud, and the number of victims. See 10

id. ¶ 21 (outlining these unit of prosecution considerations). All three applications 11
were for different benefits, indicating Defendant’s separate intents to obtain different 12

benefits. See id. ¶ 25 (noting that separate requests for money for different purpos es, 13
accompanied by “various assurances and justifications” supported separate intents 14
to defraud). Defendant committed the frauds in a different manner, because the three 15
benefits programs involved different qualifying criteria and imposed separate 16
require ments on Defendant. See id. ¶ 21 (“ We may also consider whether [the 17
d]efendant’s acts were performed independently of the other acts in an entirely 18
different manner.” (internal quotation marks and citation omitted)). For example, the 19
Social Security Admin istration communicated with Defendant separately about SSI 2017 and SSDI benefits, which caused Defendant to engage in different renewal processes 1
for the two benefits programs. SNAP involved yet a different renewal process. The 2
manner of committing each fraud was therefore different against three separate 3
programs, and three separate programs gave Defendant benefits as a result of her 4
applications and her failures to report income and employment. See id. ¶ 27 5
(“ [M]ultiple victims will likely give rise to multip le offenses.” (internal quotation 6
marks and citation omitted) ). The conduct for Counts 7, 12, and 13 was distinct and 7
supported separate fraud charges. 8

{ 23 } We separately consider whether Count s 1 and 7 were sufficiently distinct, 9
because at trial, a speci al agent with the Office of the Inspector General for the Social 10
Security Administration testified that a successful application for SSI automatically 11
qualifies a person to receive Medicaid benefits. This raises the question of whether 12

Defendant’s actions in obtaining Medicaid (Count 1) were sufficiently distinct from 13
her actions in obtaining SSI benefits (Count 7). 14

{ 24 } We turn again to those Herron factors that are relevant to determine the 15
distinctness of the fraud charges. Defendant’s act of applying f or Medicaid was 16
simultaneous with the act of applying for SSI benefits. The conduct is therefore not 17
temporally distinct. See Boergadine , 2005

- NMCA

- 028, ¶ 21. Defendant, however, 18

received different Medicaid and SSI benefits, which shows a different manner of 19
committing an independent fraud. See id. We explain. The Medicaid billing records 2018 indicate that Defendant received coverage for many individual medic al needs

— 1
prescriptions, doctor visits

— for many years after the Social Security Administration 2
forwarded the approved SSI application to the state for Medicaid approval. Those 3
medical benefits received and accepted by Defendant when she sought medical care, 4
show “acts of a different nature” than receiving SSI needs

- based monthly financial 5
assistance in the form of a payment. Id. (internal quotation marks and citation 6
omitted)

. 7

{ 25 } Defendant further demonstrated distinct intent

— another Herron 8

consideration

— by her conduct because it is reasonable to infer that Defendant knew 9
she received Medicaid coverage, her extensive medical expenses were covered for a 10
period of five years, and in July 2012 Defendant was explicitly informed that her 11
Medicaid eligibility wa s dependent on her income levels, SSI eligibility, and ability 12
to pay. Defendant received and accepted (1) health coverage and (2) monthly SSI 13
payments, with knowledge that she was working, had not reported the employment 14
or income, and eligibility for eac h of the benefits was income

- dependent. 15
Defendant’s acts and intent were directed at separate benefits programs, indicating 16
separate victims. See id. ¶ 27. The SSI benefits stemmed from a federal program, 17

and Defendant’s Medicaid benefits came from both fe deral and state agencies. 18
Although Defendant obtained separate benefits from a single application, the 19
remaining factors demonstrate that Defendant’s acts related to the ongoing receipt 2019 of Medicaid and SSI benefits were sufficiently distinct in intent, man ner of receipt, 1
and variety of victim s . As a result, the multiple convictions for fraud related to 2
Medicaid and SSI benefits do not violate double jeopardy. 3

II. Jury Instructions 4

{ 26 } Last, Defendant argues that the district court improperly refused to giv e the 5
jury a mistake of fact instruction. “The propriety of jury instructions is a mixed 6
question of law and fact,” which we review de novo. State v. Romero , 2005

- NMCA

7
060, ¶ 8, 137 N.M. 456, 112 P.3d 1 113. Defendant preserved the request for the 8
instruction, and so we consider whether the refusal to give the instruction was 9

reversible error. State v. Anderson , 2021

- NMCA

- 031, ¶ 14, 493 P.3d 434. The 10

failure to instruct is reversible error if the “ evidence at trial supports the giving of an 11
instruction on a defendant’s theory of the case.” State v. Contreras , 2007

- NMCA

12
119, ¶ 8, 142 N.M. 518, 167 P.3d 966 (internal quotation marks and citation 13
omitted). “When considering a defendant’s requested instructions, w e view the 14
evidence in the light most favorable to the giving of the requested instruction.” 15

Romero , 2005

- NMCA

- 060, ¶ 8. 16

{ 27 } A mistake of fact instruction permits the jury to find that the defendant 17
believed particular facts and requires the state to prov e that “the defendant did not 18

have an honest and reasonable belief in the existence of those facts at the time of the 19
alleged conduct.” UJI 14

- 5120 NMRA. The district court need not “offer duplicate 2020 instructions if the instructions given adequately apprise the jury of the controlling 1

law.” State v. Bunce , 1993

- NMSC

- 057, ¶ 8, 116 N.M. 284, 861 P.2d 965. 2
Specifically, the district court “need not give a mistake of fact instruction where the 3
intent element of the crime is adequately defined by the other instru ctions given.” 4

Id. ¶ 9. The question before us is whether fraud 5 instructions adequately define the 5
requisite intent. See i d. ¶ 10. 6

{ 28 } We conclude they do. The fraud instructions, which were modeled on the 7
uniform jury instruction and are not challenged on appeal, required the jury to find 8
that Defendant intended to deceive or cheat the Social Security Administration and 9

HSD. See State v. Hornbeck , 2008

- NMCA

- 039, ¶ 34, 143 N.M. 562, 178 P.3d 847 10
(noting the conviction for fraud required the jury to find the defendant 11
misrepresented a fact “with intent to deceive or cheat” ( citing UJI 14

- 1640 ))

. 12

Defendant’s mistake of fact theory was that s he mistakenly believed that by 13
separately reporting her income to HSD to satisfy a child support obligation, she 14
satisfied all of her reporting obligations

. The jury heard evidence that Defendant 15
believed she had appropriately reported. If the jury believe d that Defendant 16
mistakenly did not report specifically to HSD or the Social Security Administration, 17
the jury could not have convicted Defendant for fraud because the requisite intent to 18

5 Because we have concluded the PA fraud convictions must be vacated, we do not address whether the PA fraud instructions adequately defined the requisite intent.21 “deceive or cheat” would have been absent. Thus, the fraud instructi on adequately 1
apprised the jury of the intent element of the crime and allowed it to consider 2
Defendant’s theory, and the district court did not err by refusing to give Defendant’s 3
requested instruction. 4

CONCLUSION 5

{ 29 } For the reasons stated herein, we affirm in part
, reverse in part
, and remand 6

for the district court to vacate Defendant’s convictions for violation of Section 30

- 7

40

- 1. 8

{ 30 } IT IS SO ORDERED. 9

_________________________________ 10 KATHERINE A. WRAY , Judge 11

WE CONCUR: 12

___ ______________________________ 13 JACQUELINE R. MEDINA , Judge 14

_________________________________ 15 ZACHARY A. IVES , Judge 16