People v. Nix, No. 00CA0053

• Citation: 42 P.3d 41
• Decision Date: 10 May 2001
• Docket Number: No. 00CA0222., No. 00CA0053
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raymond S. NIX, a/k/a Raymond Scott Nix, a/k/a Raymond Nix, Defendant-Appellant.
• Court: Court of Appeals of Colorado

42 P.3d 41

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raymond S. NIX, a/k/a Raymond Scott Nix, a/k/a Raymond Nix, Defendant-Appellant.

Nos. 00CA0053, 00CA0222.

Colorado Court of Appeals, Div. V.

May 10, 2001.

Rehearing Denied January 17, 2002.

Ken Salazar, Attorney General, Barbara Askenazi, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Robert P. Borquez, Aurora, CO, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant Raymond S. Nix, appeals the judgment of conviction entered in consolidated cases upon a jury verdict finding him guilty of seven counts of theft by deception for fraudulently obtaining food stamps and Section 8 housing benefits. We reverse.

Testimony presented on behalf of defendant showed the following. Defendant rented an apartment in Fort Collins (Larimer County), where he lived with his son. Every day, he and his son drove to Greeley (Weld County) where his girlfriend, his son's mother, lived with his other son and his stepson. Defendant did this so that his son could attend a better school with his brothers and so that his son could spend time with his brothers. During the day, he watched the three children before and after school while his girlfriend attended school. This arrangement allowed the children to spend more time with their father, while allowing defendant's girlfriend to attend school without having to pay for day care. Defendant and his son returned to Fort Collins at night. However, three or four nights a week, defendant's son stayed overnight in Greeley because of the long commute, and two or three nights a week defendant also stayed overnight.

In contrast, the prosecution's evidence showed that defendant and his son resided most of the time in Greeley, with only occasional stays at their Section 8 housing in Fort Collins.

Defendant received food stamp benefits from the Larimer County Department of Human Services (department). The applicable regulations required that, to be eligible for this program, defendant must live or maintain a residence in Larimer County. Defendant also received Section 8 housing benefits from the Fort Collins Housing Authority, for which it was required that his apartment be his "principal place of residence."

An investigation by the department revealed that defendant spent his days in Weld County, that his son went to school in Greeley, and that he used all of his food stamps in Greeley. The department concluded that he did not actually live in Larimer County, but that he lived with his girlfriend in Greeley. Because the department concluded that he did not actually live in Larimer County, it determined that he was receiving food stamp and housing benefits to which he was not entitled. It is undisputed that defendant was not receiving housing or food stamp benefits from Weld County and that he separately purchased and prepared food for himself and his son in Weld County using his own food stamps.

Based on this information, defendant was charged with five counts of theft by deception for unlawfully taking food stamp benefits from the Larimer County Department of Human Services; and in a separate case, he was charged with four counts of theft for unlawfully taking additional Section 8 housing benefits from the Fort Collins Housing Authority. The two cases were consolidated before trial.

After a three-day jury trial, defendant was convicted of seven counts of theft by deception.

I. Section 8 Housing

Defendant first contends that the trial court violated his constitutional due process rights because the term "principal residence" was not sufficiently defined by the Fort Collins Housing Authority, and therefore that term, as applied to him with respect to the Section 8 housing benefits, was unconstitutionally vague. We agree.

Initially, we reject the prosecution's argument that defendant is barred from raising this issue on appeal because he failed to raise it at trial. Defendant raised this issue in his pro se motion for a new trial. Thus, it is properly before this court.

Principles of statutory construction apply to administrative regulations. Regular Route Common Carrier Conference v. Public Utilities Commission, 761 P.2d 737 (Colo. 1988).

A regulation is not void for vagueness if it is sufficiently specific to apprise persons of ordinary intelligence of the particular conduct that will subject them to liability. Colorado Civil Rights Commission v. Travelers Insurance Co., 759 P.2d 1358 (Colo.1988). A statute or regulation may be unconstitutionally vague as applied in particular circumstances. See Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

Statutory or regulatory terms need not be defined with mathematical precision. Rather, the language must be sufficiently specific to give fair warning of the prohibited conduct. Davis v. State Board of Psychologist Examiners, 791 P.2d 1198 (Colo.App. 1989).

Words and phrases used in statutes are to be considered in their generally accepted meaning, and the court has a duty to construe a statute so that it is not void for vagueness, if a reasonable and practical construction can be given to its language. Colorado State Board of Medical Examiners v. Hoffner, 832 P.2d 1062 (Colo.App.1992).

To prove theft under § 18-4-401(1), C.R.S. 2000, the prosecution must prove beyond a reasonable doubt that, among other things, the defendant knowingly obtained anything of value that was the property of another. Thus, the prosecution here was required to establish, among other things, that defendant took the Section 8 housing benefits knowing that he was not entitled to them.

Accordingly, the prosecution sought to prove that defendant's principal residence was not in Larimer County, rendering his receipt of benefits from the Fort Collins Housing Authority unlawful.

Here, defendant signed a Certificate of Family Participation, which provided, "The Family must: . . . Use the dwelling unit solely for residence by the Family, and as the Family's principal place of residence." (emphasis added) Furthermore, he signed an addendum to the lease agreement and Housing Assistance Payments Contract certifying that "the house or apartment will be my principal residence and that I will not obtain duplicate Federal housing assistance while I am in this current program. I will not live anywhere else without notifying the Housing Authority immediately in writing." (emphasis added)

Significantly, however, these documents did not define the term "principal residence." Further, an occupancy specialist from the Fort Collins Housing Authority testified that the term "principal residence" was not defined in federal regulations or in the housing authority's administrative plan. Rather, she stated that the determination of whether a particular property is a person's principal residence was left to the judgment of the caseworker. She further testified that caseworkers generally do not explain to applicants how much time they need to spend in an apartment for it to be considered their principal residence.

In addition, applicants are required to sign a statement called "Responsibilities as a participant in the Section 8 certificate/voucher programs," which lists various ways assistance may be terminated. The occupancy specialist testified...