Crook v. ICAO

• Court: Colorado Court of Appeals
• Decided: March 12, 2026
• Docket: 25CA1631
• Status: Unpublished

Opinion

25CA1631 Crook v ICAO 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1631 Industrial Claim Appeals Office of the State of Colorado DD No. 13447-2025

Brenda Crook,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Alliance for Sustainable Energy, LLC,

Respondents.

ORDER AFFIRMED

Division I Opinion by JUDGE LUM J. Jones and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 12, 2026

Empower P.C., Christopher M.A. Lujan, Aurora, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Kristen Merrick, Golden, Colorado, for Respondent Alliance for Sustainable Energy, LLC ¶1 In this unemployment benefits case, Brenda Crook appeals an

order from the Industrial Claim Appeals Office (the Panel) denying

her claim for benefits. We affirm.

I. Background

¶2 Crook worked as a security officer for Alliance for Sustainable

Energy, LLC (Employer) until Employer discharged her. She then

applied for benefits. A deputy for the Division of Unemployment

Insurance determined that she was disqualified from receiving

benefits due to theft. Crook appealed that determination and a

hearing was scheduled, at which she and several Employer

representatives testified. The hearing officer affirmed the deputy’s

determination.

¶3 Crook appealed to the Panel, which set aside the hearing

officer’s decision and remanded for additional findings and a new

decision. The hearing officer issued a new decision but did not

change the disqualification determination. Crook appealed again,

and this time the Panel affirmed.

II. Standard of Review

¶4 Under section 8-74-107, C.R.S. 2025, we may not disturb

factual findings “supported by substantial evidence” and may only

1 set aside the Panel’s decision if (1) the Panel acted without or in

excess of its powers; (2) the decision was procured by fraud; (3) the

factual findings don’t support its decision; or (4) the decision is

erroneous as a matter of law. § 8-74-107(4), (6)(a)-(d). Substantial

evidence is “probative, credible, and competent, of a character

which would warrant a reasonable belief in the existence of facts

supporting a particular finding, without regard to the existence of

contradictory testimony or contrary inferences.” Rathburn v. Indus.

Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).

III. Applicable Law

¶5 Section 8-73-108(5)(e)(XI), C.R.S. 2025, provides for

disqualification from benefits for “theft.” As used in this statute,

“theft” means “the act of stealing; the wrongful taking and carrying

away of the personal goods or property of another; larceny.”

Jefferson Cnty. v. Kiser, 876 P.2d 122, 123 (Colo. App. 1994)

(citation omitted). When theft is the basis for disqualification, “the

employer must establish by a preponderance of the evidence the

mens rea required in theft or larceny cases.” Starr v. Indus. Claim

Appeals Off., 224 P.3d 1056, 1063 (Colo. App. 2009). Thus, an

employer must show that the claimant acted knowingly and with

2 the specific intent to permanently deprive the owner of the property

taken. Id. at 1059-60.

¶6 A fact finder may infer a culpable mental state based on

circumstantial evidence. See People v. Collie, 995 P.2d 765, 773

(Colo. App. 1999) (“Evidence of a defendant’s intent can ‘rarely be

proven other than by circumstantial or indirect evidence.’” (citation

omitted)); see also Div. of Emp. & Training v. Indus. Comm’n, 706

P.2d 433, 435 (Colo. App. 1985) (a culpable mental state may

ordinarily be inferred from circumstantial evidence).

IV. Proceedings below

¶7 The hearing officer found (and the Panel affirmed) that Crook

took a pair of AirPods from another employee’s desk while patrolling

the area on a Sunday when the employee was not present. The

hearing officer reviewed a video that shows Crook enter an

employee’s workstation, pick up an AirPod case, open it, and put it

in her pocket. The video then shows Crook looking in cabinets and

opening and shutting a sunglasses case. When asked about the

video, Crook testified that she was looking for the source of an

“alarm” or a “beeping noise.” No alarms can be heard during the

3 video, but the sound of Crook putting her water bottle down on the

desk is audible.

¶8 Crook testified that she had a migraine that day and

mistakenly picked up the AirPods, thinking they were hers. When

asked by the hearing officer why she did not call in sick due to the

migraine, Crook testified that they were short-staffed. The hearing

officer did not find credible Crook’s testimony that her migraine

made her believe that the AirPods were hers.

¶9 The hearing officer also heard testimony about another pair of

AirPods that were reported missing and listened to a corresponding

audio file of the call to the security department from the owner.

Crook admitted to picking up those AirPods from a common area

and then returning them.

¶ 10 An Employer representative testified that the IT department’s

workstation area was not normally a place where Crook would

work. Specifically, the representative testified that “typically she

would walk by the area on patrol, but she would not be standing in

the workstation.” Another Employer representative testified that,

after Crook was separated from employment, she threw a set of

AirPods at him, saying, “I’m returning these now.”

4 ¶ 11 After taking all the testimony and reviewing the record, the

hearing officer found that Crook “took the AirPods of another

employee and put them in her pocket. She looked through other

personal things in the desk area, and then walked away.” The

hearing officer also found that “there was no audible alarm she

seemed to be searching for.” Then, the hearing officer found that

she did not return the AirPods until she was asked to return all

company property after her separation. Accordingly, the hearing

officer concluded that Crook was terminated for theft and thus

disqualified from receiving benefits.

¶ 12 Crook appealed to the Panel, contending that the hearing

officer had not made sufficient findings to show that she

“specifically intended to deprive other employees of their AirPods.”

On review, the Panel repeated all of the hearing officer’s findings

and conclusions. The Panel also acknowledged that a fact finder

may infer a culpable mental state for theft based on circumstantial

evidence. But the Panel agreed that the hearing officer “failed to

determine whether [Crook] acted knowingly and with the specific

intent to permanently deprive the owner of the AirPods.” Since the

5 Panel “may not make factual findings,” the Panel remanded to the

hearing officer to do so. The Panel instructed as follows:

The hearing officer shall issue another decision which determines the claimant’s entitlement to benefits based on the reason or reasons for her separation from employment. In her sole discretion, the hearing officer may conduct another hearing session to permit the parties to present additional evidence.

¶ 13 The hearing officer did not hold another hearing but issued a

new decision. The hearing officer repeated her findings and

conclusions and added that “[b]ased on these findings and

conclusions, the hearing officer concludes that [Crook] acted

knowingly and with the intent to deprive the owner of the use or

benefit of the AirPods, and keep them for herself.”

¶ 14 Crook appealed to the Panel again, which affirmed. The Panel

repeated the hearing officer’s findings and conclusions and rejected

Crook’s argument that the hearing officer did not “cull the

evidentiary record to bolster her findings of fact to support her

conclusion.” The Panel concluded that it “was not persuaded the

hearing officer erred disqualifying [Crook] due to theft.”

6 V. Analysis

¶ 15 On appeal, Crook asserts that (1) she did not have the

requisite mens rea to commit theft; (2) the hearing officer should

have given more weight to testimony concerning Crook’s medical

condition; and (3) the hearing officer should have made more

findings on remand.1 We are not convinced.

¶ 16 First, based on our review of the record, including the video

and audio files, we conclude that the record provides sufficient

direct and circumstantial evidence that permitted the hearing

officer to find that Crook had the mens rea to commit theft. Crook

clearly looked around to see if anyone was watching, rifled through

several personal objects, and took the AirPods. The direct evidence

of the video was buttressed by the Employer representative’s

1 We note that in the opening brief, Crook (who is represented by

counsel) cites two unpublished opinions in support of her arguments: Albaugh v. Industrial Claim Appeals Office, (Colo. App. No. 24CA0248, Aug. 29, 2024) (not published pursuant to C.A.R. 35(e)), and Clark v. Colorado Department of Human Services, (Colo. App. No. 01CA1701, Jan. 30, 2003) (not published pursuant to C.A.R. 35(f)). We remind counsel of the court’s policy that parties are generally forbidden from citing unpublished opinions absent exceptions inapplicable here. See Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of Opinions Not Selected for Official Publication (2026), https://perma.cc/2XHD-NY3Z.

7 testimony that Crook’s regular duties did not include going through

someone’s personal items at a workstation in the IT department.

And as the hearing officer found, there were no sounds of alarms or

beeping during the video, directly refuting Crook’s testimony that

she was looking for the source of an alarm.

¶ 17 Next, Crook argues that the hearing officer failed to consider

her medical condition of frequent migraines. At the hearing, Crook

testified about an incident several years before when she had been

assaulted when trying to stop an intruder. According to Crook, she

has suffered from migraines since. Because she was suffering from

a migraine at the time she took the AirPods, she contends, she took

the AirPods by mistake.

¶ 18 But the hearing officer considered that testimony and found it

not credible, in part. Even if Crook was suffering from a migraine

at the time, she didn’t explain why a migraine would make her

think the AirPods were hers. Further, she did not check to see if

her own pair of AirPods were missing or try to pair the ones she

took with her phone. The hearing officer also noted that Crook

could have called in sick if she had a migraine so severe that she

would mistakenly take things. Given the record, we conclude the

8 hearing officer properly weighed and considered all the evidence,

including the possibility that Crook had a migraine during the

incident.

¶ 19 Crook’s remaining argument is that the hearing officer should

have made further findings on remand and that the Panel erred by

affirming rather than making its own findings. We reject that

contention for several reasons. First, in its remand order the Panel

said that the hearing officer “may conduct” another hearing, but it

was solely within her discretion as to whether any additional

evidence was needed. The hearing officer had already held two

hearings and extensively reviewed the audio and video evidence. It

is apparent that she used her discretion to determine that no

further evidence was necessary.

¶ 20 Second, the hearing officer, not the Panel, resolves conflicts in

the evidence. Mesa Cnty. Pub. Libr. Dist. v. Indus. Claim Appeals

Off., 2016 COA 96, ¶ 19. Nor may the Panel second-guess the

hearing officer’s credibility determinations. Sanchez v. Indus. Claim

Appeals Off., 2017 COA 71, ¶ 57. After thoroughly reviewing the

record, we, like the Panel, conclude that much of the determination

came down to credibility. Crook gave conflicting testimony when

9 describing the appearance of the case to her AirPods. Her

testimony that she was responding to alarms was completely

debunked by the video files which, with the sound on, had no

sound other than drawers opening and closing and her water bottle

being put on the counter. She also testified that she had attempted

to call in sick at one point, but there was no record of any call.

¶ 21 Accordingly, the hearing officer concluded, based on her

previous findings and conclusions, that Crook “acted knowingly and

with the intent to deprive the owner of the use or benefit of the

AirPods and keep them for herself.” We conclude that the Panel

appropriately deferred to the hearing officer’s credibility

determinations and resolution of conflicting evidence in reaching

that conclusion. And we conclude, as did the Panel, that there was

no error in the hearing officer’s determination that Crook is

disqualified from receiving benefits due to theft.

VI. Disposition

¶ 22 The Panel’s order is affirmed.

JUDGE J. JONES and JUDGE MEIRINK concur.