County District Court No. 14CR552 Honorable Andrew R.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield,
Colorado, for Defendant-Appellant
1 Defendant, Fredrick Leroy Allman, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
eight counts of identity theft pursuant to section
18-5-902(1)(a), C.R.S. 2016. He also appeals a number of
sentencing issues. We affirm.
2 In the summer of 2013, Allman met the victim, an elderly
widower, at a social event. Using the alias "John
Taylor, " Allman presented himself to the victim as a
businessman who had recently moved from Washington to
Colorado. At some point, upon establishing a rapport with the
victim, Allman asked him if he could temporarily live in the
victim's basement while he adjusted to life in Colorado.
The victim agreed.
3 Although Allman's tenancy was initially intended to be
a temporary stay, it evolved into a semipermanent one. In
total, Allman lived with the victim for approximately five
months and, during the course of that time, he ingratiated
himself with the victim and gained the victim's trust.
4 In December 2013, the victim left for a planned vacation in
Australia. Immediately after the victim's departure,
Allman gained access to the victim's bank accounts and
stole money from them. Allman also opened several credit
cards in the victim's name. And, by the time the victim
returned to Colorado five weeks later, Allman had moved out
of his home, taken the victim's car, and obtained over
$40, 000 of credit in the victim's name. Moreover,
because Allman had been using an alias, police officers were
initially unable to determine his whereabouts.
5 Eventually, on March 18, 2014, Allman was arrested while
attempting to purchase a new car with funds from an account
that the police had been monitoring. He was subsequently charged
with twelve felonies, including one count of theft of over
$500 from an at-risk adult (Count 1), one count of aggravated
motor vehicle theft (Count 3), eight counts of identity theft
(Counts 2, 4, 5, 6, 7, 8, 9, and 10), and two counts of
forgery (Counts 11 and 12).
6 A jury convicted Allman on all counts. Both at trial and at
sentencing, counsel for Allman objected to the eight counts
of identity theft, arguing that identity theft, as charged in
this case, constituted a continuing course of conduct of
stealing a single victim's identity and should therefore
merge into one conviction and sentence. The trial court
overruled these objections and imposed consecutive sentences
for Counts 1, 2, 3, 4, and 5, totaling fifteen years in the
custody of the Department of Corrections, concur rent prison
sentences for Counts 6, 7, 8, 9, 10, and 11, and a ten-year
sentence to probation for Count 12, which would run
consecutively to Allman's fifteen-year prison term, but
concurrently with his parole, with the option of early
termination if Allman paid the full amount of restitution
ordered by the court.
7 Allman's primary contention on appeal is that his
convictions for eight counts of identity theft under section
18-5-902(1)(a) are unconstitutionally multiplicitous because
identity theft is a continuing crime where, as here, he stole
the identity of only one victim. Thus, Allman argues, all
eight convictions for identity theft must merge into one
conviction for that offense. We disagree and conclude, as a
matter of first impression, that the crime of identity theft
under section 18-5-902(1)(a) is not a continuing course of
conduct and, therefore, each discrete act of identity theft
under that subsection is a separately chargeable offense.
Applicable Law and Standard of Review
8 "The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime." Woellhaf v.
People, 105 P.3d 209, 214 (Colo. 2005); see
also U.S. Const. amend V; Colo. Const. art II, §
18. The doctrine of multiplicity, which implicates Double
Jeopardy principles, prohibits a defendant from receiving
multiple punishments for a series of repeated acts that
occurred as a part of a continuing course of conduct. See
Woellhaf, 105 P.3d at 214-15, 220. However, the Double
Jeopardy Clauses "[do] not prevent the General Assembly
from [specifically authorizing] multiple punishments based
upon the same criminal conduct." Id. at 214.
Thus, where the General Assembly has not defined a crime as
continuous, a defendant may be punished for each separate
criminal act. See People v. McMinn, 2013 COA 94,
¶ 29 (noting that the doctrine of continuing crimes
applies only where the General Assembly has unmistakably
communicated its intent to create such an offense).
9 In order to determine whether a crime is a continuing
course of conduct, we apply the analysis articulated in
People v. Thoro Products Co., 70 P.3d 1188, 1192-93
(Colo. 2003) (discussing the doctrine of continuing offenses
in the context of statutes of limitations); see also
People v. Zadra, 2013 COA 140, ¶ 78 (holding that,
for Double Jeopardy purposes, a series of materially false
statements over a short period of time does not constitute a
single instance of perjury for which there can only be one
charge), aff'd, 2017 CO 18; McMinn,
¶¶ 28-29 (in the context of a Double Jeopardy
analysis, concluding that the offense of vehicular eluding is
not a continuing offense).
10 First, we consider "the explicit language of the
substantive criminal statute" and determine whether it
"compels" the conclusion that the offense is
continuing. People v. Johnson, 2013 COA 122, ¶
11. In reviewing the language of the statute, we "give
words their plain and ordinary meaning." Id. at
¶ 7; see also § 2-4-101, C.R.S. 2016 (In
construing a statute, "[w]ords and phrases shall be read
in context and construed according to the rules of grammar
and common usage."). "Where the statutory language
is clear and unambiguous, we do not resort to legislative
history or further rules of statutory construction."
Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186,
1189 (Colo. 2010).
11 Only if we conclude that the statutory text is ambiguous
do we proceed to the second step of the Thoro
analysis and examine the nature of the crime involved and
whether it "is such that the General Assembly 'must
assuredly have intended' [the offense] be treated as [a
continuing one]." See Thoro, 70 P.3d at 1193
(quoting Toussie v. United States, 397 U.S. 112, 115
(1970)); see also § 2-4-203, C.R.S. 2016
(detailing various aids in construction where a statute is
12 We review de novo a claim that multiplicitous convictions
violate a defendant's constitutional protection against
Double Jeopardy. McMinn, ¶ 18.
"Determining whether a particular violation of law
constitutes a continuing offense is primarily a question of
statutory interpretation, " People v. Lopez,
140 P.3d 106, 108 (Colo.App. 2005), and is, therefore, also
reviewed de novo, see Johnson, ¶ 7. However,
overlaying our inquiry is a strong presumption against
interpreting criminal offenses as continuing. Thoro,
70 P.3d at 1193 (citing Toussie, 397 U.S. at 115);
McMinn, ¶ 29 (perceiving no "unmistakable
intent" to create the offense of vehicular eluding as a
13 As pertinent here, a person is guilty of identity theft in
Colorado if he or she [k]nowingly uses the personal
identifying information, financial identifying information,
or financial device of another without permission or lawful
authority with the intent to obtain cash, credit, property,
services, or any other thing of value or to make a financial
payment. § 18-5-902(1)(a) (emphasis added). For the
reasons below, we conclude that the plain language of this
statute is unambiguous and indicates that the General
Assembly did not intend for this offense to be a continuing
14 In examining the plain language of section 18-5-902(1)(a),
we initially note that the word "uses" is not
defined anywhere in either the elemental identity theft
statute, see § 18-5-902, or in the general
definitional statute for identity theft and related offenses,
see § 18-5-901, C.R.S. 2016.
15 Relying on the rules of grammar, we first conclude that,
in the subsection at issue, the mens rea
"knowingly" describes the actus reus
"uses." Thus, in this context, the word
"uses" is a verb. Next, we consider the dictionary
definition of the verb "use." See §
2-4-102, C.R.S. 2016 ("The singular includes the plural,
and the plural includes the singular."); see also
People v. Fioco, 2014 COA 22, ¶ 19 ("[W]hen
construing statutory terms, '[w]e have frequently looked
to the dictionary for assistance in determining the plain and
ordinary meaning of words.'" (quoting People v.
Forgey, 770 P.2d 781, 783 (Colo. 1989))).
16 Black's Law Dictionary defines the verb
"use" as "[t]o employ for the accomplishment
of a purpose; to avail oneself of." Black's Law
Dictionary 1776 (10th ed. 2014); see also
Webster's Third New International Dictionary 2523 (2002)
(defining "use" similarly). In turn, the verb
"employ" is defined as "1. To make use of. 2.
To hire. 3. To use as an agent or substitute in transacting
business." Black's Law Dictionary 638 (10th ed.
2014) (emphasis omitted). We find these definitions
instructive, because each connotes a discrete action, as
opposed to a sustained or continuous one.
17 The verb "uses" in subsection (1)(a) describes
the object clause of the sentence, namely, "the personal
identifying information, financial identifying information,
or financial device of another." § 18-5-902(1)(a).
In that regard, the object clause does not describe
another's identity, as Allman argues, but