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People v. Allman

Court of Appeals of Colorado, Fifth Division

August 10, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Fredrick Leroy Allman, Defendant-Appellant.

         Boulder County District Court No. 14CR552 Honorable Andrew R. Macdonald, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          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.

         I. Background

         ¶ 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.[1] 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.

         II. Identity Theft

         ¶ 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.

         A. 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 ambiguous).

         ¶ 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 continuing crime).

         B. Analysis

         ¶ 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 crime.

         ¶ 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 ...

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