People v. Natasha Earnce Robinson

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 27, 2022
2022COA124No. 19CA1768, People v Robinson — Crimes — Insurance
Fraud; Constitutional Law — Fifth Amendment — Double
Jeopardy — Multiplicity
The defendant appeals her four convictions for insurance
fraud. She contends that, because those convictions are based on a
single insurance claim, they are multiplicitous in violation of double
jeopardy principles. She also contends that the district court
reversibly erred by allowing a detective to testify that he did not
think she was telling the truth when he spoke to her during his
investigation.
Although a division of the court of appeals disagrees with the
defendant on the evidentiary issue, it agrees that her insurance
fraud convictions must merge. It concludes that the insurance
fraud statute, the complaint and information filed by the
prosecution, and the evidence and argument presented at the
defendant’s trial all support the conclusion that her three
convictions for making false statements under section
18-5-211(1)(e), C.R.S. 2022, must merge into her one conviction for
insurance fraud under section 18-5-211(1)(b).
The division therefore affirms the judgment in part, reverses it
in part, and remands the case for further proceedings.
COLORADO COURT OF APPEALS 2022COA124Court of Appeals No. 19CA1768
Arapahoe County District Court No. 18CR263
Honorable Andrew C. Baum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Natasha Earnce Robinson,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE YUN
Fox and Tow, JJ., concur
Announced October 27, 2022
Philip J. Weiser, Attorney General, Trina K. Kissel, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Natasha Earnce Robinson appeals the judgment of conviction
entered on jury verdicts finding her guilty of four counts of
insurance fraud and one count of false reporting to authorities.1
She contends, among other things, that because her four
convictions for insurance fraud are based on a single insurance
claim, those convictions are multiplicitous in violation of double
jeopardy principles.
¶2 In resolving her appeal, we address an issue of first impression
in Colorado and hold that, when a defendant is convicted under
(1) section 18-5-211(1)(b), C.R.S. 2022, for one count of presenting
a fraudulent insurance claim, and (2) section 18-5-211(1)(e) for one
or more counts of making false statements in support of the same
insurance claim, the prohibition against double jeopardy and
multiplicity will generally require the conviction (or convictions)
under section 18-5-211(1)(e) to merge into the conviction under
section 18-5-211(1)(b).
1 Although the jury found Robinson guilty of the defense’s proposed
lesser nonincluded offense of false reporting to authorities, this
conviction does not appear on the district court’s sentencing order.
To the extent Robinson stands convicted of that offense, she does
not challenge that conviction on appeal.
1
¶3 In this case, the insurance fraud statute, the complaint and
information filed by the prosecution, and the evidence and
argument presented at Robinson’s trial all support the conclusion
that her three convictions for making false statements under
section 18-5-211(1)(e) must merge into her one conviction for
insurance fraud under section 18-5-211(1)(b). We therefore affirm
the judgment in part, reverse it in part, and remand the case to the
district court for further proceedings.
I. Background
¶4 According to the prosecution’s evidence and theory of guilt,
Robinson purchased a car but did not initially buy insurance
coverage for it. Two weeks later, Robinson’s boyfriend and cousin
were driving the uninsured car and knocked over a stop sign,
causing heavy damage to the car. Later that day, Robinson bought
insurance coverage for the car. A few days later, Robinson reported
to police that her car had been stolen and that it had no prior
damage. She also filed a claim for insurance coverage based on the
alleged theft. During two recorded telephone calls with her
insurance company, as well as one recorded telephone call with a
police detective, Robinson lied about her car being stolen and not
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knowing who took it. She repeated those lies in the affidavit she
submitted to her insurance company.
¶5 Following the trial, the jury found Robinson guilty of four
counts of insurance fraud and one count of false reporting to
authorities. As relevant here, the jury found Robinson guilty of
(1) presenting a fraudulent insurance claim in violation of
section 18-5-211(1)(b);
(2) making a false statement to an insurance company
representative on August 15, 2016, in violation of section
18-5-211(1)(e);
(3) making a false statement to an insurance company
representative on August 17, 2016, in violation of section
18-5-211(1)(e); and
(4) making a false statement in an affidavit submitted to the
insurance company on August 24, 2016, in violation of
section 18-5-211(1)(e).
The court then entered judgment of conviction and sentenced
Robinson to concurrent terms of three years’ probation.
¶6 Robinson now appeals.
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II. Multiplicity in Violation of Double Jeopardy
¶7 Robinson contends that her four convictions for insurance
fraud are multiplicitous in violation of double jeopardy principles
because they are based on a single insurance claim. We agree.
A. Standard of Review, Preservation, and
Standard of Reversal
¶8 Whether convictions must be merged because they are
multiplicitous in violation of double jeopardy principles is a
question of law that we review de novo. See Magana v. People, 2022
CO 25, ¶ 18.
¶9 The parties agree that this issue was unpreserved. But our
review of the record indicates it was preserved. See People v.
Tallent, 2021 CO 68, ¶ 11 (“[A]n appellate court has an
independent, affirmative duty to determine whether a claim is
preserved and what standard of review should apply, regardless of
the positions taken by the parties.”). At sentencing, Robinson’s
counsel told the court that “there’s a merger issue” with the four
insurance fraud convictions based on the essential elements of
those offenses. Counsel did not specifically request that the district
court merge the convictions, however, instead arguing only that
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“cumulative sentences” on those convictions would violate
Robinson’s double jeopardy rights. The court ruled,
I have thought about whether or not some of
the fraud claims are just simply different ways
of committing the same offense, but I believe
without having it right in front of me at this
very moment in time, I believe that there are
enough individual elements for each of the
offenses, that they are separate offenses.
However, I — I think that they should be
concurrent, the sentences.
(Emphasis added.)
¶ 10 The double jeopardy issue presented here is whether
Robinson’s multiple insurance fraud convictions are based on
“alternate ways of committing the same offense.” Woellhaf v.
People, 105 P.3d 209, 215 (Colo. 2005). The district court
addressed that very issue, concluding that the offenses are
“separate,” although it ultimately ruled that concurrent sentences
were appropriate. See Plemmons v. People, 2022 CO 45, ¶ 21
(concluding that the defendant’s arguments were sufficient for
preservation because they “allow[ed] the trial court a meaningful
chance to prevent or correct the error and create[d] a record for
appellate review.” (quoting Martinez v. People, 2015 CO 16, ¶ 14)).
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¶ 11 Even if the issue had not been preserved, however, the parties
appear to agree that if we find a double jeopardy violation here,
then reversal is warranted. Indeed, the People explicitly concede
that at least one of Robinson’s insurance fraud convictions should
be merged. Further, both parties cite cases supporting the
proposition that if an appellate court concludes that multiplicitous
convictions violate double jeopardy, reversal is warranted regardless
of preservation. See, e.g., People v. Gillis, 2020 COA 68, ¶ 26 (“‘In
the double jeopardy context, the answer [to whether plain error
occurred] would invariably be “yes”’ if the defendant was convicted
multiple times for the same conduct.”) (alteration in original)
(citation omitted); People v. Arzabala, 2012 COA 99, ¶ 19 (“Where a
reviewing court finds a double jeopardy violation, regardless of
whether the issue was raised in the trial court, the defendant is
entitled to appropriate relief on appeal.”); see also People v. Tillery,
231 P.3d 36, 47-48 (Colo. App. 2009) (analyzing the issue in detail
and arriving at the same conclusion), aff’d sub nom. People v.
Simon, 266 P.3d 1099 (Colo. 2011). But see People v. Thompson,
2018 COA 83, ¶¶ 38-50 (finding a double jeopardy violation but
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affirming the defendant’s convictions because the issue was
unpreserved), aff’d, 2020 CO 72.
B. General Law Regarding Units of Prosecution,
Multiplicity, and Double Jeopardy
¶ 12 Unless a statute expressly authorizes otherwise, the Double
Jeopardy Clauses of the United States and Colorado Constitutions
protect “against multiple punishments for the same offense.”
Woellhaf, 105 P.3d at 214 (quoting Whalen v. United States,
445 U.S. 684, 688 (1980)).
¶ 13 Multiplicity may implicate double jeopardy principles if a
statute creates “alternate ways of committing the same offense.” Id.
at 215. In these situations, whether multiple punishments are
permissible entails a determination of the legislatively prescribed
unit of prosecution. Id. The unit of prosecution is the way a
criminal statute permits a defendant’s conduct to be divided into
discrete acts for purposes of prosecuting multiple offenses. Id.
¶ 14 To determine the unit of prosecution for a particular offense,
we look exclusively to the statute defining the offense. Id. “In
construing a statute, our primary purpose is to ascertain and give
effect to the legislature’s intent.” McCoy v. People, 2019 CO 44,
7
¶ 37. To that end, we look first to the language of the statute,
giving its words and phrases their plain and ordinary meanings. Id.“We must also endeavor to effectuate the purpose of the legislative
scheme.” Id. at ¶ 38. “In doing so, we read that scheme as a whole,
giving consistent, harmonious, and sensible effect to all of its parts,
and we must avoid constructions that would render any words or
phrases superfluous or lead to illogical or absurd results.” Id.
¶ 15 After determining the statutory unit of prosecution, double
jeopardy analysis requires us to consider “whether the defendant’s
conduct constitutes factually distinct offenses, that is, whether the
conduct satisfies more than one defined unit of prosecution.”
Woellhaf, 105 P.3d at 219. Relevant factors in making that
determination include the time and location of the acts, the
defendant’s intent, whether the acts were the product of new
volitional departures, whether the acts were separated by
intervening events, and whether the People presented the acts as
legally separable. People v. Valera-Castillo, 2021 COA 91, ¶ 53.
C. Application
¶ 16 For three reasons, we conclude that Robinson’s four
convictions for insurance fraud are multiplicitous in violation of
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double jeopardy principles, and that her three convictions for
making false statements under section 18-5-211(1)(e) must merge
into her one conviction for insurance fraud under section
18-5-211(1)(b).
¶ 17 First, our interpretation of the statutory language and the way
the statute is constructed support that conclusion. The insurance
fraud statute states:
A person commits insurance fraud if the
person does any of the following:
(a) . . . ;
(b) With an intent to defraud presents or
causes to be presented any insurance claim,
which claim contains false material information
or withholds material information;
(c) . . . ;
(d) . . . ; or
(e) With an intent to defraud presents or
causes to be presented any written, verbal, or
digital material or statement as part of, in
support of or in opposition to, a claim for
payment or other benefit pursuant to an
insurance policy, knowing that the material or
statement contains false material information or
withholds material information.
§ 18-5-211(1)(a)-(e) (emphasis added).
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¶ 18 In a statute defining an offense, when “a number of acts are
joined as a disjunctive series, in a single sentence, without any
attempt to differentiate them by name or other organizational
device, a legislative intent to permit separate convictions and
sentences for each enumerated act is not so readily apparent.”
Friend v. People, 2018 CO 90, ¶ 16 (quoting People v. Abiodun,
111 P.3d 462, 466 (Colo. 2005)). “To the contrary, . . . ‘by joining
alternatives disjunctively in a single provision of the criminal code,
the legislature intended to describe alternate ways of committing a
single crime rather than to create separate offenses.’” Id. (quoting
Abiodun, 111 P.3d at 467).
¶ 19 Robinson’s conviction under section 18-5-211(1)(b) was based
on her presenting “an[] insurance claim” that contained false
material information. Her three convictions under section
18-5-211(1)(e) were based on her presenting three statements
containing false material information “in support of” the insurance
claim. At least under the circumstances here, Robinson’s false
statements under section 18-5-211(1)(e) were part and parcel of her
fraudulent insurance claim under section 18-5-211(1)(b). Accord
Perelman v. State, 981 P.2d 1199, 1200 (Nev. 1999) (“Although
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[Nevada’s insurance fraud statute] makes the filing of a false
statement a crime, the overall intent of the statute is to address the
filing of a false claim through the use of fraud, misrepresentations,
or false statements. Thus, when multiple false statements are
made in support of one claim, only one crime has been
committed.”); cf. Thompson, ¶¶ 38-50 (construing a similarly
constructed statute and concluding that the defendant’s security
fraud convictions were multiplicitous).
¶ 20 Further, our interpretation avoids potential absurd results.
See McBride v. People, 2022 CO 30, ¶ 23. Robinson’s three
convictions under section 18-5-211(1)(e) were based on two
telephone calls with her insurance company and an affidavit she
completed for the company. But what if the insurance company
had a more exhaustive process that involved more telephone calls
and more forms to fill out? All those countless communications
could lead to countless convictions under section 18-5-211(1)(e),
while still being based on only one insurance claim under section
18-5-211(1)(b). For this reason, among others explained in this
opinion, we reject the People’s argument that the only proper
remedy here would be to merge Robinson’s one conviction under
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section 18-5-211(1)(b) into her three convictions under section
18-5-211(1)(e).
¶ 21 Second, our conclusion is supported by the way the
prosecution charged this case. The charge for filing the false claim
under section 18-5-211(1)(b) listed the offense as having occurred
“[o]n or about and between August 11, 2016, and August 30, 2016.”
The charges under section 18-5-211(1)(e) for making the three false
statements in support of the claim listed those offenses as having
occurred on or about August 15, 17, and 24, 2016 — within the
timespan charged under section 18-5-211(1)(b).
¶ 22 In highlighting that, though, we are not suggesting that filing a
fraudulent insurance claim is a “continuing offense” like, for
example, a criminal conspiracy. See § 18-2-204(1), C.R.S. 2022.
As the supreme court explained in Woellhaf, a multiplicity issue
that arises from a statute providing for alternate ways of committing
the same offense — the issue before us here — is distinct from a
multiplicity issue that arises when a statute defines a crime as a
continuous course of conduct. See 105 P.3d at 214-15.
¶ 23 Third, our conclusion is supported by the way the prosecution
presented its case at trial. See Valera-Castillo, ¶ 53. Notably, the
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prosecutor began his closing argument by emphasizing that
Robinson made the same false statements “over and over again” on
“call after call” “[t]o get [insurance] coverage for her car.” The
prosecutor added that Robinson told the “same story” in her
affidavit.
¶ 24 In rebuttal closing, the prosecutor stayed the course, arguing
that Robinson’s repeated false statements to her insurance
company were intended to “affect” the insurance company’s
decision whether to cover her claim. Then, the prosecutor
concluded rebuttal closing — not by emphasizing how many counts
of insurance fraud Robinson was guilty of — but instead by simply
arguing, “Follow the tracks that Ms. Robinson tried to hide. Use
your common sense and find her guilty of insurance fraud . . . .”
¶ 25 For all these reasons, we conclude that the district court erred
by entering judgment of conviction and sentence on multiple counts
of insurance fraud, and we conclude that Robinson should stand
convicted of just one count of insurance fraud under section
18-5-211(1)(b).
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III. Evidentiary Issue
¶ 26 Robinson also contends that the district court reversibly erred
by allowing a detective to testify that he did not think Robinson was
telling the truth during a telephone call with him. We disagree.
A. Additional Facts
¶ 27 During a recorded telephone call, Robinson (1) initially told the
detective the same thing she had told her insurance company about
her car having been stolen after she mistakenly left the keys in it
overnight; (2) later admitted that it was her boyfriend and cousin
who had used the car; and (3) ultimately admitted that she made a
“false report” and “lied” to the insurance company.
¶ 28 At trial, during the detective’s testimony, the prosecutor
introduced and published a recording of that telephone call. After
publishing only a portion of it — how much is unclear — the
prosecutor paused the recording and engaged in the following
exchange with the detective:
Q. All right. So at this point in time when
Ms. Robinson is telling you that she has used
the car during the day on [August] 12th,
[2016,] on that Friday, and you also are in
receipt of this, you know, hit-and-run report
[involving the stop sign] that happened late at
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night on [August] 11th, what are you sort of
thinking is going on here?
A. At that point, she’s not telling the truth
about the hit-and-run — or the motor vehicle
theft [that occurred.]
The prosecutor then published the remainder of the telephone call.
B. Discussion
¶ 29 Robinson argues that the detective’s testimony that he did not
think she was telling the truth during the first portion of the call
violated the rule in Liggett v. People, 135 P.3d 725, 731-32 (Colo.
2006), that it is generally improper to ask a witness to comment on
the veracity of another witness with “were they lying” types of
questions.
¶ 30 The parties agree, as do we, that review of Robinson’s claim is
for plain error because defense counsel did not contemporaneously
object to the question or testimony at issue. See Campbell v.
People, 2020 CO 49, ¶ 25. A plain error is one that is obvious and
substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is
obvious if it contravenes a clear statutory command, a well-settled
legal principle, or Colorado case law. Campbell, ¶ 25. An error is
substantial, in turn, if it so undermines the fundamental fairness of
15
the trial itself as to cast serious doubt on the reliability of the
judgment of conviction. Hagos, ¶ 14.
¶ 31 We discern no plain error for three reasons.
¶ 32 First, the prosecutor did not ask the detective a “was she
lying” type of question. Rather, he simply asked the detective “what
[he was] thinking” at that point in the telephone call. Liggett was a
case of prosecutorial misconduct, but the prosecutor’s question
here was not improper.
¶ 33 Second, the detective’s testimony was not obviously improper
because it arguably fell within an exception to the Liggett rule —
namely, that a “law enforcement official[] may testify about [his]
perception of a witness’s credibility during an investigative
interview . . . when it is offered to provide context for the [official’s]
interrogation tactics and investigative decisions.” Davis v. People,
2013 CO 57, ¶ 1.
¶ 34 And third, the detective’s brief statement did not so undermine
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the conviction because, later during the very same
telephone call, Robinson admitted to the detective that she had
been lying earlier in the call.
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¶ 35 For these reasons, we conclude that the district court did not
plainly err by allowing the detective to testify that he did not think
Robinson was telling the truth during his telephone call with her.
IV. Conclusion
¶ 36 The judgment is affirmed in part and reversed in part.
Robinson’s insurance fraud conviction under section 18-5-211(1)(b)
is affirmed. Robinson’s three insurance fraud convictions under
section 18-5-211(1)(e) are reversed, and the case is remanded for
the district court to vacate those three convictions and sentences.
See People v. Wood, 2019 CO 7, ¶¶ 33-34 (there is no meaningful
distinction between “vacating” and “merging” multiplicitous
convictions).
JUDGE FOX and JUDGE TOW concur.
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