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

2022COA124

No. 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 2022COA124

Court 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.

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¶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,

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¶ 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

11
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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