COLORADO COURT OF APPEALS                                         2017COA108


Court of Appeals No. 15CA1235
Boulder County District Court No. 14CR552
Honorable Andrew R. Macdonald, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Fredrick Leroy Allman,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                    Division V
                         Opinion by CHIEF JUDGE LOEB
                       Davidson* and Casebolt*, JJ., concur

                           Announced August 10, 2017


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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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.


                                   1
 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,


 1 At the time of his arrest, Allman had in his possession copies of
 the victim’s personal password lists and identifying information, as
 well as personal and financial information belonging to other senior
 citizens Allman had come to know in Colorado. It was later
 determined that Allman was also wanted on an outstanding
 warrant in Oregon for conduct similar to that in this case.

                                     2
 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, concurrent

 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




                                   3
 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).


                                    4
¶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


                                    5
  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,




                                    6
  ¶ 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


                                      7
  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.”


                                     8
  § 18-5-902(1)(a). In that regard, the object clause does not describe

  another’s identity, as Allman argues, but another’s personal

  belongings, which are means of authenticating one’s identity.

¶ 18   In addition, the final verb clause of subsection (1)(a) describes

  the crime of identity theft as including the unauthorized use of

  another’s belongings “to make a financial payment.” Id. (emphasis

  added). Here, too, the statute describes a singular act, as opposed

  to a continuing course of conduct. In our view, the use of another’s

  personal or financial information to make a single financial

  payment supports the conclusion that subsection (1)(a) does not

  describe a continuing course of conduct.

¶ 19   Allman’s reliance on People v. Pérez, 129 P.3d 1090, 1092-93

  (Colo. App. 2005), in which a division of this court held that the

  crime of criminal impersonation was a continuing offense, is

  misplaced. To commit the crime of impersonation, one must

  “knowingly . . . assume[] a false or fictitious identity.” § 18-5-

  113(1), C.R.S. 2016 (emphasis added). In contrast, to commit the

  crime of identity theft under section 18-5-902(1)(a), one must

  “knowingly use[] the personal identifying information, financial

  identifying information, or financial device of another.” The


                                     9
  difference in language is significant, and, in our view, assuming a

  person’s identity is not the same actus reus as using, for example,

  someone’s credit card or other financial device, notwithstanding

  that both offenses are a species of fraud.

¶ 20   Finally, the crime of identity theft under section 18-5-902(1)(b)

  may well constitute a continuing offense, although we need not

  resolve that issue. Under subsection (1)(b), a person commits

  identity theft through the unauthorized possession of another’s

  information or financial device with the intent to use it for some

  benefit in the future. Crimes of possession have typically been

  viewed as continuing. See, e.g., People v. Zuniga, 80 P.3d 965, 968-

  70 (Colo. App. 2003) (concluding that theft by receiving is a

  continuing crime because “retaining” is akin to “possession,” which

  “connotes something other than mere momentary possession”). To

  read the language “uses the personal identifying information,

  financial identifying information, or financial device of another

  without permission or lawful authority,” § 18-5-902(1)(a), as

  describing a continuing course of conduct that encompasses both

  active use and inactive possession would potentially render

  subsection (1)(b) superfluous. See St. Vrain Valley Sch. Dist. RE-1J


                                    10
  v. A.R.L., 2014 CO 33, ¶ 23 (“In interpreting a statute, whenever

  possible, we give each word independent effect so that no word is

  rendered superfluous.”).

¶ 21   In sum, we conclude that, according to the plain meaning of

  “uses” in section 18-5-902(1)(a), the General Assembly has

  authorized punishment for each discrete, unauthorized use of a

  victim’s “personal identifying information, financial identifying

  information, or financial device,” with the intent to obtain some

  benefit “or to make a financial payment.” See § 18-5-902(1)(a).

  Therefore, the crime of identity theft under subsection (1)(a) is not a

  continuing offense for purposes of Double Jeopardy. Rather, the

  offense is committed on each occasion where “all of the [statutory]

  elements are complete,” People v. Flagg, 18 P.3d 792, 794 (Colo.

  App. 2000) (quoting People v. Bastian, 981 P.2d 203, 205 (Colo.

  App. 1998).2



  2 Although several courts across the country have addressed the
  question of whether identity theft is a continuing crime, Allman
  does not cite, nor have we found, any decision concluding that
  identity theft is a continuing crime for purposes of Double Jeopardy
  where the statutory language at issue was identical or similar to
  that in section 18-5-902(1)(a). Compare People v. Mitchell, 78 Cal.
  Rptr. 3d 855, 864-66 (Cal. Ct. App. 2008) (identity theft is not a

                                    11
¶ 22   Accordingly, we reject Allman’s contention that all eight of his

  identity theft convictions are multiplicitous.

                         III.   Sentencing Issues

¶ 23   Allman next raises five contentions related to his sentences.

  First, he contends that, because identity theft is a continuing crime,

  his sentences for those counts should merge. Second, in the

  alternative, he contends that all eight of his identity theft sentences

  should run concurrently because they are based on identical

  evidence. Third, he contends that his sentences for two counts of

  forgery should run concurrently to each other and to one of his

  sentences for identity theft because each count is based on identical

  evidence. Fourth, Allman contends that his consecutive sentence to

  probation for one count of forgery (Count 12) was illegal (or at least

  an abuse of discretion) because the court sentenced him to the

  custody of the Department of Corrections on all other counts and

  he received a concurrent sentence on his other forgery count (Count



  continuing offense even where defendant only stole from one
  victim), and State v. Green, 172 P.3d 1213, 1218 (Kan. Ct. App.
  2007) (same), with State v. Leyda, 138 P.3d 610, 337-38 (Wash.
  2006) (identity theft is a continuing crime), superseded by statute
  as stated in In re Newlun, 240 P.3d 795 (Wash. Ct. App. 2010), and
  State v. Ramirez, 633 N.W.2d 656, 661 (Wis. Ct. App. 2001) (same).

                                     12
  11). Fifth, Allman contends that his sentence on Count 1 for theft

  from an at-risk adult should run concurrently to his other

  sentences, because the jury could have relied on identical evidence

  with regard to that offense. We disagree with each of these

  contentions.

               A.    Applicable Law and Standard of Review

¶ 24   We review sentencing decisions that are within the sentencing

  court’s statutory authority for an abuse of discretion “because the

  trial court’s ‘familiarity with the facts of the case’ places it ‘in the

  best position to fix a sentence that reflects a balance of the relevant

  considerations.’” People v. Torrez, 2013 COA 37, ¶ 71 (quoting

  People v. Vigil, 718 P.2d 496, 507 (Colo. 1986)).

¶ 25   Where the defendant argues that a court exceeded its

  statutory sentencing authority, “[o]ur inquiry . . . requires us to

  interpret statutes.” People v. Jenkins, 2013 COA 76, ¶ 12. We

  review such issues de novo. Id.

¶ 26   Where a defendant has been charged with multiple counts for

  a continuing crime, those convictions should merge at sentencing.

  See Woellhaf, 105 P.3d at 214-15, 220.




                                      13
¶ 27   Where a defendant is convicted of two or more offenses that

  are supported by identical evidence, “the sentences imposed [for

  those offenses] shall run concurrently.” § 18-1-408(3), C.R.S. 2016

  (emphasis added). However,

             [a] sentencing court is mandated to impose
             concurrent sentences only when the evidence
             will support no other reasonable inference
             than that the convictions were based on
             identical evidence. In all other instances, the
             trial court retains its sentencing discretion,
             and its decision must be upheld unless the
             trial court abused its discretion.

  Juhl v. People, 172 P.3d 896, 900 (Colo. 2007) (emphasis added)

  (citation omitted).

¶ 28   In lieu of a prison sentence, a court may impose probation.

  The probationary power of the court is as follows:

             When it appears to the satisfaction of the court
             that the needs of justice and the best interest
             of the public, as well as the defendant, will be
             served thereby, the court may grant the
             defendant probation for such period and upon
             such terms and conditions as it deems best.

  § 18-1.3-202(1), C.R.S. 2016. The statute accordingly delegates

  broad authority to sentencing courts to consider the availability,

  conditions, and duration of a probationary sentence. See Jenkins,

  ¶ 39 (concluding that the probation statutes give trial courts broad


                                    14
  powers to craft appropriate conditions of probation). The purpose of

  this authority is to ensure that sentencing courts “retain flexibility

  in order to best serve the ends of justice and the interests of the

  public.” People v. Guatney, 214 P.3d 1049, 1052 (Colo. 2009).

                              B.    Analysis

¶ 29   Allman first contends that his sentences for identity theft are

  multiplicitous and, thus, his sentences for those counts should

  merge. Because we have already concluded that Allman was

  properly charged with, and convicted of, eight separate counts of

  identity theft, we conclude that his sentences for those counts do

  not merge. See Patton v. People, 35 P.3d 124, 129 (Colo. 2001) (“For

  purposes of both double jeopardy and merger, a defendant may be

  subjected to multiple punishments based upon the same criminal

  conduct as long as such punishments are ‘specifically authorized’

  by the General Assembly.” (quoting People v. Leske, 957 P.2d 1030,

  1035 (Colo. 1998))).

¶ 30   Second, we reject Allman’s alternative contention that, even if

  his sentences for identity theft do not merge, those sentences

  should run concurrently because they are based on identical

  evidence. Based on our review of the record, Allman’s eight


                                    15
convictions for identity theft were based on factually distinct

evidence:

         Count 2: On December 9, 10, and 12, 2014, Allman,

            identifying himself as the victim, made several

            unauthorized transfers from one of the victim’s Wells

            Fargo accounts to another account without the victim’s

            permission.

         Count 4: On December 12, 2013, Allman obtained a

            Citibank Visa credit card and made several charges to it,

            in the name of the victim and without the victim’s

            permission.

         Count 5: On December 11, 2013, Allman obtained

            another Citibank Visa credit card and made several

            charges to that card, in the name of the victim and

            without the victim’s permission.

         Count 6: On December 11, 2013, Allman obtained a Bill

            Me Later credit card and made two charges to it, in the

            name of the victim and without the victim’s permission.

         Count 7: On December 30, 2013, Allman obtained a First

            National Bank of Omaha Visa credit card and made

                                  16
            several charges to it, in the name of the victim and

            without the victim’s permission.

           Count 8: On December 10, 2013, Allman obtained an

            American Express credit card and made several charges

            to it, in the name of the victim and without the victim’s

            permission.

           Count 9: Between December 8, 2013, and January 9,

            2014, Allman attempted to obtain a Bank of America

            credit card, in the name of the victim and without the

            victim’s permission.

           Count 10: On December 9, 2014, Allman obtained an

            American Express credit card and made several charges

            to that card, in the name of the victim and without the

            victim’s permission.

¶ 31   Because each of these offenses was factually distinct, the trial

  court was not required to impose concurrent sentences. See Juhl,

  172 P.3d at 900 (“A sentencing court is mandated to impose

  concurrent sentences only when the evidence will support no other

  reasonable inference than that the convictions were based on

  identical evidence.”); see also § 18-1-408(3). We perceive nothing in

                                   17
  the record to indicate the court abused its discretion in how it

  imposed sentences on Allman’s identity theft convictions. Torrez,

  ¶ 71.

¶ 32      Third, Allman contends that his sentences for both of his

  forgery convictions should run concurrently with one another and

  with his sentence for Count 4 (identity theft) because he used the

  same Citibank Visa credit card for all three offenses. We disagree.

¶ 33      Count 4 was charged as identity theft based on Allman’s use

  of the victim’s information to obtain the Citibank Visa without the

  victim’s permission. By contrast, Allman’s two forgery convictions

  were based on the following evidence:

             Count 11: Allman defrauded a liquor store, located at

               100 Superior Plaza Way #100, Superior, CO 80027, by

               authorizing a credit card payment at that location.

             Count 12: Allman defrauded another retailer, located at

               400 Marshall Road, Superior, CO 80027, by authorizing a

               credit card payment at that location.

¶ 34      The record is clear that neither forgery offense is factually

  identical to the other, nor is either of them factually identical to

  Count 4. Therefore, the court was not required to impose

                                       18
  concurrent sentences for these offenses. See Juhl, 172 P.3d at 900;

  see also § 18-1-408(3).

¶ 35   Fourth, Allman contends that the sentencing court illegally

  sentenced him to both the custody of the Department of Corrections

  and probation. Specifically, he argues that the sentencing court

  was only authorized to impose an overall sentence either to

  probation or imprisonment — but not both — notwithstanding that

  he was convicted of multiple offenses. We disagree.

¶ 36   As an initial matter, we note that a sentence to probation is

  not ordinarily subject to appellate review unless it was granted

  contrary to the provisions of section 18-1.3-104(1)(a), C.R.S. 2016,

  or section 18-1.3-202(1). See Jenkins, ¶ 10; see also People v.

  Whitlock, 2014 COA 162, ¶ 29. However, “where, as here, a

  defendant contends that ‘a court has exceeded its statutory

  authority’ in imposing a probationary sentence, appellate review is

  warranted.” Jenkins, ¶ 10 (quoting People v. Rossman, 140 P.3d

  172, 174 (Colo. App. 2006)).

¶ 37   Under section 18-1.3-202(1),

            the court may grant the defendant probation
            for such period and upon such terms and
            conditions as it deems best. The length of


                                   19
             probation shall be subject to the discretion of
             the court and may exceed the maximum period
             of incarceration authorized for the
             classification of the offense of which the
             defendant is convicted . . . .

  (Emphasis added.) Under the plain language of this statute, a

  sentencing court has broad authority to impose a sentence to

  probation. See Jenkins, ¶ 39. This discretion is limited only by

  restrictions “derived from statute.” Chism v. People, 80 P.3d 293,

  294 (Colo. 2003).

¶ 38   There are certain limitations on the probationary power of a

  court.3 See, e.g., Veith v. People, 2017 CO 19, ¶ 4 (holding that a

  defendant must consent to probation); People v. Bassford, 2014

  COA 15, ¶ 25 (concluding that a sentencing court may not impose a

  sentence of incarceration for a single offense and then suspend that

  sentence and order probation). None of these statutory limitations

  is at issue in this case.




  3 One reason for the broad discretion given to a sentencing court is
  to ensure that the court “select[s] a sentence, a sentence length,
  and a level of supervision that addresses the offender’s individual
  characteristics and reduces the potential that the offender will
  engage in criminal conduct after completing his or her sentence.”
  § 18-1-102.5(1)(e), C.R.S. 2016.

                                    20
¶ 39   Furthermore, in People v. Trujillo, 261 P.3d 485, 487-88 (Colo.

  App. 2010), a division of this court held that a sentencing court is

  authorized to impose a sentence of probation that runs

  consecutively to the end of the defendant’s period of incarceration

  in a separate case. The division reasoned that there is “no

  meaningful distinction between an order for a probationary

  sentence to be served consecutively to the entirety of another

  sentence, and an order for a probationary sentence to be served

  consecutively to the incarceration component of another sentence.”

  Id. at 488. We perceive the holding and reasoning in Trujillo to be

  applicable here as well. In our view, if Trujillo permits the

  imposition of a sentence to probation consecutively to a sentence of

  imprisonment in another case, we see no reason why its rationale

  should not also encompass the imposition of a sentence to

  probation that runs consecutively to a sentence of imprisonment for

  a separate offense in the same case.

¶ 40   We are not persuaded by Allman’s reliance on People v.

  Flenniken, 749 P.2d 395, 399 (Colo. 1988). In Flenniken, the

  supreme court held that a trial court was prohibited from

  sentencing a defendant to both imprisonment and probation for a


                                    21
single offense in the same case. Id. Allman argues that Flenniken

should thus be extended to hold that a sentencing court lacks

authority to impose a consecutive sentence to probation for one

offense where the court has sentenced the defendant to prison for

other offenses in a single case. However, Allman does not cite, nor

have we found, any statute or case suggesting that the probationary

power of the court is so limited. See Trujillo, 261 P.3d at 488-89.

Indeed, the sentencing statutes generally, and the text of the

probationary power of the sentencing court specifically, are replete

with language suggesting that a sentence is indivisible only for each

offense; nowhere in those statutes are convictions for multiple

offenses regarded as a package for purposes of sentencing. See,

e.g., § 18-1-102.5(1)(a), C.R.S. 2016 (referring to sentences for each

“offense,” not for each case); see also § 18-1.3-202(1) (“The length of

probation shall be subject to the discretion of the court and may

exceed the maximum period of incarceration authorized for the

classification of the offense of which the defendant is

convicted . . . .”) (emphasis added). Contrary to Allman’s argument,

as discussed above, we are more persuaded that Trujillo provides




                                  22
  the proper analytical framework for resolving this issue. See

  Trujillo, 261 P.3d at 487-88.

¶ 41   In sum, we conclude that, where, as here, a court sentences a

  defendant for multiple offenses in the same case, it may, within its

  discretion, impose imprisonment for certain offenses and probation

  for others — including probation consecutively to a period of

  incarceration — subject only to statutory limitations. Accordingly,

  we perceive no error in Allman’s consecutive sentence to probation

  for forgery under Count 12. See Torrez, ¶ 71.

¶ 42   Allman also appears to argue that the court abused its

  discretion by sentencing him both to probation under Count 12 and

  to imprisonment on all other counts, because a sentence to

  imprisonment is exclusively punitive, whereas a sentence to

  probation is exclusively rehabilitative. Again, we disagree. As

  discussed above, nothing in the applicable statutes prohibits such

  sentencing. And Trujillo expressly recognizes the practical

  difficulties of ordering a probationary sentence to run concurrently

  with a sentence to incarceration. See Trujillo, 261 P.3d at 488-89.

  Further, the record shows that the sentencing court relied on a

  presentencing memorandum from the prosecution recommending


                                   23
  that Allman serve his probation after his period of incarceration to

  allow him to repay the significant restitution owed in this case.

¶ 43   As noted by a division of this court in People v. Maxich,

  “[r]estitution is part of the criminal sentence rather than merely a

  debt owed by the defendant to the victim. Payment of restitution

  advances the rehabilitative purpose of a probationary sentence.”

  971 P.2d 268, 269 (Colo. App. 1998) (citation omitted).4 Under

  these circumstances, we perceive no abuse of discretion in the

  court’s imposition of the consecutive sentence to probation on

  Count 12.

¶ 44   Finally, Allman contends that his sentence on Count 1 for

  theft from an at-risk adult should run concurrently to his other

  sentences because the jury was not expressly required to make a

  specific finding regarding what, exactly, Allman stole from the


  4 To the extent that Allman argues that the victim in this case will
  likely be deceased by the time he completes his prison sentence,
  and, therefore, the purpose of his probation sentence is futile, he is
  incorrect. Where a victim, for purposes of restitution, “is deceased
  or incapacitated, the person’s spouse, parent, legal guardian,
  natural or adopted child, child living with the victim, sibling,
  grandparent, significant other . . . or other lawful representative,”
  who is “aggrieved by the conduct of [the] offender,” is entitled to
  restitution. People v. Lane, 2014 COA 48, ¶ 44 (emphasis added)
  (quoting § 18-1.3-602(4)(a), C.R.S. 2016).

                                    24
  victim as the basis for that count. Allman argues that,

  consequently, the jury could have based its verdict on evidence

  identical to his other convictions under section 18-1-408(3). Here,

  too, we disagree.

¶ 45   According to our supreme court, “[t]he mere possibility that

  the jury may have relied on identical evidence in returning more

  than one conviction is not sufficient to trigger the mandatory

  concurrent sentencing provision” set forth in section 18-1-408(3).

  People v. Muckle, 107 P.3d 380, 383 (Colo. 2005); accord Juhl, 172

  P.3d at 900. “Instead, [section 18-1-408(3)] requires courts to

  impose concurrent sentences ‘only when the evidence will support

  no other reasonable inference than that the convictions were based

  on identical evidence.’” Torrez, ¶ 33 (quoting Juhl, 172 P.3d at 900).

¶ 46   During closing argument, the prosecutor explained to the jury

  exactly what evidence supported the theft count, stating as follows:

            So in relation to the theft, we’re talking about
            the Victim’s bank account, 6005, the account
            that [the victim] set up specifically to go to
            Australia, because that is the account that
            [Allman’s] purchases were made from. And the
            value of those purchases, which you saw, was
            $1,763.75 and was made over a four-day
            period, between the 9th and 13th of December.
            And so you have two questions to answer in


                                   25
            relation to that theft. If you decide that
            [Allman] stole that money from [the victim]’s
            Wells Fargo bank account, you then have to go
            on and decide did [Allman] steal over $500;
            and, secondly, did [Allman] know that [the
            victim] was an “at risk” elder? Did he know
            [the victim] was over 70? . . . So that’s the first
            count involving the bank account. And look at
            the elements of the theft and decide if you
            think that is proved beyond a reasonable
            doubt.

¶ 47   Accordingly, under these circumstances, we cannot conclude

  that the sentencing court was required to order a concurrent

  sentence for Allman’s theft conviction. See Muckle, 107 P.3d at

  383; see also Torrez, ¶ 33.

¶ 48   For the reasons stated above, we perceive no error in any of

  Allman’s sentences in this case. See Torrez, ¶¶ 71-72.

                            IV.   Conclusion

¶ 49   The judgment and sentence are affirmed.

       JUDGE DAVIDSON and JUDGE CASEBOLT concur.




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