Single Insurance Fraud Conviction Remains

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Natasha Earnce Robinson appealed 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. She contended, 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.

To resolve her appeal the Court of Appeals addressed an issue of first impression in Colorado and held that, when a defendant is convicted for one count of presenting a fraudulent insurance claim, and 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) to merge.

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 must merge into her one conviction for insurance fraud.

BACKGROUND

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 knowing who took it. She repeated those lies in the affidavit she submitted to her insurance company.

Following the trial, the jury found Robinson guilty of four counts of insurance fraud and one count of false reporting to authorities.

The trial court entered judgment of conviction and sentenced Robinson to concurrent terms of three years’ probation.

MULTIPLICITY IN VIOLATION OF DOUBLE JEOPARDY

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. The Court of Appeals agreed.
Standard of Review, Preservation, and Standard of Reversal

Whether convictions must be merged because they are multiplicitous in violation of double jeopardy principles is a question of law.

The double jeopardy issue presented here is whether Robinson’s multiple insurance fraud convictions are based on alternate ways of committing the same offense. The district court addressed that very issue, concluding that the offenses are “separate,” although it ultimately ruled that concurrent sentences were appropriate.

General Law Regarding Units of Prosecution, Multiplicity, and Double Jeopardy

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.

Multiplicity may implicate double jeopardy principles if a statute creates alternate ways of committing the same offense. In these situations, whether multiple punishments are permissible entails a determination of the legislatively prescribed unit of prosecution. 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.

To determine the unit of prosecution for a particular offense, the Court of Appeal looks exclusively to the statute defining the offense. After determining the statutory unit of prosecution, double jeopardy analysis requires the court to consider whether the defendant’s conduct constitutes factually distinct offenses, that is, whether the conduct satisfies more than one defined unit of prosecution.

Application

Robinson’s four convictions for insurance fraud are multiplicitous in violation of 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.

The insurance fraud statute requires that 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. 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.

Robinson’s was based on her presenting an insurance claim that contained false material information. Her three convictions under a different section were based on her presenting three statements containing false material information in support of the insurance claim. Robinson’s false statements were part and parcel of her fraudulent insurance claim.

Robinson’s three convictions 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 while still being based on only one insurance claim.

The issue before the appellate court is distinct from a multiplicity issue that arises when a statute defines a crime as a continuous course of conduct.

Third, the way the prosecution presented its case at trial supports the decision. Notably, the 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.

In rebuttal closing, the prosecutor stayed the course, arguing that Robinson’s repeated false statements to her insurer.

For all these reasons, the appellate court concluded that the district court erred by entering judgment of conviction and sentence on multiple counts of insurance fraud, and that Robinson should stand convicted of just one count of insurance fraud under the statute.

Evidentiary Issue

The judgment was affirmed in part and reversed in part. Robinson’s insurance fraud conviction was affirmed. Robinson’s three insurance fraud convictions were reversed, and the case is remanded for the district court to vacate those three convictions and sentences.

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.

ZALMA OPINION

There was no question that the defendant committed insurance fraud by insuring a car after an accident and then reporting it stolen to collect even though it was damaged before the policy came into effect. She lied to the insurer and the police often and with alacrity. Regardless, she only committed one crime – insurance fraud – and the charge of additional counts for false statements made in the presentation of the false claim was surplusage and duplicitous. Her sentence was for probation and she stood convicted of one crime, not four.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected].

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