v. People, 2019 CO 78

Allman (using name "John Taylor") lived with L.S., a 75‑year‑old, then used L.S.’s personal and financial information to transfer funds, open multiple credit cards/lines of credit, make purchases (> $45,000), and take L.S.’s car.
A jury convicted Allman of eight identity‑theft counts (including an attempted count), two forgery counts, theft from an at‑risk elder, and aggravated motor vehicle theft; restitution was set at $59,758.95.
Trial court imposed a combined 15‑year DOC term (plus five years mandatory parole) from several counts, concurrent shorter terms on other counts, and a ten‑year probation term on one forgery count to run consecutively to DOC but concurrently with parole.
On appeal Allman argued (1) identity theft is a continuing offense requiring merger; (2) multiple identity‑theft convictions should merge or run concurrently because they rest on identical evidence; and (3) a court may not impose imprisonment for some counts and probation for others in the same case.
Colorado Supreme Court held: identity theft by use (§ 18‑5‑902(1)(a)) is not a continuing offense; the identity‑theft and forgery convictions were not supported by identical evidence (so concurrent sentences were not required); but a sentencing court may not impose imprisonment for some counts and probation for others in the same case. The case is remanded for resentencing consistent with that holding.

Issue	Plaintiff's Argument (Allman)	Defendant's Argument (People)	Held
Whether identity theft (§ 18‑5‑902(1)(a)) is a continuing offense	"Use" of another’s identifying information is a single, continuous theft of an identity so multiple uses must merge	Statute lacks explicit continuing‑offense language and "use" denotes discrete acts; each use causes a new harm	Identity theft by use is not a continuing offense; convictions need not merge
Whether sentencing on eight separate identity‑theft counts was an abuse of discretion	Multiple counts arise from a continuous course and should merge at sentencing	Each count involved separate acts (different cards/accounts) and distinct harms	No abuse of discretion; separate sentencing permitted
Whether counts based on identical evidence require concurrent sentences	Many counts arise from the same underlying acts/evidence, thus concurrency required under § 18‑1‑408	Evidence for each count (different cards/accounts; separate receipts for forgeries) differs	Evidence was not identical; concurrent sentences were not required
Whether a court may impose imprisonment for some counts and probation for others in same case	(Implicit) trial court erred by imposing DOC plus a consecutive probation term	People defended trial court’s practical sentencing discretion	Court lacks statutory authority to impose imprisonment for some counts and probation for others in the same case; such sentences are impermissible; remand for resentencing

Toussie v. United States, 397 U.S. 112 (1970) (continuing‑offense test: statute’s language or the nature of the crime must show continuity)
Brown v. Ohio, 432 U.S. 161 (1977) (double jeopardy bars multiple punishments for same offense)
Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (series of acts that are a single continuous transaction must be merged)
Juhl v. People, 172 P.3d 896 (Colo. 2007) ("identical evidence" analysis for concurrent sentencing turns on whether convictions rest on the same act)
People v. Thoro Prods. Co., 70 P.3d 1188 (Colo. 2003) (offense is committed when statutory elements are satisfied)
People v. Perez, 367 P.3d 695 (Colo. 2016) (statutory‑interpretation standards and review de novo)