Rehearing
Denied August 9, 2018.
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El
Paso County District Court No. 15CR4710 Honorable Marla R.
Prudek, Judge.
Cynthia H. Coffman, Attorney General, Matthew S. Holman,
First Assistant Attorney General, Nicole D. Wiggins,
Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee.
Gail
K. Johnson, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant.
OPINION
FREYRE,
JUDGE.
¶
1 Defendant, De Etta Wester-Gravelle, appeals the judgment of
conviction entered on a jury verdict finding her guilty of
forgery, contending that the trial court committed plain
error when it did not give the jury a modified unanimity
instruction. She also appeals the order of restitution.
Because we conclude that the trial court should have
instructed the jury on unanimity, we reverse her conviction
and remand for a new trial. Therefore, we need not decide the
restitution issue. Because it may arise on retrial, we
address her evidentiary issue and find no abuse of
discretion.
I.
Background
¶
2 Wester-Gravelle worked as a certified nursing assistant for
Interim Healthcare (Interim). Interim provides in-home care
to patients. In 2015, Interim assigned Wester-Gravelle to
care for William Moseley five days a week for two hours each
day. Moseley is a veteran who suffered a stroke and is
confined to a wheelchair. Interim paid Wester-Gravelle $30
per day and billed Veterans Affairs $51.74 per day for the
two hours of care.
¶
3 Moseley lived with his spouse, Erma Goolsby. On August 11,
2015— a day that Wester-Gravelle was assigned to
work— Wester-Gravelle's supervisor visited
Moseley's home to recertify his insurance.
Wester-Gravelle never arrived for her assigned shift. When
the supervisor asked Moseley and Goolsby whether they
expected Wester-Gravelle to work that day, they told her that
Wester-Gravelle had not been to their house for approximately
three weeks. Wester-Gravelle, however, had submitted weekly
shift charts for the preceding three weeks to receive
payment. Each of the three weekly shift charts showed five of
Moseley's purported signatures, acknowledging that
Wester-Gravelle had arrived for her assigned shifts.
¶
4 Interim initiated an investigation to determine whether
Wester-Gravelle had forged Moseley's signature on the
shift charts. Moseley and Goolsby told the investigator that
they did not believe that Wester-Gravelle had been to their
home for several weeks and that they were unsure, but did not
think, they had signed the three disputed shift charts from
July 17, July 24, and July 31. Wester-Gravelle submitted the
shift chart covering the week of July 11-17 on July 20, 2015;
the shift chart covering July 18-24 on July 27, 2015; and the
shift chart covering July 25-31 on August 3, 2015. The record
does not indicate how or where Wester-Gravelle submitted the
shift charts.
¶
5 The prosecution charged Wester-Gravelle with one count of
forgery between July 11 and July 31, 2015, and introduced
three different shift charts into evidence for that time
period. It argued that Wester-Gravelle never went to
Moseley's house during that period and, instead, forged
his signature so she would be paid by Interim. A jury
convicted Wester-Gravelle, and the court sentenced her to two
years' probation.
II.
Unanimity Instruction
¶
6 Wester-Gravelle contends that the trial court erred when it
failed, on its own motion, to require the prosecution to
elect a single forged shift chart as the basis for the
conviction or to give a modified unanimity instruction. Under
the circumstances presented, we agree.
A.
Preservation and Standard of Review
¶
7 The People contend that Wester-Gravelle waived this issue
by failing to object
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to the information under Crim. P. 12(b)(2) and (3), which
requires a defendant to raise defenses or objections to an
information and complaint within twenty-one days following
arraignment. As pertinent here, the rule further provides
that "[f]ailure to present any such defense or objection
constitutes a waiver of it, but the court for cause shown may
grant relief from the waiver." Crim. P. 12(b)(2).
¶
8 The People argue that Wester-Gravelle obtained a
"substantial strategic benefit" by not requesting
an election by the prosecution under Crim. P. 12(b)(2),
because a timely request for election would have allowed the
prosecution to amend the information to charge each forgery
separately, thereby increasing her criminal liability. We are
not persuaded. Moreover, we respectfully disagree with the
dissent both that Crim. P. 12(b)(2) applies under these
circumstances and that it somehow causes a waiver (not a
forfeiture) of Wester-Gravelle's duplicity claim.
¶
9 Whether an information is duplicitous is a legal question
that we review de novo. United States v. Davis, 306
F.3d 398, 414 (6th Cir. 2002); People v. Walker,
2014 CO 6, ¶ 26, 318 P.3d 479 ("Whether the
information sufficiently charged Walker is a question of law
we review de novo."); People v. Melillo, 25
P.3d 769, 777 (Colo. 2001) (sufficiency of information
reviewed de novo). An information is duplicitous if it
charges two or more separate and distinct crimes in one
count. See United States v. Haddy, 134 F.3d 542, 548
(3d Cir. 1998); Davis, 306 F.3d at 415; Melina
v. People, 161 P.3d 635, 644 (Colo. 2007) (Coats, J.,
concurring in the judgment only); People v.
Broncucia, 189 Colo. 334, 337, 540 P.2d 1101, 1103
(1975).
¶
10 The charged crimes are "separate" if each
requires the proof of an additional fact that the other does
not. Davis, 306 F.3d at 416; United States v.
Adesida, 129 F.3d 846, 849 (6th Cir. 1997); Woellhaf
v. People, 105 P.3d 209, 214 (Colo. 2005).
¶
11 Duplicity may or may not be obvious from the information
itself. If it is, then Crim. P. 12(b)(2) governs the raising
and resolution of the claim. See Russell v. People,
155 Colo. 422, 426, 395 P.2d 16, 18 (1964); Critchfield
v. People, 91 Colo. 127, 131, 13 P.2d 270, 271 (1932)
("If the information is duplicitous, that fact is
patent...."); see also People v. Zadra, 2013
COA 140, ¶ ¶ 65-66, 396 P.3d 34 ( Zadra I
) (noting that federal appellate courts uniformly apply Fed.
R. Crim. P. 12(b)(2) "where the defect is apparent from
the face of the charges" (citing United States v.
Honken, 541 F.3d 1146, 1153-54 (8th Cir. 2008);
United States v. Dixon, 273 F.3d 636, 642 (5th Cir.
2001); United States v. Klinger, 128 F.3d 705, 708
(9th Cir. 1997); United States v. McIntosh, 124 F.3d
1330, 1336 (10th Cir. 1997))), aff'd, 2017 CO
18, 389 P.3d 885 ( Zadra II ).
¶
12 But if, as in this case, duplicity is not obvious from the
information itself and, instead, arises from the
prosecution's presentation of evidence, then, for the
reasons discussed below, Crim. P. 12(b)(2) simply does not
apply. See Gill v. People, 139 Colo. 401, 410, 339
P.2d 1000, 1005 (1959) ("Where the duplicity is not
apparent until the evidence has been presented, the motion to
quash may be made during the trial and when the duplicity is
disclosed." (citing Trask v. People, 35 Colo.
83, 87, 83 P. 1010, 1012 (1905))). In these circumstances,
Colorado law is clear that Rule 12(b) does not
require a defendant to object under Crim. P. 12(b)(2) when
the error flows from circumstances that are not apparent from
the charging document. If there had been any doubt about this
proposition, the supreme court put those doubts to rest in
its recent decision in Zadra II, where it stated:
"Crim. P. 12(b)(2) does not require a defendant to file
a motion regarding any error that might later flow from the
charging document." ¶ 17 (citing Reyna-Abarca
v. People, 2017 CO 15, ¶ 43, 390 P.3d 816). And
this court is bound by that law. People v. Houser,
2013 COA 11, ¶ 32, 337 P.3d 1238 (if our supreme court
has established a categorical rule from which it has not
deviated, we are bound to follow this precedent).
¶
13 Here, the information charged Wester-Gravelle as follows:
COUNT 1-FORGERY (F5)
Between and including July 11, 2015 and July 31, 2015, Deetta
Wester-Gravelle with
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the intent to defraud Interim Healthcare, unlawfully,
feloniously, and falsely made, completed, altered, or
uttered a written instrument which was or which
purported to be, or which was calculated to become or to
represent if completed, a deed, will[,] codicil, contract,
assignment, commercial instrument, promissory note, or
other instrument which document did or may have evidenced,
created, transferred, terminated, or otherwise affected a
legal right, interest, obligation, or status, namely:
Home Care Aide Shift Charting Sheet; in violation
of section 18-5-102(1)(c), C.R.S.
(Emphasis added.)
¶
14 Given the accepted definition of "duplicity," we
discern no reasonable way of construing the complaint and
information to charge two separate crimes, particularly when
it specifies a single written instrument and identifies that
instrument as a single shift charting sheet. Because the
"face of the charge" evidences no apparent defect,
much less a duplicity defect, Crim. P. 12(b)(2) simply does
not apply and could not cause a waiver of
Wester-Gravelle's duplicity claim.
¶
15 Rather, the duplicity problem (unanimity issue) arose only
after the prosecution decided to introduce three different
written instruments for the period charged, well after a Rule
12 objection (within twenty-one days after arraignment) could
have been made. Reyna-Abarca, ¶ 43. Indeed, had
the prosecution decided to introduce only one shift chart
sheet in accordance with the charge, no unanimity problem
would exist.
¶
16 The dissent seeks to rewrite the rule to provide that it
somehow springs into effect when the duplicity problem first
becomes recognizable, relying on the "good cause"
language in the rule. Completely apart from the supreme
court's recent explicit rejection of this procedure in
Zadra II, we are confident that if the supreme court
intended such a "springing" operation of one of its
rules, it would have said so. We presume that the court does
not enact its rules with the purpose of ensnaring the unwary.
Rather, the rules perform important purposes, none of which
include catching criminal defendants unaware.
¶
17 While we recognize that some federal courts apply the
"good cause" provision to require a defendant to
make a Rule 12 objection during trial to avoid waiving (or at
least forfeiting) their rights, given Zadra II we
could not follow those cases even if we wanted to do so.
¶
18 Instead, a duplicity challenge that is not made in the
trial court when the defect becomes apparent is forfeited.
Forfeiture has important consequences because forfeited
claims are reviewed only for plain error. Houser,
¶ 32. Therefore, we agree with the divisions in
People v. Devine, 74 P.3d 440, 443 (Colo.App. 2003),
and People v. Rivera, 56 P.3d 1155, 1160-61
(Colo.App. 2002), that an unpreserved unanimity challenge
should be reviewed for plain error, while acknowledging, as
pointed out by the dissent, that neither of these cases
considered Rule 12(b)(2).
¶
19 Under the plain error standard, an appellate court first
considers de novo whether the trial court was required to
give a modified unanimity instruction. People v.
Vigil, 2015 COA 88M, ¶ 38, 459 P.3d 553 ( cert.
granted on other grounds Mar. 20, 2017); see also
People v. Torres, 224 P.3d 268, 278 (Colo.App. 2009)
("We review de novo whether the trial court was required
to give a unanimity instruction."). If the court
discerns error, it reverses only if the error was plain.
Plain error is (1) an error, (2) that is obvious, and (3)
that casts serious doubt on the reliability of the judgment
of conviction. Rosales-Mireles v. United States, 585
U.S. ___, ___, 138 S.Ct. 1897, 1904-05, 201 L.Ed.2d 376
(2018); Hagos v. People, 2012 CO 63, ¶ 14, 288
P.3d 116. An error is obvious if it contravenes "(1) a
clear statutory command; (2) a well-settled legal principle;
or (3) Colorado case law." Scott v. People,
2017 CO 16, ¶ 16, 390 P.3d 832 (citation omitted).
¶
20 Plain error requires reversal if, after a review of the
entire record, we can conclude with fair assurance that the
error so undermined the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the
judgment of conviction. Lehnert v. People, 244 P.3d
1180, 1185 (Colo. 2010); People v. Linares-Guzman,
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195 P.3d 1130, 1133 (Colo.App. 2008) ("In the context of
an unpreserved claim of instructional error, the defendant
bears the burden of demonstrating `not only that the
instruction affected a substantial right, but also that the
record reveals a reasonable possibility that the error
contributed to [her] conviction.'") (citation
omitted); see also Rosales-Mireles, 585 U.S. at ___,
138 S.Ct. at 1904-05 (addressing the fourth prong of plain
error and holding "the court of appeals should exercise
its discretion to correct the forfeited error if the error
seriously affects the fairness, integrity or public
reputation of judicial proceedings.") (quoting
Molina-Martinez v. United States, 578 U.S. ___, ___,
136 S.Ct. 1338, 1340, 194 L.Ed.2d 444 (2016)).
B.
Applicable Law
¶
21 In Colorado, defendants enjoy a right to unanimous jury
verdicts. § 16-10-108, C.R.S. 2017; Crim. P. 23(a)(8);
Crim. P. 31(a)(3); Linares-Guzman, 195 P.3d at 1134.
Unanimity in a verdict means only that each juror agrees that
each element of the crime charged has been proven to that
juror's satisfaction beyond a reasonable doubt.
Linares-Guzman, 195 P.3d at 1134; People v.
Lewis, 710 P.2d 1110, 1116 (Colo.App. 1985).
"Generally, jurors need not agree about the evidence or
theory by which a particular element is established...."
People v. Vigil, 251 P.3d 442, 447 (Colo.App. 2010);
see Lewis, 710 P.2d at 1116 ("Jurors are not,
however, required to be in agreement as to what particular
evidence is believable or probative on a specific issue or
element of a crime, particularly where there is evidence to
support alternative theories as to how an element of a crime
came to occur."); see also People v. Davis,
2017 COA 40M, ¶ 21, ___ P.3d ___ (noting that unanimity
is only required for the elements of the offense and not for
the "brute facts [that] make up a particular
element").
¶
22 But when the complaint charges a single offense, the
prosecution presents evidence of multiple
transactions (any one of which would constitute the
offense charged), and there is a reasonable likelihood that
jurors may disagree about which transaction the defendant
committed, the court must either require the prosecution to
elect the acts or series of acts on which it relies for a
conviction or it must instruct the jury that to convict, the
jury must agree that the defendant committed the same act or
all of the acts included within the period charged.
Melina, 161 P.3d at 639; Thomas v. People,
803 P.2d 144, 153 (Colo. 1990); Rivera, 56 P.3d at
1160. Without such a requirement, there is a substantial risk
that a conviction may result from some jurors finding the
defendant guilty of one act, while others convict based on a
different act. People v. Perez-Hernandez, 2013 COA
160, ¶ 55, 348 P.3d 451. Indeed,
[i]f the evidence presents a reasonable likelihood that
jurors may disagree upon which [act or] acts the defendant
committed, and the prosecution does not elect to stand upon a
specific incident, jurors should be instructed that they must
unanimously agree as to the specific act or agree that the
defendant committed all the acts alleged. This requirement
assures that the jury does not base its conviction upon some
jurors finding that one act was committed, while others rely
on a different act.
Devine, 74 P.3d at 443 (citation omitted).
¶
23 Relatedly, when the prosecution charges multiple counts in
identically worded terms, the charging document raises the
issue of multiplicity. Quintano v. People, 105 P.3d
585, 589 (Colo. 2005). "Multiplicity is the charging of
the same offense in several counts, culminating in multiple
punishments." Id. The primary danger of a
multiplicitous indictment is "the risk that the
defendant [is] punished more than once for the same
offense" and thus, that the prohibition against double
jeopardy is violated. Id. at 589-90. A defendant may
be convicted of and sentenced for identically worded charges
only when the evidence adduced at trial justifies the
charging of distinct offenses, id. at 591, and, similar to
duplicity, when the prosecution either elects the acts on
which it relies for each charge or the trial court instructs
the jury with the modified unanimity instruction, id. at 595.
¶
24 Neither an election nor a modified unanimity instruction
is required,
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however, when a defendant is charged with a crime
encompassing incidents occurring in a single transaction.
Melina, 161 P.3d at 640-41; People v. Greer,
262 P.3d 920, 925 (Colo.App. 2011). Nor is a modified
unanimity instruction required when the prosecution charges a
continuing course of conduct rather than a succession of
clearly detached incidents. Davis, ¶ ¶ 15,
20 (describing conspiracy as a continuing course of conduct
which terminates when the object of the crime is committed).
Regardless of how the prosecution charges a defendant, either
an election or a unanimity instruction is required when the
evidence "raises grave doubts whether the jurors'
conviction was based upon a true unanimity, or whether
different incidents formed the basis for the conclusion of
individual jurors." Devine, 74 P.3d at 443;
see also Rivera, 56 P.3d at 1160 (finding reversal
is required when "there is a reasonable likelihood that
the jury could have disagreed concerning the act or acts
defendant committed").
¶
25 In Devine, the defendant was the conservator of a
trust account belonging to her then fifteen-year-old son. 74
P.3d at 442. Over more than four years and at approximately
one-year intervals, she made five withdrawals from the trust
account, each allegedly to purchase items for her son.
Id. Later, her son discovered that the account was
empty and informed the court that he was unaware of the
withdrawals and had not received the items allegedly
purchased by his mother. Id. The prosecution charged
the defendant with one count of theft spanning the four-year
period, and the jury found her guilty. Id.
¶
26 On appeal, Devine asserted that the trial court had denied
her right to a unanimous verdict by failing to give the jury
a special unanimity instruction. Id. Reviewing for
plain error, a division of this court observed that the
prosecution's single theft charge encompassed five
discrete acts spanning a four-year period, and that each
withdrawal was a completely separate transaction that was the
subject of different testimony and evidence. Id. at
442-43. It reversed her conviction concluding that,
"[i]n such a case, the failure to give a special
unanimity instruction raises grave doubts whether the
jurors' conviction was based upon a true unanimity, or
whether different incidents formed the basis for the
conclusion of individual jurors." Id. at 443.
C.
Analysis
1.
Single or Multiple Transactions
¶
27 The prosecution charged Wester-Gravelle with a single
count of forgery for the three-week period between July 11
and July 31, 2015. As relevant here, the forgery statute
provides as follows:
(1) A person commits forgery, if, with intent to defraud,
such person falsely makes, completes, alters, or utters a
written instrument which is or purports to be, or which is
calculated to become or to represent if completed: ... (c)
[a] deed, will, codicil, contract, assignment, commercial
instrument, promissory note, check, or other instrument which
does or may evidence, create, transfer, terminate, or
otherwise affect a legal right, interest, obligation, or
status.
§ 18-5-102, C.R.S. 2017.
¶
28 The parties do not dispute that the forgery charge was
based on three separate shift charts for three different
weeks: July 17, 2015, July 24, 2015, and July 31, 2015.
Instead, they dispute whether the prosecution presented
evidence of multiple transactions, any of which would
constitute the crime of forgery, or evidence of multiple
incidents comprising a single transaction of forgery. Thus,
to determine whether there was a unanimity defect, we must
first determine "whether the evidence on which the jury
relied for conviction was sufficient to support distinct and
separate offenses." Quintano, 105 P.3d at 592.
¶
29 To do this, we consider whether Wester-Gravelle's
actions (1) were legally separable; (2) occurred at different
locations or were separated by intervening events; and (3)
constituted new volitional departures in the course of
conduct. See Quintano, 105 P.3d at 592 (finding
separate offenses where the "defendant had sufficient
time to reflect after each encounter[; ] ... [e]ach incident
occurred in a different location, or after the
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victim had left a location and returned there... [; and] the
record reflects sufficient breaks between each incident to
allow the defendant time to reflect"); cf.
Commonwealth v. Adams,694 A.2d 353, 355 (Pa.Super. Ct.
1997) ("[A] single transaction is defined as a crime or
crimes which were committed by a defendant at a single time
or in temporally ...