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People v. Wester-Gravelle

Court of Appeals of Colorado, Seventh Division

June 28, 2018

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
De Etta WESTER-GRAVELLE, Defendant-Appellant.

         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 ...


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