Paso County District Court No. 15CR4710 Honorable Marla R.
Cynthia H. Coffman, Attorney General, Matthew S. Holman,
First Assistant Attorney General, Nicole D. Wiggins,
Assistant Attorney General, Denver, Colorado, for
K. Johnson, Alternate Defense Counsel, Boulder, Colorado, for
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
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
5 The People 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
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.
Preservation and Standard of Review
7 The People contend that Wester-Gravelle waived this issue
by failing to object 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 ("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 (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 (Zadra
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). And this court is
bound by that law. People v. Houser, 2013 COA 11,
¶ 32 (if our supreme court has established a categorical
rule from which it has not deviated, we are bound to follow
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 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.
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
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 (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. ___, ___,
2018 WL 3013806, at *5 (June 18, 2018); Hagos v.
People, 2012 CO 63, ¶ 14. 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 (citation
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,
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 ___,
2018 WL 3013806, at *5 (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)).
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.").
22 But when 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. 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 Neither an election nor a modified unanimity instruction
is required, 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).
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
24 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.
25 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.
Single or Multiple Transactions
26 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
§ 18-5-102, C.R.S. 2017.
27 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 Wester-Gravelle's conduct
constitutes a single transaction or multiple transactions.
28 To do this, we consider whether the 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 v. People, 105 P.3d 585, 592
(Colo. 2005) (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 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 continuous
actions that are part of the same episode, event or incident
. . . .").
29 In Quintano, our supreme court examined whether
five sexual acts "involving the same victim, the same
general location and the same day" required an election
by the prosecution. Id. at 593. The defendant argued
that the prosecution should have been required to elect
specific acts for each count, even though the court provided
a modified unanimity instruction. Id. at 594. The
court explained that the defendant was charged and convicted
of multiple transactions based on evidence of the different
location of each act, the temporal breaks between the acts,
and the separate volitional intents associated with each act.
Id. at 593. It held that a modified unanimity
instruction was sufficient to ensure jury unanimity,
id. at 593-94, and affirmed the rule that
"where the prosecution did not or could not elect a
specific act, the court should give a modified jury unanimity
instruction," id. at 593.
30 Applying the Quintano factors here, we conclude
that Wester-Gravelle's conduct amounted to multiple
transactions that required either an election or a modified
31 First, the three shift charts are separated temporally.
Wester-Gravelle submitted a different shift chart to Interim
each week to receive her paycheck. She submitted the July 17
shift chart on July 20, the July 24 shift chart on July 27,
and the July 31 shift chart on August 3.
32 This temporal separation is greater than that described in
People v. Childress, 2012 COA 116, ¶¶
43-44, rev'd in part on other grounds, 2015 CO
65M, where a division of this court held that the failure to
provide a modified unanimity instruction required reversal
when the defendant committed multiple acts of child abuse
over several hours in a single day. See also
Quintano, 105 P.3d at 592 (finding temporally separated
distinct acts occurring the same day were multiple
transactions); People v. Estorga, 200 Colo. 78, 82,
612 P.2d 520, 523 (1989) (requiring unanimity instruction
where sexual assault occurred four or five times over a
period of several months); Devine, 74 P.3d at 442
(concluding the prosecution must elect an act or the court
must provide a unanimity instruction where the defendant
committed five withdrawals at approximately one year
intervals); Rivera, 56 P.3d at 1160 (reversing for
failure to provide unanimity instruction where the
defendant's conduct involved numerous transactions with
twenty-five investors over a two-year period); cf. People
v. Collins, 730 P.2d 293, 301 (Colo. 1986) (election or
unanimity not required for first degree assault charge where
numerous different assaults occurred at the same location on
the same night); People v. Hanson, 928 P.2d 776,
779-80 (Colo.App. 1996) (concluding a unanimity instruction
was not required when "the confrontations occurred in
the same location and within a few minutes of each other, and
arose out of the same set of circumstances and in conjunction
with the same dispute").
33 Next, while the record does not reveal specifically to
whom or how Wester-Gravelle actually submitted the shift
charts, we are not convinced that this omission is
determinative. In Devine, the defendant sought
approval for each withdrawal of her son's money from the
probate court. Devine, 74 P.3d at 442. The court did
not note how the defendant requested this approval or from
where she withdrew the funds. Id. The important
factor was the temporal separation between each withdrawal,
and the court concluded this temporal separation was
sufficient to require a unanimity instruction, without regard
to the location. Id. at 443. As in Devine,
Interim required Wester-Gravelle to prepare and submit a new
shift chart each week she worked, thereby creating temporal
separation between each act.
34 Further, we are not persuaded that Vigil, 2015
COA 88M, requires a different result. In Vigil, the
defendant was charged with one count of burglary for conduct
occurring on one night at one location. Id. at
¶ 43. The prosecution proved that he burglarized several
buildings at that location. Id. Vigil argued that
the court should have provided a modified unanimity
instruction because the jury could have disagreed about the
particular building he burglarized. Id. at ¶
37. A division of this court rejected his argument and held
that because the prosecution had charged the defendant with
the burglary of multiple buildings, at one location, and in a
single night, the defendant's conduct constituted a
single transaction, and that "the jury was not required
to unanimously agree on which building was
burglarized." Id. at ¶ 43.
35 In contrast, the record here reveals that Interim paid
Wester-Gravelle for the work reflected on each shift chart
covering a different period and submitted at different times.
The evidence for each incident was different. Because the
parties did not dispute these facts and only contested
whether Wester-Gravelle forged Moseley's signature with
the intent to defraud Interim, we conclude that where and how