County District Court No. 16CR1113 Honorable Julie C.
J. Weiser, Attorney General, Jennifer L. Carty, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Joseph P. Hough,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Sandra Archuleta, appeals the judgment of
conviction entered on a jury verdict finding her guilty of
child abuse resulting in death, a class 2 felony. We reverse
and remand for a new trial because we conclude that the trial
court erred by failing to require the prosecution to elect
the act or acts on which it relied for the child abuse
conviction or to give the jury a modified unanimity
2 Archuleta took care of her four-month-old grandson for a
week. Several hours after the child's mother picked him
up at the end of the week, she returned to Archuleta's
house with the child. Archuleta noticed that the child did
not appear to be breathing, so she attempted CPR and called
911. First responders arrived shortly thereafter and
transported the child to the hospital. He died early the
following morning. An autopsy revealed that the child had
been suffering from dehydration and a bacterial infection
that started as pneumonia and had spread to his blood.
3 The prosecution charged Archuleta with one count of child
abuse resulting in death, alleging that she caused the
child's death over the course of the week that she took
care of him. At trial, the prosecution presented the
following evidence. When the child's mother dropped him
off at Archuleta's house at the beginning of the week, he
was healthy. By the end of the week, the child had suffered
numerous injuries, including chemical burns to his face,
mouth, and knee; a torn frenulum (the flap of skin that
connects the inner upper lip to the upper gum); broken ribs;
and tweezer-induced pinch marks on various parts of his body.
4 The coroner who performed an autopsy on the day the child
died testified that the cause of death was dehydration and
the bacterial infection, and that the chemical burns, torn
frenulum, and broken ribs all contributed to the child's
death. According to the coroner, the chemical burns and torn
frenulum made it difficult for the child to eat and caused
the dehydration. And the broken ribs made it difficult for
the child to cough and clear bacteria out of his lungs,
resulting in pneumonia and the more widespread infection.
5 The coroner estimated that the chemical burns were likely
forty-eight to seventy-two hours old at the time of the
autopsy. He estimated that the broken ribs were approximately
the same age and "certainly less than two weeks
old." This testimony suggested that these injuries
occurred while Archuleta was caring for the child. The
coroner testified that he could not estimate when the torn
frenulum occurred because once it tears, it typically does
6 At the close of evidence, defense counsel requested a
unanimity instruction that would have required the jury to
unanimously agree that Archuleta committed the same act or
acts that constituted the offense of child abuse. The trial
court declined to give the instruction. The only unanimity
instruction the trial court gave the jury stated,
"[y]our verdict must be unanimous."
7 The jury found Archuleta guilty of knowing or reckless
child abuse resulting in death. The trial court convicted her
and sentenced her to twenty-four years in the custody of the
Department of Corrections.
8 Archuleta appeals, arguing that the trial court erred by
failing to give a modified unanimity instruction and denying
her motion for a new trial in light of evidence that some
jurors engaged in premature deliberations. We agree that the
trial court's failure to give a modified unanimity
instruction requires reversal and therefore do not address
Archuleta's premature deliberation argument, which is
unlikely to arise again on remand.
Lack of Modified Unanimity Instruction Requires Reversal
9 Archuleta argues that the trial court erred by failing to
ensure that the jury's verdict was unanimous. She asserts
that due process requires that verdicts are unanimous and
that the court therefore violated her constitutional right to
due process. We do not consider the constitutional due
process issue and instead resolve this case under section
16-10-108, C.R.S. 2018, the Colorado statute requiring
Process and Unanimity
10 Defendant briefly asserts in the opening brief that the
question whether verdicts must be unanimous involves a
constitutional due process right, and the People accept that
assertion. We, however, "are not bound by the
parties' concessions as to the applicable law."
People in Interest of J.C., 2018 COA 22, ¶ 37
n.5 (quoting People v. Knott, 83 P.3d 1147, 1148
(Colo.App. 2003)); see also People v. Backus, 952
P.2d 846, 850 (Colo.App. 1988). Regardless, our supreme court
has explained that "the principle of judicial restraint
requires us to 'avoid reaching constitutional questions
in advance of the necessity of deciding them.'"
Dev. Pathways v. Ritter, 178 P.3d 524, 535 (Colo.
2008) (quoting Lyng v. Nw. Indian Cemetery Protective
Ass'n, 485 U.S. 439, 445 (1988)); see People v.
Valdez, 2017 COA 41, ¶ 6 ("[W]e address
constitutional issues only if necessary."). Because the
existence of a constitutional right of unanimity would not
have any impact on our decision, we do not consider that
11 In the present case, we can and do resolve the appeal by
applying section 16-10-108, reversing the judgment, and
remanding the case for retrial with directions.
Statutory Unanimity Requirement
12 It is the trial court's statutory duty to properly
instruct the jury to ensure that a conviction is the result
of a unanimous verdict. See People v. Childress,
2012 COA 116, ¶ 28, rev'd on other grounds,
2015 CO 65M. But on what does section 16-10-108 require the
jury to unanimously agree? The mere fact that the defendant
is guilty or not guilty of the offense? The theory of
criminal liability by which the defendant committed the
offense? Or the specific act or acts that constituted the
offense under a particular theory of criminal liability? Our
supreme court has yet to squarely address this question.
13 In People v. Taggart, 621 P.2d 1375, 1387 (Colo.
1981), rejected on other grounds by James v. People,
727 P.2d 850 (Colo. 1986), the court briefly addressed the
defendant's argument that he was denied his statutory
right to a unanimous verdict. The court appeared to avoid the
merits of this issue by holding that the defendant failed to
preserve it. Id. ("The record indicates that
the defendant did not object to the elemental instruction on
child abuse, failed to request a special verdict, and did not
assert his present challenge to the general verdict in his
motion for a new trial. Under such circumstances 'we are
not inclined to hold that the general instruction on the
necessity of unanimity was insufficient.'")
(citation omitted). Nevertheless, in a footnote, the court
observed that "[s]tate courts consistently have held
that unanimity is required only with respect to the ultimate
issue of the defendant's guilt or innocence of the crime
charged and not with respect to alternative means by which
the crime was committed." Id. at 1387 n.5.
14 Seven years later, the supreme court did not follow the
decisions from other jurisdictions cited in footnote 5 of
Taggart when it decided Thomas v. People,
803 P.2d 144 (Colo. 1990), and required the court to instruct
juries to reach unanimity on the acts committed by a
defendant under certain circumstances. Specifically, the
court held that when the prosecution presents evidence of
multiple discrete acts, any one of which would constitute the
charged offense, and there is a reasonable likelihood that
jurors will disagree about which act the defendant committed,
the trial court must do one of two things: (1) require the
prosecution to elect the act or acts it relies on; or (2)
instruct the jury that to convict it must unanimously agree
that the defendant committed the same act or acts or all the
alleged acts. Id. at 153-54.
15 The court did not cite section 16-10-108 in its opinion.
But divisions of this court have consistently used the
Thomas analysis when interpreting the unanimity
statute. See, e.g., People v.
Wester-Gravelle, 2018 COA 89M, ¶ 22; People v.
Vigil, 2015 COA 88M, ¶ 41; Childress,
¶¶ 28-29; People v. Devine, 74 P.3d 440,
443 (Colo.App. 2003).
16 Importantly, the prosecution's presentation of
evidence of multiple acts that might constitute the offense
does not automatically require an election or a modified
unanimity instruction. Even where the prosecution presents
evidence of alternative discrete acts to support a single
offense, a modified unanimity instruction is unnecessary if
the prosecution argues that the defendant committed the
offense by engaging in a single criminal transaction
encompassing all of the discrete acts. See Vigil,
¶ 42; see also Melina v. People, 161 P.3d 635,
641-42 (Colo. 2007).
17 A modified unanimity instruction is also unnecessary if,
based on the evidence and theory of prosecution, there is no
reasonable likelihood that some jurors will find the
defendant guilty of a single offense based on different acts.
See Thomas, 803 P.2d at 153-54.
18 In sum, divisions of this court have held that
"[r]egardless of how the prosecution charges a
defendant, either an election or a [modified] 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.'"
Wester-Gravelle, ¶ 24 (quoting Devine,
74 P.3d at 443).
Modified Unanimity Instruction was Required Here
19 The jury in this case found Archuleta guilty of one count
of child abuse resulting in death. A person commits child
abuse if he or she
causes an injury to a child's life or health, or permits
a child to be unreasonably placed in a situation that poses a
threat of injury to the child's life or health, or
engages in a continued pattern of conduct that results in
malnourishment, lack of proper medical care, cruel
punishment, mistreatment, or an accumulation of injuries that
ultimately results in the death of a child or serious bodily
injury to a child.
§ 18-6-401(1)(a), C.R.S. 2018. As we understand this
statute, a person can commit child abuse under three
alternative theories of criminal liability: (1) by causing an
injury to the child's life or health; (2) by permitting a
child to be unreasonably placed in a situation that poses a
threat of injury to the child's life or health; or (3) by
engaging in a continued pattern of conduct that results in
the kind of mistreatment that ultimately results in death or
serious bodily injury.
20 Another division of this court applied section
16-10-108's unanimity requirement to the offense of child
abuse in Childress. In that case, the defendant was
charged with and convicted of a single count of child abuse.
Childress, ¶ 1. The prosecution argued that the
defendant committed child abuse under the single theory that
he permitted the child to be placed in a situation that posed
a threat of injury to the child's health. Id. at
¶ 36. Although the prosecution pursued only a single
theory of criminal liability, it introduced evidence of
multiple acts, each of which could have constituted the
offense under that theory. Id. at ¶ 37. These
acts included taking the child to a party where there was
alcohol and drug use, giving the child alcohol, driving drunk
with the child, and allowing the child to ride in a car while
another unlicensed and intoxicated person drove. Id.
The prosecution did not elect which act it was relying on to
secure a conviction, and the jury was not instructed that it
had to agree that the defendant committed the same act or all
of the acts. Id. at ¶¶ 34-37. Instead, the
prosecution invited the jury to convict the defendant based
on any one of ...