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People v. Archuleta

Court of Appeals of Colorado, Seventh Division

May 2, 2019

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Sandra ARCHULETA, Defendant-Appellant.

         Rehearing Denied May 30, 2019.

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          Weld County District Court No. 16CR1113 Honorable Julie C. Hoskins, Judge.

          Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State Public

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Defender, Denver, Colorado, for Defendant-Appellant.


         MILLER, JUDGE.[*]

         ¶ 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 instruction.

         I. Background

         ¶ 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 not heal.

         ¶ 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.

         II. Lack of Modified Unanimity Instruction Requires Reversal

         ¶ 9 Archuleta argues that the trial court erred by failing to ensure that the jury's

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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 verdict unanimity.

         A. Due 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, 428 P.3d 617 (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, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)); see People v. Valdez, 2017 COA 41, ¶ 6, 405 P.3d 413 ("[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 issue.

         ¶ 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.

         B. 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, 409 P.3d 365, rev'd on other grounds, 2015 CO 65M, 363 P.3d 155. 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.,

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People v. Wester-Gravelle, 2018 COA 89M, ¶ 22, 474 P.3d 91; People v. Vigil, 2015 COA 88M, ¶ 41, 459 P.3d 553; 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).

         C. A Modified Unanimity ...

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