The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 28, 2018
2018COA89
No. 2016CA1010 — Crimes — Forgery; Criminal Law — Jury
Instructions — Series of Acts in a Single Count
In this multiple transaction case, a majority of a division of the
court of appeals reverses the defendant’s forgery conviction,
concluding that the trial court should have provided the jury with a
modified unanimity instruction. Because it is likely to arise on
retrial, the majority addresses and affirms the trial court’s
evidentiary ruling, but it declines to address the restitution issue.
As a matter of first impression, the dissent characterizes the
multiple transactions as a duplicity issue and applies Crim. P.
12(b)(2) to find a waiver of the duplicity issue. The dissent agrees
with the majority that the evidentiary ruling should be affirmed, but
it addresses and rejects the defendant’s argument that Apprendi v.
New Jersey, 530 U.S. 466 (2000), applies to restitution.
COLORADO COURT OF APPEALS 2018COA89
Court of Appeals No. 16CA1010
El Paso County District Court No. 15CR4710
Honorable Marla R. Prudek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
De Etta Wester-Gravelle,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE FREYRE
Berger, J., concurs
Bernard, J., dissents
Announced June 28, 2018
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
¶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
1
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.
2
¶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 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 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
3
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
4
(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 II).
5
¶ 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 this precedent).
6
¶ 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.
(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.
7
¶ 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
8
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
9
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 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, 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.”)
10
(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.”).
¶ 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
11
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).
12
¶ 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 defendant committed”).
¶ 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
13
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.
C. Analysis
1. 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:
14
(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.
¶ 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
15
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
16
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 unanimity instruction.
¶ 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,
17
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
18
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
19
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 she submitted the shift charts is not dispositive
of whether her conduct constituted multiple transactions or a single
transaction.
¶ 36 Finally, the record reveals that Wester-Gravelle signed each
shift chart on a different day to receive payment for a different
period, evidencing a new volitional intent with the completion of
each shift chart. See Quintano, 105 P.3d at 592 (emphasizing the
“time to reflect” and the “new volitional departure” in determining
whether there were separate offenses). We are not convinced by the
People’s argument that each individual act simply corroborated
Wester-Gravelle’s intent to defraud Interim. Rather, her signature
on each shift chart reflects a separate intent to defraud her
20
employer and to receive payment for work not performed for a
particular week. And, each shift chart represents a different
“written instrument” under the forgery statute. When considered
with the other two factors, we conclude that Wester-Gravelle’s
conduct constituted multiple transactions, any one of which
supported a conviction of forgery.
¶ 37 We also are not persuaded by the People’s argument that
Melina requires a different result. In Melina, our supreme court
concluded that multiple communications to different individuals
soliciting murder constituted a single transaction of solicitation.
161 P.3d at 641. It reasoned that the defendant’s multiple efforts to
find someone to murder the victim constituted a single course of
conduct, because each contact with a prospective accomplice did
not establish a separate offense but, instead, reflected the
defendant’s efforts to accomplish his singular goal of murdering the
victim. Id. at 640-42.
¶ 38 In contrast, the evidence here does not show numerous
actions over a period of time corresponding with a single intent to
defraud. Wester-Gravelle committed the crime of forgery each time
she completed, signed, and submitted a shift chart with the intent
21
to be paid for a week of work she did not do. See § 18-5-102(1)(c)
(Forgery requires “intent to defraud” when a “person falsely makes,
completes, alters, or utters a written instrument” to “affect a legal
right, interest, obligation, or status.”); cf. People v. Jacobs, 91 P.3d
438, 433 (Colo. App. 2003) (concluding that evidence of at least
thirty emails between the defendant and a detective in a child
solicitation case constituted a single transaction because they were
all to arrange a single date). Thus, she formed a new volitional
intent with the creation and submission of each shift chart,
requiring a modified unanimity instruction. See People v. Ferguson,
181 Cal. Rptr. 593, 596 (Cal. Ct. App. 1982) (requiring a unanimity
instruction where the defendant was charged in one count with
passing thirty-five bad checks, because each check represented a
potentially separate and independent offense).
¶ 39 Finally, we are not persuaded that Wester-Gravelle’s conduct
was a “continuing course of conduct” constituting a single
transaction. The People have not cited, nor are we aware of, any
authority holding that the crime of forgery is a continuing offense.
See, e.g., People v. Allman, 2017 COA 108, ¶ 13 (concluding that the
plain language of the identity theft statute “is unambiguous and
22
indicates that the General Assembly did not intend for this offense
to be a continuing crime”) (cert. granted Mar. 5, 2018); People v.
Perez, 129 P.3d 1090, 1092-93 (Colo. App. 2005) (stating the crime
of impersonation is a continuing offense because the crime required
a defendant to knowingly “assume[] a false or fictitious identity”).
¶ 40 Therefore, we conclude that the prosecution’s evidence
presented a reasonable likelihood that the jurors may have
disagreed on which shift chart constituted the forgery charged.
Under these circumstances, the court should either have required
the prosecution to elect an act on which it relied for a conviction or
it should have instructed the jury that in order to convict, the jury
had to unanimously agree on the act committed or unanimously
agree that Wester-Gravelle committed all of the acts.
2. Obvious Error
¶ 41 Having concluded that an error occurred, we must decide
whether the error was both obvious and substantial. See Hagos,
¶ 14. We begin by noting the numerous Colorado cases cited above
holding that when the prosecution presents evidence of multiple
transactions, any one of which could constitute the offense charged,
and there is a reasonable likelihood that jurors may disagree about
23
which transaction the defendant committed, one of two things must
occur — either the court may compel the prosecution to elect the
act or series of acts on which it intends to rely for a conviction, or
the defendant is entitled to a modified unanimity instruction
advising the jury that it must unanimously agree on the act forming
the basis of the conviction or that it must unanimously agree that
all of the acts occurred. See Melina, 161 P.3d at 639; Quintano, 105
P.3d at 592; Thomas, 803 P.2d at 153; Estorga, 200 Colo. at 82,
612 P.2d at 523; Vigil, ¶ 38; Perez-Hernandez, ¶ 55; Torres, 224
P.3d at 278; Devine, 74 P.3d at 443; Rivera, 56 P.3d at 1160-61;
see also People v. Stackhouse, 2018 CO 60, ¶ 3 (noting that in a
C.R.C.P. 35(c) claim, the People conceded that the trial court erred
in failing to provide a modified unanimity instruction in multiple
transactions case). Indeed, this multiple transactions rule has
existed for nearly forty years. See Estorga, 200 Colo. at 82, 612
P.2d at 523.
¶ 42 Additionally, the obviousness of the problem is further
evidenced by our supreme court’s criminal jury instructions
committee providing a stock instruction for trial courts to use in
cases where the evidence raises a duplicity issue. See COLJI-Crim.
24
E:11 (2017) (“In order to convict the defendant of [insert name of
crime], you must either unanimously agree that the defendant
committed the same act or acts, or that he [she] committed all of
the acts alleged.”) Comment 1 to the instruction cites to the
Thomas case and informs trial courts that “[t]his instruction is for
ensuring jury unanimity with respect to the charged act(s) forming
the basis for a finding of guilt.” COLJI-Crim. E:11 cmt. 1.
¶ 43 Considering this well-settled rule, the existence of a stock
instruction acknowledging the well-settled rule, the fact that both
the Devine and Rivera divisions reversed criminal convictions under
the plain error standard, and the fact that the prosecution here
introduced three separate shift charting sheets to support a single
forged instrument, we conclude that the “obviousness” prong of the
plain error standard is satisfied.
3. Substantial Doubt
¶ 44 So, we finally turn to whether the error in failing to instruct
the jury on unanimity was so “seriously prejudicial” as to warrant a
new trial. We conclude that it was. The evidence revealed the
following:
25
At different points during his testimony, Moseley
inconsistently testified that some of the signatures on the
shift charts were his and that none of the signatures
were his. Both cannot be true.
The investigator said Moseley originally told him the
signatures from the July 17 chart were his.
Moseley and Goolsby said they believed that three of
Moseley’s four exemplar signatures, which undoubtedly
were Moseley’s because they were signed in front of the
investigator, were not Moseley’s.
The supervising nurse testified that Goolsby told her on
August 11, 2015, that Wester-Gravelle had not been at
work for about three weeks.
But, Goolsby testified that Wester-Gravelle never missed
work for “blocks” of time.
Goolsby testified that she sometimes signed documents
for Moseley and that some of the signatures might be
hers.
26
A representative from Interim confirmed that spouses
often sign for patients.1
¶ 45 When this contradictory evidence is considered along with the
absence of a modified unanimity instruction, there is little doubt
that the error casts serious doubt on the reliability of
Wester-Gravelle’s conviction and that there exists a reasonable
likelihood that some jurors may have concluded one shift chart was
forged while other jurors may have concluded a different shift chart
was forged. See Devine, 74 P.3d at 443 (noting reversal under plain
error required if “the record reveals a reasonable possibility that the
error contributed to the conviction”); Rivera, 56 P.3d at 1161
(concluding failure to elect a specific act or provide unanimity
instruction was plain error in embezzlement case).
1 One of the jury’s questions provides further evidence that the
verdict may not have been unanimous. A question to the
handwriting expert asked whether it was likely the questioned
signatures were all written by the same author, and explained that
the reason for the question was because the juror “believe[d] there
to be inconsistencies with the signatures in question.” See People v.
Castillo, 2014 COA 140M, ¶ 2 (“[J]ury confusion evidenced by a jury
question could demonstrate . . . prejudice.”) (cert. granted in part
Nov. 23, 2015).
27
¶ 46 We therefore reverse Wester-Gravelle’s conviction and remand
for a new trial.
III. Remaining Contentions
¶ 47 Because it may arise on remand, we address Wester-Gravelle’s
contention that the trial court improperly admitted Moseley’s and
Goolsby’s lay opinions regarding Moseley’s signatures. She asserts
that because Moseley and Goolsby inaccurately testified that three
of Moseley’s four exemplar signatures were not his, the testimony
was not helpful to the jury and should have been excluded under
CRE 701. She further argues that the probative value of the lay
opinions was substantially outweighed by the likelihood that this
inaccurate testimony misled and confused the jury. See CRE 403.
We disagree.
A. Standard of Review and Applicable Law
¶ 48 A trial court has broad discretion to determine the
admissibility of evidence. Venalonzo v. People, 2017 CO 9, ¶ 24. A
court abuses its discretion only when its ruling is manifestly
arbitrary, unreasonable, unfair, or contrary to law. People v.
Hoskins, 2014 CO 70, ¶ 17. Absent a showing of an abuse of
28
discretion, we will not disturb a trial court’s evidentiary rulings on
appeal. People v. Veren, 140 P.3d 131, 136 (Colo. App. 2006).
¶ 49 Whether the court abused its discretion turns on whether
Moseley and Goolsby’s testimony was improper under CRE 701 and
CRE 403. Rule 701 provides as follows:
[i]f the witness is not testifying as an expert,
the witness’ testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on the
perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the
determination of a fact in issue . . . .
¶ 50 CRE 403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
B. Analysis
¶ 51 We begin by recognizing that the inaccuracies in Moseley’s and
Goolsby’s testimony raise serious questions about their helpfulness
to the jury. However, under the required deferential standard of
review, we discern no abuse of discretion for three reasons.
29
¶ 52 First, lay witnesses may testify about their own observations
and perceptions, see CRE 701(a), and the plain language of the rule
contains no requirement that the opinion be accurate — that is for
the jury to decide. See People v. Singley, 2015 COA 78M, ¶ 34
(explaining that the accuracy of a witness’ physical description of
the suspect is “more probative of weight than admissibility”).
¶ 53 Second, Moseley’s and Goolsby’s testimony assisted the jury’s
understanding in several ways. It provided context for the jury’s
assessment of the reliability of the signatures; it helped the jury
determine whether the questioned signatures were forged; and, it
helped the jury assess witness credibility and, in particular, the
effect of Moseley’s stroke on his memory and perceptions.
¶ 54 Third, Wester-Gravelle does not explain and we fail to see how
she was prejudiced by the inconsistent statements of the
complaining witnesses. To the contrary, all of this contradictory
evidence would seem to point out the weaknesses in the
prosecution’s case. Thus, we discern no abuse of discretion under
CRE 701.
¶ 55 For the same reasons, we reject Wester-Gravelle’s contention
under CRE 403. As stated above, Moseley’s and Goolsby’s
30
testimony was relevant and helped the jury decide whether the shift
chart signatures were forged. See People v. Trujillo, 2018 COA 12,
¶ 27 (“Evidence is relevant if it has ‘any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.’” (quoting CRE 401)). Moreover, “[t]he Colorado Rules
of Evidence strongly favor the admission of relevant evidence.”
People v. Brown, 2014 COA 155M-2, ¶ 22.
¶ 56 Finally, defense counsel relied on this testimony in closing
argument:
[B]oth of them — not just Mr. Moseley, not just
Ms. Goolsby — when the District Attorney
showed them that exemplar, said, No, those
aren’t my signatures — three of the four, he
said, No, that’s not mine; one he said, That
might be mine.
He can either recognize his signatures or he
can’t. The District Attorney needs you to
believe what he says for sure about the
question[ed] ones, and then ignore what he
said about his signatures on the exemplars
that Investigator Fergon told you he had him
sign.
¶ 57 We fail to see how Moseley’s and Goolsby’s testimony could
confuse or mislead the jury given that defense counsel clearly
31
articulated how the evidence could assist the jury and in what way
the jury should consider it. Therefore, we find no abuse of
discretion.
¶ 58 Wester-Gravelle finally contends that the trial court erred
when it entered a restitution order without a jury’s factual findings
under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny. Because we are reversing Wester-Gravelle’s conviction, we
need not decide this issue. See Robertson v. Westminster Mall Co.,
43 P.3d 622, 628 (Colo. App. 2001) (court does not render advisory
opinions).
IV. Conclusion
¶ 59 The judgment of conviction is reversed and the case is
remanded for a new trial.
JUDGE BERGER concurs.
JUDGE BERNARD dissents.
32
JUDGE BERNARD, dissenting.
¶ 60 I disagree with the majority’s decision to reverse defendant’s
conviction. I would, instead, affirm it. I therefore respectfully
dissent, and, as a result, I must analyze an additional issue
concerning restitution that the majority did not discuss.
I. Defendant Waived Her Duplicity Claim Because She Did Not
Raise It Before Trial or, at the Latest, During Trial
A. Introduction
¶ 61 Defendant submitted three shift charts to the health care
company in 2015 that covered the dates of July 11 to July 31. The
first shift chart covered the week of July 11-17, the second was for
the week of July 18-25, and the third pertained to the week of July
25-31.
¶ 62 Defendant contends on appeal that the three shift charts
constituted three separate transactions. As a result, she continues,
the trial court should have either (1) required the prosecution to
elect one shift chart as the basis for the conviction; or (2) provided
the jury with a proper unanimity instruction. But she did not raise
these points in the trial court; she raises them, instead, on appeal
for the first time.
33
¶ 63 I reject defendant’s contention that the trial court committed
plain error when it did not, on its own, (1) require the prosecution
to elect “an act on which it relied for a conviction”; or (2) instruct
the jury that it had “to unanimously agree on the act committed or
unanimously agree that [defendant] committed all of the acts.” I
conclude, instead, that defendant waived her contentions about the
forgery count, which involved a concept known as “duplicity.” She
waived them because she did not file a pretrial motion under Crim.
P. 12(b)(2) that asked the trial court to require such an election or
to give such an instruction and because she did not raise the issue
at trial.
B. Duplicity
¶ 64 The alleged defect in the forgery count in this case was
duplicity. “Duplicity is the improper joining of distinct and separate
offenses in a single count.” United States v. Haddy, 134 F.3d 542,
548 (3d Cir. 1998). “Duplicitous counts may conceal the specific
charges, prevent the jury from deciding guilt or innocence with
respect to a particular offense, exploit the risk of prejudicial
evidentiary rulings, or endanger fair sentencing.” Id. (citation
omitted).
34
¶ 65 More specifically, a duplicitous count creates a significant
risk, which has several permutations including that (1) “a jury
cannot in a general verdict render its finding on each offense,
making it difficult to determine whether a conviction rests on only
one of the offenses or both[,]” United States v. Cephus, 684 F.3d
703, 706 (7th Cir. 2012)(quoting United States v. Marshall, 75 F.3d
1097, 1111 (7th Cir. 1996)); (2) “a jury could find a defendant guilty
on a count without reaching a unanimous verdict on the
commission of an offense[,]” United States v. Renteria, 557 F.3d
1003, 1008 (9th Cir. 2009); and (3) “a jury divided on two different
offenses could nonetheless convict for the improperly fused double
count,” United States v. Robinson, 627 F.3d 941, 957 (4th Cir.
2010).
¶ 66 So how and when can a duplicity claim be raised?
C. Crim. P. 12(b)(2) & (3)
¶ 67 Crim. P. 12(b)
issues a command: “Defenses and objections based on
defects . . . in the . . . information . . .[,] other than that it
fails to show jurisdiction in the court or to charge an
offense, may be raised only by motion,” Rule 12(b)(2);
35
prescribes when the command must be satisfied: “The
motion shall be made within 21 days following
arraignment,” Rule 12(b)(3); and
specifies the consequences of not complying with the
command: “Failure to present any such defense or
objection constitutes a waiver of it, but the court for
cause shown may grant relief from the waiver,” Rule
12(b)(2).
¶ 68 Our supreme court has held that a defendant must raise the
issue of whether a count was duplicitous before trial via a Rule
12(b)(2) motion, or the defendant waives it. Russell v. People, 155
Colo. 422, 426, 395 P.2d 16, 18 (1964)(“[A] duplicitous count in a
criminal information is only a matter of form, and exceptions which
go merely to form must be made before trial.” (citing Rule 12(b)).
This concept has deep roots in Colorado’s jurisprudence. Melina v.
People, 161 P.3d 635, 644 (Colo. 2007)(Coats, J., concurring in the
judgment only)(“It was well-settled . . . long before adoption of the
rules of criminal procedure, and remains the case today, that an
objection on the grounds of duplicity must be raised, at least in the
absence of good cause, before trial.”); Specht v. People, 156 Colo. 12,
36
16, 396 P.2d 838, 840 (1964)(“[A]n attack on the ground of duplicity
is only a matter of form, and must be made before trial.”); Critchfield
v. People, 91 Colo. 127, 131, 13 P.2d 270, 271 (1932)(“If the
information is duplicitous, that fact is patent, and the question
must be presented either by motion to quash or demurrer, and this
in limine, because the rule against duplicity is for the benefit of
defendant, and he may waive it.”); Kingsbury v. People, 44 Colo.
403, 404, 99 P. 61, 62 (1908)(If a count is duplicitous, “the
defendant may waive the objection, as he has done in this case,
because no motion or other objection to the information upon this
ground was made below, and it is raised for the first time upon this
review.”).
¶ 69 The forgery count in this case directly presented defendant
with the possibility that it was duplicitous on its face. As is
pertinent to my analysis, it read that, “[b]etween and including July
11, 2015 and July 31, 2015,” defendant, with the intent to defraud
the health care company, “unlawfully, feloniously, and falsely made,
completed, altered, or uttered a written instrument . . . namely:
Home Care Aide Shift Charting Sheet . . . .” And defendant should
37
have been aware that she had submitted three shift charts during
the period charged in the forgery count.
¶ 70 Defendant did not file any Rule 12(b)(2) motion alleging that
the forgery count was duplicitous, let alone one within twenty-one
days of her arraignment, and she did not raise the issue at trial.
Based on Rule 12(b)(2) and the supreme court authority that I cited
previously, I therefore conclude that defendant waived the duplicity
contention that she raises on appeal. And a waiver leaves nothing
for an appellate court to review. People v. Rodriguez, 209 P.3d
1151, 1160 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010).
¶ 71 Next, defendant has not provided any good cause for why she
did not file a Rule 12(b)(2) motion before trial. “[T]he ‘good cause’
necessary to avoid waiver must be a cause why the defendant failed
to raise the argument below.” United States v. Baker, 713 F.3d 558,
561 (10th Cir. 2013)(citation omitted). “[G]ood cause [is] lacking
when ‘[t]he record show[ed] that sufficient information was available
to defense counsel before trial that would have enabled him to
frame his’” argument. Id. (citation omitted). Defendant has not
offered any explanation of why she did not raise her duplicity claim
before trial; I would therefore conclude that she has waived it. See
38
United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir.
1998)(The defendant did not offer the court “any cause to justify his
failure to challenge his indictment before trial.”).
¶ 72 What if I assume that the forgery count in this case may not
have placed defendant and her counsel on notice that it might be
duplicitous when they first read it? Once the defense received the
prosecution’s discovery, it became clear that the count presented a
potential duplicity problem: it would take three separate documents
for the prosecution to prove forgery over the alleged period. See
State v. Schroeder, 804 P.2d 776, 781 (Ariz. Ct. App.
1990)(“[D]efendant had undertaken discovery and he was not in
doubt as to the specifics of the acts to which the indictment
related.”); People v. Jones, 792 P.2d 643, 657 (Cal. 1990)(“In
addition to the advance notice provided by the information and
preliminary examination, the . . . defendant may learn further
critical details of the [prosecution’s] case through . . . pretrial
discovery procedures.”); cf. Cohen v. United States, 378 F.2d 751,
754 (9th Cir. 1967)(A count of the indictment “was not rendered
duplicitous because the bill of particulars and subsequent proof
related to a series of calls, even though each might have been
39
alleged as a separate violation.”); United States v. Shorter, 608 F.
Supp. 871, 880 (D.D.C. 1985)(“[T]he charges have been so fully
amplified by the government’s papers and by the discovery it has
provided to defendant that lack of adequate notice cannot
legitimately be asserted.”), aff’d, 809 F.2d 54 (D.C. Cir. 1987); State
v. Germonto, 868 P.2d 50, 58 (Utah 1993)(“Because [duplicity] is a
rule of pleading rather than substance, it may be cured by such
devices as . . . a bill of particulars . . . .”). So defendant should have
filed her Rule 12(b)(2) motion after she had obtained discovery,
alleging that she had good cause to file it more than twenty-one
days after her arraignment.
¶ 73 What if I next assume that the duplicity defect in the forgery
count in this case would only have become evident during the
prosecution’s presentation of evidence at trial? Such circumstances
could also amount to good cause for the purposes of Rule 12(b)(2).
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.”); see also United States v.
40
Lyons, 703 F.2d 815, 821 (5th Cir. 1993); United States v. Diana
Shipping Servs., S.A., 985 F. Supp. 2d 719, 726 (E.D. Va. 2013).
¶ 74 Even so, defendant did not raise a duplicity objection during
the trial, which denied the prosecution the opportunity to cure the
defect and the court the opportunity to provide the jury with a
unanimity instruction. And she has not offered an explanation
amounting to good cause for why she did not do so. So, again, I
would “refuse to consider the belatedly-raised duplicity claim[].”
Lyons, 703 F.2d at 821; accord United States v. Ibarra-Diaz, 805
F.3d 908, 930-31 (10th Cir. 2015)(The defendant “argue[d] that the
duplicitous nature of the indictment did not become apparent until
during trial. However, even assuming this is correct, [the
defendant] did not act then — when the ostensible defect surfaced.
That is, [the defendant] did not raise a duplicity objection during
trial. He offers no explanation for this failing, and we deem it
fatal.”)(footnote omitted); State v. Rushton, 837 P.2d 1189, 1190
(Ariz. Ct. App. 1992)(“Failure to object to duplicity either prior to or
during trial constitutes a waiver of that objection.”); Ko v. United
States, 722 A.2d 830, 836 n.17 (D.C. 1998)(“By failing to assert the
claim of duplicity at trial, [the defendant] waived it.”); People v.
41
Allen, 24 N.E.3d 586, 591 (N.Y. 2014)(“[W]e hold that issues of
non-facial duplicity, like those of facial duplicity, must be preserved
for appellate review” because “[r]equiring preservation will prevent
unnecessary surprise after the conduct of a complete trial.”).
¶ 75 I do not think that People v. Devine, 74 P.3d 440, 443 (Colo.
App. 2003), and People v. Rivera, 56 P.3d 1155, 1159-61 (Colo. App.
2002), dictate a different result. Although both of those cases
reviewed unpreserved duplicity contentions for plain error, the
divisions did not discuss whether Rule 12(b)(2) was applicable,
probably because the parties had not raised its applicability. The
prosecution has raised the applicability of Rule 12(b)(2) in this case.
¶ 76 I recognize that Fed. R. Crim. P. 12(e) used to be substantially
similar to Rule 12(b)(2), see People v. Zadra, 2013 COA 140, ¶ 66,
(Zadra I), aff’d on other grounds, 2017 CO 18 (Zadra II), employing
the word “waiver.” But the federal rule was amended in 2014. 1A
Charles Alan Wright, Andrew D. Leipold, Peter J. Henning & Sarah
N. Welling, Federal Practice and Procedure § 193, Westlaw (4th ed.
database update Apr. 2018). Fed. R. Crim. P. 12(c)(3) now reads: “If
a party does not meet the deadline for making a [Fed. R. Crim. P.]
42
12(b)(3) motion, the motion is untimely. But a court may consider
the defense, objection, or request if the party shows good cause.”
¶ 77 Some courts have held that the removal of the word “waiver”
opened the door to plain error review. United States v. Sperraza,
804 F.3d 1113, 1119 (11th Cir. 2015). I concede that other courts
reached a similar conclusion before the 2014 amendment of Fed. R.
Crim. P. 12. See Robinson, 627 F.3d at 957 (collecting
cases)(“Several courts . . . have held that newly raised duplicity
claims that go beyond technicalities to allege that the conviction
could have rested on an impermissibly divided jury deserve plain
error review.”); United States v. Johnson, 415 F.3d 728, 730 (7th
Cir. 2005)(“[A] true waiver occurs only through an intentional
relinquishment of an argument, while a forfeiture is the result of a
neglectful failure to pursue an argument.”); accord Zadra I, ¶¶ 66-
71.
¶ 78 But our supreme court has not amended Crim. P. 12(b)(2) in
the four years since Fed. R. Crim. P. 12 was amended. It certainly
could do so, and it may do so. But, until it does, Rule 12(b)(2)’s
reference to waiver remains in force. I therefore think that Rule
12(b)(2) “says what it means and means what it says,” so “[g]reat
43
weight must be given to the plain language of the rule . . . .” United
States v. Walker, 665 F.3d 212, 218 (1st Cir. 2011)(discussing the
waiver language in Fed. R. Crim. P. 12). I would therefore “join
the . . . view [of a majority of the circuits] and hold that a failure to
challenge a defect in an indictment before trial, as required by [Rule
12(b)(2)], results in an unreviewable waiver of that challenge . . . .”
Id. at 228.
¶ 79 A waiver is an “intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). It is clear that
the right to file a pretrial motion in this case was known, because
Rule 12(b)(2) gave the world notice of its existence. It is also clear
that Rule 12(b)(2) gave the world notice that the consequence of not
complying with the rule was waiver of the right.
¶ 80 But does it matter that defendant did not expressly waive her
right to file a Rule 12(b)(2) motion? Does that mean that she did
not waive her right to file such a motion? Relying on United States
v. Olano, 507 U.S. 725 (1993), and Stackhouse v. People, 2015 CO
48, I answer these questions “no.”
D. Olano and Stackhouse
44
1. Olano
¶ 81 The United States Supreme Court has made clear that not all
waivers require courts to conduct extended conversations with
defendants. “[W]hether the defendant must participate personally
in the waiver; whether certain procedures are required for waiver;
and whether the defendant’s choice must be particularly informed
or voluntary, all depend on the right at stake.” Olano, 507 U.S. at
733.
¶ 82 “For certain fundamental rights, the defendant must
personally make an informed waiver.” New York v. Hill, 528 U.S.
110, 114 (2000). These fundamental rights include, for example,
the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938); the right to a jury trial, People v. Walker, 2014 CO 6, ¶ 16;
the rights a defendant gives up when pleading guilty, Boykin v.
Alabama, 395 U.S. 238, 243 (1969); and the right to testify at trial,
People v. Curtis, 681 P.2d 504, 512 (Colo. 1984).
¶ 83 “For other rights, however, waiver may be effected by action of
counsel.” Hill, 528 U.S. at 114. “Although there are basic rights
that the attorney cannot waive without the fully informed and
publicly acknowledged consent of the client, the lawyer has — and
45
must have — full authority to manage the conduct of the trial.”
Taylor v. Illinois, 484 U.S. 400, 417-18 (1988)(footnote omitted).
Indeed, “[t]he adversary process could not function effectively if
every tactical decision required client approval.” Id. at 418.
¶ 84 “In most instances the attorney will have a better
understanding of the procedural choices than the client; or at least
the law should so assume.” Gonzalez v. United States, 553 U.S.
242, 249 (2008). “The presentation of a criminal defense can be a
mystifying process even for well-informed lay persons. This is one
of the reasons for the right to counsel.” Id. And, because we
entrust these decisions to counsel, “[a]bsent a demonstration of
ineffectiveness, counsel’s word on such matters is the last.” Hill,
528 U.S. at 115.
¶ 85 To this end, attorneys can waive many of a defendant’s rights.
For example, United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017),
relying on language in Mil. R. Evid. 304(f)(1), held that counsel’s
failure to file motions to suppress or objections to statements or
derivative evidence before the “submission of plea” “constitutes a
waiver of the objection.” Id. at 197 (quoting Mil. R. Evid. 304(f)(1))
(emphasis omitted).
46
¶ 86 For other examples, an attorney can waive (1) a defendant’s
statutory right to speedy trial under the Interstate Agreement on
Detainers, Hill, 528 U.S. at 115; (2) a defendant’s right to have an
Article III judge preside over jury selection in a criminal trial,
agreeing that a federal magistrate judge can do so instead,
Gonzalez, 553 U.S. at 250; (3) a defendant’s right to confront a
witness during trial, Cropper v. People, 251 P.3d 434, 435 (Colo.
2011); and (4) any objection to a court viewing video evidence
outside of the defendant’s presence, People v. Young, 996 N.E.2d
671, 676 (Ill. App. Ct. 2013).
¶ 87 In fact, “the provisions of” the rules of criminal procedure are
“presumptively waivable . . . .” United States v. Mezzanatto, 513
U.S. 196, 201 (1995)(discussing the Federal Rules of Criminal
Procedure). And, at least in the Tenth Circuit, “a defendant’s failure
to ‘timely challenge his indictment [pretrial] on duplicity
grounds . . . waive[s] any later challenge based on a failure to use a
special verdict form to avoid the alleged duplicity problem.’” United
States v. Haber, 251 F.3d 881, 888-89 (10th Cir. 2001)(quoting
Trammell, 133 F.3d at 1354); accord Ibarra-Diaz, 805 F.3d at 930-
31; see also United States v. Burke, 633 F.3d 984, 991 (10th Cir.
47
2011)(“[W]e hold that [Fed. R. Crim. P. 12’s] waiver provision, not
[Fed. R. Crim. P. 52’s] plain error provisions, governs motions to
suppress evidence, including specific arguments . . . raised for the
first time on appeal. Such motions and arguments are waived
absent a showing of good cause for why they were not raised
below.”).
2. Stackhouse
¶ 88 Our supreme court applied Olano in Stackhouse. In doing so,
it concluded that the defendant had waived his right to a public
trial because his attorney had not objected to the trial court’s
decision to close the courtroom. Stackhouse, ¶ 17. Specifically, the
court reasoned that
“only a select few rights are so important as to require
knowing, voluntary, and intelligent waiver to be
personally executed by the defendant[,] [and] [t]he right
to a public trial is not among these[,]” id. at ¶ 15;
“the right to a public trial ‘falls into the class of rights
that defense counsel can waive through strategic
decisions[,]’” id. (quoting Hinojos-Mendoza v. People, 169
P.3d 662, 669 (Colo. 2007));
48
“‘we presume that attorneys know the applicable rules of
procedure,’ and we thus ‘can infer from the failure to
comply with the procedural requirements that the
attorney made a decision not to exercise the right at
issue[,]’” id. at ¶ 16 (quoting Hinojos Mendoza, 169 P.3d
at 670);
“it has long been the rule in Colorado that defense
counsel must object to a known closure to preserve
appellate review on public trial grounds[,]” id.; and
“because legitimate strategic considerations might
motivate counsel to not object to a closure, and because
such strategic decisions should not be permitted to
provide an appellate parachute to non-objecting defense
counsel if the defendant is convicted, Colorado has long
treated defense counsel not objecting to a known closure
as an affirmative waiver of the public trial right,” id.
¶ 89 Transferring the reasoning from Stackhouse to this case, I
conclude that (1) the right in this case — filing a Crim. P. 12(b)(2)
motion — is not so fundamental that it would require a defendant
to personally execute a knowing, voluntary, and intelligent waiver of
49
the right; (2) the right to file a Rule 12(b)(2) motion is one of those
that defense counsel can waive because of a strategic decision; (3)
defendant’s counsel was presumed to be aware of Rule 12(b)(2), and
it is appropriate to infer that he made a decision not to file a Rule
12(b)(2) motion; (4) Rule 12(b)(2) has long required defendants to file
motions or waive them; and (5) defendant therefore waived the right
to raise the duplicity issue in this appeal.
¶ 90 What would a strategic reason be for defense counsel to decide
not to file a Rule 12(b)(2) motion? One answer is to gain an
advantage by delaying the challenge. What would that advantage
be? “[T]o make it more difficult, at trial or on appeal, for the
prosecutor to reconstruct the evidence, much less justify . . . [the]
charge[].” United States v. Wilson, 962 F.2d 621, 626 (7th Cir.
1992). In other words, “[b]y sitting on the [duplicity] issue,
[defendant] denied the government a chance to deal with it before
trial.” Id.; see also Rushton, 837 P.2d at 1191 (“If, upon a timely
objection by the defense, the indictment had been dismissed
without prejudice, the state could have then charged defendant
with at least three counts of indecent exposure, one as to each
victim, subjecting defendant to the possibility of multiple
50
convictions and multiple penalties. While defendant risked, in the
alternative, the possibility of a non-unanimous guilty verdict on the
single charge as alleged, his failure to object to the indictment
indicates a risk he was willing to take. Defendant simply gambled
and lost and cannot now be heard to complain.”); People v. Becoats,
958 N.E.2d 865, 868 (N.Y. 2011)(“To allow an unpreserved claim of
duplicitousness to be raised on appeal would open the door to
abuse. Defendants accused of multiple offenses may not much care
how many counts they face, or may prefer to face one count (and
thus one conviction) rather than several. Under the rule defendants
here seek, it would be possible for them to make that choice at trial
by letting a duplicitous indictment stand without objection, and
make the opposite choice on appeal; they might thus obtain a new
trial on the basis of an error they consciously decided not to
challenge because they thought it was insignificant, or welcomed
it.”).
¶ 91 The prospect that defense counsel might seek such an
advantage was one of the factors that led to the adoption of Rule
12(b)(2). “This provision sharply restricted the defense tactic of
‘sandbagging’ that was available in many jurisdictions under
51
common law pleading.” 5 Wayne R. LaFave, Jerold H. Israel,
Nancy. J. King & Orin S. Kerr, Criminal Procedure § 19.1(d),
Westlaw (4th ed. database updated Dec. 2017). If defense counsel
saw a defect in the charging document, they “often would forego
raising the defect before trial, when a successful objection would
merely result in an amendment of the pleading (or a new pleading).”
Id. They would instead wait to see what happened with the case.
“If the trial ended in a conviction, counsel would then raise the
defect on a motion in arrest of judgment and obtain a new trial.” Id.
Rule 12(b)(2) “eliminated this tactic as to all pleading objections
except the failure to show jurisdiction or to charge an offense.” Id.
¶ 92 Similarly, the Wyoming Supreme Court recently pointed out
that “[t]here are obvious reasons behind the rule that a duplicity
claim is waived if not raised before trial.” Triplett v. State, 406 P.3d
1257, 1261 (Wyo. 2017). A pretrial motion can push the
prosecution to elect the offense on which it will proceed, thereby
“correcting the problem.” Id. And it would be “manifestly unfair for
a defendant to sit silently by, take his chances with the jury, and
then be allowed to ambush the prosecution through a post-trial
attack.” Id. at 1261-62 (quoting Walker, 665 F.3d at 228); see also
52
Melina, 161 P.3d at 645 (Coats, J., concurring in the judgment
only)(“[T]here are . . . clear risks associated with objecting to a
charge as duplicitous before jeopardy attaches and potential
advantages in not doing so, which introduce an element of tactical
choice into the exercise of timely duplicity objections.”).
¶ 93 This case is unlike Rediger. In that case, the record did not
show that the defendant had “intended to relinquish his right to be
tried in conformity with the charges set forth in his charging
document when he generally acquiesced to the jury instructions.”
Rediger, ¶ 42. As a result, the defendant had not waived his right
to object to the particular instruction; he had forfeited it instead,
which led the supreme court to review for plain error. Id. at ¶ 47.
¶ 94 The waiver rule in this case does not involve jury instructions.
It concerns an issue that Rule 12(b)(2) requires defendants to raise
before trial, or, if they can show good cause, during trial. And the
application of the waiver rule in this case is based on much more
than “general[] acquiescence[].” See id. at ¶ 42. Applying
Stackhouse, I conclude that it incorporates a right that is not so
fundamental that only a defendant can waive it; a right that defense
counsel can waive for strategic reasons; the presumption that
53
defense counsel are aware of Rule 12(b)(2); notice, embodied in Rule
12(b)(2), requiring defense counsel to raise the issue before trial
unless they can show good cause to obtain relief from the pre-trial
requirement; and clear language in Rule 12(b)(2) stating that failure
to comply with the rule results in a waiver of the right. This
language was adopted to directly address strategic considerations
that might motivate defense counsel to refrain from raising an issue
before or during trial.
¶ 95 But is this analysis swimming upstream against currents of
change reflected by Reyna-Abarca v. People, 2017 CO 15, ¶¶ 40-47?
E. Reyna-Abarca
¶ 96 Reyna-Abarca concerned multiplicity, which is an analytical
cousin of duplicity. See 1A Wright, Leipold, Henning & Welling,
§ 142.
¶ 97 “Multiplicity is the charging of a single offense in separate
counts of an indictment.” United States v. Kennedy, 682 F.3d 244,
254 (3d Cir. 2012). “A multiplicitous indictment risks subjecting a
defendant to multiple sentences for the same offense, an obvious
violation of the Double Jeopardy Clause’s protection against
cumulative punishment.” Id. at 255.
54
¶ 98 Our supreme concluded in Reyna-Abarca that Rule 12(b)(2)
did not bar unpreserved multiplicity claims that resulted in double
jeopardy problems because
prosecutors can file multiple charges based on one set of
facts, so “the mere fact that the [prosecution] charged an
offense and also a lesser included offense does not render
the charging document defective[,]” Reyna-Abarca, ¶ 41;
a double jeopardy claim does not arise until a defendant
is convicted, so “at the pleadings stage, [a] defendant[]
had no viable double jeopardy claim to raise under” Rule
12(b)(2), id. at ¶ 42;
the supreme court did not “perceive [anything] in [Rule
12(b)(2)] that requires a defendant to file a motion
regarding any error that might later flow from the
charging document, including . . . a double jeopardy
error[,]” id. at ¶ 43;
o “merely charging multiple counts is proper and,
thus, does not constitute a defect in the charging
document[,]” id.;
55
o “a later-arising double jeopardy issue is not based
on, and does not flow from, any defect in the
charging document,” id.;
o “[t]o conclude otherwise would substantially expand
the reach of [Rule 12(b)(2)][,]” id.; and
the supreme court had not “seen [any] applicable
authority, and the [prosecution] cite[d] none, supporting
[the prosecution’s] contention that defendants must
‘bookmark’ a future double jeopardy claim at the
pleadings stage,” id. at ¶ 44.
¶ 99 I think that the duplicity problem in this case is
distinguishable from the multiplicity/double jeopardy problem in
Reyna-Abarca.
¶ 100 First, as I explained above, our supreme court has held that
duplicity claims are subject to Rule 12(b)(2). Reyna-Abarca did not
cite any supreme court cases that had previously reached the same
conclusion about multiplicity claims, and I could not find any.
¶ 101 Second, multiplicity problems are caused by two or more
counts, so a multiplicity/double jeopardy problem does not arise
until a defendant is convicted of two or more counts. See id. at
56
¶ 42. But duplicity problems occur within one count. A defendant
has a viable duplicity claim to raise under Rule 12(b)(2) at the
pleadings stage, see id., and duplicity problems flow directly from
the charging instrument, see id. at ¶ 43.
¶ 102 Third, there are two ways in which a trial court can remedy a
duplicitous count. The court “must either require the prosecution
to elect the transaction on which it relies for conviction, or instruct
the jury that to convict the defendant it must unanimously agree
that the defendant committed the same act[,]” Rivera, 56 P.3d at
1159-60, or all of the acts, Melina, 161 P.3d at 639. These two
remedies require some action before the jury begins its
deliberations, not after the jury has rendered its verdict.
¶ 103 Fourth, I realize that the supreme court stated in Zadra II,
¶ 17, a companion case to Reyna-Abarca, that Rule 12(b)(2) “does
not require a defendant to file a motion regarding any error that
may later flow from the charging document.” But I think that this
statement was made in the context of describing why Rule 12(b)(2)
does not apply to multiplicity challenges because the error does not
necessarily appear until after a jury verdict. The supreme court
was not faced with the duplicity issue that arose in this case.
57
¶ 104 Our supreme court has observed, citing Rule 12(b)(2), that
“[o]bjections to the form of an information must be made before trial
or they are waived.” People v. Williams, 984 P.2d 56, 64 (Colo.
1999). Indeed, Rule 12(b)(2) “provide[s] that defenses and
objections based on defects in the information, other than it fails to
show jurisdiction in the court or to charge an offense, may be raised
only by motion, and failure to thus present any such defense or
objection constitutes a waiver of it.” Mora v. People, 172 Colo. 261,
263-64, 472 P.2d 142, 143 (1970)(emphasis added); accord People
v. Dickinson, 197 Colo. 338, 339, 592 P.2d 807, 808 (1979).
¶ 105 And a duplicity objection goes to the form of the information.
Specht, 156 Colo. at 16, 396 P.2d at 840 (characterizing an attack
on the information on the grounds of duplicity as one “with respect
to the form of the information” and stating that the attack “must be
made before trial”); Russell, 155 Colo. at 426, 395 P.2d at 18 (“[A]
duplicitous count in a criminal information is only a matter of form,
and exceptions which go merely to form must be made before
trial.”); accord Lyons, 703 F.2d at 821.
¶ 106 Even if the prospect of duplicity does not become apparent
until trial, the problems associated with duplicity flow from how the
58
prosecution charged the count in the information. And the grounds
for granting a defendant relief involve deficiencies in the count. See
People v. Perez-Hernandez, 2013 COA 160, ¶ 55 (“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, there is a risk that a
conviction may result from some jurors finding the defendant guilty
of one act, while others convict based on a different act.”)(emphasis
added).
II. The Jury Was Not Required to Make Factual Findings to
Support the Trial Court’s Restitution Order
¶ 107 The trial court ordered defendant to pay $822.66 in
restitution, including prejudgment interest. During the trial, the
prosecution presented evidence that the health care company paid
defendant $450 for the period covered by the three shift charts.
Defendant now contends that the trial court could not order her to
pay the difference between $450 and $822.76 without having the
jury make express factual findings that she owed the health care
company the difference. She relies on Southern Union Co. v. United
59
States, 567 U.S. 343, 350-52 (2012), in which the United States
Supreme Court held that the requirement of jury fact-finding
established by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
applies to fines in criminal cases.
¶ 108 Defendant did not raise this contention during the sentencing
hearing. The prosecution adds that she waived it because defense
counsel stated that, “I don’t see an objection [to the restitution
order]. [Defendant] might, but I think that it reflects[,] with interest
[and] the discovery[,] . . . the facts that were presented at trial.”
Although this issue is somewhat close, I disagree with the
prosecution because I think that, when viewed in context, defense
counsel was not expressing a blanket acceptance of the restitution
order. Rather, counsel was responding to defendant’s assertion
that the health care company owed her money. Counsel made this
clearer by adding, “I can tell the [court], based” on defendant’s
assertion, that “I’m not filing an objection to the restitution.”
¶ 109 Next, defendant asserts that we should review this contention
de novo: the restitution order was illegal because part of it was not
based on necessary jury findings of fact. See People v. Fransua,
2016 COA 79, ¶ 17 (“[A] defendant may raise a claim at any time
60
that his or her sentence was not authorized by law.”)(cert. granted
Dec. 5, 2016). The prosecution responds that we should review the
contention for plain error. See People v. Banark, 155 P.3d 609, 611
(Colo. App. 2007). I do not need to stumble into this thicket
because defendant’s claim would fail as a matter of law under either
standard of review.
¶ 110 People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007), held that
the requirement of jury fact-finding established by Apprendi does
not apply to restitution orders “because the states’ restitution
statutes do not set a maximum restitution amount that can be
ordered.” Accord State v. Huff, 336 P.3d 897, 902-03 (Kan. Ct. App.
2014)(citing Smith); State v. Maxwell, 802 N.W.2d 849, 851-52
(Minn. Ct. App. 2011)(citing Smith).
¶ 111 Defendant counters that Southern Union Co., which was
decided after Smith, should lead to a different result. I disagree.
Southern Union Co. addressed the issue of fines. It did not mention
restitution, and it did not undercut Smith’s rationale that Apprendi
did not apply to restitution orders because the pertinent statutes
did not establish maximum restitution amounts. Decisions from
other jurisdictions decided after Southern Union Co. reach the same
61
conclusion that I just have. United States v. Sawyer, 825 F.3d 287,
297 (6th Cir. 2016); United States v. Bengis, 783 F.3d 407, 413 (2d
Cir. 2015); United States v. Green, 722 F.3d 1146, 1150 (9th Cir.
2013); United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012);
State v. Leon, 381 P.3d 286, 289-90 (Ariz. Ct. App. 2016); People v.
Corbin, 880 N.W.2d 2, 14 (Mich. Ct. App. 2015).
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10 — Crimes — Forgery
Combined Opinion