v. Archuleta —

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
May 2, 2019

2019COA64

No. 18CA0407, People v. Archuleta — Criminal Law — Juries —
Verdict — Jury Instructions — Modified Unanimity Instruction

A division of the court of appeals considers what kind of

verdict unanimity is required by section 16-10-108, C.R.S. 2018, in

a case where the prosecution charged the defendant with a single

count of child abuse. The prosecution invited the jury to find the

defendant guilty of the single count under any one of three

alternative theories of criminal liability, and two of those alternative

theories were supported by alternative discrete acts. The division

concludes that the jurors need not unanimously agree on the theory

of liability under which the defendant is guilty. But any jurors who

found the defendant guilty under the same non-continued pattern

of conduct theory must agree on the discrete act or acts that the

defendant committed.
 The special concurrence addresses whether due process

requires that verdicts are unanimous and concludes that it does

not.
COLORADO COURT OF APPEALS 2019COA64

Court of Appeals No. 18CA0407
Weld County District Court No. 16CR1113
Honorable Julie C. Hoskins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sandra Archuleta,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MILLER*
Dunn, J., concurs
Ashby, J., specially concurs

Announced May 2, 2019

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 Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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

1
 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

2
 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.

3
 II. 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 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 (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

4
 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 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, 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.

5
¶ 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

6
 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

7
 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 Instruction was Required Here

8
¶ 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

9
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 multiple acts. Id. at ¶ 40. Under these circumstances, the

division held, the “trial court erred by not providing the jury with a

modified unanimity instruction requiring it to agree on the act

supporting the conviction or find that defendant had committed

every alleged act of child abuse.” Id. at ¶ 43.

10
¶ 21 Like Childress, the prosecution here charged Archuleta with

one count of child abuse resulting in death. But unlike Childress,

the charge here included each of the three ways in which a

defendant could commit the offense. And at trial, the prosecution

argued to the jury that it could find Archuleta guilty based on any

of these three alternative theories. Despite these differences, the

same unanimity problem that occurred in Childress occurred here.

¶ 22 Section 16-10-108 did not require the jurors to agree that

Archuleta was guilty under the same theory. See Vigil, ¶ 40 (Jurors

need not agree about the “theory by which a particular element is

established.”). But the prosecution presented evidence of multiple

acts of child abuse, any one of which could have independently

established Archuleta’s guilt under the first or second theory

(causing an injury to the child’s life or health or permitting a child

to be unreasonably placed in a situation that poses a threat of

injury to the child’s life or health). Therefore, any jurors who found

her guilty under the first theory needed to agree on the specific acts

she committed that constituted the offense under that theory. See

Childress, ¶ 43. The same is true for any jurors who found her

guilty under the second theory. We conclude that, based on the

11
 prosecution’s evidence and argument, it is reasonably likely that

this required agreement did not exist. And because the prosecution

did not elect which act or acts it was relying on to convict Archuleta

under either of these two theories, a modified unanimity instruction

was necessary. Id.

¶ 23 The prosecution presented evidence of three distinct injuries:

chemical burns to the face and mouth, a torn frenulum, and broken

ribs. The evidence suggested that the mechanism that caused each

of these injuries was different. Therefore, each injury must have

been committed by a distinct act. And, problematically for

unanimity purposes, the prosecution argued during closing that

any one or more of these injuries could have caused the child’s

death:

[Archuleta] burns his skin and burns his
mouth with chemicals, she tears his frenulum.
Those injuries make it difficult for [the child] to
eat. When he can’t eat, he gets dehydrated.
When he gets too dehydrated, he dies.

She breaks his ribs. The rib injuries make it
hard for [the child] to breathe, hard for him to
cough. When he can’t breathe and he can’t
cough, he’s susceptible to pneumonia, which
he gets and then he can’t expel it. Pneumonia
leads to infection, to sepsis, to death.

12
¶ 24 Thus, under the first theory of liability, there is a reasonable

likelihood that the jurors agreed that Archuleta caused an injury to

the child’s life or health but disagreed about the specific act or acts

she committed that caused these injuries. We reach this

conclusion because (1) different evidence supported the conclusion

that she was responsible for each of these individual injuries and

(2) there was evidence that some of the injuries could have occurred

when the child was not in Archuleta’s care.

¶ 25 The coroner testified that the chemical burns likely occurred

between forty-eight and seventy-two hours before the autopsy based

on the presence of white blood cells at the sites of the burns and

“other changes in the periphery of the lesion.” And other evidence,

including Archuleta’s statement to a child welfare caseworker,

indicated that Archuleta put potato slices soaked in what she

claimed was vinegar on the child’s face as a home remedy for fever.

¶ 26 The coroner gave a less precise estimate of when the broken

ribs occurred. He testified that the broken ribs may have been

forty-eight to seventy-two hours old at the time of the autopsy but

could have been up to two weeks old. This estimate was based on

the inflammation around the injury and the absence of callouses.

13
 Unlike the chemical burns, there was no direct evidence explaining

how Archuleta broke the child’s ribs.

¶ 27 As for the torn frenulum, the coroner was unable to estimate

when that injury occurred, and there was no direct evidence that

Archuleta caused it.

¶ 28 Based on this evidence, there was a reasonable likelihood that

jurors could have disagreed about which injuries Archuleta caused.

The evidence that Archuleta caused the chemical burns was strong.

She admitted to putting vinegar-soaked potato slices on the child’s

face, and the coroner testified that the burns occurred during the

week that Archuleta cared for the child. In contrast, the evidence

that Archuleta caused the broken ribs was less strong. There was

no direct evidence that she did anything that would have broken

the child’s ribs, and the coroner testified that the injury could have

been up to two weeks old, leaving open the possibility that it could

have occurred before Archuleta was caring for the child. And the

evidence that Archuleta caused the torn frenulum was even weaker.

There was no direct evidence about when or how it occurred.

14
¶ 29 Thus, it was reasonably likely that jurors could have convicted

Archuleta based on the theory that she caused an injury to the

child but disagreed about which injury she caused.

¶ 30 The same unanimity problem existed based on the

prosecution’s argument and evidence that Archuleta committed

child abuse by unreasonably placing the child in a situation that

threatened his life or health. The prosecution argued during closing

that Archuleta’s failure to seek medical attention after becoming

aware of each of the separate injuries constituted separate acts of

placing the child in a situation that threatened his life or health.

Jurors could have therefore determined that Archuleta was guilty of

child abuse for having placed the child in a situation that

threatened his life or health but disagreed about which instance of

failing to seek medical attention constituted the offense.

¶ 31 Under these circumstances, section 16-10-108 required the

trial court to give a modified unanimity instruction. Such an

instruction should read as follows:

Your verdict must be unanimous that the
prosecution has proven the charge of child
abuse beyond a reasonable doubt.

15
 Any jurors who find that the defendant is
guilty beyond a reasonable doubt of child
abuse because she caused an injury to the
child’s life or health must agree that the
defendant committed the same act or acts, or
that she committed all of the acts alleged.

Any jurors who find that the defendant is
guilty beyond a reasonable doubt of child
abuse because she permitted the child to be
unreasonably placed in a situation that poses
a threat of injury to the child’s life or health
must agree that the defendant committed the
same act or acts, or that she committed all of
the acts alleged.

However, any jurors who find the defendant
guilty beyond a reasonable doubt of child
abuse by engaging in a continued pattern of
conduct that resulted in malnourishment, lack
of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries
need not agree on the alleged acts that make
up the continued pattern of conduct.

¶ 32 We recognize that the third theory the prosecution pursued at

trial was that Archuleta engaged in a continued pattern of conduct

that resulted in an accumulation of injuries leading to the child’s

death. Had the prosecution pursued only this theory, a modified

unanimity instruction may have been unnecessary. See People v.

Harris, 2015 COA 53, ¶ 39 (“[I]f all of the alleged criminal acts [of

child abuse] occur in a single transaction, a unanimity instruction

16
 may not be necessary.”); see also Melina, 161 P.3d at 639-40. But

that is not what the prosecution did. Instead, the prosecution

encouraged the jury to find Archuleta guilty under any of the three

theories of criminal liability in the child abuse statute. And the

jury’s verdict did not identify the theory that the jury relied on in

finding Archuleta guilty. This, in and of itself, was not a unanimity

problem (jurors need not agree on the theory of criminal liability).

But any jurors who found Archuleta guilty under the first theory

did need to agree on the specific act that established child abuse

under that theory. The same is true for any jurors who found

Archuleta guilty under the second theory. This was the unanimity

problem that required either an election or the modified unanimity

instruction articulated above.

D. Error Requires Reversal

¶ 33 We further conclude that this error requires reversal because

it was not harmless. The failure to give a modified unanimity

instruction may be harmless if a reviewing court is convinced that

the verdict was nevertheless unanimous. See People v. Villarreal,

131 P.3d 1119, 1128 (Colo. App. 2005). The People argue that the

17
 jury’s answers to three interrogatories established that the verdict

was unanimous. We disagree.

¶ 34 It is true that the trial court could have given interrogatories

that required the jury to agree on which act or acts Archuleta

committed. This would have solved the unanimity problem

described above. But the interrogatories the court gave here did no

such thing.

¶ 35 The interrogatories given required the jury to unanimously

agree on whether Archuleta’s child abuse resulted in (1) death, (2)

serious bodily injury, and (3) injury other than serious bodily

injury. The jury unanimously agreed that Archuleta caused all

three categories of injury. The People argue that the jury’s answers

to these interrogatories “support the inference that the jury believed

unanimously that all the alleged acts occurred.” But the

prosecution argued repeatedly during closing argument that the

interrogatories should play no role in the jury’s determination of

which acts of abuse occurred: “You’ve got your mental state and

your action or inaction, that answers your question of whether she

is guilty of child abuse, then ask yourself about the result.” As

recognized by the prosecution during closing argument, the jury’s

18
 unanimous determination that Archuleta’s conduct resulted in

death, serious bodily injury, and other injury does not mean that

they agreed on the individual acts, separately or in combination,

that caused the injuries or put the child in a situation that

threatened his life or health.

¶ 36 This is especially true given that the prosecution argued

throughout trial that different individual injuries and acts

independently caused the same result. As discussed above, the

prosecution argued that the chemical burns and torn frenulum

caused the child’s death by way of dehydration. But it also argued

that the broken ribs caused the child’s death by way of infection.

Similarly, the prosecution argued that any of Archuleta’s multiple

failures to seek medical attention for the child placed him in a

situation that threatened his life or health and caused his death.

We therefore cannot conclude from the interrogatories that the jury

agreed that Archuleta committed either all or the same combination

of some of the alleged abusive acts.

¶ 37 The People also argue that the court’s failure to give a modified

unanimity instruction was harmless because there was sufficient

19
 evidence to support Archuleta’s conviction under all three theories

of liability in the child abuse statute. We disagree.

¶ 38 Courts in other jurisdictions have held that, under certain

circumstances, a finding that the evidence was sufficient to sustain

a conviction under every alternative theory of criminal liability will

cure any uncertainty about unanimity in the verdict. For example,

in Washington,

[w]hen there is more than one statutory
alternative means of committing an offense,
the . . . alternative means test generally
requires that the jury unanimously agree on
one of the alternative means. But the
[alternative means] test does not require
reversal if the evidence of each alternative is
sufficient to allow the trier of fact to have
found each means beyond a reasonable doubt.

In re Detention of Sease, 201 P.3d 1078, 1083 (Wash. Ct. App. 2009)

(applying a state constitutional right to unanimous verdicts

stemming from the state constitutional right to a jury trial).

¶ 39 We decline to adopt Washington’s alternative means test, for

two reasons. First, the Washington analysis addresses a lack of

unanimity in alternative theories of criminal liability. That is not

the unanimity problem we have identified in this case. The jurors

were not required to agree that Archuleta committed child abuse

20
 under the same theory of criminal liability. Instead, any jurors who

found Archuleta guilty under either non-continued course of

conduct theory ((1) caused an injury to the child’s life or health, or

(2) placed the child in an unreasonably dangerous situation) had to

agree on the specific act or acts that established criminal liability

under that particular theory.

¶ 40 Second, we are aware of no Colorado opinion holding that the

jury’s failure to agree on the specific act that established criminal

liability under one of several alternative theories does not violate

section 16-10-108 as long as there was sufficient evidence to

support conviction under every alternative theory. And we would

question the logic of such a holding.

¶ 41 Suppose that a defendant is convicted of a single count, under

a single theory of liability, but the prosecution presents evidence of

multiple acts that could constitute the offense under that theory.

There is no election of a specific act, and there is no modified

unanimity instruction. The jury returns a general verdict of guilty.

On appeal, the appellate court determines that the evidence was

sufficient to establish that the defendant committed each of the

multiple acts that could have constituted the offense. This

21
 sufficiency determination mitigates any concern that the defendant

was convicted on something less than proof beyond a reasonable

doubt (a due process violation). But it does not ensure that the

verdict was unanimous as section 16-10-108 requires. Just

because a reviewing court can say that a reasonable juror would

have concluded that the defendant committed all the alternative

acts does not mean that the actual jurors who deliberated agreed

that the defendant committed all the alternative acts. And section

16-10-108 requires that the actual jurors agree on the specific act

or acts the defendant committed that resulted in criminal liability.

See Childress, ¶ 43.

¶ 42 We therefore conclude that the trial court’s failure to give a

modified unanimity instruction was not harmless and requires

reversal. Based on this conclusion, we need not address

Archuleta’s additional argument on appeal.

¶ 43 In summary, we reverse the judgment and remand for a new

trial. If at the new trial the prosecution proceeds again under all

three theories of liability under section 18-6-401(1)(a), or if it

proceeds under only the first two theories or either of them, it must

elect the transaction, act, or acts on which it relies for the non-

22
continued pattern of conduct theories. If the prosecution does not

make such an election, and it presents evidence of multiple acts in

support of either or both theories, then the court should instruct

the jury as follows:

• If the prosecution proceeds under all three theories, then

the court should give the jury the modified unanimity

instruction set forth above.

• If the prosecution proceeds under the first two theories only

(caused an injury to the child or permitted the child to be

unreasonably placed in a situation that poses a threat of

injury), the court should not include the fourth paragraph

of the instruction set forth above.

• If the prosecution proceeds under only one of the first two

theories, then the court should give only the standard

modified unanimity instruction set forth in Thomas, 803

P.2d at 154 (“[T]he jurors should be instructed that in order

to convict the defendant they must either unanimously

agree that the defendant committed the same act or acts or

that the defendant committed all of the acts” alleged.); see

also CJI-Crim. E-11.

23
 • If the prosecution proceeds under one of the first two

theories plus the third theory (engaged in a continued

pattern of conduct), then the court should give the Thomas

modified unanimity instruction plus the fourth paragraph of

the instruction set forth above.

If the prosecution proceeds under only the third theory, the court

should not give a modified unanimity instruction.

III. Conclusion

¶ 44 The judgment of conviction is reversed, and the case is

remanded with directions for a new trial.

JUDGE DUNN concurs.

JUDGE ASHBY specially concurs.

24
 JUDGE ASHBY, specially concurring.

¶ 45 I agree with the majority that we must reverse the judgment of

conviction because the trial court violated Archuleta’s statutory

right to a unanimous verdict. I write separately because I disagree

with the majority that the due process issue is not properly before

us and we should not address it. I therefore address whether the

right to due process includes the right to unanimous verdicts.

I. We Should Address the Due Process Issue

¶ 46 The parties have argued that due process requires unanimous

verdicts at both the trial and appellate level. Archuleta frames her

appellate argument as follows: “Ms. Archuleta’s due process rights

to a unanimous verdict were violated by the trial court’s failure to

instruct jurors that they must all agree on the acts she actually

committed that caused the death of her grandson.” She cites to

both the state and federal Due Process Clauses and also to cases

that suggest that there is a due process right to unanimous

verdicts. The prosecution also identified the issue on appeal as

whether Archuleta’s due process right to a unanimous verdict was

violated and argued that it was not.

25
¶ 47 Moreover, the trial court resolved the unanimity issue on due

process grounds. The court relied on People v. Dunaway, 88 P.3d

619, 630 (Colo. 2004), in which the supreme court addressed

whether the defendant’s due process rights were violated by the

prosecution submitting alternate theories of liability to the jury.

¶ 48 Because Archuleta, the prosecution, and the trial court all

addressed the unanimity issue here as one involving Archuleta’s

right to due process, I conclude that whether a due process right to

unanimous verdicts exists is properly before us and I address it

below.

¶ 49 I also believe that the majority’s reliance on due process cases

in addressing Archuleta’s statutory right to unanimity will lead to

confusion and unnecessary litigation in this case and others. For

example, the majority states that People v. Thomas, 803 P.2d 144

(Colo. 1990), “did not follow” the notion, articulated in People v.

Taggart, 621 P.2d 1375 (Colo. 1981), that unanimity is required

only on the ultimate issue of the defendant’s guilt or innocence and

not on the alternative means by which the crime was committed.

But Thomas and Taggart addressed two different issues. Taggart

addressed the statutory right to unanimity under section 16-10-

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 108. Thomas was a due process case that, as the majority

recognizes, did not even cite to section 16-10-108.

¶ 50 The majority is correct that the language used in Thomas

forms the basis for the analysis used by numerous divisions of this

court when resolving statutory unanimity issues. But it is precisely

this reliance on Thomas that, in my view, requires us to address

whether a due process right to unanimity exists before we dive into

a full-throated discussion of statutory unanimity.

¶ 51 Thomas, like the numerous cases from other jurisdictions on

which it relies, was a due process case. The focus of most of the

discussion was the defendant’s right to fair procedures “that accord

protection to the due process rights of the defendant.” Thomas, 803

P.2d at 154. It then discussed how, to protect a defendant’s due

process rights, a unanimity instruction is an alternative to

prosecutorial election of acts when the evidence makes it difficult to

distinguish discrete acts of abuse. Id. at 153-54. The court then

held that the constitutional error in not requiring an election, in

combination with the court’s failure to give a unanimity instruction

requiring the jurors to agree on the acts underlying each offense,

was harmless beyond a reasonable doubt. Id. at 154.

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¶ 52 In section II.B., above, the majority cites to several opinions in

which divisions of this court have “generally used the Thomas

analysis when interpreting the unanimity statute.” It is precisely

this cross-application of law between cases resolving unanimity

under the statute, the state and federal due process clauses or, at

times neither (it is simply stated that unanimity is required), that

has led us to where we are currently: a lack of clarity about whether

due process requires unanimous verdicts.

¶ 53 For these reasons, I believe that Archuleta’s due process

argument is properly before us and we should fully address its

merits. I do so now.

II. There is No Due Process Right to Unanimous Verdicts

¶ 54 Many courts, including our supreme court, have discussed

what role modified unanimity instructions play in securing a

defendant’s constitutional rights. See, e.g., Quintano v. People, 105

P.3d 585, 592-95 (Colo. 2005). These discussions may seem to

suggest that a defendant has a constitutional right, emanating from

the Due Process Clauses, to a unanimous verdict. But I discern no

such right. Although due process requires that a conviction is

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 based on proof beyond a reasonable doubt, it does not require that

a verdict is unanimous.

¶ 55 The United States Supreme Court has made clear that the

federal right to due process does not include the right to unanimous

verdicts. In Johnson v. Louisiana, 406 U.S. 356, 363 (1972), the

Court upheld a defendant’s conviction even though only nine out of

the twelve jurors voted to convict. The Court explained that

although due process requires that a conviction be based on proof

beyond a reasonable doubt, “this Court has never held jury

unanimity to be a requisite of due process of law.” Id. at 359. The

Court then went on to hold that the lack of jury unanimity did not

establish that the defendant’s conviction was based on something

less than proof beyond a reasonable doubt. Id. at 363.

¶ 56 It is true that the Colorado Constitution’s Due Process Clause

may provide more extensive rights and protections than its federal

counterpart. See Dunaway, 88 P.3d at 630. But I am unaware of

any Colorado case holding that the state right to due process

includes a right to a unanimous verdict. Instead, our supreme

court has held that, under certain circumstances, a unanimity

instruction can help ensure that a separate constitutional right is

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 vindicated, such as the right to be free from double jeopardy or the

due process right to proof of guilt beyond a reasonable doubt.

¶ 57 Quintano is an example of such a case. Therein, our supreme

court addressed whether the defendant’s right to due process was

violated where he was convicted of several identical counts of sexual

assault and the prosecution did not elect the particular act of

sexual contact that supported each count. Quintano, 105 P.3d at

592. The court held that the defendant’s right to due process was

not violated because the jury received and followed a unanimity

instruction. Id. at 594.

¶ 58 At the beginning of its due process analysis, the supreme

court used language suggesting that there is a state due process

right to unanimous verdicts. The supreme court described the

issue before it as “[w]hether the defendant [wa]s denied due process

of law by the prosecution’s failure to elect the particular act on

which it relie[d] for conviction.” Id. at 592. It then explained that

“[t]he election requirement protects the defendant’s right to a

unanimous verdict by assuring that some jurors do not convict on

one offense and others on a separate offense; it also enables

adequate defense preparation.” Id. at 593.

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¶ 59 Based on this language, I understand why courts and parties,

as they did here, might infer a state due process right to unanimous

verdicts. But the court ultimately held that verdict unanimity was

not itself required by due process:

Although the jury’s task would have been
made easier had the prosecution designated
specific incidents for each count, the unanimity
instruction averted the pitfall of more than one
conviction for the same acts. The jury was told
that they had to agree to the same act or acts
as basis for each count of sexual assault on a
child.

Consequently, we conclude that there was no
due process violation arising out of the failure
to elect specific acts for each count of the
complaint and information.

Id. at 595 (emphasis added).

¶ 60 In my view, the Quintano court did not hold that the Due

Process Clause or any other constitutional provision requires

unanimous verdicts. Instead, the court held that the unanimity

instruction ensured that the defendant’s right to be free from

double jeopardy (not a due process right) was vindicated. Id.

¶ 61 I find support for our reading of Quintano in Justice Coats’

concurrence in Melina v. People, 161 P.3d 635, 642-48 (Colo.

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 2007).1 Justice Coats wrote that in Quintano and cases like it, the

supreme court held that a unanimity instruction can help protect a

defendant’s right to due process. But he made clear that due

process does not require jury unanimity:

[W]e have found that a defendant’s right to due
process can be adequately protected, at least
in these kinds of cases, despite less pre-trial
detail, by insuring his ability to limit the scope
of jury deliberations at a later stage. Our
heightened concern for the defendant’s ability
to adequately prepare a defense and for jury
unanimity in the context of prosecutions in
which he has been more than normally
restricted from focusing the charge at the pre-
trial stage was never intended to imply that
criminal defendants in general have a right to
jury agreement on a particular act.

Id. at 646 (Coats, J., concurring in the judgment only).

¶ 62 In short, I am unaware of any clear holding from our supreme

court that the state due process right requires unanimous verdicts

in criminal cases. In the absence of such a holding, I must

conclude that such a right does not exist. I therefore must reject

1 Notably, the majority in Melina analyzed whether the defendant
was entitled to a unanimity instruction without citing due process
or section 16-10-108. See Melina v. People, 161 P.3d 635, 636-42
(Colo. 2007).

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 Archuleta’s argument that the lack of unanimity in the verdict, in

and of itself, violated her right to due process.2

¶ 63 But this conclusion does not resolve Archuleta’s contention

that the court erred by not ensuring that the jury’s verdict was

unanimous. Although there is no due process right to unanimous

verdicts in Colorado, there is a statutory one. Section 16-10-108,

C.R.S. 2018, provides that “[t]he verdict of the jury shall be

unanimous.” And even though Archuleta frames her unanimity

argument as a violation of due process, the substance of her

argument relies heavily on cases like People v. Childress, 2012 COA

116, rev’d on other grounds, 2015 CO 65M, applying the statutory

2 Archuleta limits her constitutional argument to due process.
Although she cites to the Sixth Amendment and article II, section
16 of the Colorado Constitution (guaranteeing the right to a jury
trial), she does not argue that these provisions compel unanimous
verdicts. I therefore do not address whether the federal or state
constitutional rights to a jury trial include the right to a unanimous
verdict.

That said, I note that the Supreme Court has thus far declined to
apply the Sixth Amendment’s jury unanimity requirement in federal
criminal trials to the states through the Fourteenth Amendment.
See Apodaca v. Oregon, 406 U.S. 404, 406 (1972). And I am
unaware of any opinion from our supreme court holding that article
II, section 16 of the Colorado Constitution requires unanimous
verdicts in criminal cases.

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unanimity requirement. I therefore agree with the majority that the

issue of whether the trial court violated the statutory unanimity

requirement is properly before us. And I agree with the majority’s

analysis and resolution of that issue.

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