10 — Crimes — Forgery

2018 COA 89

• Court: Colorado Court of Appeals
• Decided: June 28, 2018
• Docket: 2016CA10
• Status: Published

Opinion

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).