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-
26
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.
27
¶ 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
28
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
29
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.
30
¶ 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.
31
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).
32
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.
33
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.
34
