People v. Rivera

• Decision Date: 14 March 2002
• Docket Number: No. 99CA2038.,99CA2038.
• Citation: 56 P.3d 1155
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Geraldine A. RIVERA, Defendant-Appellant.
• Court: Colorado Court of Appeals

56 P.3d 1155

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Geraldine A. RIVERA, Defendant-Appellant.

No. 99CA2038.

Colorado Court of Appeals, Div. V.

March 14, 2002.

Certiorari Denied October 21, 2002.

Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Geraldine A. Rivera, appeals the judgment of conviction entered upon jury verdicts finding her guilty of one count of securities fraud, one count of conspiracy to commit securities fraud, and one count of sale of an unregistered security. Defendant also appeals the denial of her Crim. P. 35(c) postconviction motion asserting ineffective assistance of counsel. We affirm in part, reverse in part, and remand for a new trial.

Defendant, her son, and two others solicited investments in a business that proposed to provide twenty-four-hour per day childcare at two separate facilities. The prosecution asserted that the plan to operate daycare centers masked a fraudulent scheme to bilk investors of funds and to convert the funds to the conspirators' personal use.

The codefendants were tried separately from defendant. The jury convicted defendant for the crimes noted above, but acquitted her of other counts related to theft.

I.

Defendant contends that the trial court erred in not requiring the prosecution to elect which act supported the counts of securities fraud and conspiracy to commit securities fraud or, alternatively, in not instructing the jury with a modified unanimity instruction that it must agree unanimously on the act or acts that constituted the charged offenses. We agree.

Defendant did not request an election, nor did she submit or request a modified unanimity instruction. Accordingly, we review the alleged defect for plain error. See Crim. P. 52(b); People v. Williams, 899 P.2d 306 (Colo.App.1995). Under this standard, the error must so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Kruse, 839 P.2d 1 (Colo.1992).

To prevail on a claim of instructional plain error, the defendant must demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the conviction. See People v. Garcia, 28 P.3d 340 (Colo.2001)

.

A.

When evidence of many acts is presented, any one of which could constitute the offense charged, and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, the trial court must take one of two actions to ensure jury unanimity. 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 or committed all the acts included within the period charged. Thomas v. People, 803 P.2d 144 (Colo.1990); People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

The requirement of an election or a modified unanimity instruction assures that a conviction does not result from some members of the jury finding the defendant guilty of one act, while others convict based on a different act. Roelker v. People, 804 P.2d 1336 (Colo.1991); see also § 16-10-108, C.R.S.2001 (unanimity requirement for jury verdicts in criminal cases).

Here, the prosecution charged defendant with securities fraud under § 11-51-501(1)(c), C.R.S.2001, of the Colorado Securities Act (CSA), which provides, in pertinent part:

(1) It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly:

. . .

(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

The prosecution presented evidence of numerous securities transactions involving at least twenty-five investors, concerning two proposed daycare facilities in different cities, and spanning a two-year period. The prosecution attempted to link defendant to all of these transactions, either as a principal or as a complicitor. The asserted transactions were stock sales and purchases, loans, and creation of at least one limited partnership. Funds were accepted in cash as well as by checks made out variously to entities created by the conspirators or to themselves individually. Defendant took part in soliciting some investors, but not others, and as to at least one transaction there was no evidence that she had any direct contact with the investor.

Under these circumstances, there is a reasonable likelihood that the jury could have disagreed concerning the act or acts defendant committed. The jury instructions with respect to the charged count of securities fraud did not require the jury to so agree. See People v. Simmons, 973 P.2d 627 (Colo. App.1998)

(absent election, general verdict form did not guarantee unanimity on felony menacing charge where evidence presented reasonable likelihood that jurors could disagree as to intended victim). Instead, the instructions required only that the jury determine whether "at or about the date and place charged," defendant had engaged in an "act, practice or course of business" that constituted securities fraud.

Moreover, the error was not harmless. This case is unlike cases in which the evidence, while referring to separate events, described repeated acts with respect to a single victim-witness, such that the jury would be likely to agree either that all of the acts occurred or that none occurred. See Thomas v. People, supra

(error in not requiring election or modified unanimity instruction found harmless where charge limited to particular type of act and evidence presented was uniform in nature).

Here, there was substantial variety with respect to the nature of defendant's involvement in the subject transactions. Accordingly, there was not only evidence of multiple acts, but a substantial likelihood that jury members could disagree regarding which acts supported conviction.

With respect to the related charge of conspiracy to commit securities fraud, our analysis is the same. The elements of the crime include the commission of an overt act in pursuance of the conspiracy. See § 18-2-201, C.R.S.2001. Absent an election or a modified unanimity instruction, the jury could have convicted defendant while disagreeing about which act constituted the overt act.

The trial court is responsible for ensuring that the jury is properly instructed on the law and that a conviction on any count is the result of a unanimous verdict. See Kogan v. People, 756 P.2d 945 (Colo.1988)

; People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980). Because this error went to the very foundation of the jury's guilty verdicts on the charges of securities fraud and conspiracy, we conclude that it casts serious doubt on the reliability of the convictions on those charges, see People v. Kruse, supra, and there is thus a reasonable possibility that the error contributed to the conviction. Hence, we conclude there was plain error.

B.

In so holding, we reject the People's argument that an election was not required because the prosecution pursued a "course of business" theory under § 11-51-501(1)(c) and did not pursue an "act or practice" theory. They assert that the particular instances of fraud with respect to each investor were in essence "alternative means" that contributed to the overall course of business fraud with which defendant was charged. See People v. Taggart, 621 P.2d 1375 (Colo.1981)

(unanimity required with respect to crime charged, but not as to alternative means of committing crime).

However, this argument ignores the fact that the instruction on the securities fraud count allowed the jury to convict on the basis of either an act or a practice or a course of business. Moreover, the prosecution did not specifically limit its closing argument to a course of business theory, nor did it reject any other theory. Accordingly, even if we assume that unanimity would not be required to convict under a course of business theory, we cannot conclude that the jury convicted defendant solely on such a theory here.

C.

Relying upon People v. Freda, 817 P.2d 588 (Colo.App.1991), the People also argue that a unanimity instruction was not required here because it is permissible for jurors to disagree on which evidence satisfies a particular element, so long as each juror agrees that each element is supported by proof beyond a reasonable doubt. We find Freda distinguishable.

The defendant in Freda was charged with four counts of offering a false instrument for recording. He sought an election concerning which entries on the offered forms constituted the element of material false information. The court held that election concerning the particular entries was not required, because the separate entries on the forms were not evidence of many acts, any one of which would constitute the offense charged. Instead, the operative act was that of offering the false instrument as a whole. Therefore, because each count specified the one false document that was offered for recording as the basis for the charge, and only one transaction was charged in each count, no election was required.

Here, however, it is the fraud committed in connection with a sale or an offer of securities that constitutes the operative act. See § 11-51-501(1). In this case, there was evidence of more than twenty potential transactions with more than two dozen different investors. Moreover, the prosecution charged, and defendant was convicted of, only one count of securities fraud and one count of conspiracy. Cf. People v. Lawrence, 55 P.3d 155 (Colo.App.2001)

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