People v. Wester-Gravelle

• Decision Date: 28 June 2018
• Docket Number: Court of Appeals No. 16CA1010
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. De Etta WESTER–GRAVELLE, Defendant–Appellant.
• Court: Colorado Court of Appeals

474 P.3d 91

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.De Etta WESTER–GRAVELLE, Defendant–Appellant.

Court of Appeals No. 16CA1010

Colorado Court of Appeals, Division VII.

Announced June 28, 2018

Rehearing Denied August 9, 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

Opinion by JUDGE FREYRE

¶ 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 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.

¶ 5 The prosecution 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 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, 318 P.3d 479 ("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 (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, 396 P.3d 34 ( 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, 389 P.3d 885 ( Zadra II ).

¶ 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, 390 P.3d 816 ). And this court is bound by that law. People v. Houser , 2013 COA 11, ¶ 32, 337 P.3d 1238 (if our supreme court has established a categorical rule from which it has not deviated, we are bound to follow this precedent).

¶ 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.

¶ 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 "s...