People v. Wester-Gravelle

• Decision Date: 22 June 2020
• Docket Number: Supreme Court Case No. 18SC624
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. De Etta WESTER-GRAVELLE, Respondent.
• Court: Colorado Supreme Court

465 P.3d 570

The PEOPLE of the State of Colorado, Petitioner,

v.De Etta WESTER-GRAVELLE, Respondent.

Supreme Court Case No. 18SC624

Supreme Court of Colorado.

June 22, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Johnson & Klein, PLLC, Gail K. Johnson, Boulder, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case is a companion case to People v. Archuleta , 2020 CO 63, ––– P.3d ––––, which we are also deciding today. Here, as in Archuleta , we consider the question of when a trial court must either require the prosecution to elect an act or acts on which it will rely for conviction or provide the jury with a so-called "modified unanimity instruction." Specifically, in this case involving one count of forgery against the defendant, De Etta Wester-Gravelle, we must decide whether a division of the court of appeals erred in concluding that the prosecution had an obligation to elect the specific document or documents on which it would rely for conviction or, alternatively, that Wester-Gravelle was entitled to a modified unanimity instruction requiring the jurors to agree unanimously that she had committed the same underlying act of forgery or that she had committed all of the underlying acts.¹

¶2 In addressing this question, we first conclude, contrary to the People's assertion, that Wester-Gravelle did not waive her assertion that either an election or a modified unanimity instruction was required. Turning then to the merits, we further conclude that the trial court did not plainly err when it did not, sua sponte, require an election or give a modified unanimity instruction here because any error was neither obvious nor substantial.

¶3 Accordingly, we reverse the judgment of the division below, and we remand this case to the court of appeals for consideration of Wester-Gravelle's remaining contentions on appeal.

I. Facts and Procedural History

¶4 Wester-Gravelle worked as a certified nursing assistant for a company called Interim Healthcare. During the time period in question, the company assigned her to care for a patient, W.M., who had suffered a stroke and needed assistance with tasks like bathing. W.M.’s partner, E.G., was also in poor health and could not perform such tasks for W.M.

¶5 Interim Healthcare assigned Wester-Gravelle to visit W.M. five times per week for two hours each day. At the conclusion of each shift, Wester-Gravelle was required to have either W.M. or E.G. sign Wester-Gravelle's shift chart to verify that she had been there. The charts would then serve as a record pursuant to which Interim Healthcare would pay Wester-Gravelle for her work.

¶6 Wester-Gravelle had been assigned to work with W.M. for several months when, in late July or early August of 2015, her supervisor, Lisa Conley, made a routine visit to W.M.’s house during a time when Wester-Gravelle had been scheduled to be there. When Conley arrived, however, Wester-Gravelle was not there. Conley performed routine tasks of her own that day, and in the course of her conversation with W.M. and E.G., they said that they had not seen Wester-Gravelle in several weeks.

¶7 Interim Healthcare looked into this allegation, beginning by examining Wester-Gravelle's shift charts for various weeks in July 2015. Wester-Gravelle had submitted completed and signed charts for the weeks of July 11, 18, and 25 (on the shift charts, weeks began on Saturdays). In addition, payroll records indicated that Interim Healthcare had paid Wester-Gravelle for working five days during each of those weeks.

¶8 An employee from Interim Healthcare then contacted W.M. and asked him to examine the signatures on the shift charts at issue. W.M. said that the signatures on the charts for the three weeks in question were not his. E.G. also examined the signatures and stated that she felt that they were not W.M.’s, although she could not be certain. She further reiterated that Wester-Gravelle had not provided care to W.M. during those three weeks.

¶9 The case was subsequently referred to the Attorney General's office for the purpose of conducting a criminal investigation. In the course of this investigation, an investigator from that office obtained four signatures from W.M. for comparison to those in the shift charts. An expert in questioned document examination analyzed the signatures and ultimately concluded that it was highly probable that W.M. did not author the signatures on the charts.

¶10 The prosecution thereafter charged Wester-Gravelle with one count of forgery, alleging that

[b]etween and including July 11, 2015 and July 31, 2015, De [E]tta 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, ... [an] 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. [ (2019) ].

¶11 The case proceeded to trial, and at trial, the prosecution introduced as an exhibit a document containing an initial Home Care Aide Visit Sheet and three Home Care Aide Visit/Shift Charting Sheets covering the weeks of July 11, 18, and 25. Wester-Gravelle never asked that the court require the prosecution to elect the chart on which it would rely for conviction, nor did she request a modified unanimity instruction that would have required the jury to agree unanimously that Wester-Gravelle forged the same document or that she had forged all of the documents. The court, however, gave the jury the standard COLJI-Crim. E:23 (2019) instruction, which advised the jurors, "The verdict must represent the considered judgment of each juror, and it must be unanimous. In other words, all of you must agree to all parts of it." The jury ultimately convicted Wester-Gravelle as charged, and the trial court sentenced her to two years of probation.

¶12 Wester-Gravelle appealed, arguing, as pertinent here, that the trial court plainly erred when it did not either require the prosecution to elect or give the jury a modified unanimity instruction. A divided division of the court of appeals reversed Wester-Gravelle's conviction and remanded the case for a new trial. People v. Wester-Gravelle , 2018 COA 89M, ¶ 1, ––– P.3d –––– ; see also People v. Wester-Gravelle, 2018 COA 89M, ¶ 63, ––– P.3d –––– (Bernard, C.J., dissenting).

¶13 The division's majority began by rejecting the People's argument that Wester-Gravelle had waived the claim that she was raising on appeal by failing to object to the information under Crim. P. 12(b)(2) and (3). Id. at ¶¶ 7–8. In the majority's view, Crim. P. 12(b) did not apply here. Id. The division thus proceeded to review Wester-Gravelle's assertion for plain error. Id. at ¶ 18.

¶14 In doing so, the majority noted that "when the complaint charges a single offense, 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," then the trial court must either require the prosecution to elect the transaction or series of transactions on which it will rely to convict, 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." Id. at ¶ 22. Applying this principle, the majority concluded that "Wester-Gravelle committed the crime of forgery each time she completed, signed, and submitted a shift chart with the intent to be paid for a week of work she did not do." Id. at ¶ 34. Accordingly, the majority determined that her conduct comprised multiple transactions that required either a prosecutorial election or a modified unanimity instruction. Id. at ¶ 34. The majority further determined that the error in not requiring either an election or a modified unanimity instruction was both obvious and substantial and was so "seriously prejudicial" that it required that Wester-Gravelle receive a new trial. Id. at ¶¶ 44–49. In light of this disposition, the majority did not consider Wester-Gravelle's contention that the trial court had erred in entering a restitution order without a jury's factual findings. Id. at ¶ 61.

¶15 Chief Judge Bernard dissented. Id. at ¶ 63 (Bernard, C.J., dissenting). In his view, Wester-Gravelle waived her claim because she neither (1) filed a pretrial motion under Crim. P. 12(b)(2) asking the court to require a prosecutorial election or to give a modified unanimity instruction nor (2) raised the issue at trial. Id. at ¶ 66. Specifically, Chief Judge Bernard opined that the duplicity issue that Wester-Gravelle was raising was apparent on the face of the information, and even if it was not, the issue would have become clear once she received the prosecution's discovery or, at the latest, at trial. Id. at ¶¶ 72, 75–76. In Chief Judge Bernard's view, Wester-Gravelle was required to raise the duplicity question at one of those points, and her failure to do so "denied the prosecution the opportunity to cure the defect and the court the opportunity to provide the jury with a unanimity instruction." Id. at ¶ 77. Accordingly, Chief Judge Bernard would have deemed Wester-Gravelle's duplicity claim waived and would not have considered it on the merits. Id. at ¶¶ 74, 77.

¶16 The People petitioned this court for certiorari review, and we granted their petition.

II. Analysis

¶17 We begin by discussing the law pertinent to Crim. P. 12(b)(2) and waivers thereunder and conclude that Wester-Gravelle did not waive her unanimity claim. We thus proceed to review Wester-Gravelle's claim for plain error. In doing so, we...