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. 

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. 
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 DefendantAppellant 
1 

¶ 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 
2 

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. 
3 

¶ 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 
4 

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 
5 

(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). 
6 

¶ 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). 
7 

¶ 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 WesterGravelle’s duplicity claim. 
8 

¶ 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 
9 

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 
10 

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.”) 
11 

(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 
12 

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). 
13 

¶ 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 
14 

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: 
15 

(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 
16 

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 
17 

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, 
18 

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 
19 

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 
20 

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 
21 

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 
22 

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 
23 

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 
24 

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. 
25 

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: 
26 

 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. 
27 

 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). 
28 

¶ 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 
29 

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. 
30 

¶ 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 
31 

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 
32 

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. 

 
33 

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. 
34 

¶ 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). 
35 

¶ 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); 
36 

 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, 
37 

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 
38 

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 
39 

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 
40 

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. 
41 

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. 
42 

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.] 
43 

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 
44 

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
45 

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 
46 

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). 
47 

¶ 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. 
48 

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)); 
49 

 “‘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 
50 

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 
51 

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 
52 

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 
53 

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 
54 

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. 
55 

¶ 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.; 
56 

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 
57 

¶ 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. 
58 

¶ 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 
59 

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 
60 

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 
61 

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 
62 

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).