     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 17, 2018

                                2018COA68

No. 16CA0835, People v. Wagner — Constitutional Law — Fifth
Amendment — Double Jeopardy; Crimes — Stalking

     A division of the court of appeals considers whether the

Double Jeopardy Clauses of the United States and Colorado

Constitutions require that a defendant’s three stalking convictions

merge. Considering the plain language of section 18-3-602(1)(a),

(b), and (c), C.R.S. 2017, the division concludes that the stalking

statute sets forth alternative ways of committing the same offense.

Because the defendant was convicted of three counts of stalking

(one under each subsection of section 18-3-602(1)) based on one

factually inseparable course of conduct, the division concludes that

the convictions were multiplicitous. Thus, the division vacates two

of the defendant’s stalking convictions and remands for correction

of the mittimus. The judgment is otherwise affirmed.
     The division also considers and rejects the defendant’s

contentions that insufficient evidence supported his convictions and

that the trial court erred in rejecting a defense-tendered unanimity

jury instruction.
COLORADO COURT OF APPEALS                                        2018COA68


Court of Appeals No. 16CA0835
Arapahoe County District Court No. 14CR2454
Honorable Michelle A. Amico, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Austin Wagner,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                    Division I
                         Opinion by JUDGE TAUBMAN
                       Harris and Rothenberg*, JJ., concur

                            Announced May 17, 2018


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Ryan Austin Wagner, appeals his judgment of

 conviction entered on a jury verdict finding him guilty of three

 counts of stalking. We remand for the trial court to merge his

 stalking convictions and correct the mittimus accordingly, but

 affirm in all other respects.

                             I. Background

¶2    In May 2014, Wagner and the victim, his wife, separated. The

 victim moved in with another man she had been dating. For the

 next several months, Wagner repeatedly texted, called, and followed

 the victim and her boyfriend.

¶3    Wagner and the victim were divorced in September 2014.

 Shortly after the divorce was finalized, the victim disclosed Wagner’s

 behavior to her supervisor after he made several calls to her

 workplace. After the victim reported his behavior, Wagner was

 arrested and charged with three counts of stalking — one count

 under each of subsections (a), (b), and (c) of section 18-3-602(1),

 C.R.S. 2017. A jury returned a guilty verdict on all counts.1




 1Wagner was also charged with violation of a mandatory protection
 order imposed after his arrest on the stalking charges. He pleaded

                                   1
¶4    Wagner was sentenced to ninety days in jail on each count

 with all jail terms to run consecutively, and six years of probation

 on each count with all probation terms to run concurrently.

¶5    On appeal, Wagner argues that the trial court erred by (1)

 entering convictions unsupported by sufficient evidence and (2)

 rejecting a defense-tendered unanimity instruction or, in the

 alternative, failing to require the prosecution to elect which acts

 constituted credible threats. In their answer brief, the People

 conceded that two of Wagner’s convictions — those charged under

 the credible threat subsections (a) and (b) — should have merged at

 sentencing.

¶6    After considering the People’s concession, we requested

 supplemental briefing from Wagner and the People addressing

 whether all three of the stalking convictions should have merged at

 sentencing. Wagner asserted that, assuming his convictions were

 not vacated altogether, merger was appropriate. The People argued

 that the credible threat convictions should not merge with the

 serious emotional distress conviction under section 18-3-602(1)(c).



 guilty to this charge at the close of his jury trial. Wagner does not
 challenge this conviction on appeal.

                                    2
¶7    We conclude that Wagner’s stalking convictions should have

 merged and therefore remand so that the trial court can vacate two

 of the counts. However, we reject Wagner’s other contentions of

 error and therefore affirm in all other respects.

                             II. Multiplicity

¶8    Although Wagner did not raise the issue before the trial court

 or on appeal, the People conceded in their answer brief that two of

 his stalking convictions should have merged at sentencing and we

 agree. We further conclude that Wagner’s three stalking

 convictions should have merged and therefore remand for the trial

 court to vacate two of the convictions.

                         A. Standard of Review

¶9    We review de novo whether merger applies to criminal

 offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018.

 An unpreserved double jeopardy claim is reviewable for plain error.

 Reyna-Abarca v. People, 2017 CO 15, ¶¶ 45-46, 390 P.3d 816, 823.

 Plain errors are errors that are “obvious and substantial,” Hagos v.

 People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and “cast serious

 doubt on the reliability of the judgment of conviction,” id. (quoting

 People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).


                                    3
                           B. Applicable Law

                          1. Stalking Statute

¶ 10   A person commits stalking if he or she knowingly

             (a) Makes a credible threat to another person
             and, in connection with the threat, repeatedly
             follows, approaches, contacts, or places under
             surveillance that person . . . ; or

             (b) Makes a credible threat to another person
             and, in connection with the threat, repeatedly
             makes any form of communication with that
             person . . . ; or

             (c) Repeatedly follows, approaches, contacts,
             places under surveillance, or makes any form
             of communication with another person, a
             member of that person’s immediate family, or
             someone with whom that person has or has
             had a continuing relationship in a manner that
             would cause a reasonable person to suffer
             serious emotional distress and does cause that
             person, a member of that person’s immediate
             family, or someone with whom that person has
             or has had a continuing relationship to suffer
             serious emotional distress.

  § 18-3-602(1)(a)-(c).

                               2. Merger

¶ 11   Unless a statute expressly authorizes multiple punishments

  for the same criminal offense, the Double Jeopardy Clauses of the

  United States and Colorado Constitutions prohibit “the imposition



                                    4
  of multiple punishments for the same criminal conduct.” Woellhaf

  v. People, 105 P.3d 209, 214 (Colo. 2005); see U.S. Const. amends.

  V, XIV; Colo. Const. art. II, § 18. Multiplicitous charging creates a

  risk that a defendant “would be punished more than once for the

  same offense.” Quintano v. People, 105 P.3d 585, 589 (Colo. 2005).

¶ 12   When a statute provides alternative ways of committing a

  single criminal offense, multiplicity concerns may materialize.

  Woellhaf, 105 P.3d at 214. “Such an issue may arise if imprecise

  statutory language leads a prosecutor to charge multiple counts of

  the same offense because a defendant has committed the crime

  using more than one of the prohibited alternative methods.” Id. at

  215. In these cases, courts must determine “the legislatively

  prescribed unit of prosecution.” Id. at 211.

¶ 13   “After determining the unit of prosecution designated by the

  General Assembly, double jeopardy analysis requires us to consider

  whether the defendant’s conduct constitutes factually distinct

  offenses, that is, whether the conduct satisfies more than one

  defined unit of prosecution.” Id. at 218-19. In determining whether

  offenses are factually distinct, we consider factors including the

  time and location of the events, the defendant’s intent, and whether


                                    5
  the People presented the acts as legally separable. See Quintano,

  105 P.3d at 591-92. However, no one factor is dispositive and the

  inquiry ultimately focuses on “all the evidence introduced at trial to

  determine whether the evidence on which the jury relied for

  conviction was sufficient to support distinct and separate offenses.”

  Id. at 592.

¶ 14   In the event that a defendant is convicted of multiplicitous

  counts, the proper remedy is to merge the multiplicitous

  convictions. See People v. Rhea, 2014 COA 60, ¶¶ 16-17, 349 P.3d

  280, 287-88 (“Merger has the same effect as vacating one of the

  multiplicitous sentences.”).

                                 C. Analysis

¶ 15   Wagner was charged with two counts of stalking under the

  “credible threat” subsections of the stalking statute, section 18-3-

  602(1)(a) and (b), and one count of stalking under the “serious

  emotional distress” subsection of the stalking statute, section 18-3-

  602(1)(c). The complaint and information lists the same period for

  all three alleged offenses, May 15, 2014, through October 2, 2014.

  The People conceded in their answer brief that the credible threat

  convictions should have merged at sentencing because “the


                                     6
  prosecution did not separate the charges based on shorter time

  frames or specific incidents.” Although we are not bound by the

  People’s concession, see People v. Knott, 83 P.3d 1147, 1148 (Colo.

  App. 2003), we agree.

¶ 16   As noted, in their supplemental brief the People contend that

  the credible threat convictions should not merge with the serious

  emotional distress conviction. In support of that position, the

  People rely on People v. Carey, 198 P.3d 1223 (Colo. App. 2008),

  and People v. Herron, 251 P.3d 1190 (Colo. App. 2010). We

  consider the People’s reliance on those cases misplaced.

¶ 17   In contrast to the People’s contention, the division in Carey

  did not uphold multiple convictions under the credible threat and

  serious emotional distress subsections of the stalking statute;

  instead, as a careful reading of the division’s opinion reveals, the

  defendant there was convicted of a single count of stalking, though

  he was apparently charged under both subsections of the statute.

  See 198 P.3d at 1227. Thus, the People’s reliance on Carey is

  unavailing.

¶ 18   In Herron, the division concluded that two stalking

  convictions, one under the credible threat subsection and one


                                     7
under the serious emotional distress subsection, should merge.

251 P.3d at 1192. The division determined, based on the plain

language of section 18-3-602(1), that “the legislatively defined unit

of prosecution for the crime of stalking is a continuous course of

conduct by which one repeatedly follows, approaches, contacts, or

places another under surveillance.” Id. at 1193. Further, the

division concluded that the stalking statute “does not contain any

specific authorization for multiple punishments for each act of

stalking,” but instead “defines alternative means of committing a

single offense.” Id.; see also People v. Abiodun, 111 P.3d 462, 466

(Colo. 2005) (when the legislature joins “a number of acts . . . as a

disjunctive series,” rather than describing them in different

provisions under different titles, it defines alternative means of

committing a single offense); People v. Friend, 2014 COA 123M,

¶ 53, ___ P.3d ___, ___ (cert. granted in part Feb. 8, 2016). Thus, the

Herron division merged the defendant’s two stalking convictions

under former section 18-9-111(4)(b)(I) (now codified at section 18-3-

602(1)(a)) and former section 18-9-111(4)(b)(III) (now codified at

section 18-3-602(1)(c)). 251 P.3d at 1192.




                                   8
¶ 19   Still, in their supplemental brief, the People maintain that

  there is no multiplicity problem presented by Wagner’s credible

  threat and serious emotional distress stalking convictions because,

  “unlike in Herron, Wagner committed enough factually distinct

  incidents to permit convictions on each theory.” We disagree.

¶ 20   The People rely on the analysis in Herron that three instances

  of following the victim could not support the defendant’s two

  stalking convictions because each stalking conviction must be

  based on repeated conduct. See id. at 1194. The People contend

  that Wagner’s conduct, unlike the defendant’s in Herron, could be

  separated into two distinct stalking convictions because he

  contacted the victim more than four times. However, because the

  stalking statute proscribes an entire course of conduct, “a second or

  successive offense is not necessarily committed by acts that are

  factually distinct from each other but only by acts that are factually

  distinct from the entire course of conduct punished by the first

  conviction.” Abiodun, 111 P.3d at 470. Contrary to the People’s

  argument, we determine that Wagner’s conduct did not support

  factually separate stalking transactions.




                                    9
¶ 21   While Wagner’s course of conduct lasted for several months,

  the extended timeframe alone does not render his numerous

  contacts with the victim factually distinct. See Herron, 251 P.3d at

  1194 (finding stalking transactions were not factually distinct

  despite passage of three months between them). Further, Wagner’s

  contacts with the victim were related to a common theme —

  namely, his desire to reconcile and resume their relationship. Most

  significantly, the prosecution did not treat Wagner’s acts as legally

  separable at trial. Instead, the prosecution based all three charges

  on the same evidence and designated the same approximately

  five-month period for each charge. During closing argument, the

  prosecutor urged the jury to “think about all of the threats and the

  conduct in connection with those threats in this case” and to

  consider Wagner’s actions “taken in conjunction with everything.”

  Accordingly, we conclude that the evidence supports only one

  conviction for stalking, and, therefore, two of his stalking

  convictions must be vacated.

¶ 22   We determine only that, in the circumstances here, the People

  did not prove factually distinct instances of conduct sufficient to

  support multiple stalking convictions. Nevertheless, we do not


                                    10
  conclude or even suggest that a defendant can never be convicted of

  multiple stalking convictions. Cf. Woellhaf, 105 P.3d at 218 (“[W]e

  do not suggest that the statute defines sexual assault on a child

  such that the prosecution may never charge separate offenses

  arising from a single course of conduct or criminal episode.”). “The

  prosecution may pursue multiple convictions if the underlying

  evidence supports factually distinct offenses.” Id.

¶ 23   In sum, we conclude that Wagner was charged with, and

  convicted of, multiplicitous counts. Further, we conclude that the

  error was plain. Herron was decided when Wagner was sentenced,

  as were Woellhaf and Quintano. See Friend, ¶ 74, ___ P.3d at ___.

  The protections against double jeopardy affect a substantial

  constitutional right. Id. at ¶ 75, ___ P.3d at ___. It was plainly

  erroneous for the trial court to enter three stalking convictions.

¶ 24   Thus, we remand for the trial court to vacate two of the

  stalking counts and to correct the mittimus accordingly.

                     III. Sufficiency of the Evidence

¶ 25   Wagner contends that insufficient evidence supported all three

  of his convictions. We disagree. Because we have concluded that

  all of Wagner’s convictions should have merged, we need only


                                    11
  address the sufficiency of the evidence supporting his conviction

  under any one of the subsections of section 18-3-602(1). However,

  we will address his argument as to all three convictions.

                            A. Additional Facts

¶ 26   The victim testified that Wagner began texting, calling, and

  following her after the two separated, but that the contact increased

  over the next few months until their divorce was finalized. She

  testified that Wagner repeatedly parked outside her home, once

  confronted her in the parking lot at her workplace, and followed her

  and her boyfriend to a park. Additionally, Wagner told the victim

  on a few occasions that if he could not have her then no one could

  and implied “that [she] had to come back to him or else.” During

  one phone conversation, the victim believed she heard Wagner

  “pull[] the slide back on a gun . . . and [she] was really concerned

  that he was either going to shoot himself or come over and kill [her

  or her boyfriend].” Wagner also told the victim that he knew where

  she lived, as well as where her and her boyfriend’s families resided.

¶ 27   As a result of Wagner’s behavior, the victim testified that she

  did not feel safe or secure, was “always worried” that Wagner “was

  either going to hurt himself, [her], or [her boyfriend],” started to


                                     12
  carry a concealed firearm, altered her route to work and her

  schedule, and lost sleep because she was “pretty emotional.” In

  addition, the victim’s boyfriend testified that he purchased a

  security system for his home and also started to carry a concealed

  gun.

¶ 28     The defense moved for a judgment of acquittal on all charges.

  In a thorough bench ruling, the trial court denied that motion.

                           B. Standard of Review

¶ 29     In considering a challenge to the sufficiency of the evidence,

  we review the record de novo. Dempsey v. People, 117 P.3d 800,

  807 (Colo. 2005). “When determining a challenge to the sufficiency

  of the evidence, an appellate court must consider whether the

  evidence, viewed as a whole and in the light most favorable to the

  prosecution, is sufficient to support a conclusion by a reasonable

  person that the defendant is guilty of the charged crime beyond a

  reasonable doubt.” Carey, 198 P.3d at 1232.

                                C. Analysis

¶ 30     Wagner contends that there was insufficient evidence to

  support his stalking convictions. His argument is twofold. First, he

  contends that the evidence did not prove beyond a reasonable


                                     13
  doubt that his conduct would have caused a reasonable person to

  suffer serious emotional distress or that the victim actually suffered

  serious emotional distress. Second, he asserts that his actions did

  not constitute “credible threats” because they would not have

  caused “a reasonable person to be in fear for the person’s safety or

  the safety of his or her immediate family or of someone with whom

  the person has or has had a continuing relationship.” § 18-3-

  602(2)(b), C.R.S. 2017. We disagree with both contentions.

¶ 31   Taken in the light most favorable to the People, we conclude

  the evidence was sufficient to show both that Wagner’s conduct

  would have caused a reasonable person serious emotional distress

  and that it caused the victim serious emotional distress. The victim

  testified that, as a result of Wagner’s surveillance and frequent

  communications, she felt unsafe, lost sleep, changed her daily

  routine to evade Wagner, and started to carry a concealed weapon.

  This evidence was sufficient to allow the jury to find the objective

  and subjective serious emotional distress elements had been

  established. See Carey, 198 P.3d at 1233 (victim’s testimony “that

  she was ‘very fearful’ and ‘very distressed’ because she realized that

  defendant could easily act on his threats” and that she “increased


                                    14
  her level of awareness of her surroundings” was sufficient evidence

  of serious emotional distress); People v. Cross, 114 P.3d 1, 6 (Colo.

  App. 2004) (sufficient evidence of serious emotional distress when

  victim testified that the defendant’s behavior caused her to change

  her work schedule, feel nervous, and have trouble sleeping), rev’d in

  part on other grounds, 127 P.3d 71 (Colo. 2006); People v. Sullivan,

  53 P.3d 1181, 1185 (Colo. App. 2002) (sufficient evidence of serious

  emotional distress when victim testified that she changed her

  routines, was afraid, felt she was constantly being watched, and

  had trouble sleeping).

¶ 32   Similarly, the evidence was sufficient for the jury to find that

  Wagner made credible threats. On several occasions, he told the

  victim something like, “If I can’t have you, then no one can.” The

  victim testified that, during one phone call, she heard Wagner pull

  the slide of a gun back. Wagner also told the victim that he knew

  where her family lived. Again, taking the evidence in the light most

  favorable to the People, we conclude that this evidence was

  sufficient for the jury to conclude that Wagner had made credible

  threats. See People v. Chase, 2013 COA 27, ¶¶ 53-54, ___ P.3d ___,

  ___ (concluding that several emails containing “implicit and explicit


                                    15
  threats” was sufficient evidence of credible threats when victim

  considered the emails serious and bought a gun as a result); People

  v. Suazo, 87 P.3d 124, 126 (Colo. App. 2003) (noting sufficient

  evidence of credible threat where the “defendant told the victim that

  he was going to kill her if she did not see him”).

         IV. Unanimity Instruction and Prosecutorial Election

¶ 33   Wagner contends that the trial court erred in rejecting a

  defense-tendered unanimity jury instruction or, in the alternative,

  failing to require the prosecution to elect between the alleged

  credible threats. We perceive no error.

¶ 34   In light of our conclusion that all Wagner’s stalking

  convictions should merge, it may seem that we do not need to

  consider this argument. In Herron, the division apparently declined

  to address a similar contention in light of its conclusion that the

  defendant’s stalking convictions should merge. See Herron, 251

  P.3d at 1192-93 (“Because we agree with [the defendant’s] double

  jeopardy argument, we do not address his alternative contention

  that the court erred in failing to require the prosecution to specify

  what conduct comprised emotional distress stalking and credible




                                    16
  threat stalking or to give the jury a unanimity instruction

  concerning the stalking counts.”).

¶ 35   However, we conclude that because of the large number of

  stalking incidents alleged under both the credible threat and

  serious emotional distress subsections of the stalking statute, we

  must address this contention regardless of our conclusion that

  Wagner’s convictions should merge. The prosecution presented

  evidence of numerous occasions on which Wagner contacted and

  followed the victim, any number of which could have supported a

  stalking conviction. Thus, we must still address Wagner’s

  argument that the jury should have been required to unanimously

  agree as to which acts in fact occurred.

                           A. Additional Facts

¶ 36   During a conference on the jury instructions, the defense

  tendered an instruction that read, “In order to convict the defendant

  of the crime of stalking as set forth in [the elemental instructions],

  you must either unanimously agree that the defendant committed

  the same act or acts, or that the defendant committed all of the acts

  described.” In the alternative, the defense requested that the

  prosecution elect which acts constituted credible threats with


                                    17
  regard to counts two and three because there were “a number of

  different statements, any one of which could” constitute a credible

  threat.

¶ 37   The trial court denied the defense’s request, relying primarily

  on Carey, 198 P.3d 1223, and stating, “When a defendant is

  charged with crimes occurring in a single transaction, the

  [p]rosecution does not have to elect among the acts that constitute

  the crime, and the unanimity instruction need not be given.”

                          B. Standard of Review

¶ 38   We review de novo whether the trial court was required to give

  a unanimity instruction. People v. Torres, 224 P.3d 268, 278 (Colo.

  App. 2009). We also review de novo whether “the prosecution’s

  failure to elect the particular act on which it relies for conviction”

  denied a defendant due process of law. Quintano, 105 P.3d at 592.

                            C. Applicable Law

¶ 39   An accused has the right to a jury trial, U.S. Const. amends.

  VI, XIV; Colo. Const. art. II, §§ 16, 25, and a unanimous jury

  verdict, § 16-10-108, C.R.S. 2017. “The trial court is responsible

  for ensuring that the jury is properly instructed on the law and that

  a conviction on any count is the result of a unanimous verdict.”


                                     18
  People v. Rivera, 56 P.3d 1155, 1160-61 (Colo. App. 2002).

  Therefore, as a general rule,

             [w]hen evidence of many acts is presented, any
             one of which could constitute the offense
             charged, the trial court must take one of two
             actions to ensure jury unanimity: (1) require
             the prosecution to elect the transaction on
             which it relies for the conviction, or (2) if there
             is not evidence to differentiate between the
             acts and there is a reasonable likelihood that
             jurors may disagree on the act the defendant
             committed, instruct the jury that to convict it
             must agree unanimously that the defendant
             committed the same act or that the defendant
             committed all of the acts included within the
             period charged.

  People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011), as modified on

  denial of reh’g (Apr. 21, 2011).

¶ 40   However, that general rule is inapposite when there is no

  “reasonable likelihood that jurors may disagree on the act the

  defendant committed.” Rivera, 56 P.3d at 1160; see also Greer, 262

  P.3d at 925. Thus, a trial court errs in rejecting a request for

  prosecutorial election or in denying a unanimity instruction only

  “[i]f the record demonstrates that ‘[s]ome of the jurors may have

  decided to convict on one act, while others may have decided to

  convict on another’ such that ‘it is impossible to be reasonably



                                     19
  certain of the reliability of the judgment of conviction.’” People v.

  Gookins, 111 P.3d 525, 528 (Colo. App. 2004) (quoting Woertman v.

  People, 804 P.2d 188, 192 (Colo. 1991)).

                               D. Analysis

¶ 41   Wagner contends that the trial court erred by rejecting the

  unanimity instruction or by failing to require the People to elect

  which acts were credible threats in support of counts two and three.

  We disagree.

¶ 42   During trial, the defense’s theory of the case was that Wagner

  had committed harassment rather than stalking. In fact, the

  defense began its closing argument by stating that “no one was

  going to deny how many text messages [there were] and how much

  contact there was” between Wagner and the victim. As Wagner

  acknowledges in his reply brief, it was “undisputed” that he made

  repeated contact with the victim. The defense did not argue that

  Wagner did not commit any of the acts about which the victim or

  the other witnesses testified.

¶ 43   We conclude that this is a case in which the evidence

  “described repeated acts with respect to a single victim-witness,

  such that the jury would be likely to agree either that all of the acts


                                     20
  occurred or that none occurred.” Rivera, 56 P.3d at 1160.

  Accordingly, there is no “reasonable likelihood that the jury could

  have disagreed concerning the act or acts [Wagner] committed” and

  the prosecution therefore was not required to elect on which acts it

  was relying to prove that Wagner had made a credible threat. See

  id. Nor was the trial court required to give a unanimity

  instruction.2 See Carey, 198 P.3d at 1236; see also Melina v.

  People, 161 P.3d 635, 639-40 (Colo. 2007). Thus, the trial court did

  not err in denying the defense’s request for prosecutorial election

  or, in the alternative, for a unanimity instruction.

                              V. Conclusion

¶ 44   Accordingly, we vacate two of the counts and remand for the

  trial court to merge the convictions under section 18-3-602(1)(a),

  (b), and (c), and to correct the mittimus. In all other respects, the

  judgment is affirmed.

       JUDGE HARRIS and JUDGE ROTHENBERG concur.




  2 Although we conclude that the trial court was not required to give
  the jury a unanimity instruction under the circumstances here, a
  unanimity instruction may be appropriate in cases, such as
  stalking, in which the charged crime is composed of multiple
  distinct acts.

                                    21
