     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 2, 2019

                                2019COA64

No. 18CA0407, People v. Archuleta — Criminal Law — Juries —
Verdict — Jury Instructions — Modified Unanimity Instruction

     A division of the court of appeals considers what kind of

verdict unanimity is required by section 16-10-108, C.R.S. 2018, in

a case where the prosecution charged the defendant with a single

count of child abuse. The prosecution invited the jury to find the

defendant guilty of the single count under any one of three

alternative theories of criminal liability, and two of those alternative

theories were supported by alternative discrete acts. The division

concludes that the jurors need not unanimously agree on the theory

of liability under which the defendant is guilty. But any jurors who

found the defendant guilty under the same non-continued pattern

of conduct theory must agree on the discrete act or acts that the

defendant committed.
       The special concurrence addresses whether due process

requires that verdicts are unanimous and concludes that it does

not.
COLORADO COURT OF APPEALS                                          2019COA64


Court of Appeals No. 18CA0407
Weld County District Court No. 16CR1113
Honorable Julie C. Hoskins, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sandra Archuleta,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE MILLER*
                              Dunn, J., concurs
                         Ashby, J., specially concurs

                            Announced May 2, 2019


Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph P. 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. 2018.
¶1    Defendant, Sandra Archuleta, appeals the judgment of

 conviction entered on a jury verdict finding her guilty of child abuse

 resulting in death, a class 2 felony. We reverse and remand for a

 new trial because we conclude that the trial court erred by failing to

 require the prosecution to elect the act or acts on which it relied for

 the child abuse conviction or to give the jury a modified unanimity

 instruction.

                             I. Background

¶2    Archuleta took care of her four-month-old grandson for a

 week. Several hours after the child’s mother picked him up at the

 end of the week, she returned to Archuleta’s house with the child.

 Archuleta noticed that the child did not appear to be breathing, so

 she attempted CPR and called 911. First responders arrived shortly

 thereafter and transported the child to the hospital. He died early

 the following morning. An autopsy revealed that the child had been

 suffering from dehydration and a bacterial infection that started as

 pneumonia and had spread to his blood.

¶3    The prosecution charged Archuleta with one count of child

 abuse resulting in death, alleging that she caused the child’s death

 over the course of the week that she took care of him. At trial, the


                                    1
 prosecution presented the following evidence. When the child’s

 mother dropped him off at Archuleta’s house at the beginning of the

 week, he was healthy. By the end of the week, the child had

 suffered numerous injuries, including chemical burns to his face,

 mouth, and knee; a torn frenulum (the flap of skin that connects

 the inner upper lip to the upper gum); broken ribs; and

 tweezer-induced pinch marks on various parts of his body.

¶4    The coroner who performed an autopsy on the day the child

 died testified that the cause of death was dehydration and the

 bacterial infection, and that the chemical burns, torn frenulum, and

 broken ribs all contributed to the child’s death. According to the

 coroner, the chemical burns and torn frenulum made it difficult for

 the child to eat and caused the dehydration. And the broken ribs

 made it difficult for the child to cough and clear bacteria out of his

 lungs, resulting in pneumonia and the more widespread infection.

¶5    The coroner estimated that the chemical burns were likely

 forty-eight to seventy-two hours old at the time of the autopsy. He

 estimated that the broken ribs were approximately the same age

 and “certainly less than two weeks old.” This testimony suggested

 that these injuries occurred while Archuleta was caring for the


                                    2
 child. The coroner testified that he could not estimate when the

 torn frenulum occurred because once it tears, it typically does not

 heal.

¶6       At the close of evidence, defense counsel requested a

 unanimity instruction that would have required the jury to

 unanimously agree that Archuleta committed the same act or acts

 that constituted the offense of child abuse. The trial court declined

 to give the instruction. The only unanimity instruction the trial

 court gave the jury stated, “[y]our verdict must be unanimous.”

¶7       The jury found Archuleta guilty of knowing or reckless child

 abuse resulting in death. The trial court convicted her and

 sentenced her to twenty-four years in the custody of the

 Department of Corrections.

¶8       Archuleta appeals, arguing that the trial court erred by failing

 to give a modified unanimity instruction and denying her motion for

 a new trial in light of evidence that some jurors engaged in

 premature deliberations. We agree that the trial court’s failure to

 give a modified unanimity instruction requires reversal and

 therefore do not address Archuleta’s premature deliberation

 argument, which is unlikely to arise again on remand.


                                      3
       II. Lack of Modified Unanimity Instruction Requires Reversal

¶9      Archuleta argues that the trial court erred by failing to ensure

  that the jury’s verdict was unanimous. She asserts that due

  process requires that verdicts are unanimous and that the court

  therefore violated her constitutional right to due process. We do not

  consider the constitutional due process issue and instead resolve

  this case under section 16-10-108, C.R.S. 2018, the Colorado

  statute requiring verdict unanimity.

                      A. Due Process and Unanimity

¶ 10    Defendant briefly asserts in the opening brief that the question

  whether verdicts must be unanimous involves a constitutional due

  process right, and the People accept that assertion. We, however,

  “are not bound by the parties’ concessions as to the applicable law.”

  People in Interest of J.C., 2018 COA 22, ¶ 37 n.5 (quoting People v.

  Knott, 83 P.3d 1147, 1148 (Colo. App. 2003)); see also People v.

  Backus, 952 P.2d 846, 850 (Colo. App. 1988). Regardless, our

  supreme court has explained that “the principle of judicial restraint

  requires us to ‘avoid reaching constitutional questions in advance of

  the necessity of deciding them.’” Dev. Pathways v. Ritter, 178 P.3d

  524, 535 (Colo. 2008) (quoting Lyng v. Nw. Indian Cemetery


                                     4
  Protective Ass’n, 485 U.S. 439, 445 (1988)); see People v. Valdez,

  2017 COA 41, ¶ 6 (“[W]e address constitutional issues only if

  necessary.”). Because the existence of a constitutional right of

  unanimity would not have any impact on our decision, we do not

  consider that issue.

¶ 11   In the present case, we can and do resolve the appeal by

  applying section 16-10-108, reversing the judgment, and remanding

  the case for retrial with directions.

                  B. Statutory Unanimity Requirement

¶ 12   It is the trial court’s statutory duty to properly instruct the

  jury to ensure that a conviction is the result of a unanimous

  verdict. See People v. Childress, 2012 COA 116, ¶ 28, rev’d on other

  grounds, 2015 CO 65M. But on what does section 16-10-108

  require the jury to unanimously agree? The mere fact that the

  defendant is guilty or not guilty of the offense? The theory of

  criminal liability by which the defendant committed the offense? Or

  the specific act or acts that constituted the offense under a

  particular theory of criminal liability? Our supreme court has yet to

  squarely address this question.




                                      5
¶ 13   In People v. Taggart, 621 P.2d 1375, 1387 (Colo. 1981),

  rejected on other grounds by James v. People, 727 P.2d 850 (Colo.

  1986), the court briefly addressed the defendant’s argument that he

  was denied his statutory right to a unanimous verdict. The court

  appeared to avoid the merits of this issue by holding that the

  defendant failed to preserve it. Id. (“The record indicates that the

  defendant did not object to the elemental instruction on child

  abuse, failed to request a special verdict, and did not assert his

  present challenge to the general verdict in his motion for a new

  trial. Under such circumstances ‘we are not inclined to hold that

  the general instruction on the necessity of unanimity was

  insufficient.’”) (citation omitted). Nevertheless, in a footnote, the

  court observed that “[s]tate courts consistently have held that

  unanimity is required only with respect to the ultimate issue of the

  defendant’s guilt or innocence of the crime charged and not with

  respect to alternative means by which the crime was committed.”

  Id. at 1387 n.5.

¶ 14   Seven years later, the supreme court did not follow the

  decisions from other jurisdictions cited in footnote 5 of Taggart

  when it decided Thomas v. People, 803 P.2d 144 (Colo. 1990), and


                                      6
  required the court to instruct juries to reach unanimity on the acts

  committed by a defendant under certain circumstances.

  Specifically, the court held that when the prosecution presents

  evidence of multiple discrete acts, any one of which would

  constitute the charged offense, and there is a reasonable likelihood

  that jurors will disagree about which act the defendant committed,

  the trial court must do one of two things: (1) require the prosecution

  to elect the act or acts it relies on; or (2) instruct the jury that to

  convict it must unanimously agree that the defendant committed

  the same act or acts or all the alleged acts. Id. at 153-54.

¶ 15   The court did not cite section 16-10-108 in its opinion. But

  divisions of this court have consistently used the Thomas analysis

  when interpreting the unanimity statute. See, e.g., People v.

  Wester-Gravelle, 2018 COA 89M, ¶ 22; People v. Vigil, 2015 COA

  88M, ¶ 41; Childress, ¶¶ 28-29; People v. Devine, 74 P.3d 440, 443

  (Colo. App. 2003).

¶ 16   Importantly, the prosecution’s presentation of evidence of

  multiple acts that might constitute the offense does not

  automatically require an election or a modified unanimity

  instruction. Even where the prosecution presents evidence of


                                       7
  alternative discrete acts to support a single offense, a modified

  unanimity instruction is unnecessary if the prosecution argues that

  the defendant committed the offense by engaging in a single

  criminal transaction encompassing all of the discrete acts. See

  Vigil, ¶ 42; see also Melina v. People, 161 P.3d 635, 641-42 (Colo.

  2007).

¶ 17   A modified unanimity instruction is also unnecessary if, based

  on the evidence and theory of prosecution, there is no reasonable

  likelihood that some jurors will find the defendant guilty of a single

  offense based on different acts. See Thomas, 803 P.2d at 153-54.

¶ 18   In sum, divisions of this court have held that “[r]egardless of

  how the prosecution charges a defendant, either an election or a

  [modified] 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.’” Wester-Gravelle, ¶ 24

  (quoting Devine, 74 P.3d at 443).

        C. A Modified Unanimity Instruction was Required Here




                                      8
¶ 19   The jury in this case found Archuleta guilty of one count of

  child abuse resulting in death. A person commits child abuse if he

  or she

             causes an injury to a child’s life or health, or
             permits a child to be unreasonably placed in a
             situation that poses a threat of injury to the
             child’s life or health, or engages in a continued
             pattern of conduct that results in
             malnourishment, lack of proper medical care,
             cruel punishment, mistreatment, or an
             accumulation of injuries that ultimately
             results in the death of a child or serious bodily
             injury to a child.

  § 18-6-401(1)(a), C.R.S. 2018. As we understand this statute, a

  person can commit child abuse under three alternative theories of

  criminal liability: (1) by causing an injury to the child’s life or

  health; (2) by permitting a child to be unreasonably placed in a

  situation that poses a threat of injury to the child’s life or health; or

  (3) by engaging in a continued pattern of conduct that results in the

  kind of mistreatment that ultimately results in death or serious

  bodily injury.

¶ 20   Another division of this court applied section 16-10-108’s

  unanimity requirement to the offense of child abuse in Childress.

  In that case, the defendant was charged with and convicted of a



                                      9
single count of child abuse. Childress, ¶ 1. The prosecution argued

that the defendant committed child abuse under the single theory

that he permitted the child to be placed in a situation that posed a

threat of injury to the child’s health. Id. at ¶ 36. Although the

prosecution pursued only a single theory of criminal liability, it

introduced evidence of multiple acts, each of which could have

constituted the offense under that theory. Id. at ¶ 37. These acts

included taking the child to a party where there was alcohol and

drug use, giving the child alcohol, driving drunk with the child, and

allowing the child to ride in a car while another unlicensed and

intoxicated person drove. Id. The prosecution did not elect which

act it was relying on to secure a conviction, and the jury was not

instructed that it had to agree that the defendant committed the

same act or all of the acts. Id. at ¶¶ 34-37. Instead, the

prosecution invited the jury to convict the defendant based on any

one of multiple acts. Id. at ¶ 40. Under these circumstances, the

division held, the “trial court erred by not providing the jury with a

modified unanimity instruction requiring it to agree on the act

supporting the conviction or find that defendant had committed

every alleged act of child abuse.” Id. at ¶ 43.


                                  10
¶ 21   Like Childress, the prosecution here charged Archuleta with

  one count of child abuse resulting in death. But unlike Childress,

  the charge here included each of the three ways in which a

  defendant could commit the offense. And at trial, the prosecution

  argued to the jury that it could find Archuleta guilty based on any

  of these three alternative theories. Despite these differences, the

  same unanimity problem that occurred in Childress occurred here.

¶ 22   Section 16-10-108 did not require the jurors to agree that

  Archuleta was guilty under the same theory. See Vigil, ¶ 40 (Jurors

  need not agree about the “theory by which a particular element is

  established.”). But the prosecution presented evidence of multiple

  acts of child abuse, any one of which could have independently

  established Archuleta’s guilt under the first or second theory

  (causing an injury to the child’s life or health or permitting a child

  to be unreasonably placed in a situation that poses a threat of

  injury to the child’s life or health). Therefore, any jurors who found

  her guilty under the first theory needed to agree on the specific acts

  she committed that constituted the offense under that theory. See

  Childress, ¶ 43. The same is true for any jurors who found her

  guilty under the second theory. We conclude that, based on the


                                     11
  prosecution’s evidence and argument, it is reasonably likely that

  this required agreement did not exist. And because the prosecution

  did not elect which act or acts it was relying on to convict Archuleta

  under either of these two theories, a modified unanimity instruction

  was necessary. Id.

¶ 23   The prosecution presented evidence of three distinct injuries:

  chemical burns to the face and mouth, a torn frenulum, and broken

  ribs. The evidence suggested that the mechanism that caused each

  of these injuries was different. Therefore, each injury must have

  been committed by a distinct act. And, problematically for

  unanimity purposes, the prosecution argued during closing that

  any one or more of these injuries could have caused the child’s

  death:

            [Archuleta] burns his skin and burns his
            mouth with chemicals, she tears his frenulum.
            Those injuries make it difficult for [the child] to
            eat. When he can’t eat, he gets dehydrated.
            When he gets too dehydrated, he dies.

            She breaks his ribs. The rib injuries make it
            hard for [the child] to breathe, hard for him to
            cough. When he can’t breathe and he can’t
            cough, he’s susceptible to pneumonia, which
            he gets and then he can’t expel it. Pneumonia
            leads to infection, to sepsis, to death.



                                    12
¶ 24   Thus, under the first theory of liability, there is a reasonable

  likelihood that the jurors agreed that Archuleta caused an injury to

  the child’s life or health but disagreed about the specific act or acts

  she committed that caused these injuries. We reach this

  conclusion because (1) different evidence supported the conclusion

  that she was responsible for each of these individual injuries and

  (2) there was evidence that some of the injuries could have occurred

  when the child was not in Archuleta’s care.

¶ 25   The coroner testified that the chemical burns likely occurred

  between forty-eight and seventy-two hours before the autopsy based

  on the presence of white blood cells at the sites of the burns and

  “other changes in the periphery of the lesion.” And other evidence,

  including Archuleta’s statement to a child welfare caseworker,

  indicated that Archuleta put potato slices soaked in what she

  claimed was vinegar on the child’s face as a home remedy for fever.

¶ 26   The coroner gave a less precise estimate of when the broken

  ribs occurred. He testified that the broken ribs may have been

  forty-eight to seventy-two hours old at the time of the autopsy but

  could have been up to two weeks old. This estimate was based on

  the inflammation around the injury and the absence of callouses.


                                    13
  Unlike the chemical burns, there was no direct evidence explaining

  how Archuleta broke the child’s ribs.

¶ 27   As for the torn frenulum, the coroner was unable to estimate

  when that injury occurred, and there was no direct evidence that

  Archuleta caused it.

¶ 28   Based on this evidence, there was a reasonable likelihood that

  jurors could have disagreed about which injuries Archuleta caused.

  The evidence that Archuleta caused the chemical burns was strong.

  She admitted to putting vinegar-soaked potato slices on the child’s

  face, and the coroner testified that the burns occurred during the

  week that Archuleta cared for the child. In contrast, the evidence

  that Archuleta caused the broken ribs was less strong. There was

  no direct evidence that she did anything that would have broken

  the child’s ribs, and the coroner testified that the injury could have

  been up to two weeks old, leaving open the possibility that it could

  have occurred before Archuleta was caring for the child. And the

  evidence that Archuleta caused the torn frenulum was even weaker.

  There was no direct evidence about when or how it occurred.




                                    14
¶ 29   Thus, it was reasonably likely that jurors could have convicted

  Archuleta based on the theory that she caused an injury to the

  child but disagreed about which injury she caused.

¶ 30   The same unanimity problem existed based on the

  prosecution’s argument and evidence that Archuleta committed

  child abuse by unreasonably placing the child in a situation that

  threatened his life or health. The prosecution argued during closing

  that Archuleta’s failure to seek medical attention after becoming

  aware of each of the separate injuries constituted separate acts of

  placing the child in a situation that threatened his life or health.

  Jurors could have therefore determined that Archuleta was guilty of

  child abuse for having placed the child in a situation that

  threatened his life or health but disagreed about which instance of

  failing to seek medical attention constituted the offense.

¶ 31   Under these circumstances, section 16-10-108 required the

  trial court to give a modified unanimity instruction. Such an

  instruction should read as follows:

             Your verdict must be unanimous that the
             prosecution has proven the charge of child
             abuse beyond a reasonable doubt.




                                    15
             Any jurors who find that the defendant is
             guilty beyond a reasonable doubt of child
             abuse because she caused an injury to the
             child’s life or health must agree that the
             defendant committed the same act or acts, or
             that she committed all of the acts alleged.

             Any jurors who find that the defendant is
             guilty beyond a reasonable doubt of child
             abuse because she permitted the child to be
             unreasonably placed in a situation that poses
             a threat of injury to the child’s life or health
             must agree that the defendant committed the
             same act or acts, or that she committed all of
             the acts alleged.

             However, any jurors who find the defendant
             guilty beyond a reasonable doubt of child
             abuse by engaging in a continued pattern of
             conduct that resulted in malnourishment, lack
             of proper medical care, cruel punishment,
             mistreatment, or an accumulation of injuries
             need not agree on the alleged acts that make
             up the continued pattern of conduct.

¶ 32   We recognize that the third theory the prosecution pursued at

  trial was that Archuleta engaged in a continued pattern of conduct

  that resulted in an accumulation of injuries leading to the child’s

  death. Had the prosecution pursued only this theory, a modified

  unanimity instruction may have been unnecessary. See People v.

  Harris, 2015 COA 53, ¶ 39 (“[I]f all of the alleged criminal acts [of

  child abuse] occur in a single transaction, a unanimity instruction



                                     16
  may not be necessary.”); see also Melina, 161 P.3d at 639-40. But

  that is not what the prosecution did. Instead, the prosecution

  encouraged the jury to find Archuleta guilty under any of the three

  theories of criminal liability in the child abuse statute. And the

  jury’s verdict did not identify the theory that the jury relied on in

  finding Archuleta guilty. This, in and of itself, was not a unanimity

  problem (jurors need not agree on the theory of criminal liability).

  But any jurors who found Archuleta guilty under the first theory

  did need to agree on the specific act that established child abuse

  under that theory. The same is true for any jurors who found

  Archuleta guilty under the second theory. This was the unanimity

  problem that required either an election or the modified unanimity

  instruction articulated above.

                        D. Error Requires Reversal

¶ 33   We further conclude that this error requires reversal because

  it was not harmless. The failure to give a modified unanimity

  instruction may be harmless if a reviewing court is convinced that

  the verdict was nevertheless unanimous. See People v. Villarreal,

  131 P.3d 1119, 1128 (Colo. App. 2005). The People argue that the




                                     17
  jury’s answers to three interrogatories established that the verdict

  was unanimous. We disagree.

¶ 34   It is true that the trial court could have given interrogatories

  that required the jury to agree on which act or acts Archuleta

  committed. This would have solved the unanimity problem

  described above. But the interrogatories the court gave here did no

  such thing.

¶ 35   The interrogatories given required the jury to unanimously

  agree on whether Archuleta’s child abuse resulted in (1) death, (2)

  serious bodily injury, and (3) injury other than serious bodily

  injury. The jury unanimously agreed that Archuleta caused all

  three categories of injury. The People argue that the jury’s answers

  to these interrogatories “support the inference that the jury believed

  unanimously that all the alleged acts occurred.” But the

  prosecution argued repeatedly during closing argument that the

  interrogatories should play no role in the jury’s determination of

  which acts of abuse occurred: “You’ve got your mental state and

  your action or inaction, that answers your question of whether she

  is guilty of child abuse, then ask yourself about the result.” As

  recognized by the prosecution during closing argument, the jury’s


                                    18
  unanimous determination that Archuleta’s conduct resulted in

  death, serious bodily injury, and other injury does not mean that

  they agreed on the individual acts, separately or in combination,

  that caused the injuries or put the child in a situation that

  threatened his life or health.

¶ 36   This is especially true given that the prosecution argued

  throughout trial that different individual injuries and acts

  independently caused the same result. As discussed above, the

  prosecution argued that the chemical burns and torn frenulum

  caused the child’s death by way of dehydration. But it also argued

  that the broken ribs caused the child’s death by way of infection.

  Similarly, the prosecution argued that any of Archuleta’s multiple

  failures to seek medical attention for the child placed him in a

  situation that threatened his life or health and caused his death.

  We therefore cannot conclude from the interrogatories that the jury

  agreed that Archuleta committed either all or the same combination

  of some of the alleged abusive acts.

¶ 37   The People also argue that the court’s failure to give a modified

  unanimity instruction was harmless because there was sufficient




                                    19
  evidence to support Archuleta’s conviction under all three theories

  of liability in the child abuse statute. We disagree.

¶ 38   Courts in other jurisdictions have held that, under certain

  circumstances, a finding that the evidence was sufficient to sustain

  a conviction under every alternative theory of criminal liability will

  cure any uncertainty about unanimity in the verdict. For example,

  in Washington,

             [w]hen there is more than one statutory
             alternative means of committing an offense,
             the . . . alternative means test generally
             requires that the jury unanimously agree on
             one of the alternative means. But the
             [alternative means] test does not require
             reversal if the evidence of each alternative is
             sufficient to allow the trier of fact to have
             found each means beyond a reasonable doubt.

  In re Detention of Sease, 201 P.3d 1078, 1083 (Wash. Ct. App. 2009)

  (applying a state constitutional right to unanimous verdicts

  stemming from the state constitutional right to a jury trial).

¶ 39   We decline to adopt Washington’s alternative means test, for

  two reasons. First, the Washington analysis addresses a lack of

  unanimity in alternative theories of criminal liability. That is not

  the unanimity problem we have identified in this case. The jurors

  were not required to agree that Archuleta committed child abuse


                                    20
  under the same theory of criminal liability. Instead, any jurors who

  found Archuleta guilty under either non-continued course of

  conduct theory ((1) caused an injury to the child’s life or health, or

  (2) placed the child in an unreasonably dangerous situation) had to

  agree on the specific act or acts that established criminal liability

  under that particular theory.

¶ 40   Second, we are aware of no Colorado opinion holding that the

  jury’s failure to agree on the specific act that established criminal

  liability under one of several alternative theories does not violate

  section 16-10-108 as long as there was sufficient evidence to

  support conviction under every alternative theory. And we would

  question the logic of such a holding.

¶ 41   Suppose that a defendant is convicted of a single count, under

  a single theory of liability, but the prosecution presents evidence of

  multiple acts that could constitute the offense under that theory.

  There is no election of a specific act, and there is no modified

  unanimity instruction. The jury returns a general verdict of guilty.

  On appeal, the appellate court determines that the evidence was

  sufficient to establish that the defendant committed each of the

  multiple acts that could have constituted the offense. This


                                     21
  sufficiency determination mitigates any concern that the defendant

  was convicted on something less than proof beyond a reasonable

  doubt (a due process violation). But it does not ensure that the

  verdict was unanimous as section 16-10-108 requires. Just

  because a reviewing court can say that a reasonable juror would

  have concluded that the defendant committed all the alternative

  acts does not mean that the actual jurors who deliberated agreed

  that the defendant committed all the alternative acts. And section

  16-10-108 requires that the actual jurors agree on the specific act

  or acts the defendant committed that resulted in criminal liability.

  See Childress, ¶ 43.

¶ 42   We therefore conclude that the trial court’s failure to give a

  modified unanimity instruction was not harmless and requires

  reversal. Based on this conclusion, we need not address

  Archuleta’s additional argument on appeal.

¶ 43   In summary, we reverse the judgment and remand for a new

  trial. If at the new trial the prosecution proceeds again under all

  three theories of liability under section 18-6-401(1)(a), or if it

  proceeds under only the first two theories or either of them, it must

  elect the transaction, act, or acts on which it relies for the non-


                                     22
continued pattern of conduct theories. If the prosecution does not

make such an election, and it presents evidence of multiple acts in

support of either or both theories, then the court should instruct

the jury as follows:

     • If the prosecution proceeds under all three theories, then

        the court should give the jury the modified unanimity

        instruction set forth above.

     • If the prosecution proceeds under the first two theories only

        (caused an injury to the child or permitted the child to be

        unreasonably placed in a situation that poses a threat of

        injury), the court should not include the fourth paragraph

        of the instruction set forth above.

     • If the prosecution proceeds under only one of the first two

        theories, then the court should give only the standard

        modified unanimity instruction set forth in Thomas, 803

        P.2d at 154 (“[T]he jurors should be instructed that in order

        to convict the defendant they must either unanimously

        agree that the defendant committed the same act or acts or

        that the defendant committed all of the acts” alleged.); see

        also CJI-Crim. E-11.


                                  23
       • If the prosecution proceeds under one of the first two

         theories plus the third theory (engaged in a continued

         pattern of conduct), then the court should give the Thomas

         modified unanimity instruction plus the fourth paragraph of

         the instruction set forth above.

  If the prosecution proceeds under only the third theory, the court

  should not give a modified unanimity instruction.

                             III. Conclusion

¶ 44   The judgment of conviction is reversed, and the case is

  remanded with directions for a new trial.

       JUDGE DUNN concurs.

       JUDGE ASHBY specially concurs.




                                   24
       JUDGE ASHBY, specially concurring.

¶ 45   I agree with the majority that we must reverse the judgment of

  conviction because the trial court violated Archuleta’s statutory

  right to a unanimous verdict. I write separately because I disagree

  with the majority that the due process issue is not properly before

  us and we should not address it. I therefore address whether the

  right to due process includes the right to unanimous verdicts.

              I. We Should Address the Due Process Issue

¶ 46   The parties have argued that due process requires unanimous

  verdicts at both the trial and appellate level. Archuleta frames her

  appellate argument as follows: “Ms. Archuleta’s due process rights

  to a unanimous verdict were violated by the trial court’s failure to

  instruct jurors that they must all agree on the acts she actually

  committed that caused the death of her grandson.” She cites to

  both the state and federal Due Process Clauses and also to cases

  that suggest that there is a due process right to unanimous

  verdicts. The prosecution also identified the issue on appeal as

  whether Archuleta’s due process right to a unanimous verdict was

  violated and argued that it was not.




                                    25
¶ 47   Moreover, the trial court resolved the unanimity issue on due

  process grounds. The court relied on People v. Dunaway, 88 P.3d

  619, 630 (Colo. 2004), in which the supreme court addressed

  whether the defendant’s due process rights were violated by the

  prosecution submitting alternate theories of liability to the jury.

¶ 48   Because Archuleta, the prosecution, and the trial court all

  addressed the unanimity issue here as one involving Archuleta’s

  right to due process, I conclude that whether a due process right to

  unanimous verdicts exists is properly before us and I address it

  below.

¶ 49   I also believe that the majority’s reliance on due process cases

  in addressing Archuleta’s statutory right to unanimity will lead to

  confusion and unnecessary litigation in this case and others. For

  example, the majority states that People v. Thomas, 803 P.2d 144

  (Colo. 1990), “did not follow” the notion, articulated in People v.

  Taggart, 621 P.2d 1375 (Colo. 1981), that unanimity is required

  only on the ultimate issue of the defendant’s guilt or innocence and

  not on the alternative means by which the crime was committed.

  But Thomas and Taggart addressed two different issues. Taggart

  addressed the statutory right to unanimity under section 16-10-


                                    26
  108. Thomas was a due process case that, as the majority

  recognizes, did not even cite to section 16-10-108.

¶ 50   The majority is correct that the language used in Thomas

  forms the basis for the analysis used by numerous divisions of this

  court when resolving statutory unanimity issues. But it is precisely

  this reliance on Thomas that, in my view, requires us to address

  whether a due process right to unanimity exists before we dive into

  a full-throated discussion of statutory unanimity.

¶ 51   Thomas, like the numerous cases from other jurisdictions on

  which it relies, was a due process case. The focus of most of the

  discussion was the defendant’s right to fair procedures “that accord

  protection to the due process rights of the defendant.” Thomas, 803

  P.2d at 154. It then discussed how, to protect a defendant’s due

  process rights, a unanimity instruction is an alternative to

  prosecutorial election of acts when the evidence makes it difficult to

  distinguish discrete acts of abuse. Id. at 153-54. The court then

  held that the constitutional error in not requiring an election, in

  combination with the court’s failure to give a unanimity instruction

  requiring the jurors to agree on the acts underlying each offense,

  was harmless beyond a reasonable doubt. Id. at 154.


                                    27
¶ 52   In section II.B., above, the majority cites to several opinions in

  which divisions of this court have “generally used the Thomas

  analysis when interpreting the unanimity statute.” It is precisely

  this cross-application of law between cases resolving unanimity

  under the statute, the state and federal due process clauses or, at

  times neither (it is simply stated that unanimity is required), that

  has led us to where we are currently: a lack of clarity about whether

  due process requires unanimous verdicts.

¶ 53   For these reasons, I believe that Archuleta’s due process

  argument is properly before us and we should fully address its

  merits. I do so now.

        II. There is No Due Process Right to Unanimous Verdicts

¶ 54   Many courts, including our supreme court, have discussed

  what role modified unanimity instructions play in securing a

  defendant’s constitutional rights. See, e.g., Quintano v. People, 105

  P.3d 585, 592-95 (Colo. 2005). These discussions may seem to

  suggest that a defendant has a constitutional right, emanating from

  the Due Process Clauses, to a unanimous verdict. But I discern no

  such right. Although due process requires that a conviction is




                                    28
  based on proof beyond a reasonable doubt, it does not require that

  a verdict is unanimous.

¶ 55   The United States Supreme Court has made clear that the

  federal right to due process does not include the right to unanimous

  verdicts. In Johnson v. Louisiana, 406 U.S. 356, 363 (1972), the

  Court upheld a defendant’s conviction even though only nine out of

  the twelve jurors voted to convict. The Court explained that

  although due process requires that a conviction be based on proof

  beyond a reasonable doubt, “this Court has never held jury

  unanimity to be a requisite of due process of law.” Id. at 359. The

  Court then went on to hold that the lack of jury unanimity did not

  establish that the defendant’s conviction was based on something

  less than proof beyond a reasonable doubt. Id. at 363.

¶ 56   It is true that the Colorado Constitution’s Due Process Clause

  may provide more extensive rights and protections than its federal

  counterpart. See Dunaway, 88 P.3d at 630. But I am unaware of

  any Colorado case holding that the state right to due process

  includes a right to a unanimous verdict. Instead, our supreme

  court has held that, under certain circumstances, a unanimity

  instruction can help ensure that a separate constitutional right is


                                   29
  vindicated, such as the right to be free from double jeopardy or the

  due process right to proof of guilt beyond a reasonable doubt.

¶ 57   Quintano is an example of such a case. Therein, our supreme

  court addressed whether the defendant’s right to due process was

  violated where he was convicted of several identical counts of sexual

  assault and the prosecution did not elect the particular act of

  sexual contact that supported each count. Quintano, 105 P.3d at

  592. The court held that the defendant’s right to due process was

  not violated because the jury received and followed a unanimity

  instruction. Id. at 594.

¶ 58   At the beginning of its due process analysis, the supreme

  court used language suggesting that there is a state due process

  right to unanimous verdicts. The supreme court described the

  issue before it as “[w]hether the defendant [wa]s denied due process

  of law by the prosecution’s failure to elect the particular act on

  which it relie[d] for conviction.” Id. at 592. It then explained that

  “[t]he election requirement protects the defendant’s right to a

  unanimous verdict by assuring that some jurors do not convict on

  one offense and others on a separate offense; it also enables

  adequate defense preparation.” Id. at 593.


                                    30
¶ 59   Based on this language, I understand why courts and parties,

  as they did here, might infer a state due process right to unanimous

  verdicts. But the court ultimately held that verdict unanimity was

  not itself required by due process:

            Although the jury’s task would have been
            made easier had the prosecution designated
            specific incidents for each count, the unanimity
            instruction averted the pitfall of more than one
            conviction for the same acts. The jury was told
            that they had to agree to the same act or acts
            as basis for each count of sexual assault on a
            child.

            Consequently, we conclude that there was no
            due process violation arising out of the failure
            to elect specific acts for each count of the
            complaint and information.

  Id. at 595 (emphasis added).

¶ 60   In my view, the Quintano court did not hold that the Due

  Process Clause or any other constitutional provision requires

  unanimous verdicts. Instead, the court held that the unanimity

  instruction ensured that the defendant’s right to be free from

  double jeopardy (not a due process right) was vindicated. Id.

¶ 61   I find support for our reading of Quintano in Justice Coats’

  concurrence in Melina v. People, 161 P.3d 635, 642-48 (Colo.




                                    31
  2007).1 Justice Coats wrote that in Quintano and cases like it, the

  supreme court held that a unanimity instruction can help protect a

  defendant’s right to due process. But he made clear that due

  process does not require jury unanimity:

            [W]e have found that a defendant’s right to due
            process can be adequately protected, at least
            in these kinds of cases, despite less pre-trial
            detail, by insuring his ability to limit the scope
            of jury deliberations at a later stage. Our
            heightened concern for the defendant’s ability
            to adequately prepare a defense and for jury
            unanimity in the context of prosecutions in
            which he has been more than normally
            restricted from focusing the charge at the pre-
            trial stage was never intended to imply that
            criminal defendants in general have a right to
            jury agreement on a particular act.

  Id. at 646 (Coats, J., concurring in the judgment only).

¶ 62   In short, I am unaware of any clear holding from our supreme

  court that the state due process right requires unanimous verdicts

  in criminal cases. In the absence of such a holding, I must

  conclude that such a right does not exist. I therefore must reject




  1 Notably, the majority in Melina analyzed whether the defendant
  was entitled to a unanimity instruction without citing due process
  or section 16-10-108. See Melina v. People, 161 P.3d 635, 636-42
  (Colo. 2007).

                                   32
  Archuleta’s argument that the lack of unanimity in the verdict, in

  and of itself, violated her right to due process.2

¶ 63   But this conclusion does not resolve Archuleta’s contention

  that the court erred by not ensuring that the jury’s verdict was

  unanimous. Although there is no due process right to unanimous

  verdicts in Colorado, there is a statutory one. Section 16-10-108,

  C.R.S. 2018, provides that “[t]he verdict of the jury shall be

  unanimous.” And even though Archuleta frames her unanimity

  argument as a violation of due process, the substance of her

  argument relies heavily on cases like People v. Childress, 2012 COA

  116, rev’d on other grounds, 2015 CO 65M, applying the statutory



  2 Archuleta limits her constitutional argument to due process.
  Although she cites to the Sixth Amendment and article II, section
  16 of the Colorado Constitution (guaranteeing the right to a jury
  trial), she does not argue that these provisions compel unanimous
  verdicts. I therefore do not address whether the federal or state
  constitutional rights to a jury trial include the right to a unanimous
  verdict.

  That said, I note that the Supreme Court has thus far declined to
  apply the Sixth Amendment’s jury unanimity requirement in federal
  criminal trials to the states through the Fourteenth Amendment.
  See Apodaca v. Oregon, 406 U.S. 404, 406 (1972). And I am
  unaware of any opinion from our supreme court holding that article
  II, section 16 of the Colorado Constitution requires unanimous
  verdicts in criminal cases.

                                     33
unanimity requirement. I therefore agree with the majority that the

issue of whether the trial court violated the statutory unanimity

requirement is properly before us. And I agree with the majority’s

analysis and resolution of that issue.




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