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                                                  ADVANCE SHEET HEADNOTE
                                                                June 22, 2020

                                    2020 CO 63

No. 19SC453, Archuleta v. People—Criminal Law—Juror Unanimity—
Modified Unanimity Instruction—Election—Child Abuse.

      In this case involving a charge of child abuse resulting in death, the supreme

court must determine whether the defendant was entitled to a modified unanimity

instruction requiring that the jurors either unanimously agree that she committed

the same act or acts underlying the child abuse charge or that she committed all of

those acts. Because the prosecution charged and tried this case on the theory that

the defendant had committed the offense at issue by engaging in a single criminal

transaction resulting in the child’s death, and because (in light of the prosecution’s

theory) the supreme court sees no reasonable likelihood that the jurors disagreed

on which specific act caused the child’s death, the court concludes that the

defendant was not entitled to a modified unanimity instruction here.

      The court therefore reverses the judgment of the division below and

remands with instructions to reinstate the defendant’s conviction on one count of

child abuse resulting in death.
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                    2020 CO 63

                       Supreme Court Case No. 19SC453
                     Certiorari to the Colorado Court of Appeals
                      Court of Appeals Case No. 18CA407

                                    Petitioner:

                      The People of the State of Colorado,

                                         v.

                                   Respondent:

                                Sandra Archuleta.

                               Judgment Reversed
                                     en banc
                                  June 22, 2020


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Jennifer L. Carty, Assistant Attorney General
      Denver, Colorado

Attorneys for Respondent:
Megan A. Ring, Colorado State Public Defender
Joseph Paul Hough, Deputy State Public Defender
      Denver, Colorado




JUSTICE GABRIEL delivered the Opinion of the Court.
¶1       This case, along with People v. Wester-Gravelle, 2020 CO 64, __ P.3d __, which

we are also deciding today, requires us to consider when a trial court must give

the jury a so-called “modified unanimity instruction.” Specifically, in this tragic

case involving a charge of child abuse resulting in death, we must determine

whether the defendant, Sandra Archuleta, was entitled to a modified unanimity

instruction requiring that the jurors either unanimously agree that she committed

the same act or acts underlying the child abuse charge or that she committed all of

those acts.1 Because the prosecution charged and tried this case on the theory that

Archuleta had committed the offense at issue by engaging in a single criminal

transaction resulting in the child’s death, and because (in light of the prosecution’s

theory) we see no reasonable likelihood that the jurors disagreed on which specific

act caused the child’s death, we conclude that Archuleta was not entitled to a

modified unanimity instruction here.




1   Specifically, we granted certiorari to review the following issue:
         Whether the court of appeals erred in finding a modified unanimity
         instruction was required by statute in a child abuse resulting in death
         case where the offense is defined as a course of conduct, and it was
         charged and argued as a single transaction.

                                            2
¶2    Accordingly, we reverse the judgment of the division below and remand

with instructions to reinstate Archuleta’s conviction on one count of child abuse

resulting in death.

                         I. Facts and Procedural History
¶3    Archuleta took care of her four-month-old grandson, D.A., for one week.

Several hours after D.A.’s mother picked him up, she returned to Archuleta’s

home with D.A. Archuleta noticed that D.A. did not appear to be breathing, so

she attempted CPR and called 911. First responders arrived shortly thereafter and

transported D.A. to the hospital, but he died the following morning. An autopsy

revealed that D.A. had been suffering from dehydration and a bacterial infection

that had started as pneumonia and that had spread to his blood.

¶4    The prosecution subsequently charged Archuleta with one count of “child

abuse resulting in death,” alleging that she caused D.A.’s death over the course of

the week in which she took care of him.             Specifically, the Complaint and

Information alleged:

      Between and including July 27, 2015 and August 2, 2015, Sandy
      Archuleta unlawfully, feloniously, knowingly, or recklessly caused
      an injury to, or permitted to be unreasonably placed in a situation that
      posed a threat of injury to, the life or health of a child, namely: [D.A.],
      or engaged in a continued pattern of conduct that resulted in
      malnourishment, lack of proper medical care, cruel punishment,
      mistreatment, or an accumulation of injuries, that resulted in the
      death of the child; in violation of section 18-6-401(1)(a), (7)(a)(I), C.R.S.



                                           3
¶5    The case proceeded to trial, and at trial, the prosecution’s evidence showed

that when D.A.’s mother dropped him off at Archuleta’s house at the beginning of

the week, he was healthy. By the end of the week, however, D.A. was suffering

from numerous injuries, including chemical burns on his forehead, nose, cheek,

mouth, lips, ear, and knee, a torn frenulum (i.e., the flap of skin between the upper

gum and lip), several broken ribs, and what appeared to be tweezer pinch marks

all over his body. In addition, he was suffering from pneumonia, dehydration,

and an infection in his bloodstream. The coroner who performed the autopsy on

D.A. estimated that the chemical burns were approximately forty-eight to

seventy-two hours old at the time of the autopsy and that the broken ribs were

also forty-eight to seventy-two hours old “but certainly less than two weeks.” The

coroner could not estimate, however, when the torn frenulum occurred.

¶6    The coroner opined that each of D.A.’s injuries contributed to his death and

that the ultimate cause of death was the combination of those injuries and the

neglect in seeking help and getting enough food and liquid to him, which the

coroner believed led to the infection and dehydration. Specifically, the coroner

explained that the rib injuries limited D.A.’s ability to breathe and clear his lungs

properly and that this assisted the pneumonia in “getting a better grip on him.”

In addition, the coroner believed that D.A.’s inability to breathe and the pain that

he was experiencing probably limited his ability to nurse or use a bottle, resulting

                                         4
in dehydration. And the coroner stated that the mouth and frenulum injuries

further contributed to D.A.’s poor feeding and intake, which also contributed to

his dehydration.

¶7    At the close of the evidence, Archuleta asked the court to order the

prosecution to elect a theory of prosecution, given that the prosecution had

charged multiple theories of child abuse. The court denied this request, however,

apparently agreeing with the prosecution’s assertion that it did not need to elect a

theory as long as the court made clear to the jury that the prosecution was required

to prove beyond a reasonable doubt each element of the offense, even if an element

could have been established by alternative means.

¶8    Archuleta then requested that the court give the jury a so-called “modified

unanimity instruction,” and she tendered an instruction that would have required

the jury to agree unanimously that she had committed the same act or acts that

constituted the offense of child abuse. Archuleta’s tendered instruction would

further have advised the jurors that the prosecution had alleged multiple theories

of prosecution and that, in order to convict, the jurors were required to agree on

the theory of guilt. The court declined this request as well, relying on the same

rationale that it had given for refusing to require the prosecution to elect a theory

of prosecution.    The court did, however, agree to provide the jury with

interrogatories requiring the jurors to state whether they unanimously found

                                         5
beyond a reasonable doubt that the child abuse resulted in (1) D.A.’s death,

(2) serious bodily injury to D.A., or (3) non-serious bodily injury to him.

¶9    The parties proceeded to present their closing arguments, and, as pertinent

here, the prosecutor addressed the fourth element in the elemental instruction for

child abuse, which required the prosecution to prove that Archuleta

      caused an injury to a child’s life or health, or permitted a child to be
      unreasonably placed in a situation that posed a threat of injury to the
      child’s life or health, or engaged in a continued pattern of conduct
      that resulted in malnourishment, lack of proper medical care, cruel
      punishment, mistreatment or an accumulation of injuries.

¶10   The prosecutor told the jury that this element “has some options sort of

within it, so it could be one of these, two of these, all three.” The prosecutor

immediately added, however, “[I]n this case really when you think about it she’s

done all three of these things.” Consistent with this, the prosecutor ended his

closing argument by reminding the jury that the coroner had testified that “the

cause of death is injuries and neglect leading to infection and dehydration, and

dehydration and pneumonia are the products of several different things. You can

sort of just follow the chain of events from these injuries.” The prosecutor thus

argued that D.A.’s death “is a direct result of the injuries that [Archuleta] inflicted”

and that the jurors

      can think of it a little bit like a road that [D.A.] followed over the
      course of that week, a road that ends at his death. Each of the injuries
      [Archuleta] inflicted upon [D.A.], each of the conditions he developed

                                           6
      are stops on that road. If you follow each of those backwards from
      his death, that road leads back to her, to her abuse and her neglect.

¶11   Notably, in defense counsel’s closing, counsel did not dispute that the

prosecution was proceeding on a theory that all of D.A.’s injuries combined to

cause his death. To the contrary, counsel acknowledged that the prosecution’s

theory was that “all of these injuries happened and they resulted in death.”

Counsel argued, however, that the prosecution had not proved beyond a

reasonable doubt that Archuleta had inflicted any life-threatening injuries on D.A.,

much less caused his death.

¶12   The jury found Archuleta guilty, unanimously determining in the

interrogatories submitted to it that Archuleta’s child abuse resulted in D.A.’s

death, serious bodily injury, and non-serious bodily injury.       The trial court

subsequently sentenced Archuleta to twenty-four years in the Department of

Corrections.

¶13   Archuleta then appealed, arguing, among other things, that the trial court

had erred in denying her request for a modified unanimity instruction. In a

published opinion, the division agreed with Archuleta, reversed her conviction,

and remanded for a new trial. People v. Archuleta, 2019 COA 64, ¶¶ 43–44, __ P.3d

__.

¶14   In so ruling, the division acknowledged that the prosecution had charged

Archuleta with one count of child abuse resulting in death, but the division
                                         7
observed that the charge included each of the three methods of committing child

abuse set forth in the child abuse statute, section 18-6-401(1)(a), C.R.S. (2019).

Archuleta, ¶¶ 12–21. Moreover, the division noted that the prosecution had argued

to the jury that it could find Archuleta guilty based on any of these three theories.

Id. at ¶ 21. And the division pointed out that the prosecution had presented

evidence of multiple acts of child abuse, any one of which could have established

that Archuleta (1) caused an injury to D.A.’s life or health or (2) permitted D.A. to

be unreasonably placed in a situation that posed a threat of injury to his life or

health. Id. at ¶ 22. In these circumstances, the division concluded that a modified

unanimity instruction was necessary. Id.

¶15   In so holding, the division was unpersuaded by the fact that the prosecution

had also alleged that Archuleta had engaged in a continued pattern of conduct

that resulted in injuries that led to D.A.’s death. The division observed that had

the prosecution pursued only this theory, a modified unanimity instruction might

not have been required. Id. at ¶ 32. But in the division’s view, the prosecution had

not done so. Id. Accordingly, the division concluded that the trial court had erred

in refusing to give the jury a modified unanimity instruction, and perceiving that

this error was not harmless, the division reversed Archuleta’s conviction and

remanded the case for a new trial. Id. at ¶¶ 33–43.




                                         8
¶16   The People then petitioned this court for certiorari review, and we granted

that petition.

                                  II. Analysis

¶17   We begin by addressing the law pertinent to juror unanimity and the child

abuse statute. We then apply the law to the facts before us and conclude that the

division erred in concluding that a modified unanimity instruction was required

on the facts of this case.

                              A. Juror Unanimity

¶18   The People contend that the division erred in concluding that a modified

unanimity instruction was required here, notwithstanding the fact that the offense

of “child abuse resulting in death” is defined in part as encompassing a course of

conduct and the crime here was charged and presented as a single transaction. In

so arguing, the People ask us to adopt a four-part test that they propose, based on

statements contained in case law from this court and from our court of appeals,

and they further ask us to adopt what they characterize as a “continuous crime

exception” to the juror unanimity requirement.

¶19   We decline the People’s invitation to craft what we perceive to be extensive

new law in this area. Nonetheless, applying longstanding principles of law

relating to the requirement of juror unanimity, we ultimately agree with the




                                        9
People that the division erred in concluding that a modified unanimity instruction

was required on the facts of this case.

¶20   In Colorado, a criminal defendant is entitled to a unanimous jury verdict.

§ 16-10-108, C.R.S. (2019); Crim. P. 23(a)(8); Crim. P. 31(a)(3). Unanimity in a

verdict is required, however, “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.” People v. Taggart, 621 P.2d

1375, 1387 n.5 (Colo. 1981). Thus, as the Supreme Court has long established, a

jury need not unanimously decide “which of several possible sets of underlying

brute facts make up a particular element” or “which of several possible means the

defendant used to commit an element of the crime.” Richardson v. United States,

526 U.S. 813, 817 (1999); see also United States v. Griggs, 569 F.3d 341, 343 (7th Cir.

2009) (“The law distinguishes between the elements of a crime, as to which the

jury must be unanimous, and the means by which the crime is committed.”);

People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“Generally, jurors need not

agree about the evidence or theory by which a particular element is established.”);

People v. Linares-Guzman, 195 P.3d 1130, 1134 (Colo. App. 2008) (noting that the

requirement of juror unanimity means only that each juror must agree that every

element of the crime charged has been proved beyond a reasonable doubt).




                                          10
¶21   When, however, the prosecution presents evidence of multiple discrete acts,

any one of which would constitute the offense charged, and there is a reasonable

likelihood that jurors will disagree regarding which act was committed, then the

People may be compelled to select the transaction on which they are relying for a

conviction. Quintano v. People, 105 P.3d 585, 592–93 (Colo. 2005); Thomas v. People,

803 P.2d 144, 153–54 (Colo. 1990); Laycock v. People, 182 P. 880, 881 (Colo. 1919).

¶22   Alternatively, the defendant may be entitled to a special jury instruction,

which has come to be called a “modified unanimity instruction,” advising the

jurors 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 described by the victim and included within the time period

charged.” Thomas, 803 P.2d at 153–54.

¶23   Neither a prosecutorial election nor a modified unanimity instruction is

required, however, when a defendant is charged with engaging in a single

transaction of criminal conduct and the prosecution proceeds at trial on that basis.

See Melina v. People, 161 P.3d 635, 641–42 (Colo. 2007) (considering a solicitation

charge and concluding that no unanimity instruction was required when the

prosecution did not present two discrete, mutually exclusive, and independent

crimes of solicitation but rather the evidence and the prosecution’s theory of the

case were that the defendant had engaged in a single transaction of solicitation to

                                          11
murder another person); see also Vigil, 251 P.3d at 447 (noting that jurors need not

agree about the evidence or theory by which a particular element is established,

nor are they required to agree unanimously on the theory that supports a single

conviction of theft).

¶24     The foregoing 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.”

Quintano, 105 P.3d at 593. The requirement thus serves both to give the defendant

a meaningful opportunity to prepare a defense and to assure juror unanimity. Id.

¶25     Turning then to the child abuse statute, that statute provides, in pertinent

part:

        A person commits child abuse if such person 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).

¶26     Accordingly, under this statute, a person can commit child abuse in one of

three ways: (1) the person “causes an injury to a child’s life or health”; (2) the

person “permits a child to be unreasonably placed in a situation that poses a threat

of injury to the child’s life or health”; or (3) the person “engages in a continued

                                            12
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.” Id. The first two

of these methods of committing child abuse refer to specific acts of abuse. See id.

The third, in contrast, refers to a pattern of conduct ultimately resulting in the

child’s death or in serious bodily injury to the child. See id.

¶27   In Friend v. People, 2018 CO 90, ¶ 19, 429 P.3d 1191, 1195, we concluded that

“the child abuse statute prescribes a single crime of child abuse that can be

committed in alternate ways,” and not multiple distinct crimes of child abuse.

                    B. Application To The Facts Before Us

¶28   Consistent with the above-described principles, the prosecution charged

Archuleta with a single count of “child abuse resulting in death.” And although

the prosecution noted for the jury that the crime of child abuse can be committed

in three ways and that Archuleta’s conduct here “could be one of these, two of

these, all three,” ultimately, the prosecution tried this case as involving a single

pattern of conduct resulting in D.A.’s death. Thus, as noted above, the prosecution

introduced testimony from the coroner that the cause of D.A.’s death was the

combination of his injuries and neglect in seeking help and getting enough food

and liquid to him, which resulted in a bacterial infection that had spread to his

blood and dehydration. The prosecution further introduced evidence to show that


                                          13
all of D.A.’s injuries, and in particular the chemical burns, torn frenulum, and

broken ribs, contributed to his death. And in closing argument, the prosecution

emphasized that Archuleta’s conduct amounted to a chain of events that resulted

in D.A.’s death.

¶29   The question before us thus becomes whether, in these circumstances,

absent an election by the prosecution as to the particular method of abuse on which

it was relying, Archuleta was entitled to a modified unanimity instruction. In

addressing this question, we note, as a preliminary matter, that it is arguable that

this case does not even implicate any issue regarding a prosecutorial election or

the need for a modified unanimity instruction. As noted above, the child abuse

statute creates one offense of child abuse, and it would have been perfectly

appropriate for the jurors to rely on different evidence to establish the elements of

that offense. See Richardson, 526 U.S. at 817; Griggs, 569 F.3d at 343; Vigil, 251 P.3d

at 447; Linares-Guzman, 195 P.3d at 1134.

¶30   The People, however, do not appear to have made (or at least developed)

such an argument. Nor need we decide this case on that basis because even if the

principle that jurors may rely on different evidence to establish an element of an

offense were inapplicable to the child abuse statute, we conclude that a modified

unanimity instruction was not required on the facts before us.




                                          14
¶31   As set forth above, the prosecution is not required to elect the method of

committing the crime at issue, nor is a modified unanimity instruction mandated,

when the prosecution charges a defendant with engaging in a single criminal

transaction and then proceeds on that basis at trial. See Melina, 161 P.3d at 641–42.

That is precisely what the prosecution did here. It charged one count of “child

abuse resulting in death” based on a series of discrete acts, and the prosecution’s

evidence—and particularly the coroner’s testimony—established that each of

these discrete acts contributed to and together ultimately caused D.A.’s death.

¶32   In this regard, we view this case as factually similar to the circumstances

that we considered in Friend, ¶¶ 5–8, 429 P.3d at 1193–94, also a child abuse case,

although we acknowledge that the legal issues that we addressed there are

different from those presented here. In Friend, the evidence established that the

defendant had committed a number of acts of abuse against the child victim. See

id. at ¶ 6, 429 P.3d at 1193. The prosecution, however, treated the defendant’s

abuse of the victim as one pattern of conduct resulting in the victim’s death, rather

than as multiple patterns and discrete offenses. Id. at ¶ 8, 429 P.3d at 1193. In light

of the foregoing, we ultimately concluded that the prosecution did not prove that

the defendant had committed separate crimes of child abuse but rather had proved

only one count of child abuse resulting in death based on a pattern of conduct. Id.

at ¶ 24, 429 P.3d at 1196. The same is true in this case.

                                          15
¶33   Moreover, on the facts presented here, and given how the prosecution

presented this case, we perceive no reasonable likelihood that the jurors would

have disagreed on which act established the charged offense.                 Rather,

notwithstanding isolated comments by the prosecution to the contrary, the record

reflects that the prosecution tried this case as involving one pattern or transaction

of abuse resulting in D.A.’s death. In addition, the interrogatories completed by

the jury indicated that the jurors unanimously found that Archuleta had

committed all of the underlying acts charged. And as noted above, in closing

argument, Archuleta’s counsel did not dispute that the prosecution had proceeded

on a theory that all of D.A.’s injuries combined to cause his death but rather

defended on the ground that the prosecution had failed to carry its burden of

proving beyond a reasonable doubt that Archuleta had inflicted any of the injuries

that ultimately resulted in D.A.’s death.

¶34   For these reasons, we conclude that Archuleta was not entitled to a modified

unanimity instruction here. See Melina, 161 P.3d at 641–42 (noting that a unanimity

instruction was not required when the prosecution’s theory of the case was that

the defendant had engaged in a single transaction of solicitation to commit the

murder of another person and the prosecution’s evidence supported that theory).




                                            16
                                 III. Conclusion

¶35   Because the prosecution charged and presented this case on a theory that

Archuleta had committed the offense at issue by engaging in a single criminal

transaction resulting in D.A.’s death, and because (in light of the prosecution’s

theory) we see no reasonable likelihood that the jurors disagreed on which specific

act caused D.A.’s death, we conclude that Archuleta was not entitled to a modified

unanimity instruction on the facts of this case.

¶36   Accordingly, we reverse the judgment of the division below, and we

remand with instructions to reinstate Archuleta’s conviction on one count of child

abuse resulting in death.




                                         17
