People v. Wester-Gravelle, 2020 CO 64

Wester-Gravelle worked as a certified nursing assistant and was required to obtain signatures on Home Care Aide shift charts to verify completed shifts and obtain payment.
Three shift charts covering the weeks of July 11, 18, and 25, 2015 were submitted and paid; the patient (W.M.) and his partner said Wester-Gravelle had not worked those weeks and the signatures were not his.
An expert examiner concluded it was highly probable W.M. did not author the signatures. The People charged a single count of forgery covering July 11–31, 2015 and introduced one exhibit containing the initial visit sheet plus the three shift charts.
Wester-Gravelle did not request a prosecutorial election or a modified unanimity instruction at trial; the court gave the standard COLJI unanimity instruction and the jury convicted.
The Colorado Court of Appeals reversed, finding plain error in the trial court’s failure to require an election or give a modified unanimity instruction; the Colorado Supreme Court granted certiorari.

Issue	People’s Argument	Wester‑Gravelle’s Argument	Held
Whether Wester‑Gravelle waived a demand for election or a modified unanimity instruction under Crim. P. 12(b)(2)	The claim is duplicitous and must have been raised by pretrial Crim. P. 12(b)(2) motion or is waived	The information was not facially duplicitous; Crim. P. 12(b)(2) does not require a motion before the issue arises at trial	No waiver under Crim. P. 12(b)(2); issue was forfeited (no timely trial objection) and reviewed for plain error
Whether the trial court plainly erred by not requiring a prosecutorial election or giving a modified unanimity instruction	Trial was tried and charged as a single transaction; evidence and prosecutor’s argument showed all three charts were forged so no unanimity instruction or election required; any error not plain	Evidence showed multiple discrete forgeries (three separate documents) so jury unanimity on which act occurred was required absent an election or modified instruction	No plain error. Any omission was not obvious nor substantially prejudicial; prosecution tried case as single transaction and argued jury needed forged signature on each chart
Whether the Court should adopt the Olano plain‑error standard	Olano standard urged	—	Court declined to adopt Olano here because the People did not raise it below and certiorari did not present that issue

Melina v. People, 161 P.3d 635 (Colo. 2007) (several acts may constitute a single transaction; no unanimity instruction required when prosecution treats conduct as one transaction)
Thomas v. People, 803 P.2d 144 (Colo. 1990) (model for modified unanimity instruction when multiple acts could produce conviction)
Richardson v. United States, 526 U.S. 813 (U.S. 1999) (unanimity required only on ultimate issue, not on alternative means)
Reyna‑Abarca v. People, 390 P.3d 816 (Colo. 2017) (Crim. P. 12(b) does not require preemptive motions for errors that have not yet arisen)
People v. Rediger, 416 P.3d 893 (Colo. 2018) (distinguishes waiver from forfeiture and explains plain‑error review for forfeited claims)
Scott v. People, 390 P.3d 832 (Colo. 2017) (outlines when an error is "obvious" under plain‑error review)
Taggart v. People, 621 P.2d 1375 (Colo. 1981) (discusses unanimity principle distinguishing ultimate issue from means)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (federal articulation of plain‑error standard; not adopted here)