Rail v. People, 2019 CO 99

Rail was charged with multiple counts of sexual assault on a child, including SAOC and SAOC-POT, and a pattern‑of‑abuse enhancer for the SAOC count.
The jury returned a guilty verdict on SAOC, acquitted on SAOC‑POT, and on the pattern‑of‑abuse interrogatory unanimously marked each listed incident (including “all incidents testified to by B.H.”) as “Proved.”
A separate unanimity interrogatory (apparently stapled to the SAOC‑POT form) listed four incidents and the jury marked each of those as “Not Proved.” The trial court read aloud the pattern interrogatory results but did not read the unanimity interrogatory aloud.
The court individually polled each juror as to the verdicts it had read aloud; each juror affirmed those verdicts. Defense counsel declined further polling; the inconsistency only came to light later.
On appeal Rail relied on Sanchez (claimed structural error); the court of appeals affirmed, finding waiver. The Colorado Supreme Court granted certiorari and affirmed the conviction, holding Rail did not waive the claim and Sanchez was distinguishable; the court also denied reversal for plain error.

Issue	Plaintiff's Argument (Rail)	Defendant's Argument (People)	Held
Waiver of appellate review for inconsistency	Rail: No waiver—counsel had no reason to know the interrogatory answers were inconsistent and did not intentionally relinquish any right.	People: Rail waived by failing to object and by declining further polling; analogous to waiver in prior cases.	No waiver. Under Rediger/Smith, waiver requires evidence of intentional relinquishment; counsel was unaware of inconsistency.
Whether Sanchez requires reversal (structural error)	Rail: The inconsistent interrogatory answers rendered the guilty verdict ambiguous; Sanchez mandates reversal when no unanimous verdict on elements exists.	People: Sanchez is distinguishable — here jury returned a general guilty verdict and the pattern interrogatory expressly found each incident proved; polling resolved any ambiguity.	Sanchez distinguishable; conviction not structural error because a unanimous guilty verdict existed and juror polling confirmed the findings.
Plain‑error alternative	Rail: If not structural error, plain error review should nonetheless reverse because inconsistency undermines reliability.	People: Any ambiguity was cured by polling; error (if any) not obvious and does not seriously undermine reliability.	No plain error. Even assuming obviousness, the polling and record do not show the kind of substantial unreliability required for reversal.

Sanchez v. People, 325 P.3d 553 (Colo. 2014) (reversal required where no unanimous jury verdict supported conviction; structural‑error analysis)
People v. Rediger, 416 P.3d 893 (Colo. 2018) (waiver requires evidence of intentional relinquishment, not mere acquiescence)
People v. Smith, 416 P.3d 886 (Colo. 2018) (similar waiver analysis reaffirming Rediger)
United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture; explains effect on appellate review)
United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006) (polling is a recognized means to ensure jury unanimity)