A Murder Disguised as a Hunting Accident

Deep in the Colorado wilderness, on the second day of hunting season in 1995, veteran police officer Doug Kyle came across what appeared to be a terrible tragedy. It would actually turn out to be much more complicated — and bone-chilling.

Lying on the ground bleeding was Bruce Dodson, 48, with an orange hunting vest at his side. His wife of three months, Janice, was screaming for help. "I picked up the orange vest and was just screaming at him: 'Why didn't you have your vest on?' " Janice said.

"She's crying and carrying on," said Kyle. "I said, 'Is this your husband?' And she said, 'Yes, that's Bruce. Help — you've got to help him.' "

Bruce was beyond help. He seemed destined to be yet another victim of a hunting accident, mistaken for game — a mistake that would repeat itself more than 100 times that year.

But the day after, an autopsy revealed Bruce hadn't taken just a single bullet, but three. Bill Booth, an investigator for the district attorney's office, said he started to believe this was homicide.

An Icy, Calculating Murderer

Janice Dodson says when she heard this, she couldn't believe it. "There was no reason to kill someone like Bruce," she said. "And then my next thought was that no one deserves to die like that."

Bruce and Janice worked at the same hospital. She was a nurse; he was a lab tech. Janice had been through a rough divorce after 25 years of marriage. Bruce was a loner until he met Janice.

Friends said they made a great couple. He was frugal, helping her to put her affairs back in order after her divorce. Lively and outgoing, she introduced him to new things.

Booth and his partner, Dave Martinez, began analyzing every detail about the last few days of Bruce's life. Reconstructing the incident, they concluded they were up against an icy, calculating murderer.

Booth theorizes that Bruce was walking along a fence line when he was first fired upon. Miraculously, the bullet pierced his clothing, but only grazed his skin.

Booth says he thinks Bruce then took off his vest to wave it around, and started yelling to tell people he was not a deer. But then Bruce was shot in the chest, and as he was falling, he was hit once more in the back, Booth says.

The third bullet struck a fence post before it hit Bruce. Investigators traced the bullet's path to what they believed was the assassin's nest, where they found a spent cartridge from a .308-caliber bullet. Neither Bruce nor Janice were hunting with such a weapon.

But investigators soon discovered that Janice Dodson's ex-husband, J.C. Lee, was camped just three-quarters of a mile away. Just the day before the murder, Lee had reported a .308-rifle stolen.

Janice said, "J.C. didn't care for anybody I ever dated … even after we were divorced."

An Opportunity and a Motive

District Attorney Frank Daniels said it was all "very suspicious." But there was one thing that didn't seem right: Bruce and Janice had set up their campsite close to other hunters who had been there first. "You don't want to camp near other hunters," said Booth. "This is millions of acres up here and you don't camp next to each other."

Booth and Martinez later discovered that Janice had been to the mountain just a few weeks before on a separate hunting trip without her husband. Suddenly — in their minds — Janice changed from grieving widow to prime suspect.

"We believe at that point, at that time, that's when she set the scene," said Booth. "She knew that this was going to be the murder area, up ahead."

Then, when investigators they learned about Janice's financial affairs, they had a motive.

"She'd taken out three insurance policies, she made sure to get wills done," Daniels said. "Bruce owned two homes. She had the property put into both their names during this three months since they were married."

Only one month after Bruce's death, Janice was gambling at the Players Club casino in Louisiana. She had closed his bank accounts, sold his home and another property, his car, and even his horse, Glory. She cashed in his IRAs.

Police said she was badgering the life insurance companies to pay off his policies, even though they were only good for accidental death — not homicide. And then she remarried.

In the Mud

For nearly three years after the crime, police believed they knew when, where and how the murder had been committed. And yet, they still couldn't connect their suspect with the murder weapon — until they went back to a piece of evidence they had had since day one.

Police had a pair of coveralls Janice had been wearing on the day her husband was killed. The coveralls were stained with mud — a type of mud that police say is only found around the area where her ex-husband had been was camping, and from where the gun was stolen.

Janice was arrested and brought to trial. The jury deliberated for 3 ½ days, then found her guilty of first-degree murder. Lee denied any involvement in the shooting whatsoever, and he was never charged with a crime.

Janice did not take the stand at her trial. She gave her side of the story for the first time in an interview with Primetime's Chris Cuomo.

"I still do [love Bruce Dodson]," Janice said. "The only way I can live with this, is that I have the peace of knowing I didn't do it, and the prayer in my heart that some day the truth will win out."

Investigators say whoever killed Bruce Dodson was able to kill a man while staring him in the eye. They say Janice Dodson, with her denials and claims of love, is that kind of person.

Janice Dodson is serving life in Colorado state prison without the possibility of parole. Police never found the weapon that was used to gun down Bruce Dodson. There are suspicions it may have been purchased at a gun show or found in the wood by a hunter.

If you have any information on the Model 700 Remington .308-caliber rifle with serial number D6844028, call D.A. Investigator Bill Booth at (970) 244-1702 or D.A.

ABCnews.go.com

Murder and the pond

The murder of John Bruce Dodson produced one of the most interesting cases in the entire history of forensic geology. Here, the geologic evidence is unequivocal in that it tied the suspect directly to the crime and eliminated the suspect's alibi. Most importantly, the investigator of the crime recognized the potential importance of the geologic evidence and arranged for the examination of that evidence. The testimony of the forensic geologist was critical to the prosecution of the case. The case began on Oct. 15, 1995, when John Dodson was found dead while on a hunting trip with his wife of three months, Janice. The scene was a crisp autumn morning high in the Uncompahgre Mountains of western Colorado.

At first glance, it appeared to be a hunting accident. However, the autopsy revealed two bullet wounds to the body and one bullet hole through John's orange vest. Western Colorado District Attorney Frank Daniels points out in his book on the case, Dead Center, that if there had been only one bullet, there never would have been an investigation and the death would have been ruled an accident.

The investigation showed that the Dodsons were camped near other hunters, one of whom was a Texas law enforcement officer. He responded to Janice's frantic call that her husband had been shot. She was standing about 200 yards from the camp in a grassy field along a fence line. The officer determined that John was dead and started the process of getting help. Prior to calling for help, Janice had returned to her camp and removed her hunting coveralls, which were covered with mud from the knees down. She later told investigators that she had stepped into a mud bog along the fence near camp. Investigators found a .308-caliber shell case approximately 60 yards from the body. In addition, they found a .308-caliber bullet in the ground on the other side of the fence, which created a direct line from the location of the case to the body to the bullet.

Janice's ex-husband, J. C. Lee, was also camped three-quarters of a mile from the Dodsons. Janice knew the site was his favorite camp location. He naturally came under suspicion. However, Lee was hunting far away from camp with his boss at the time of the shooting. Most importantly, Lee reported to investigators that while he was out hunting, someone had stolen his .308 rifle and a box of .308 cartridges from his tent. Winter comes early at 9,000 feet in the Umcompahgre, and little more could be done at the scene. However, investigators Bill Booth, Dave Martinez and Wayne Bryant returned during the summers of 1996, 1997 and 1998 and searched for the rifle and other evidence. They tried to search every place a weapon could have been hidden. They combed the entire area, including ponds, with metal detectors in hope of finding the rifle; it has never been found. During the final search of the pond near Janice's ex-husband's camp, Al Bieber of NecroSearch International (a nonprofit consulting company for law enforcement agencies) commented that the mud in and around a cattle pond near Lee's camp was bentonite, a clay that someone brought to the pond to stop the water from seeping out of the bottom. That evening, Booth and Martinez were camped near the crime scene. They were discussing the evidence in the case when investigator Booth said, "The mud." He was referring to the dried mud that was found on Janice Dodson's clothing. If Janice had obtained the rifle from Lee's camp, she would most likely have stepped or fallen into the bentonite clay that drained across the road from the cattle pond. Remembering Janice's statement that she was returning to camp on the morning of the crime and stepped into a mud bog near her camp, Booth and Martinez decided they needed to obtain dried mud samples from the bog near the Dodsons' camp, the area around a pond nearby the camp, and the human-made pond and runoff near Lee's camp.

Booth and Martinez packaged the dried mud from each location and sent the samples along with the dried mud that had been recovered from Janice's overalls to the laboratory section of the Colorado Bureau of Investigation in Denver, where it was examined by Jacqueline Battles, a forensic scientist and lab agent. Battles is a highly respected forensic scientist with considerable geologic training, who, like many of the others in the profession, got her early training with Walter McCrone. She concluded and later testified to the fact that the dried mud found on Janice Dodson's clothing was consistent with the dried mud recovered from the pond near Lee's camp. The dried mud that had been recovered from Janice's overalls was found not to be consistent with the mud bog or the pond near her camp. This was a breaking point in the case that allowed Booth and Martinez to put Janice Dodson in her ex-husband's camp around the time his rifle had been stolen. There are no other bentonite-lined ponds in the area and no bentonite deposits.

Booth and Martinez went to Texas and served an arrest warrant on Janice. She was extradited to Colorado, tried in court and convicted in the murder of John Bruce Dodson. The jury understood the results that followed Booth's insightful "mud" exclamation. Janice is now serving a life sentence without the possibility of parole in Colorado's state prison for women. The mud samples collected from Janice's clothing are still in the sheriff’s office evidence room where they have been since 1995.

ForensicGeology.net

The Deer Hunt: A Story of Intrigue, Murder, and Forensic Geology

The short story “The Deer Hunt” tells the true tale of a woman who killed her newly wedded husband to gain his $450000 estate because she was in financial troubles.

Janice Dodson, a woman from a middle class family in Nacogdoches, TX, always wanted to live a lifestyle she could not afford. She always dreamed of the big lights of Dallas but did not find happiness there. Her salary as a nurse could not pay the bill of her expenses.

Janice moved back to Nacogdoches and married J.C. Lee. They were married for twenty-five years, had two kids together, and were living in Delta, CO. Their marriage abruptly ended when J.C. began to sleep with one of their daughter’s friend from school, Pam. Janice swore revenge on J.C. the day she saw the two about to have sex in a getaway cabin for embarrassing her that way.

Bruce and Janice were introduced by a mutual friend that worked at the hospital with them. The two quickly hit it off and began dating. Bruce was a shy guy and a bit of a loner, so when Janice began having financial troubles again Bruce stayed with her and helped pay for some of the credit card bills. Eventually though, the constant spending was too much for Bruce and he split up with Janice. It was not long before he became lonely and crawled back to Janice.

They soon got married and went on honeymoon, but they honeymoon was sour and Janice immediately began thinking of a divorce. But because of her debt she could not afford to get a divorce, so she made a plan to kill Bruce and collect his large estate. Janice quickly had a lawyer create a will for Bruce that gave her custody of everything before taking him out for a hunting trip.

During the hunting trip Janice murdered Bruce and tried to stage it as a hunting accident. She was free for months, getting remarried and making a trip to the Players Club casino in Louisiana just a month after Bruce’s death. A geologic discovery was the final piece of evidence that was able to put her behind bars!

The hunting area Janice had chosen was near the San Juan Mountains and the Grand Mesa. The mountains are made of from volcanic rock that is roughly 30-35 million years old. The Grand Mesa, the largest mesa in the world, is 320 million years old and consists of the Hermosa formation.

The Hermosa formation is a reddish brown sedimentary rock that is layered and is more resistant to erosion than the surrounding igneous and metamorphic rocks. The soil that covers the area came from an ancient landslide many years ago.

A valley was created during the Pleistocene Epoch by glaciers that cut through the igneous rocks like heavy sandpaper because of the extreme weight of ice. This theory is proven by striations and a ‘U’ shaped valley, which is typical of glaciers. Glaciers dump a material called moraines, which is eroded sediments pilled alongside a valley and is deposited at the front of a glacier. Southwestern winds pick up some of those sediments and deposit them in front of the Sangre de Cristo Mountains near the lakes because it does not have the speed to carry them further. This has created the largest sand dunes in North America, the Star Dunes. The dunes have reached a height of 750 feet due to 12000 years of accumulation. Medano Creek is important to the dune preservation because it flows on the perimeter of the the dunes and carries sand downstream and blows it to dunes.

Another geologic structure near the camp site was arroyos, which is a series of subterranean channels and vertical shafts known as pipes. They are created by aedian forces and from the difference in porosity of the clay materials. All of this geologic background was necessary to convict Janice Dodson.

Janice was known as distant by the nurses she worked with at the Mental Health Services of Richardson, TX before moving to Colorado, but no one expected to her to murder someone. In desperate need of cash, Janice decided her best case scenario would be to murder her new husband, Bruce.

A perk in her plan was being able to possibly frame cheating ex-husband, J.C. She started off by picking campsite near the mesa, while J.C. was near the lake. Janice’s campsite was perfect because she would be up on the mesa “hunting elk” when Bruce was looking for deer on lower ground. This gave her the perfect kill shot.

While they were separated, Janice went over to J.C.’s campsite to steal his AWR to try and frame him. During her time by the lake, she got a type of mud that is only near J.C.’s camping area on some overalls and did not clean them properly to hide the evidence. That was her ultimate downfall because it placed her at the campsite and as the one who stole J.C.’s gun.

With her growing debt and past history of insurance fraud, Janice became the perfect suspect with a motive. Officer Doug Kyle was the first to the scene of the crime and noticed some things that made him begin suspecting Janice as the killer. Earlier that day he had seen her right after the murder before she changed her clothes, she began acting weird when he returned quickly after calling 911, and told him that she had not heard any shots that morning even though he did not ask her.

Other clues included her telling officials that J.C. never cared for any of her boyfriends after their divorce and investigator Bill Booth was concerned with the fact that three shots were fired. But J.C. was quickly dismissed as a suspect because he had been hunting with his boss, Frank, and his girlfriend, giving him a credible alibi. He also had called the day before the murder reporting his rifle stolen. Some actual evidence that was used in the case was Janice shot a bullet into a fence post, which allowed authorities to find her shooting location; Janice picked a campsite close to other people, which is uncommon; records showed Janice had been camping in the area just weeks before the murder. Janice Dodson is now serving life in prison without parole.

Justinadami.wordpress.com

Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Law Firm of Richard A. Hostetler, Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant.

Defendant, Janice Hall, appeals the judgment of conviction entered on a jury verdict finding her guilty of first degree murder after deliberation.   Defendant's primary contention on appeal is that the trial court erred in refusing to instruct the jury that before she could be convicted, all jurors had to agree unanimously which of the prosecution's alternative theories supported the first degree murder count.   Because we conclude the trial court did not err, we affirm.

Defendant's husband (the victim) was shot and killed while he and defendant were on a hunting trip.   A witness, who is a deputy sheriff from another state, was camped nearby and heard several gunshots.   About thirty minutes later, he saw defendant walking back to her campsite, and the witness noticed shortly afterwards that defendant had changed clothes.

Defendant and the witness then had a conversation during which she denied hearing shots.   She stated that her husband had not returned on time and that she was going to look for him.   A few minutes later, the witness heard her calling for help.   He found her next to the victim's body, waving the victim's orange hunting vest and throwing empty bullet shells near the body.

Investigators later discovered a shoe print in the mud near the suspected location of the shooter.   The print was consistent with defendant's boots.   The investigation further showed:  (1) defendant's ex-husband had been hunting nearby;  (2) he owned the same type of rifle identified as the murder weapon;  (3) he had reported it stolen after the hunting trip;  (4) defendant had urged the victim to put money in her ex-husband's bank account to benefit their children;  (5) defendant was a skilled hunter and had extensive experience with guns;  (6) she and the victim had been married for only three months at the time of his death;  (7) she had encouraged him to name her as the primary beneficiary of his life insurance policies;  and (8) upon his death, she was to receive over $450,000 in death benefits and assets from his estate.

Approximately three years after the victim's death, defendant was charged with first degree murder after deliberation.   At the jury trial, the prosecution maintained that defendant either had fired the shot that killed the victim or had aided and abetted her ex-husband in killing him.

At the close of the evidence, the trial court submitted those alternative theories to the jury and instructed the jury, as relevant here, it had to find each element of first degree murder was proven beyond a reasonable doubt and the verdict had to be unanimous.   However, the court refused defendant's request that the jury also be instructed that before she could be convicted, all jurors had to agree unanimously which of the prosecution's alternative theories supported the first degree murder count.

I. Unanimous Verdict

For several reasons, defendant contends the trial court erred in refusing to instruct the jury it was required to reach a unanimous decision whether she was being convicted of first degree murder as the principal or as a complicitor.   We reject each of her arguments.

A. Complicity Theory

Defendant first asserts that there is a distinction “between [using] alternative methods or means of committing [first degree murder] and [using] alternative theories of defendant's status as a party to the offense.”   According to defendant, a unanimity instruction was required because complicity is “a definitional distinction pertaining to a party's status in committing the offense,” rather than an alternative method of committing an offense.   We are not persuaded.

Prior Colorado decisions have described complicity as another means or theory of law of committing a single offense.  Bogdanov v. People, 941 P.2d 247 (Colo.1997);  People v. Fisher, 9 P.3d 1189 (Colo.App.2000);  People v. Thurman, 948 P.2d 69 (Colo.App.1997);  see also James v. People, 727 P.2d 850 (Colo.1986).

As relevant here, “[a] person commits the crime of murder in the first degree if ․ [a]fter deliberation and with the intent to cause the death of a person other than himself [or herself], he [or she] causes the death of that person or of another person.”   Section 18-3-102(1)(a), C.R.S.2001.

To commit first degree murder after deliberation as a principal, one actually has to commit the act resulting in the death of another person.   However, one also may be held accountable as a complicitor under § 18-1-601, C.R.S.2001, which provides that “[a] person is guilty of an offense if it is committed by the behavior of another person for which he [or she] is legally accountable as provided in sections 18-1-602 to 18-1-607.”

Under § 18-1-603, C.R.S.2001, “[a] person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.”

In view of these statutes and decisions defining complicity, we conclude the trial court did not err in permitting the prosecution to present evidence that defendant committed first degree murder after deliberation either as a complicitor or as a principal.   Those alternative legal theories were two means of committing a single offense, and were not an impermissible “definitional distinction pertaining to a party's status,” as defendant asserts.   See Bogdanov v. People, supra;  James v. People, supra;  People v. Thurman, supra.

B. Federal Right to Due Process

Defendant next contends her right to due process under the United States Constitution was denied because the trial court did not instruct the jury it had to determine unanimously whether she had committed the murder as the principal or as a complicitor.   We disagree.

The United States Supreme Court is the final interpreter of the United States Constitution.   See Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982);  People v. Geisendorfer, 991 P.2d 308 (Colo.App.1999).

Under the Due Process Clause of the United States Constitution, a defendant does not have the right to a unanimous jury verdict in state criminal prosecutions.  Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).   The Supreme Court has stated that even if it is assumed such a right exists, due process does not require unanimity on the various means or theories of committing the single offense charged.  Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).

In Schad, the defendant was charged in Arizona with one count of first degree murder.   The prosecution advanced two theories of how the defendant had committed the offense:  premeditated murder and felony murder.   Arizona law considered those theories to be equivalent means of committing first degree murder.   The jury was instructed on both theories as well as on the requirement that it reach a unanimous verdict.

There, as here, the defendant contended due process was denied because the jury verdict may not have been unanimous as to the theory underlying the defendant's guilt of first degree murder.   However, a plurality of the Supreme Court rejected the argument, concluding the defendant was not denied his right to due process when the jury was instructed it could reach a unanimous verdict on first degree murder without being unanimous on the theory underlying the charged offense.   The Court stated:  “We see no reason ․ why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea.”  Schad v. Arizona, supra, 501 U.S. at 632, 111 S.Ct. at 2497, 115 L.Ed.2d at 565.

Accordingly, we reject defendant's contention that her right to due process under the United States Constitution was denied because the trial court did not instruct the jury it had to determine unanimously whether she had committed the murder as the principal or as a complicitor.   The jury was only required to reach a unanimous verdict on the charge of first degree murder, not as to the alternative theories offered in support of the charge.   See Schad v. Arizona, supra.

C. Colorado Right to Due Process

Defendant next contends the failure to require unanimity regarding her culpability as a principal or as a complicitor deprived her of her right to due process under the Colorado Constitution, which requires proof beyond a reasonable doubt of every element of a crime.   Again, we disagree.

Colo. Const. art. II, § 25 states:  “No person shall be deprived of life, liberty or property, without due process of law.”

Defendant urges us to adopt the dissenting view in Schad v. Arizona, supra, and construe the due process clause of the Colorado Constitution to require unanimity on every act underlying an element of a crime.   The dissent in Schad would have required unanimity on either premeditated murder or felony murder and not just on the underlying offense of first degree murder.   It relied on the rule that due process requires proof beyond a reasonable doubt of every fact necessary to constitute the offense charged.   The dissent reasoned that the alternative theories required different courses of conduct, thus demanding proof of different facts in support of each theory.  Schad v. Arizona, supra, 501 U.S. at 653, 111 S.Ct. at 2508, 115 L.Ed.2d at 579 (White, J., dissenting) (“[W]hile these two paths both lead to a conviction for first-degree murder, they do so by divergent routes possessing no elements in common except the fact of a murder.”).

On a few occasions, the Colorado Supreme Court has extended rights protected under the state constitution beyond those protected by the federal constitution.   See People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968) (recognizing more extensive due process right regarding burden of proof under Colorado Constitution than under federal constitution);  People in Interest of A.C., 991 P.2d 304, 307 (Colo.App.1999) (“[E]xtending rights protected under our state constitution beyond those protected by the federal constitution has been largely within the domain of the supreme court.”), aff'd, 16 P.3d 240 (Colo.2001).   However, we perceive no basis for doing so here.

In Thomas v. People, 803 P.2d 144 (Colo.1990), the court considered whether the defendant's right to due process was violated by the trial court's refusal to require the prosecution to designate the acts that formed the basis of the charged offense.   There, the defendant was charged with and convicted of two counts of sexual assault on a child.   Each count related to a different victim, and the two victims testified to multiple sexual contacts by the defendant over a period of several years.   The trial court denied the defendant's request that the prosecution be required to elect the acts on which it was relying as the basis for the charged offense.   The trial court also refused the defendant's request to instruct the jury it had to agree unanimously on one or all of the acts to which the victims testified.

On appeal, the supreme court concluded that the trial court had violated the defendant's due process rights in failing to instruct the jury regarding the need for unanimity as to one or all of the acts, but that the error was harmless beyond a reasonable doubt because the jury verdicts reflected unanimity.   The court explained that the trial court had required the prosecution to elect a particular type of act as to each victim, that the evidence suggested the sexual contacts were repeated over many years, that the defense theory was a general denial that any of the acts had occurred, and that “[t]he evidence presented no rational basis for some jurors to predicate guilt on one act while other jurors based it on another.”  Thomas v. People, supra, 803 P.2d at 155.

The Thomas court further stated:

[W]hen the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance.   If the prosecutor decides not to designate a particular instance, the 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 described by the victim and included within the time period charged.   Necessarily, the determination whether there is a reasonable likelihood that jurors may disagree on which acts the defendant committed requires the exercise of discretion by the trial court.   In some instances, special verdicts may be advisable to provide assurance that a verdict is supported by unanimous jury agreement.

Thomas v. People, supra, 803 P.2d at 153-54 (footnote omitted).

Other decisions have held the jury must be unanimous only as to the elements of the crime charged, even though the evidence demonstrated that various acts by the defendant could have established those elements under different theories of culpability.   See James v. People, supra;  People v. Lawrence, 55 P.3d 155 (Colo.App.2001);  People v. Thurman, supra;  People v. Lewis, 710 P.2d 1110 (Colo.App.1985).   Those cases have held a jury may return a general verdict of guilty when the trial court instructs on alternative theories or means of committing the crime.

In James v. People, supra, the defendant was charged with one count of first degree sexual assault.   However, the prosecution presented three different methods or theories by which the defendant may have committed that offense.   Further, the jury was instructed it could convict the defendant “if he had knowingly inflicted sexual penetration upon the victim by causing her to submit to him in one of three ways:  (1) application of physical force or violence, (2) threat of imminent death, or (3) threat of future retaliation.”  James v. People, supra, 727 P.2d at 853.

The three theories each required distinct acts that constituted the same crime, and the jury's verdict was returned on a general verdict form that did not specify upon which of the alternatives the verdict was reached.

On appeal, the defendant contended his due process rights were violated because the court was unable to determine upon which of the three theories the jurors based their verdict.   The defendant claimed the evidence “was insufficient to justify a finding by the jury that every element of each alternative method of committing the charged offense had been proven beyond a reasonable doubt.”  James v. People, supra, 727 P.2d at 852.   Thus, the issue on appeal was “whether each alternative [theory] must be supported by proof sufficient to permit a jury to find the defendant guilty beyond a reasonable doubt.”  James v. People, supra, 727 P.2d at 854-55.

The supreme court concluded the jury could return a general verdict of guilty on a single count alleged to have occurred under alternative theories without depriving the defendant of the right to a unanimous verdict.   However, each theory presented had to be supported by sufficient evidence.   If there were insufficient evidence of any alternative theory, the general verdict had to be set aside.  James v. People, supra.

In summary, the defendant's right to due process is violated if:  (1) the prosecution alleges multiple acts that could constitute the charged offense;  (2) only one theory of culpability is presented;  and (3) no modified unanimity instruction is given.   Nevertheless, the failure to give such a unanimity instruction may be harmless beyond a reasonable doubt if the reviewing court is convinced the jury verdicts reflect unanimous agreement.   See Thomas v. People, supra.

Further, where the jurors unanimously agree the defendant committed the charged crime, unanimity is not required as to the underlying acts, as long as the prosecution presents alternative theories and each theory is supported by sufficient evidence.   See James v. People, supra.

In light of these decisions by the Colorado Supreme Court, we reject defendant's contention that we should adopt the reasoning of the dissent in Schad v. Arizona, supra.

People v. Thurman, supra, offers additional guidance in resolving the issue before us.   There, as here, the defendant maintained that the trial court erred in allowing the jury to return a general verdict of guilty when it was instructed on the prosecution's alternate theories:  that the defendant was guilty either as a principal or as a complicitor.   There, as here, the trial court also did not require the prosecution to elect which theory it was submitting to the jury, nor was the jury given a modified unanimity instruction requiring agreement on one theory or the other.  People v. Thurman, supra.

The panel in Thurman rejected the defendant's challenge to the general verdict of guilty, concluding that “when a defendant is charged with alternative means of committing the same offense within a single count, not with two distinct offenses in separate counts, and evidence is presented regarding a single transaction, the prosecution is not required to select a single alternative.”  People v. Thurman, supra, 948 P.2d at 71.

Although Thurman did not address whether the failure to require unanimity on the particular theory of defendant's participation in the offense was a violation of due process, the panel applied essentially the same rule established in James.   Thus, the holding of Thurman supports our conclusion that a modified unanimity instruction was not required under the present circumstances.

Because the jury was instructed it could convict defendant as a principal or as a complicitor and was given a general verdict form, individual jurors could have convicted defendant based on differing theories.   However, the jury was also instructed that every element of the offense had to be proved beyond a reasonable doubt before a verdict of guilty could be returned and that it was required to reach a unanimous verdict.   Defendant has not challenged the sufficiency of the evidence supporting either theory, and as long as the prosecution presented sufficient evidence to support both theories, we must uphold the conviction as being supported by proof beyond a reasonable doubt.   See James v. People, supra.

Our conclusion that a modified unanimity instruction was not required here is further supported by the decisions of courts in other jurisdictions that have addressed similar issues.   See People v. Sutherland, 17 Cal.App.4th 602, 617, 21 Cal.Rptr.2d 752, 761 (1993)(“[N]o unanimity instruction is required to prevent a less than unanimous verdict where the evidence independently proves acts which support the defendant's liability either as a principal or as an aider and abettor.”);  People v. Smielewski, 235 Mich.App. 196, 596 N.W.2d 636 (1999)(jury may return a general verdict of guilty when instructed on both theories of principal liability and aiding and abetting);  Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997)(no error occurred when jury was presented with theories of premeditated murder, felony murder, and aiding and abetting without requiring unanimity on one particular theory);  Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288, 292-93 (1979)(“Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.”).

In each of the cited cases, the court concluded the jury may return a general verdict of guilty when instructed on theories of both principal and complicitor culpability.

We therefore conclude that while due process requires a unanimous verdict under certain circumstances, those circumstances are not present here.   The unanimity and reasonable doubt instructions given here were proper, and a modified unanimity instruction was not required.   Accordingly, defendant's constitutional right to due process was not violated.

D. Colorado Right to a Jury Trial

Defendant next contends the failure to require unanimity regarding her culpability as the principal or as a complicitor violated her right to a jury trial under Colo. Const. art.   II, § 23.   She urges us to construe that section to include the right to a unanimous verdict.   We are not persuaded.

Colo. Const. art.   II, § 23 provides in relevant part:  “The right of trial by jury shall remain inviolate in criminal cases․”

There is a statutory right to a unanimous verdict in Colorado.   See §§ 16-10-108, 18-1-406(1), C.R.S.2001 (requiring unanimous jury verdicts);  see also Crim. P. 23(a)(8).   However, the Colorado Constitution does not explicitly guarantee the right to a unanimous jury verdict.   Although due process requires a unanimous verdict under certain circumstances, as discussed above, no Colorado cases have explicitly held that the Colorado Constitution includes such a right.

Defendant nonetheless argues that because the Colorado Constitution was based largely on the Illinois Constitution, we should adopt Illinois decisions construing its constitution to include the right to a unanimous jury verdict.   We are not persuaded.

The 1870 Illinois Constitution was in effect at the time our constitution was ratified.   The language in the 1870 Illinois Constitution, which is currently contained in Ill. Const. art.   I, § 13, provides that as to criminal defendants, “the right of trial by jury as heretofore enjoyed shall remain inviolate.” (emphasis added).

The Illinois Supreme Court has held “[t]he right protected by [each of the Illinois Constitutions of 1818, 1848, and 1870] was the right of trial by jury as it existed at common law,” and at common law, the right to a jury trial included the right to a unanimous verdict.  George v. People, 167 Ill. 447, 455-57, 47 N.E. 741, 743-44 (1897);  see also People v. Strain, 194 Ill.2d 467, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000)(Illinois Constitution includes the right to a unanimous jury verdict).

Unlike the Illinois Constitution, Colo. Const. art. II, § 23, the right to jury trial provision, is not qualified by the “as heretofore enjoyed” language.   We acknowledge the Illinois Constitution of 1818 stated “that the right of trial by jury shall remain inviolate,” which is identical to language contained in the Colorado Constitution.   We further acknowledge the Illinois Supreme Court, in George v. People, supra, 167 Ill. at 455, 47 N.E. at 743, did not find “any substantial difference between the provisions” in the Illinois constitutions of 1818, which did not contain the “as heretofore enjoyed” language, and that of 1870, which did contain such language.

Nevertheless, we view it as significant that the framers of our state constitution omitted the “as heretofore enjoyed” language contained in the Illinois Constitution.   See Ace Flying Service, Inc. v. Colorado Department of Agriculture, 136 Colo. 19, 314 P.2d 278 (1957)(Moore, C.J., specially concurring)(provisions in the Colorado Constitution that deviate from the Illinois Constitution must be regarded as indicating an intention to depart from the interpretations of the Illinois provision).

If that language had been included, it would have required that we look to and incorporate within our constitution the common law right to a unanimous verdict.   However, in view of the difference in the language of the Colorado and Illinois constitutions, we are not persuaded by defendant's argument that we should apply Illinois law and construe the Colorado Constitution to include a right that is not included in the text and that the Colorado Supreme Court has not yet recognized.

We therefore conclude defendant was not deprived of her rights under Colo. Const. art. II, § 23.

In so holding, we observe that in some of the above-cited cases in which the court has held the jury may return a general verdict of guilty when instructed on theories of both principal and complicitor culpability, the state constitution has provided the defendant in a criminal case the right to a unanimous jury verdict.   See People v. Sutherland, supra.

II. Mental State Evidence

We also reject defendant's contention that the trial court abused its discretion in allowing testimony that she had suffered from multiple personality disorder, but was not suffering from it at the time of the murder.

A trial court's admission of evidence will not be overturned unless it abused its discretion.  People v. Mossmann, 17 P.3d 165 (Colo.App.2000).   Under this standard, we will not overturn the trial court's evidentiary ruling unless it was manifestly arbitrary, unreasonable, or unfair.  People v. Melillo, 25 P.3d 769 (Colo.2001).

CRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”   CRE 402 requires that evidence be relevant before the trial court may admit it.  People v. Mossmann, supra.

As pertinent here, under CRE 403, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

CRE 404(a) provides in relevant part:

Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:  (1) Character of accused.   Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same․

CRE 404(b) provides in relevant part:  “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”

After the homicide was committed in this case, the police conducted an office interview with defendant.   She reported that during a flashback, she had seen the victim being shot four times.   The officer then asked defendant whether she had ever suffered from multiple personality disorder.   She said she had, but she claimed to have been cured by the time of the murder.

At trial, defendant contended such evidence was irrelevant because she had not raised the issue of diminished mental capacity and also was “improper bad character evidence.”   However, the prosecution's theory was that defendant gave a number of false and inconsistent statements to law enforcement officials after the homicide and that her purpose in mentioning her alleged multiple personality disorder was to explain why her statements had been inconsistent.   The trial court concluded the testimony was relevant and admitted it.

We disagree that because defendant failed to raise the issue of diminished mental capacity, this evidence was irrelevant.   Defendant's statement to the officer regarding her multiple personality disorder had probative value, given the prosecution's theory that defendant had covered up her involvement in the crime, and her own description of her mental state at the time of the offense made it more probable that she had intentionally caused the death of the victim.   The statement was thus relevant to show defendant had committed first degree murder as a principal, which requires specific intent and deliberation.

Nor do we agree with defendant that the danger of unfair prejudice substantially outweighed the probative value of the evidence.   This particular evidence constituted a very brief part of a fifteen-day trial, and only the officer who elicited the statement from defendant concerning her multiple personality disorder testified about the issue.   Thus, while the relevance of the evidence may not have been great, we perceive no abuse of discretion by the trial court in allowing the officer's testimony.

Finally, we observe that CRE 404(b) only applies to “[e]vidence of crimes, wrongs, or acts.”   The evidence of multiple personality disorder related to defendant's mental state at the time of the murder, not to any of her actions.   Thus, we conclude CRE 404(b) does not apply to this evidence.

Judgment affirmed.

Opinion by Judge ROTHENBERG.

Judge METZGER and Judge KAPELKE concur.