Larimer County District Court No. 09CR1328 Honorable Dave Williams, Judge
Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 A jury convicted James Jud Bondsteel of multiple offenses, including second degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault. On appeal, he challenges several pretrial rulings, raises arguments about proceedings during trial, and disputes the sufficiency of the evidence. We reverse one of the second degree kidnapping convictions for insufficient evidence, vacate the sentence imposed on that count, and remand for correction of the mittimus. In all other respects, we affirm.
¶ 2 The trial court joined two separate cases against Bondsteel for trial: the Signal Mountain Trail case and the motorcycle case. In the Signal Mountain Trail case, the prosecution's evidence showed that Bondsteel had attacked two women while they were hiking, injuring one woman with a knife and moving her clothing before the other woman struck him and they escaped. In the motorcycle case, the evidence showed that Bondsteel, while on his motorcycle, approached four women in three separate cars and, sometimes at gunpoint, took their cell phones and other belongings. He also demanded that the women move or remove portions of their clothing and expose their breasts or genitalia.
¶ 3 Bondsteel first contends the trial court erred in allowing the prosecution to join, over his objection, the Signal Mountain Trail case and the motorcycle case for trial under Crim. P. 13. We conclude that because Bondsteel failed to renew his objection or move to sever the cases at trial, he has failed to preserve this issue. But exercising our discretion under C.A.R. 1(d) to review Bondsteel's claim on the merits, we further conclude that his contention fails.
¶ 4 Relying on People v. Gross, 39 P.3d 1279 (Colo.App. 2001), Bondsteel asserts that he preserved the misjoinder issue with an objection when the prosecution sought pretrial joinder of these cases under Crim. P. 13. The Attorney General responds that Gross was wrongly decided and Bondsteel waived this issue by failing to renew his objection, move to sever, or otherwise reaffirm his position at trial. Bondsteel's reply brief addresses the substance of alleged misjoinder at length but does not respond to the waiver argument.
¶ 5 The record confirms that Bondsteel did not take any action concerning alleged misjoinder between his pretrial motion and the verdict. Still, accepting the Attorney General's position on waiver would require us to depart from Gross. For the following reasons, we hold that Bondsteel at least forfeited this issue.
¶ 6 Preservation is a threshold question. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586 (Colo. 1984) ("[W]e must consider as a threshold matter whether [the party's arguments below] were adequate to preserve the issue . . . for appellate review.").
¶ 7 Crim. P. 13 permits a court to try multiple indictments, informations, or complaints together on the motion of any party if the offenses "could have been joined in a single indictment, information, complaint, or summons and complaint." This rule must be read in conjunction with Crim. P. 8(a)(2), which allows permissive joinder of offenses in an indictment or information if the charges "are of the same or similar character or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." But if a joint trial will prejudice either the defendant or the prosecution, the court may - on motion or sua sponte - sever the counts into separate trials under Crim. P. 14.
¶ 8 Our supreme court has directly addressed the interplay among these rules in only two cases.
¶ 9 In People v. Barker, 180 Colo. 28, 33, 501 P.2d 1041, 1043 (1972), the court explained that the defendant's "failure to renew the motion for severance at the close of all the evidence constitutes a waiver of the objection." There, three separate informations had been joined over the defendant's objection, and the court had denied a motion for separate trials. Id. at 30, 501 P.2d at 1041-42. The defendant did not renew his objection or move to sever at trial, however, and the original motion to sever was missing from the record. Id. at 33, 501 P.2d at 1043.
¶ 10 Similarly, in People v. Aalbu, 696 P.2d 796, 806 (Colo. 1985), the court held that when a pretrial motion to sever a charge - which was added to the information by amendment - is denied, the defendant must renew the motion during trial or the misjoinder claim is waived. The court explained that the reason behind the renewal requirement is "to alert the court to the necessity of reconsidering its original decision in light of the evidence presented at trial and to permit the defendant to reevaluate the issue of prejudice." Id.
¶ 11 Despite Barker, which involved an unsuccessful objection to consolidation, in Gross, 39 P.3d at 1281-82, the division declined to apply the renewal requirement where the defendant had objected before trial to the prosecution's motion to consolidate under Crim. P. 13, but he had not moved to sever. The division equated objecting to a motion to consolidate with a motion in limine, in which "the objector is entitled to assume that the trial court will adhere to its initial ruling and that the objection need not be repeated." Id. at 1281; cf. CRE 103(a)(2) ("Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.").
¶ 12 Further distinguishing between a defendant's objection to joinder under Crim. P. 13 and the defendant's motion to sever under Crim. P. 14, the Gross division explained that the two rationales expressed in Aalbu (noted above) as underlying the renewal requirement for motions to sever are inapplicable to an objection to joinder because Crim. P. 33(a) "allows the appellate court to review the trial record for prejudice." Gross, 39 P.3d at 1282.
¶ 13 In Gross, the division did not address Barker. It distinguished Aalbu based on the differing burdens applicable to the parties: when a defendant objects to the prosecution's motion to join, as occurred in Gross, "the prosecution rather than the defendant was the moving party with the burden of proof." Id. at 1281. But when a defendant makes a motion to sever, as in Aalbu, the defendant has the burden. Id.
¶ 14 Some divisions of this court have accepted Gross, but with little further analysis. See People v. Curtis, 2014 COA 100, ¶ 12; People v. Barrus, 232 P.3d 264, 269 n.1 (Colo.App. 2009); People v. Owens, 97 P.3d 227, 231 (Colo.App. 2004); People v. Dembry, 91 P.3d 431, 435 (Colo.App. 2003). Even so, "[o]ne division of this court is not bound by the decision of another division." People v. Moore, 321 P.3d 510, 513 (Colo.App. 2010), vacated in part on other grounds, 2014 CO 8. Still, the later division should give the prior decision some deference. People v. Smoots, 2013 COA 152, ¶ 20 (cert. granted in part on other grounds June 30, 2014).
¶ 15 For our part, such deference does not extend to following decisions that would be difficult to reconcile with opinions of our supreme court. Cf. People v. Washington, 2014 COA 41, ¶ 27 ("To the extent that several divisions of this court have departed from Strickland's above-noted statements regarding the applicable burden of proof, we are not obligated to follow those divisions . . . .") (citations omitted). Thus, for the following reasons we depart from Gross.
¶ 16 First, we agree with the Attorney General that Gross creates "a distinction without difference." Rowe v. Mulvane, 25 Colo.App. 502, 508, 139 P. 1041, 1043 (1914). To illustrate this point, the Attorney General describes three similar procedural settings, but with differing preservation requirements under Gross:
• The prosecution brings multiple charges in one information against a defendant under Crim. P. 8(a)(2). The defendant moves to sever under Crim. P. 14, but the court denies the motion. Under Aalbu, the defendant must renew his motion to sever at trial to preserve it for appellate review.
• The prosecution brings charges separately against a defendant but later requests joinder under Crim. P. 8(a)(2) and Crim. P. 13. The defendant does not object and the cases are joined, but the defendant later moves to sever under Crim. P. 14. Again, Aalbu requires the defendant to renew the motion to sever at trial.
• The prosecution requests to join two cases under Crim. P. 13, the defendant objects, and the court grants the prosecution's request. The defendant does not move to sever. Under Gross, the defendant need not renew the objection at trial to preserve this claim.
¶ 17 Under Gross, the requirements to preserve are different for an objection to a motion to join and a motion to sever. But the practical effect of a preservation requirement during trial is the same - alerting the trial court to the defendant's position at that time and obtaining a ruling not based on the pretrial record.
¶ 18 Second, and given this similar practical effect, we disagree with the Gross division that the rationales for renewing a motion to sever do not equally favor renewing an objection to the prosecution's motion for joinder. As Aalbu, 696 P.2d at 806, explained, renewing a motion to sever alerts the court that it may need to reconsider its earlier ruling in light of the evidence at trial. And since "the considerations that apply" when a defendant objects to joinder "are essentially the same as when a defendant moves to sever charges originally joined, " 5 Wayne R. LaFave et al., Criminal Procedure § 17.3(a), n.7 (3d ed. 2007), the court will similarly need to be alerted to reconsider its pretrial decision to join.
¶ 19 Likewise, insuring that the defendant has the opportunity to "reevaluate the issue of prejudice and to elect to proceed with a consolidated trial despite the risk of prejudice, " Aalbu, 696 P.2d at 806 (citation omitted), is equally important whether the defendant moves to sever or objects to a motion to join. "The decision to seek severance is likely to be based on tactical factors, often involving complex considerations." People v. Weese, 753 P.2d 778, 779 (Colo.App. 1987).
¶ 20 In either scenario, a defendant faced with an adverse pretrial ruling could "have his cake and eat it too." People v. Eppens, 979 P.2d 14, 22 (Colo. 1999). This is because "the defense may have strategically changed its position during the course of the proceeding based upon a perception that developments had redounded to its advantage." State v. Walker, 748 N.E.2d 79, 87 (Ohio Ct. App. 2000). But requiring a defendant to renew the objection to joinder at the close of evidence "prevent[s] a defendant from deliberately failing to make a meritorious motion and waiting to see what verdict the jury returns." United States v. Terry, 911 F.2d 272, 277 (9th Cir. 1990).
¶ 21 Third, the disparate preservation requirements turn on charging decisions, yet charging decisions are largely within the prosecution's discretion. See, e.g., In re 2010 Denver Cty. Grand Jury, 2012 COA 45, ¶ 24 ("[P]rosecutors enjoy wide discretion to file charges or refuse to charge for reasons other than the mere ability to establish guilt.") (citation omitted).
¶ 22 Consider the facts of Aalbu, 696 P.2d at 806, to demonstrate this point: the prosecution added a charge to an existing information, but the defendant failed to renew his motion to sever at trial, waiving his claim. Had the prosecution filed a second case and requested joinder instead of amending the information to add a charge, the defendant would not have been required to renew his objection under Gross. Thus, the measure of the defendant's preservation requirements turns on the prosecution's discretionary charging decision, not on the practical effect of the prior rulings or the rationales announced in Aalbu.
¶ 23 Fourth, the Gross division did not explain, nor can we discern, why who has the burden of proof should determine whether a defendant must renew his joinder objection to preserve the issue for appellate review. Regardless of who bears the burden, because Crim. P. 13 is "[s]ubject to the provisions of [Crim. P.] 14, " similar prejudice considerations control an objection to joinder as well as a motion for severance. And an appellate court would review both rulings for an abuse of discretion. See People v. Gregg, 298 P.3d 983, 985 (Colo.App. 2011) ("The decision to consolidate cases is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion."); People v. Pasillas-Sanchez, 214 P.3d 520, 530 (Colo.App. 2009) (concluding that the trial court did not abuse its discretion when it denied the defendant's motion to sever certain counts).
¶ 24 Fifth, the motion in limine rationale - that a party should be entitled to presume a trial court will adhere to a pretrial ruling - would apply to denying a motion for severance no less than to overruling an objection to joinder. "Under the law of the case doctrine, prior relevant rulings made in the same case are generally to be followed." People v. Young, 2014 COA 169, ¶ 39.
¶ 25 Sixth, "[t]he purpose of a Crim. P. 33 motion is to allow the trial court an opportunity to correct its errors." People v. Lopez, 2015 COA 45, ¶ 62. But once the trial has ended, the reason for reminding the trial court of its pretrial ruling - as noted in Aalbu - has diminished considerably. The Gross division did not cite authority, nor are we aware of any in Colorado, relying on the now-relaxed standard of Crim. P. 33(a) to relieve a defendant from the consequences of failure to raise an issue during trial. For example, where an alleged instructional error was not raised at trial, "raising it for the first time in a new trial motion was too late to avoid the plain error standard." People v. McNeely, 222 P.3d 370, 375 (Colo.App. 2009), overruled on other grounds by Gibbons v. People, 2014 CO 67; accord People v. Goldfuss, 98 P.3d 935, 939 (Colo.App. 2004).
¶ 26 Finally, neither Gross nor its progeny comport with out-of-state authority. Although similar cases are few, they disfavor the holding in Gross. See, e.g., State v. Hillman, 26 N.E.3d 1236, 1248 (Ohio Ct. App. 2014) ("Because appellant did not renew his objection to joinder of the charged offenses at the close of the presentation of the state's evidence or at the close of the presentation of all evidence, he has waived all but plain error."); Spicer v. State, 12 S.W.3d 438, 444 n.7 (Tenn. 2000) ("Because the appellant in this case did renew his objection to consolidation after the State's proof and again in his motion for new trial, he thereby properly preserved his objection for appeal.").
¶ 27 In sum, we decline to follow Gross. Instead, under the rationale of Aalbu, because Bondsteel did not renew his objection to the People's motion to join at trial, his misjoinder claim is at best unpreserved. But the harder question is whether to apply this holding and decline further review.
¶ 28 In Barker and Aalbu, the supreme court held that the misjoinder issue had been waived. Where a defendant has waived a right, there is no error or omission by the court, leaving nothing for an appellate court to review. People v. Abeyta, 923 P.2d 318, 321 (Colo.App. 1996), superseded by rule on other grounds as stated in People v. Roy, 252 P.3d 24, 27 (Colo.App. 2010).
¶ 29 But Barker and Aalbu were decided three decades ago or more. Their use of "waiver, " where the defendants merely failed to renew an objection or move to sever, would be difficult to reconcile with more recent precedent. See, e.g., People v. Rediger, 2015 COA 26, ¶ 54 ("In United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court distinguished between 'forfeited' and 'waived' errors, noting that waiver occurs when a defendant specifically removes claims from the trial court's consideration by intentionally relinquishing or abandoning a known right."). And divisions of this court have "assume[d] that [a] defendant is entitled to plain error review because his claim was merely forfeited and not validly waived." People v. Mumford, 275 P.3d 667, 672 (Colo.App. 2010), aff'd, 2012 CO 2.
¶ 30 More importantly, Bondsteel's trial counsel could have relied on cases such as Gross, Curtis, or Barrus, which we have declined to follow, when not renewing his objection to consolidation or moving to sever during trial. To hold that the issue is waived, despite this precedent, could be a retroactive application of a new rule, which might implicate due process. See, e.g., People v. LaRosa, 2013 CO 2, ¶ 18. But "a court should not decide a constitutional issue unless . . . the necessity for such decision is clear and inescapable." People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985).
¶ 31 For these reasons, and even if the misjoinder issue may have been waived rather than merely forfeited - an issue that we do not decide - we will review the merits of Bondsteel's misjoinder argument. Cf. Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007) ("We therefore exercise our discretion to review these constitutional challenges, particularly in light of the fact that doing so will promote efficiency and judicial economy.").
¶ 32 An appellate court reviews a trial court's joinder of charges for trial for an abuse of discretion, using a two-prong analysis. Curtis, ¶ 14. The trial court abuses its discretion when the defendant suffered prejudice because of the joinder and the jury was unable to separate the facts and legal theories involved in each offense. Id. at ¶ 15.
1. Prejudice a. Law
¶ 33 To obtain reversal for misjoinder, a defendant must first show actual prejudice, not just that "separate trials might afford the defendant a better chance of acquittal." People v. Guffie, 749 P.2d 976, 982 (Colo.App. 1987). Usually, a defendant cannot make this showing if evidence proving the charges would have been admissible in separate trials. Gross, 39 P.3d at 1282.
¶ 34 Before the trial court, Bondsteel argued that evidence of each case would not have been admissible in separate trials. But the court disagreed and allowed joinder. It applied CRE 404(b) and held that the evidence concerning charges in the motorcycle case and in the Signal Mountain Trail case would have been admissible in separate trials for three purposes: to prove motive, intent, and modus operandi.
¶ 35 CRE 404(b) permits evidence of "other crimes, wrongs, or acts" to be admitted to show motive; intent; a common plan, scheme, or design; or identity. Admissibility of CRE 404(b) evidence is subject to a four-part inquiry. See People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). Before admitting evidence of other acts, a trial court must find that (1) the evidence relates to a material fact; (2) the evidence is logically relevant to that fact; (3) the logical relevance is independent of the prohibited inference that the defendant has a bad character; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under CRE 403. Id.
¶ 36 In the Signal Mountain Trail case, the victims escaped before Bondsteel sexually assaulted either of them. Still, he was charged with second degree kidnapping - "the victim was the victim of a sexual offense" - and attempted sexual assault. As to the kidnapping charge, the verdict form included a yes or no question asking whether "the person who was kidnapped was also a victim of attempted sexual assault."
¶ 37 To obtain a conviction on these charges, the prosecution had to prove Bondsteel's "willfulness or intent to do the act" for the second degree kidnapping charges, People v. Henderson, 810 P.2d 1058, 1062 (Colo. 1991) (citation omitted), and that he intended to commit particular acts which, if completed, would constitute sexual assault for the attempt charges, see People v. Buerge, 240 P.3d 363, 368 (Colo.App. 2009) (citation omitted). Motive is "probative of intent." People v. Snyder, 874 P.2d 1076, 1079 (Colo. 1994). Thus, the first Spoto factor is satisfied because the CRE 404(b) evidence was offered to prove material facts: Bondsteel's motive and intent.
¶ 38 The second Spoto factor requires that the CRE 404(b) evidence be logically relevant to these material facts. Bondsteel's plan of accosting women for sexual gratification - clearly shown by his having ordered the victims in the motorcycle case to move or remove articles of clothing - is logically relevant to both motive and intent. As well, the similarities in Bondsteel's means of carrying out each attack were logically relevant to demonstrate a common modus operandi. See People v. Jones, 2013 CO 59, ¶ 26; People v. Williams, 899 P.2d 306, 313 (Colo.App. 1995). Thus, the second Spoto factor is met because, by considering the Signal Mountain Trail case in light of the evidence in the motorcycle case, a jury could conclude that when Bondsteel accosted the victims, his motive was to obtain sexual gratification and that he intended to commit a sexual assault.
¶ 39 Under Spoto's third factor, the logical relevance of the CRE 404(b) evidence must be independent of the inference "that a person who engages in a bad act does so because he acts in conformity with his bad character." Jones, ¶ 16. Bondsteel's acts in both cases were similar in several ways: the attacks were premeditated rather than adventitious, they all occurred within Larimer County, they all occurred within six months, they all occurred outdoors, the assailant concealed his identity to some extent, the assailant used or threatened to use a weapon, the assailant moved or ordered the victims to move or remove clothing, and the assailant retreated when faced with resistance. Thus, the jury could have inferred that Bondsteel was more likely to have committed another act in a similar manner, for the same motive, and with the same intent. This inference does not depend on the prohibited propensity inference.
¶ 40 Turning to the fourth Spoto factor, the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice. "In our review, we afford the evidence its maximum probative value and the minimum reasonable prejudicial effect." People v. Chavez, 2012 COA 61, ¶ 38.
¶ 41 As to probative value, motive and intent are "difficult to prove." Colo. Anti-Discrimination Comm'n v. Cont'l Air Lines, Inc., 143 Colo. 590, 605, 355 P.2d 83, 91 (1960). But as discussed above, Bondsteel's motive and intent in the motorcycle case are probative of his motive and intent in the Signal Mountain Trail case. As well, in sex crime prosecutions, the General Assembly favors admitting evidence of prior sexual assaults because this evidence is "typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice." § 16-10-301(1), C.R.S. 2015.
¶ 42 To be unfairly prejudicial, evidence must "suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror." Masters v. People, 58 P.3d 979, 1001 (Colo. 2002) (quoting People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990)). Because none of the victims in the motorcycle case were injured, and Bondsteel used weapons in both the Signal Mountain Trail case and the motorcycle case, the evidence from the motorcycle case does not rise to this level.
¶ 43 Despite all this, Bondsteel broadly asserts that the incidents in the motorcycle case were not distinctive and the Signal Mountain Trail case was so dissimilar from the motorcycle case that joinder cannot be upheld under CRE 404(b). To be sure, similarity often informs the CRE 404(b) inquiry. See, e.g., Jones, 2013 CO 59. Thus, although Bondsteel does not focus on any particular Spoto factor, we address his assertions as an addendum to our Spoto analysis.
¶ 44 In People v. Rath, 44 P.3d 1033, 1041-42 (Colo. 2002), our supreme court explained that the requisite degree of similarity between the prior acts will vary depending on the purpose for which the prosecution offers them. When the evidence is offered to show motive, the "similarity of the crimes often has no significance whatsoever." Id. at 1042. The court offered as an example admitting evidence of a defendant's drug use in his robbery trial; the acts are dissimilar, but one shows the motive for the other. Id.; see United States v. Brooks, 125 F.3d 484, 500 (7th Cir. 1997). Conversely, evidence of identity "generally depends much more heavily on the distinctiveness and similarity of the crimes." Rath, 44 P.3d at 1042. Between these extremes, when prior acts evidence is offered to show a common modus operandi or intent, some similarity is required, but the degree of similarity need not be high. See id. (citation omitted).
¶ 45 Jones is the supreme court's most recent application where the prior acts evidence, while similar, was not identical to the evidence of the charged offense. The prosecutor offered prior acts evidence to show a common plan or scheme, among other purposes. Id. at ¶ 24. In each prior incident, the defendant had nonconsensual sex with a blond, white female victim; the victim had been drinking before the attack; the attack occurred at night; and the victim suffered facial injuries. Id. at ¶¶ 2-3, 24. The supreme court upheld admission of this evidence under CRE 404(b). Id. at ¶ 29.
¶ 46 Here, despite the parallels between the Signal Mountain Trail case and the motorcycle case, Bondsteel asserts that the method evidence in the motorcycle case was not distinctive. He also points to three dissimilarities from the Signal Mountain Trail case: the victims were targeted differently; the interactions in the motorcycle case did not occur in isolated areas; and in the motorcycle case, the helmet may not have entirely obscured the perpetrator's face. For two reasons, these assertions are insufficient to show an abuse of discretion.
¶ 47 First, Bondsteel misapplies distinctiveness. True enough, while similarity and distinctiveness are not synonymous, both may bear on the probative value of CRE 404(b) evidence. See Perez v. People, 2015 CO 45, ¶ 27. But distinctiveness usually denotes unique facts beyond those that are common to all crimes of a particular type. Cf. People v. Salazar, 2012 CO 20, ¶ 26 (In both the prior act and the charged offense, the perpetrator digitally penetrated and engaged in intercourse with a child victim, which the court determined to be conduct "common to sexual assaults, rather than the signature of a single perpetrator."). Bondsteel does not make this argument.
¶ 48 Second, turning to the three differences that Bondsteel raises, the record diminishes two of them. Although all of the incidents in the motorcycle case occurred on or adjacent to public roadways, one occurred at night on a neighborhood street, and another occurred on a road pull-off. One of these victims testified that all she could see "was a solid helmet and then a block of tinted glass where the eyes would be ...