County District Court Nos. 13CR1937 & 13CR2016 Honorable
Timothy J. Kerns, Judge.
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Brian Cox,
Deputy State Public Defender, Denver, Colorado, for
1 In a consolidated trial, a jury convicted Francis Gayle
Buell of attempted aggravated robbery, theft, and second
degree assault arising from one shoplifting incident, and of
aggravated robbery, theft, and felony menacing arising from a
separate shoplifting incident.
2 Buell appeals, contending that (1) the court erred in
consolidating his two cases; (2) the evidence was
insufficient to convict him of either aggravated or attempted
aggravated robbery; (3) the trial court gave an incorrect
supplemental jury instruction for aggravated robbery; (4) the
court erred in not instructing the jury on third degree
assault as a lesser included offense of second degree
assault; and (5) the court erred in admitting evidence of a
prior theft. We address and reject these contentions and
Relevant Facts and Procedural History
3 The jury heard the following evidence. A loss prevention
officer in a Greeley Sears store saw Buell put jewelry in his
pockets and leave the store without paying. The loss
prevention officer and another Sears employee followed Buell
and caught up with him outside of the store. The loss
prevention officer confronted Buell about the jewelry. Buell
told the loss prevention officer to "back off, "
pulled out a knife, and then moved toward him. When the
officer backed away, Buell fled the scene.
4 Several months later, a loss prevention officer in a
Greeley Safeway store saw Buell conceal packages of steaks
under his jacket and leave the store without paying for them.
The loss prevention officer confronted Buell at the entrance
to the store and asked him to come back inside. When Buell
refused, the officer grabbed his arm, forced him back inside,
and attempted to handcuff him. Buell resisted and thrust a
knife at the officer, cutting the officer's hand. Buell
5 The prosecution charged Buell with aggravated robbery,
attempted aggravated robbery, two counts of theft, felony
menacing, and second degree assault, in connection with these
two incidents. II. The Trial Court Did Not Err in
Consolidating Buell's Two Cases
6 Buell argues that the trial court abused its discretion
when it consolidated the separate cases involving the Safeway
and Sears incidents. More specifically, relying on People
v. Taylor, 804 P.2d 196 (Colo.App. 1990), he argues that
the prosecution failed to show that the Sears and Safeway
incidents were "part of a schematic whole" or
"part of a common scheme or plan." See People
v. Williams, 2016 COA 48, ¶ 33 (cert. granted
in part July 31, 2017).
7 Before addressing the merits of this argument, we first
take up the Attorney General's contention that Buell
waived this argument. Relying on People v.
Bondsteel, 2015 COA 165, ¶ 27 (cert.
granted Oct. 31, 2016), the Attorney General argues that
Buell waived this contention by not renewing his pretrial
objection to consolidation.
8 True, the division in Bondsteel, ¶ 27, held
that an objection to joinder is unpreserved if not renewed at
trial. However, the division in Bondsteel did not
apply this rule there because "[t]o hold that the issue
is waived, despite [nearly fifteen years of] precedent, could
be a retroactive application of a new rule, which might
implicate due process." Id. at ¶ 30. Other
divisions of this court have also declined to apply
Bondsteel's holding in cases where the trial
preceded the Bondsteel decision. See People v.
Butson, 2017 COA 50, ¶¶ 10-11; People v.
Raehal, 2017 COA 18, ¶¶ 9-10.
9 Thus, irrespective of whether Bondsteel was
correctly decided, we would not apply it here. Instead, we
proceed to the merits of Buell's contention that the
trial court improperly consolidated his cases because they
were not part of a common scheme or plan.
10 We review a court's decision to consolidate charges
for an abuse of discretion. Butson, ¶ 12.
"[W]e may affirm a trial court's ruling on grounds
different from those employed by that court, as long as they
are supported by the record." People v. Chase,
2013 COA 27, ¶ 17. We reject Buell's argument
because Crim. P. 8(a)(2) provides three disjunctive bases for
consolidation. One of those bases is that the offenses
"are of the same or similar character." Regardless
of whether the two shoplifting incidents are part of a common
scheme or design, they were "of the same or similar
character" in three ways.
11 First, within a few months, Buell shoplifted from two
retail stores in the same city. Second, he did so by
secreting merchandise in his clothing. Third, in both cases
Buell elevated two minor crimes to the very serious crimes of
completed (and attempted) aggravated robbery by pulling a
knife on the stores' loss prevention officers when they
attempted to apprehend him.
12 Although Buell points to some factual differences between
the two shopliftings, we conclude the two offenses were
sufficiently "of the same or similar character" to
qualify for consolidation. Indeed, to so qualify, "it is
not essential that the means of committing the other crimes
replicate in all respects the manner in which the crime
charged was committed." People v. Owens, 97
P.3d 227, 231 (Colo.App. 2004) (quoting People v.
McKibben, 862 P.2d 991, 993 (Colo.App. 1993)).
13 The question arises whether cases can be consolidated
under any provision of Crim. P. 8(a)(2) if the
evidence supporting both cases is not cross-admissible under
CRE 404(b). True, as discussed in the following paragraph, at
least one division of this court has held, and another might
be deemed to have held, that a trial court may not
consolidate cases under Crim. P. 8(a)(2) unless it determines
that the evidence supporting both cases is cross-admissible
under CRE 404(b). Even so, we reject that interpretation of
Crim. P. 8(a)(2).
14 In People v. Butson, relying on People v.
Gregg, 298 P.3d 983, 986 (Colo.App. 2011), the division
held that "[i]n evaluating a motion to join cases for
trial, the trial court must determine whether the offenses
are sufficiently similar to be tried together without causing
juror confusion and whether, under CRE 404(b),
evidence of each offense would have been admissible in
separate trials." Butson, ¶ 14 (emphasis
15 However, the plain language of Crim. P. 8(a)(2) does not
require a cross-admissibility analysis under CRE 404(b) when
consolidation is made under the "same or similar
character" criterion. Nor, as we read them, do the ...