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People v. Buell

Court of Appeals of Colorado, Third Division

November 30, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Francis Gayle Buell, Defendant-Appellant.

         Weld 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Brian Cox, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          BERGER JUDGE.

         ¶ 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 affirm.

         I. 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 then fled.

         ¶ 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.[1]

         ¶ 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 added).

         ¶ 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 ...

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