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Buell v. People

Supreme Court of Colorado, En Banc

April 22, 2019

Francis Gayle Buell, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA2245

          Attorneys for Petitioner: Megan A. Ring, Public Defender Brian Cox, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General William G. Kozeliski, Assistant Attorney General Denver, Colorado

          OPINION

          GABRIEL JUSTICE

         ¶1 Francis Gayle Buell was caught shoplifting at a Sears department store in Greeley and again, about two and one-half months later, at a Safeway supermarket in Greeley. The prosecution initially charged Buell in separate cases arising from these incidents but subsequently moved to consolidate the cases under Crim. P. 13. The trial court granted that motion.

         ¶2 We granted certiorari to consider Buell's contention that the trial court abused its discretion in consolidating the two cases because, in his view, proper consolidation requires the evidence of each incident to be admissible in a separate trial of the other.[1]We now conclude that the trial court did not abuse its discretion here.

         ¶3 Consolidation under Crim. P. 13 is proper if (1) the cases could initially have been joined under Crim. P. 8(a)(2), and (2) the consolidation is not prejudicial within the meaning of Crim. P. 14. Contrary to Buell's contention, joinder under Crim. P. 8(a)(2) does not always require the evidence of the respective incidents to be cross-admissible were there to be separate trials. To the contrary, when the cases are of the "same or similar character," joinder under Crim. P. 8(a)(2) is proper regardless of whether the evidence would be cross-admissible in separate trials. Here, we have no difficulty in concluding that the cases were of the same or similar character because the facts of these cases closely mirrored one another. Moreover, Buell has not shown that the consolidation was prejudicial because (1) the evidence would, in fact, have been cross-admissible in separate trials and (2) the facts of the incidents at issue were not disputed. Rather, Buell contested only the application of law to those facts.

         ¶4 Accordingly, we affirm the division's judgment.

         I. Facts and Procedural History

         ¶5 In August 2013, a loss prevention agent at a Sears department store in Greeley saw Buell put jewelry in his pockets and then walk out of the store without paying for it. The agent confronted Buell outside, and Buell responded by pulling out a knife and telling the agent, "Dude, back off. I'm not playing with you." The agent backed away with his hands up, and Buell got on his bicycle and rode off.

         ¶6 Approximately two and one-half months later, a loss prevention agent at a Safeway supermarket in Greeley saw Buell put several steaks in his jacket. The agent then watched Buell pay for a loaf of bread and a gallon of milk while keeping the steaks hidden away. Buell exited the store, and the agent confronted him about the stolen merchandise and then escorted him back into the store so that they could talk in the store's office. As the two men were waiting for the store manager to come unlock the office, the agent told Buell that he needed to handcuff him as a safety precaution. Buell then pulled out a knife and attempted to stab the agent, cutting the agent's wrist in the process. Fearing additional injury, the agent walked Buell to the store's exit and let him leave.

         ¶7 A week after the Safeway incident, the police located Buell and arrested him. The prosecution initially charged Buell in separate cases arising from the above-described incidents. In the first case, they charged him with aggravated robbery and theft arising from his conduct at the Sears store. In the second, they charged him with attempted aggravated robbery and second-degree assault arising from the events at the Safeway.

         ¶8 Thereafter, the prosecution moved to consolidate the two cases, arguing that consolidation was proper because (1) Buell "committed both crimes as part of a common scheme or plan in completing a series of small thefts from different Greeley-area stores" and (2) the charges were similar in nature and contained cross-admissible evidence. Over Buell's objection, the trial court granted the prosecution's motion, concluding that the similarity between the incidents was "striking" and that the evidence established a "common pattern, scheme or plan." The court further found that "[a]lthough there [were] different victims, and perhaps the nature of fleeing the scene . . . was somewhat different," consolidating the cases would not result in actual prejudice.

         ¶9 The consolidated cases proceeded to trial, and at trial, Buell admitted that he was guilty of theft and menacing as to the Sears incident, although he asserted that he was not guilty of aggravated robbery "because when the taking of the jewelry occurred, [he] did not use force, threats, or intimidation." Buell likewise argued, regarding the Safeway incident, that he was not guilty of attempted aggravated robbery because he did not use force, threats, or intimidation when he took the steaks.

         ¶10 The jury subsequently convicted Buell of aggravated robbery, felony menacing, and theft as to the Sears incident and of attempted aggravated robbery, second-degree assault, and theft as to the Safeway incident, and he appealed. On appeal, he argued, as pertinent here, that (1) the trial court abused its discretion when it consolidated the two cases "because they were not part of a common scheme or plan" and (2) the consolidation prejudiced him because, among other things, the evidence from each case would not have been cross-admissible in separate trials.

         ¶11 In a unanimous, published decision, the division ultimately rejected Buell's contentions. People v. Buell, 2017 COA 148, ¶¶ 6-19, P.3d . It began by noting that Crim. P. 8(a)(2) provides three disjunctive bases for consolidation, one of which is that the offenses be "of the same or similar character." Id. at ¶ 10. The division opined that "[r]egardless of whether the two shoplifting incidents [were] part of a common scheme or design, they were 'of the same or similar character . . . .'" Id. And the division observed that "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." Id. at ΒΆ 15. Accordingly, the division concluded that ...


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