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 ...