People v. Bondsteel, Court of Appeals No. 11CA1784

CourtCourt of Appeals of Colorado
Citation442 P.3d 880
Docket NumberCourt of Appeals No. 11CA1784
Parties The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. James Jud BONDSTEEL, Defendant–Appellant.
Decision Date19 November 2015

442 P.3d 880

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
James Jud BONDSTEEL, Defendant–Appellant.

Court of Appeals No. 11CA1784

Colorado Court of Appeals, Division III.

Announced November 19, 2015

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.

Opinion by JUDGE WEBB

¶ 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.

I. Background

¶ 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.

II. Misjoinder

¶ 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.

A. Preservation

¶ 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.

1. Law

¶ 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

442 P.3d 887

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 1043.1

¶ 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.2

¶ 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)3 "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

442 P.3d 888

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, 350 P.3d 949 ; 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).4 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, 318 P.3d 511. Still, the later division should give the prior decision some deference. People v. Smoots, 2013 COA 152, ¶ 20, 396 P.3d 53 (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, 345 P.3d 950 ("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 .

2. Application

¶ 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

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