People v. Gregg

• Citation: 298 P.3d 983
• Decision Date: 08 December 2011
• Docket Number: No. 07CA2511.,07CA2511.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. William Allen GREGG, Defendant–Appellant.
• Court: Court of Appeals of Colorado

298 P.3d 983

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.William Allen GREGG, Defendant–Appellant.

No. 07CA2511.

Colorado Court of Appeals,

Div. I.

July 21, 2011.

Rehearing Denied Dec. 8, 2011.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge CARPARELLI.

Defendant, William Allen Gregg, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of aggravated robbery. Defendant also appeals his adjudication as a habitual criminal. We affirm.

I. Background

Defendant was found guilty of robbing three banks. During the first robbery, he handed the teller a folded, handwritten note informing the teller that he had a stick of dynamite and instructing her to give him all the money at her station. After the teller read the note, defendant told her, “[J]ust do it,” and “[D]on't make me blow up the bank.” After the teller gave defendant one canister of cash, defendant demanded a second canister, which the teller gave him. Defendant left the bank on foot.

Ten days later, defendant robbed a second bank. During the second robbery, defendant again handed the teller a folded, handwritten note. This note said defendant “would shoot her” if she did not comply with his demand for all the money at her station. After the teller read the note, defendant told her, “I will shoot you.” After the teller gave defendant money from one drawer, he demanded money from a second drawer. The teller gave him the additional money and defendant left.

Shortly after the second robbery, defendant led police on a high-speed chase, crashed his vehicle, and was apprehended. Police found the amount of money stolen from the second bank in defendant's pocket and found the robbery note in his car. The teller was brought to the scene and identified defendant as the robber.

About eleven weeks later, defendant robbed a third bank. During the third robbery, defendant again handed a folded, handwritten note to the teller. The note said, “Give me all the money in the first and second drawer. Cooperate. It will take no more than a couple of minutes. If not, I'll put a bullet in your head and send you to hell.” After the teller gave defendant the money from the first drawer, defendant demanded the money from the second drawer. Defendant left after the teller gave him the additional money. The record shows that defendant left in a vehicle other than the one he wrecked after the second robbery.

II. Consolidation

Defendant contends that evidence in each case would not have been admissible in separate trials, and, consequently, that the trial court erred when it consolidated the three aggravated robbery cases for trial. We disagree.

A. Law

Subject to the relief afforded in Crim. P. 14, a trial court may order two or more criminal complaints to be tried together if the offenses could have been joined in a single complaint. Crim. P. 13. Two or more offenses may be charged in the same indictment or information if the offenses are of the same or similar character or are based on two or more acts or transactions connected together or parts of a larger scheme or plan of action. Crim. P. 8(a)(2); see also People v. Gross, 39 P.3d 1279, 1282 (Colo.App.2001).

When determining whether multiple offenses qualify for consolidation, “ ‘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)).

The decision to consolidate cases is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Gross, 39 P.3d at 1282. Reversal on the basis of the consolidation of offenses is not justified unless the defendant demonstrates actual prejudice as a result of the jury's inability to separate the facts and legal theories applicable to each offense. People v. Williams, 899 P.2d 306, 313 (Colo.App.1995). There is no prejudice where evidence of each transaction would be admissible in separate trials. Gross, 39 P.3d at 1282.

B. Trial Court's Ruling

Here, the trial court was required to first determine whether the evidence of the aggravated robberies would be admissible in separate trials. Relying on Owens, the court found that the evidence of each aggravated robbery offense would be admissible in separate trials and that the offenses were sufficiently similar to consolidate the cases for trial. We conclude the court did not abuse its discretion.

C. Analysis and Conclusions

The three aggravated robberies occurred within months of each other and each involved death threats during robberies of banks in the same city. See Owens, 97 P.3d at 232 (robberies that occurred within ten days of each other and within a thirty-five-block area were similar for consolidation purposes). In each robbery, the robber presented a folded, handwritten note threatening the teller's life and demanding money at the teller's station. The tellers testified that, when defendant threatened them, he either had his hand in his jacket pocket or carried a bag and claimed it contained dynamite. In each robbery, the robber demanded additional cash from the teller's second cash repository. Although one teller initially misidentified defendant in a photo lineup, each of the three tellers identified defendant in person as the individual who robbed his or her bank. See id.

The robberies, while not the same in all respects, were sufficiently similar to permit the evidence concerning them to be admitted in one consolidated trial. See id.;Gross, 39 P.3d at 1282;Williams, 899 P.2d at 313;People v. Early, 692 P.2d 1116, 1119 (Colo.App.1984).

We reject defendant's argument that the court committed reversible error because it did not make specific factual findings regarding the similarities of the robberies. Cf. People v. Warren, 55 P.3d 809, 814 (Colo.App.2002) (holding that, in absence of specific factual findings, the trial court's ruling that evidence was admissible implicitly found that such evidence met the test for admission under CRE 404(b)); People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001) (while it is a better practice for a trial court to explicitly find by a preponderance of evidence that the defendant committed the other act, the court is only required to be satisfied of that fact); People v. Copeland, 976 P.2d 334, 337 (Colo.App.1998) (“Having admitted the evidence, the trial court implicitly found that its probative value was not substantially outweighed by the danger of unfair prejudice.”), aff'd,2 P.3d 1283 (Colo.2000).

We also reject defendant's argument that because the evidence of his guilt of the second robbery was more substantial than that of the first and third robberies, he was unfairly prejudiced by the consolidation of the trials. See Owens, 97 P.3d at 232 (“We reject defendant's assertion that, inasmuch as he had confessed to only one incident, it was unfair to try him for all three incidents in one trial.”) (citing United States v. Cox, 934 F.2d 1114, 1120 (10th Cir.1991) (severance of counts not required because evidence was stronger on some counts)).

With varying degrees of confidence, each teller identified defendant as the perpetrator. The prosecution also introduced surveillance photographs and videos of each robbery, including surveillance footage that included the robber's face. There is no evidence that the jury was unable to follow the court's instructions to consider the evidence separately, including the identification of defendant as the robber, and legal principles applicable to each offense. See People v. Knight, 167 P.3d 147, 151 (Colo.App.2006) (upholding the trial court's consolidation where the court “instructed the jury not to let its decision on one count influence its decision on any other, and there is no indication that the jury was unable to separate the facts and legal principles applicable to each offense”).

We conclude that the evidence of the three robberies would have been admissible in separatetrials. Accordingly, we conclude the trial court did not abuse its discretion when it consolidated the three cases for trial.

III. Sufficiency of the Evidence

Defendant also contends that there is insufficient evidence that he used or threatened to use a real or simulated weapon to support his aggravated robbery convictions for the second and third robberies. We disagree.

As relevant here, to prove aggravated robbery, the prosecution was required to prove beyond a reasonable doubt that during the robbery or immediate flight therefrom, defendant possessed “any article used or fashioned in a manner to lead any person who [was] present reasonably to believe it to be a deadly weapon or represent[ed] verbally or otherwise that he [was] then and there so armed.” Section 18–4–302(1)(d), C.R.S.2010.

We review de novo whether sufficient evidence supports a verdict. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). When the sufficiency of the evidence is challenged on appeal, we must determine whether the evidence, viewed as a whole, and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945, 950 (Colo.1988).

Here, defendant argues that there was no evidence that he brandished or represented that he had a weapon during the second and third robberies. According to defendant, the evidence was insufficient because the notes used in the second and third robberies said, “I will shoot you,” and “I'll put a bullet in your head and send you to hell,” but did not constitute weapons themselves, nor did they say...