People v. Jackson, 86CA0379

• Decision Date: 23 July 1987
• Docket Number: No. 86CA0379,86CA0379
• Citation: 748 P.2d 1326
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Todd JACKSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1326

748 P.2d 1326

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Todd JACKSON, Defendant-Appellant.

No. 86CA0379.

Colorado Court of Appeals Div. II.

July 23, 1987.

Rehearing Denied Sept. 3, 1987.

Certiorari Denied Jan. 25, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Timothy E. Nelson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Larry Pozner & Associates, P.C., Shelley Gilman, Denver, for defendant-appellant.

METZGER, Judge.

The defendant, Steven Jackson, appeals the judgment of conviction of theft entered upon a jury verdict. As grounds for appeal, defendant first argues that in regard to evidence of a similar transaction that was the subject of a criminal charge dismissed after a preliminary hearing, the trial court erred in not barring its admission through application of the doctrine of collateral estoppel. The defendant also contends that the trial court erred in admitting evidence of other, similar acts, because the People failed to show by clear and convincing evidence that the acts were criminal in nature. We affirm.

The defendant was charged with two counts of felony theft. The first count alleged that defendant committed theft by tendering two insufficient funds checks, totalling $1,000, to a tire company. The second count alleged that the defendant had committed theft by tendering three insufficient funds checks to a hotel. At the preliminary hearing, the county court found that there was no probable cause to believe that defendant had the intent to deprive the hotel of a thing of value, and dismissed the second count. The People did not seek to refile that charge.

Prior to trial on count one, the People notified the court of their intent to offer several insufficient funds checks, including the checks to the hotel, as evidence of similar acts under CRE 404(b). It asserted that this evidence showed that defendant knew the bank account contained insufficient funds to cover the checks at issue. The defendant objected, based upon the county court's preliminary hearing ruling and the People's failure to seek to refile the charges in the district court. The trial court overruled the defendant's objection. When the People offered the evidence at trial over the defendant's objection, the court gave the appropriate limiting instructions. The jury convicted defendant and this appeal followed.

I.

The defendant first argues that the trial court erred in failing to apply the doctrine of collateral estoppel as a basis for barring introduction of the checks given to the hotel. Relying on People v. Arrington, 682 P.2d 490 (Colo.App.1983), he contends that once the charge was dismissed by the county court for lack of probable cause after the preliminary hearing, the People were collaterally estopped from using the checks as evidence of a similar transaction. We do not agree.

In People v. Arrington, supra, we held that application of the doctrine of collateral estoppel is limited to those situations in which all of the following are present: (1) identity of issues; (2) final judgment on the merits; (3) identity of the parties; and (4) a full and fair opportunity to litigate the issue by the party against whom estoppel is being asserted. Thus, we there held that if a defendant is tried for and acquitted of a crime, the underlying transaction cannot be used as evidence against him in a later proceeding. In contrast, in People v. Hampton, 728 P.2d 345 (Colo.App.1986) we held that collateral estoppel did not bar evidence of charges dismissed with prejudice before trial when the victim failed to appear.

In this case, we conclude that only the third element of collateral estoppel, that of identity of the parties, has been shown.

Because the issue at trial is not identical to the issue at preliminary hearing, the first element is not present. The purpose of a preliminary hearing is to determine whether probable cause exists to support the People's allegation that the defendant committed a specific crime. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). The issue at trial concerning similar transaction evidence is whether it shows motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b); People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).

Nor has the second element, that of final judgment on the merits, been established. A preliminary hearing is not a final adjudication on the merits. If the complaint is dismissed following a preliminary hearing, the district attorney may...