2017 COA 148
Colo. Ct. App.2017Background
- Two separate shoplifting incidents in Greeley months apart: at Sears (jewelry) and Safeway (steaks); in both Buell concealed merchandise and left without paying.
- At Sears, a loss-prevention officer confronted Buell, who pulled a knife, told the officer to "back off," moved toward him, then fled.
- At Safeway, a loss-prevention officer detained Buell; Buell resisted, thrust a knife, cut the officer's hand, and fled.
- Prosecutor charged Buell with aggravated robbery, attempted aggravated robbery, thefts, felony menacing, and second-degree assault; the two cases were consolidated for trial.
- Jury convicted on the charged counts; Buell appealed raising five principal challenges to consolidation, sufficiency, instructions, lesser-included offense, and admission of a prior theft.
- The court affirmed, rejecting Buell's arguments and finding any error in admitting a prior theft harmless given overwhelming evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consolidation of the two cases | AG: consolidation objection waived if not renewed at trial | Buell: consolidation was improper because incidents were not a common scheme or plan | Court: no abuse of discretion; consolidation proper under Crim. P. 8(a)(2) because offenses were of the same or similar character; CRE 404(b) cross‑admissibility is not required for that ground |
| Sufficiency of evidence for aggravated/attempted aggravated robbery | People: evidence showed theft plus use/threat of knife during transaction or immediate flight | Buell: force/intimidation occurred only after taking property, so not robbery/aggravated robbery | Court: affirmed; follows Bartowsheski and Colorado cases holding force at any time during transaction culminating in taking supports robbery and aggravated robbery |
| Supplemental jury instruction on aggravated robbery (Bartowsheski language) | People: instruction states correct law that force at any time during the transaction counts | Buell: instruction unsupported by evidence and misleading | Court: instruction proper; accurate statement of law under precedent |
| Refusal to give third-degree assault lesser-included instruction | Buell: jury could acquit second-degree assault (deadly weapon) and convict third-degree assault | People: knife was a deadly weapon as used and was capable of serious injury | Court: refusal proper; knife (4–5 inches) was capable of producing serious bodily injury so no rational basis to convict only of third-degree assault |
| Admission of prior Kohl’s theft evidence | Buell: prior theft evidence was propensity evidence and inadmissible | People: evidence relevant and admissible; if error, it was harmless | Court: even if admission was erroneous, error was harmless given overwhelming evidence (videos, witness testimony, stab wound photo) |
Key Cases Cited
- People v. Bartowsheski, 661 P.2d 235 (Colo. 1983) (robbery may be established by force or intimidation applied at any time during a transaction culminating in a taking)
- People v. Foster, 971 P.2d 1082 (Colo. App. 1998) (use of force to retain stolen property supports robbery)
- Doubleday v. People, 364 P.3d 193 (Colo. 2016) (elements required for aggravated robbery conviction)
- People v. Saleh, 45 P.3d 1272 (Colo. 2002) (deadly‑weapon inquiry does not depend on ultimate injury caused)
- People v. Gaffney, 769 P.2d 1081 (Colo. 1989) (harmless‑error standard considers whether error substantially influenced the verdict)