Bondsteel v. People , 439 P.3d 847 ( 2019 )

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ADVANCE SHEET HEADNOTE
April 22, 2019
2019 CO 26No. 15SC1096, Bondsteel v. People—Renewal of Motions—Preservation of
Objections— Joinder—Cross-Admissibility of Evidence.
In this case, the supreme court considers whether a criminal defendant’s failure to
renew at trial a pretrial objection to the prosecution’s motion to join two separately filed
cases waives the defendant’s ability to challenge such joinder on appeal and, if not,
whether the cases were properly joined here.
The court concludes that, to the extent People v. Barker, 501 P.2d 1041 (Colo. 1972),
and People v. Aalbu, 696 P.2d 796 (Colo. 1985), required a defendant to renew at trial a
pretrial objection to joinder or motion to sever, those cases are no longer good law
because the renewal obligation that they espoused is inconsistent with the current rules
of criminal procedure. The court thus further concludes that the defendant properly
preserved his objection to the joinder of the two cases filed against him.
Turning then to the merits, the court concludes that the trial court properly
exercised its discretion in joining the cases at issue because the record supports the court’s
findings that the joinder of the two cases satisfied the requirements of Crim. P. 8(a)(2) and
Crim. P. 13 and the joinder did not prejudice the defendant.
Accordingly, the court affirms the judgment of the division below.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 26Supreme Court Case No. 15SC1096
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA1784
Petitioner:
James Jud Bondsteel,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
April 22, 2019
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Andrew C. Heher, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
William G. Kozeliski, Assistant Attorney General
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case requires us to decide whether a criminal defendant’s failure to renew at
trial a pretrial objection to the prosecution’s motion to join two separately filed cases
waives the defendant’s ability to challenge such joinder on appeal and, if not, whether
the cases were properly joined here.1
¶2 We conclude that, to the extent People v. Barker, 501 P.2d 1041 (Colo. 1972), and
People v. Aalbu, 696 P.2d 796 (Colo. 1985), required a defendant to renew at trial a pretrial
objection to joinder or motion to sever, those cases are no longer good law because the
renewal obligation that they espoused is inconsistent with the current rules of criminal
procedure. We thus further conclude that defendant James Jud Bondsteel properly
preserved his objection to the joinder of the two cases filed against him.
¶3 Turning then to the merits, we conclude that the trial court properly exercised its
discretion in joining the cases at issue because the record supports the court’s findings
that the joinder of the two cases satisfied the requirements of Crim. P. 8(a)(2) and
Crim. P. 13 and the joinder did not prejudice Bondsteel.
¶4 We therefore affirm the judgment of the division below.
I. Facts and Procedural History
¶5 As noted above, this case involves the joinder of two separately filed cases.
1 Specifically, we granted certiorari to review the following issues:
1. Whether a defendant’s failure to renew an objection at trial to the prosecution’s
pretrial motion to join two separately filed cases waives the defendant’s ability to
challenge joinder on appeal.
2. Whether the trial court abused its discretion in joining the Motorcycle Case with
the Signal Mountain Trail Case for trial.
2
¶6 The first case, “the Motorcycle Case,” involved three incidents in which a male
motorcyclist wearing a leather jacket and a motorcycle helmet that largely concealed his
face approached women who were driving or parked in their cars. In each incident, the
assailant showed a gun, directed the victims to move or remove parts of their clothing
and expose themselves to him, and demanded that the victims give him some of their
belongings. At the time of these incidents, none of the victims identified Bondsteel as the
assailant.
¶7 In the second case, “the Signal Mountain Trail Case,” a man on foot attacked two
women on a hiking trail. The man was dressed in full camouflage and a long parka, and
his face was covered by a balaclava. He accosted the women, threatening them with a
knife and cutting the hand and arm of one of them. In the course of this attack, the
assailant had one of the women on the ground with his knife to her throat, and she asked
why he was doing this. He responded, “Because it’s fun,” and then lifted the woman’s
shirt and opened her shorts and looked down them. The women managed to escape after
hitting the man in the head with a walking stick and rocks, and, in separate line-ups
conducted later, they both identified Bondsteel as their attacker. In addition, the DNA
profile of a sample recovered from one of the women’s backpacks matched a sample
taken from Bondsteel.
¶8 Based on the foregoing, the People charged Bondsteel in the Signal Mountain Trail
Case with multiple offenses, including second-degree kidnapping, attempted sexual
assault, assault, and menacing.
3
¶9 Several months later, Bondsteel’s then-wife (T.B.) informed the police that she had
seen Bondsteel with suspicious items, including a white clutch purse that she had never
seen before. She further stated that Bondsteel had informed her that (1) “he had robbed
a couple of girls for fun” and (2) he had used a gun to make the women expose themselves
to him. T.B. also told the police that Bondsteel had shown her a press release concerning
the Motorcycle Case and said, “This is me they’re talking about.” He explained that he
would pull out a handgun and tell the victims to give him their purses. He would then
threaten them and ask them to flash him either by lifting their shirts or hiking up their
skirts. T.B. then said that Bondsteel had told her that he had to get rid of his motorcycle
because the police would be looking for it and that he traded it for a street bike, a fact that
the police were later able to confirm. Finally, when T.B. heard that the assailant in the
Signal Mountain Trail Case had said that he had committed the assault “because it was
fun,” T.B. stated that this was a “tag line” of Bondsteel’s. According to T.B., “He only
does it if it’s fun. It’s not worth doing if it’s not fun. That’s just James.”
¶10 Consistent with the foregoing, T.B. subsequently provided to the police letters that
Bondsteel had written her in which he apologized for his involvement in the crimes at
issue and asked for her help in establishing an alibi for the Signal Mountain Trail Case.
¶11 Based on this and other evidence that the police had gathered, Bondsteel was
charged in the Motorcycle Case with, among other things, sexual assault, aggravated
robbery, and unlawful sexual contact.
¶12 The matters proceeded toward trial, and, in pretrial proceedings in the Signal
Mountain Trail Case, the People moved pursuant to CRE 404(b) to introduce evidence of
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the three alleged incidents for which Bondsteel was charged in the Motorcycle Case. The
People contended that such evidence was admissible to prove Bondsteel’s motive, intent,
and modus operandi in committing the assaults at issue in the Signal Mountain Trail
Case. The court granted the People’s motion, and the People then orally moved to
consolidate the two cases for trial. Over Bondsteel’s objection, the court granted that
motion from the bench.
¶13 At a subsequent pretrial hearing, the court and counsel further discussed
Bondsteel’s objection to the joinder of the two cases. Renewing his objection, Bondsteel
argued that, even if evidence from the Motorcycle Case would be admissible in the Signal
Mountain Trail Case, the People had presented no specific evidentiary hypothesis for
how evidence from the Signal Mountain Trail Case would be admissible in the
Motorcycle Case. Bondsteel contended to the contrary that evidence from the Signal
Mountain Trail Case would not, in fact, be admissible in the Motorcycle Case.
Specifically, he asserted that not only were the incidents dissimilar, but also the Signal
Mountain Trail evidence would not show motive or intent and would serve no purpose
other than to paint Bondsteel as a person of bad character. Bondsteel further argued that
joinder would provide the prosecution with identification evidence that was otherwise
lacking in the Motorcycle Case (because jurors would simply assume identification in
that case based on the arguably stronger identification evidence in the Signal Mountain
Trail Case). And Bondsteel contended that joinder would prevent him from presenting
different defenses in each case, namely, a motive defense in the Signal Mountain Trail
5
Case and an identity defense in the Motorcycle Case. For all of these reasons, Bondsteel
contended that joinder would be prejudicial.
¶14 The People responded that evidence from the Signal Mountain Trail Case would
be admissible in the Motorcycle Case pursuant to CRE 404(b) to show common plan,
scheme, identification, and motive because the incidents had substantial similarities. The
People further noted that joinder was proper because the investigations of the respective
cases were intertwined and could not readily be separated.
¶15 The trial court ultimately agreed with the People and confirmed its decision to
consolidate the cases for trial. In support of this ruling, the court noted that it perceived
a great deal of similarity among the incidents underlying the two cases. For example, all
of the incidents occurred within a relatively short time span, and each involved an attack
on one or two women in an “open air” but isolated place in which the assailant displayed
or used a weapon. The court further observed that, in light of the evidence, the jury could
properly determine that the pattern of conduct reflected in the Motorcycle Case carried
over into the Signal Mountain Trail Case. And the court perceived no antagonistic
defenses in the two cases.
¶16 The consolidated case proceeded to trial, and, at trial, Bondsteel did not renew his
pretrial objections to the joinder of the two cases. A jury ultimately convicted Bondsteel
on eighteen of the twenty-three counts, including most but not all of the counts charged
in the Signal Mountain Trail Case and many but not all of the counts charged in the
Motorcycle Case. In addition, one conviction in the Signal Mountain Trail Case was for
a lesser-included offense.
6
¶17 Bondsteel then appealed, arguing, as pertinent here, that the trial court had
committed reversible error when it joined the two cases. In a unanimous, published
opinion, a court of appeals division affirmed the trial court in all respects except as to one
conviction in the Signal Mountain Trail Case, which the division reversed based on
insufficiency of the evidence. People v. Bondsteel, 2015 COA 165, ¶ 1, __ P.3d __. The
division determined, pursuant to Aalbu, that because Bondsteel did not renew at trial his
objection to the People’s pretrial joinder motion, his objection to the joinder of the cases
was, at best, unpreserved. Id. at ¶ 27. Because, however, case law decided after Barker
and Aalbu had allowed for plain error review in cases of forfeiture (as distinct from
waiver), and because some case law decided since Barker and Aalbu had indicated that a
defendant is not required to renew an objection to consolidation, the division chose to
review Bondsteel’s misjoinder argument on the merits, ultimately concluding that the
trial court had not reversibly erred in joining the cases for trial. Id. at ¶¶ 29–31, 56.
¶18 Bondsteel then petitioned this court for certiorari review, and we granted his
petition.
II. Analysis
¶19 We begin by addressing whether Bondsteel’s failure to renew at trial his pretrial
objection to the joinder of the Motorcycle Case and the Signal Mountain Trail Case
waived his ability to challenge on appeal the joinder of those cases. After concluding that
Bondsteel was not required to renew his pretrial objection and that he had therefore
preserved that objection, we proceed to the merits and conclude that, on the facts of this
case, the trial court did not reversibly err in joining the cases.
7
A. Preservation of Objection to Joinder
¶20 Bondsteel first contends that he did not waive his right to appeal the trial court’s
joinder determination when he did not renew at trial his pretrial objection to such joinder.
We agree.
¶21 We review de novo the legal question of whether a defendant waives an objection
to joinder of two cases by not renewing at trial a pretrial objection to such joinder. See
People v. Bergerud, 223 P.3d 686, 693 (Colo. 2010) (noting that the effective waiver of
counsel presents a mixed question of fact and law that an appellate court reviews de
novo); People v. Blehm, 983 P.2d 779, 792 n.9 (Colo. 1999) (noting with respect to a
defendant’s waiver of the right to testify at trial that the trial court’s factual findings are
reviewed for clear error whereas its ultimate conclusion regarding the validity of the
waiver is a question of law that is reviewed de novo).
¶22 In Barker and Aalbu, this court determined that a defendant’s “failure to renew [a]
motion for severance at the close of all the evidence constitutes a waiver of the objection.”
Barker, 501 P.2d at 1043; accord Aalbu, 696 P.2d at 806. In the present case, the division
perceived no substantive difference between a motion for severance, which was at issue
in Barker and Aalbu, and an objection to joinder, which is at issue here, and therefore
concluded that Bondsteel was required to renew at trial his pretrial objection to joinder.
Bondsteel, ¶¶ 16–27.
¶23 We agree with the division that a pretrial motion to sever joined cases is
substantively the same as an objection to joinder. We disagree, however, that a defendant
8
must renew either a motion to sever or an objection to joinder in order to preserve the
issue for appeal.
¶24 In Barker, 501 P.2d at 1043, this court considered whether a defendant’s failure to
renew a pretrial motion for severance at the close of all of the evidence waived his right
to challenge the joinder on appeal. Relying on the ABA’s Standards for Criminal Justice
Relating to Joinder and Severance, we concluded that it did. Id. At the time that Barker
was decided, those standards provided, “If a defendant’s pretrial motion for severance
was overruled, he may renew the motion on the same grounds before or at the close of
all the evidence. Severance is waived by failure to renew the motion.” ABA Standards
for Crim. Justice Relating to Joinder & Severance 2.1(b) (1968).
¶25 In Aalbu, 696 P.2d at 806, this court, without substantive discussion, followed the
Barker rule for preservation of a pretrial motion to sever. Such a ruling was consistent
with the then-existing version of Crim. P. 33(a), which provided, “The party claiming
error in the trial of any case must move the trial court for a new trial . . . . Only questions
presented in such motion will be considered by the appellate court on review.”
¶26 In 1985, after Aalbu was decided, this court adopted amendments to Crim. P. 33(a)
that eliminated the requirement that a party move for a new trial to preserve a question
for appellate review. Specifically, the current version of Crim. P. 33(a) provides, “The
party claiming error in the trial of any case may move the trial court for a new trial or
other relief. The party, however, need not raise all the issues it intends to raise on appeal
in such motion to preserve them for appellate review.”
9
¶27 Similarly, under Crim. P. 51, parties are not required to seek an exception from
trial court rulings in order to preserve them for appeal. That Rule provides:
For all purposes for which an exception has heretofore been necessary it is
sufficient that a party, at the time the court ruling or order is made or
sought, makes known to the court the action which he desires the court to
take or his objection to the court’s action and the grounds therefor.
¶28 In our view, the current Rules of Criminal Procedure render obsolete the historical
requirement that, in order to preserve a claim, a defendant had to renew an objection,
either by filing a motion for a new trial or requesting an exception. Moreover, we deem
the renewal-of-objection requirement set forth in Barker and Aalbu to be similar in nature
to such obsolete prerequisites to preservation, and we are not persuaded otherwise by
the arguments that a defendant must give the trial court an opportunity to reconsider its
prior ruling and that, absent such a requirement, defendants will withhold renewed
objections as a matter of trial strategy. If the facts and circumstances that motivated the
initial objection have not changed, then all of the requirements for preservation of the
issue will have been satisfied. If, conversely, facts and circumstances have changed by
the time of trial such that a defendant will have had new arguments in opposition to
consolidation, then a defendant’s failure to raise such new arguments would risk a
finding on appeal that those arguments were unpreserved. Either way, existing
precedent for preservation suffices to guide an appellate court’s consideration, and we
perceive no basis to enforce a unique rule in the context of joinder and severance. Nor
do we perceive any reasonable basis to assume that, absent a renewal requirement, a
defendant would choose to withhold a meritorious objection in order to preserve a future
10
appellate argument. The assumption that any competent attorney would withhold a
meritorious argument at trial in the hope of having something to argue on appeal if the
trial goes badly belies reality.
¶29 For these reasons, we now overrule Barker and Aalbu and conclude that a party
need not renew a pretrial motion for severance or a pretrial objection to joinder in order
to preserve his or her opposition to an order joining cases for trial. Accordingly, we
further conclude that Bondsteel’s pretrial objection to joinder was sufficient to preserve
the issue for appeal, and we need not address the People’s contention (and the conclusion
of the division below) that People v. Gross, 39 P.3d 1279, 1281–82 (Colo. App. 2001), which
concluded that a party need not renew a pretrial objection to joinder, was wrongly
decided.
¶30 The question thus becomes whether the trial court reversibly erred in joining the
cases at issue. We proceed to address that question.
B. Merits
¶31 In his briefs in this court, Bondsteel makes numerous and lengthy arguments as to
why the trial court reversibly erred in joining the cases at issue. We discern his
contentions to boil down to three principal objections to joinder here: (1) the cases were
not of a “same or similar character” within the meaning of Crim. P. 8(a)(2); (2) because
the cases were not sufficiently similar, the evidence in each case would not have been
admissible under CRE 404(b) in a separate trial of the other case; and (3) because the facts
and circumstances underlying the respective cases were dramatically dissimilar, he was
prejudiced by the joinder. We begin by addressing the proper framework for considering
11
the propriety of joinder of separate cases. We then address each of Bondsteel’s
contentions, in turn.
1. Standard of Review and Requirements for Consolidation
¶32 We review a trial court’s decision to consolidate separate charges under
Crim. P. 13 for an abuse of discretion. Brown v. Dist. Court, 591 P.2d 99, 101 (Colo. 1979);
People v. George, 2017 COA 75, ¶ 78, __ P.3d __.
¶33 Crim. P. 13 provides, in pertinent part:
Subject to the provisions of Rule 14, the court may order two or more
indictments, informations, complaints, or summons and complaints to be
tried together if the offenses, and the defendants, if there are more than one,
could have been joined in a single indictment, information, complaint, or
summons and complaint.
¶34 Accordingly, consolidation requires both that joinder would have been proper
under Crim. P. 8(a)(2) and that the consolidation would not result in prejudice within the
meaning of Crim. P. 14.
¶35 Here, Bondsteel contends that neither of these conditions for consolidation was
satisfied. We proceed to address these contentions.
2. “Same or Similar Character” Under Crim. P. 8(a)(2)
¶36 Crim. P. 8(a)(2) allows for the joinder of two or more offenses in a single charging
document if they 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.”
Bondsteel argues that the trial court reversibly erred in joining the cases at issue because
they were not “of the same or similar character” within the meaning of Crim. P. 8(a)(2).
We are not persuaded.
12
¶37 Although this court has not had the opportunity to elaborate on the meaning of
“same or similar character” as that phrase is used in Crim. P. 8(a)(2), federal courts
applying the federal analogue to the Colorado rule have made clear that such a
requirement does not impose onerous restrictions on joinder. See, e.g., United States v.
Jawara, 474 F.3d 565, 573 (9th Cir. 2007) (“Because Rule 14 is available ‘as a remedy for
prejudice that may develop during the trial,’ Rule 8 has been ‘broadly construed in favor
of initial joinder.’”) (quoting United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971));
United States v. Alexander, 135 F.3d 470, 476 (7th Cir. 1998) (noting that the “same or
similar character” prong represents “the broadest of the possible bases for joinder” under
Fed. R. Crim. P. 8(a)(2)).
¶38 In assessing whether two cases are of a “same or similar character,” courts have
considered factors such as the elements of the offenses at issue, the temporal proximity
of the underlying acts, the likelihood that the evidence will overlap, the physical location
of the acts, the modus operandi of the crimes, and the identity of the victims. See, e.g.,
Jawara, 474 F.3d at 578; United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).
¶39 These courts have made clear, however, that a trial court should not have to
engage in “inferential gymnastics or resort to implausible levels of abstraction to divine
similarity.” Jawara, 474 F.3d at 578. Nor does a general similarity or similarity of subject
matter alone suffice. See, e.g., id. at 579 (concluding that the joinder of two cases was
impermissible under Fed. R. Crim. P. 8 because the only similarity between the two cases
was that they involved immigration matters); United States v. Buchanan, 930 F. Supp. 657,
13
662, 665–67 (D. Mass. 1996) (explaining that neither a “vague thematic connection” nor a
general or abstract similarity between two cases is sufficient to justify joinder).
¶40 Here, we need not articulate an all-encompassing definition of “same or similar
character” because, in our view, any definition of that phrase would encompass, at a
minimum, the principles articulated in the foregoing federal case law. Applying those
principles here, we perceive no reversible error in the trial court’s finding that the cases
at issue were of the same or similar character. As the trial court observed, with ample
record support, the alleged offenses all (1) involved assaults of one or more women;
(2) occurred in the open air and in relatively isolated places; (3) involved threats with a
weapon; (4) occurred within a six-month period of one another; and (5) involved a largely
disguised assailant who attempted to view the women’s breasts or genitalia by pulling
up their shirts, moving or removing their clothing, or demanding that they do so.
¶41 Moreover, the two cases shared common evidence, and the investigations in the
cases were intertwined, particularly given T.B.’s testimony and the letters that Bondsteel
had written to T.B. in which he implicated himself in both sets of crimes.
¶42 In these circumstances, we conclude that the resemblances and commonalities
between the Motorcycle and Signal Mountain Trail Cases were sufficient to establish the
“same or similar character” envisioned by Crim. P. 8(a)(2), and we thus reject Bondsteel’s
suggestion that the cases shared only the most basic and general similarities and that they
were so fundamentally and strikingly different that the requirements of Crim. P. 8(a)(2)
were not met.
14
3. Cross-Admissibility Under CRE 404(b)
¶43 Bondsteel next contends that because the cases were not sufficiently similar, the
evidence of the underlying acts in one case would not have been admissible under
CRE 404(b) in a separate trial of the other. Again, we disagree.
¶44 As an initial matter, we note that 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. Accordingly, our conclusion that the offenses at issue
here were of the same or similar character establishes the propriety of joinder, subject to
the absence of prejudice from such joinder, regardless of whether the underlying acts in
one case would have been admissible under CRE 404(b) in a separate trial of the other.
Nonetheless, we will address Bondsteel’s CRE 404(b) argument because he addressed it
as a standalone issue and because it arguably informs the question of whether the joinder
here was prejudicial.
¶45 We review a trial court’s ruling on the admissibility of evidence under CRE 404(b)
for an abuse of discretion, and we will disturb such a ruling on appeal only if it was
manifestly arbitrary, unreasonable, or unfair. Yusem v. People, 210 P.3d 458, 463 (Colo.
2009).
¶46 CRE 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
15
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .
¶47 In addition, our legislature has recognized that (1) “sexual offenses are a matter of
grave statewide concern”; (2) such offenses “often are not reported or are reported long
after the offense”; (3) these offenses “usually occur under circumstances in which there
are no witnesses except for the accused and the victim”; and (4) “offenders often commit
numerous offenses involving sexual deviance over many years, with the same or different
victims, and often, but not necessarily, through similar methods or by common design.”
§ 16-10-301(1), C.R.S. (2018).
¶48 Accordingly, the legislature has expressly noted that evidence of other sexual acts
is particularly important and will typically be admissible in the prosecution of sexual
offenses:
[I]n the prosecution of sexual offenses, including in proving the corpus
delicti of such offenses, there is a greater need and propriety for
consideration by the fact finder of evidence of other relevant acts of the
accused, including any actions, crimes, wrongs, or transactions, whether
isolated acts or ongoing actions and whether occurring prior to or after the
charged offense. . . . [S]uch evidence of other sexual acts is typically
relevant and highly probative, and it is expected that normally the
probative value of such evidence will outweigh any danger of unfair
prejudice, even when incidents are remote from one another in time.
Id.
¶49 Therefore, in cases involving allegations of sexual offenses, section 16-10-301(3)
permits the prosecution to “introduce evidence of other acts of the defendant to prove
the commission of the offense as charged for any purpose other than propensity.” Such
purposes include (1) “[r]efuting defenses”; (2) “showing a common plan, scheme, design,
16
or modus operandi, regardless of whether identity is at issue and regardless of whether
the charged offense has a close nexus as part of a unified transaction to the other act”;
(3) “showing motive, opportunity, intent, preparation, . . . knowledge, identity, or
absence of mistake or accident”; and (4) supporting “any other matter for which [the
other acts evidence] is relevant.” Id.
¶50 Before a trial court may admit other acts evidence under CRE 404(b) and
section 16-10-301, however, it must ensure that the evidence is admissible under the
four-part test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). See People v.
Jones, 2013 CO 59, ¶ 14, 311 P.3d 274, 277. Other acts evidence is admissible under Spoto
if (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the
logical relevance is independent of the prohibited intermediate inference that the
defendant was acting in conformity with his or her bad character; and (4) the probative
value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Spoto, 795 P.2d at 1318. In addition, in determining whether the probative value of
evidence is substantially outweighed by the danger of unfair prejudice, we afford the
challenged evidence “the maximum probative value attributable by a reasonable fact
finder and the minimum unfair prejudice to be reasonably expected.” Nicholls v. People,
2017 CO 71, ¶ 56, 396 P.3d 675, 687.
¶51 Here, the trial court properly analyzed the cross-admissibility of the evidence at
issue under the Spoto test, and we perceive no abuse of discretion in the court’s finding
that evidence from each case would have been admissible in the trial of the other case.
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¶52 With respect to the Signal Mountain Trail Case, the trial court reasonably
determined that (1) the identity of the perpetrator and whether Bondsteel was motivated
by a desire for sexual gratification were material issues, particularly given the attempted
sexual assault count in that case, and the acts underlying the Motorcycle Case would bear
on those issues; (2) evidence from the Motorcycle Case was logically relevant because this
evidence made it more likely that Bondsteel’s actions in the Signal Mountain Trail Case
involved his knowing observation of one of the women victims’ intimate parts without
her consent and that these actions were for his own sexual gratification and constituted
an attempt to inflict sexual intrusion or penetration; (3) the logical relevance was
independent of any inference that Bondsteel had a bad character because the substantial
similarities among all of the incidents rendered the facts of the Motorcycle Case relevant
to the factual issues of motive, modus operandi, and intent in the Signal Mountain Trail
Case; and (4) the probative value of the evidence from the Motorcycle Case was “very
significant” and substantial and outweighed any danger of unfair prejudice.
¶53 Similarly, although the court made less detailed findings as to the admissibility of
the evidence from the Signal Mountain Trail Case in the Motorcycle Case, the court’s
findings support the admissibility of such evidence under section 16-10-301(1) and
CRE 404(b), particularly in light of the legislature’s expressed preference for admitting
such evidence in the prosecution of sex offenses. Specifically, in concluding that the
evidence was admissible, the court found that “[c]ertain significant circumstances are the
same, or closely similar, for all of the charged offenses.” Each offense involved an attack
on one or two women; each occurred in the “open air” but in an isolated place; each
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involved the “display and, nearly always, the actual use of a weapon”; and the offenses
occurred within a relatively short time span. On these facts, the court opined that the
same analysis that supported the admission of evidence from the Motorcycle Case into
the Signal Mountain Trail Case would support the reciprocal admission of evidence from
the Signal Mountain Trail Case into the Motorcycle Case.
¶54 Although the trial court’s analysis could, perhaps, have been more detailed, we
perceive the court’s above-referenced statements as reflecting findings that (1) evidence
from the Signal Mountain Trail Case related to material facts in the Motorcycle case,
including identity and motive; (2) such evidence was logically relevant because it made
it more likely than not that Bondsteel had, in fact, asked the victims to expose their breasts
and genitalia and that he did so for purposes of sexual gratification (e.g., “because it was
fun”); (3) the logical relevance of such evidence was independent of the prohibited
inference that Bondsteel acted in conformity with his bad character because the
substantial similarity in the facts made the evidence from the Signal Mountain Trail Case
relevant to show Bondsteel’s motive, modus operandi, intent, and identity in the
Motorcycle Case; and (4) the probative value of the evidence at issue outweighed any
danger of unfair prejudice, presumably due to the significant similarity among all of the
offenses at issue.
¶55 Although we acknowledge that the arguments favoring the admissibility of the
Signal Mountain Trail evidence in the Motorcycle Case are perhaps weaker than the
arguments favoring the admissibility of the Motorcycle Case evidence in the Signal
Mountain Trail Case, we cannot say that the trial court’s determination was manifestly
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arbitrary, unreasonable, or unfair, particularly in light of the above-described legislative
preference for admitting other acts evidence in cases involving sex offenses.
¶56 Accordingly, we perceive no abuse of discretion in the trial court’s finding that the
evidence from each case would have been admissible in a separate trial of the other case.
4. Prejudice Under Crim. P. 14
¶57 Finally, Bondsteel contends that the joinder of the cases at issue was prejudicial
because, in evaluating Bondsteel’s guilt in each case, the jury was improperly influenced
by evidence from the other case. Again, we are unpersuaded.
¶58 Crim. P. 14 directs trial courts to sever counts or provide other relief if a defendant
appears to be prejudiced as a result of joinder. The Rule provides, in pertinent part, “If it
appears that a defendant or the prosecution is prejudiced by a joinder of offenses . . . in
any indictment or information, or by such joinder for trial together, the court may order
an election or separate trials of counts . . . or provide whatever other relief justice
requires.”
¶59 Because a court’s decision as to whether to sever counts is discretionary, a
defendant challenging a court’s refusal to sever must show that the joinder caused “actual
prejudice” and that the trier of fact was unable to separate the facts and legal principles
applicable to each offense. People v. Garcia, 2012 COA 79, ¶ 28, 296 P.3d 285, 290; see also
People v. Pickett, 571 P.2d 1078, 1082 (Colo. 1977) (observing that, in determining whether
a party would be prejudiced by the joinder of two cases, “[t]he important inquiry is
whether the trier of fact will be able to separate the facts and legal theories applicable to
each offense”).
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¶60 For several reasons, we do not believe that Bondsteel has established the requisite
actual prejudice in this case.
¶61 First, for the reasons set forth above, the trial court properly found that evidence
of the crimes at issue in each case would have been admissible in a separate trial of the
other case. Accordingly, even had the cases been tried separately, the jury in each case
may have been presented with evidence of the other crimes.
¶62 Second, the record does not support Bondsteel’s suggestion that the jury was
unable to separate the facts and law applicable to each case. See Pickett, 571 P.2d at 1082;
Garcia, ¶ 28, 296 P.3d at 290. Here, the trial court instructed the jury that “[e]ach count
charges a separate and distinct offense and the evidence and the law applicable to each
count should be considered separately, uninfluenced by your decision as to any other
count,” and we must presume that the jury followed these instructions. See Johnson v.
People, 2019 CO 17, ¶ 16, 436 P.3d 529, 533. Moreover, although the jury ultimately
convicted Bondsteel of many of the charges against him, it also acquitted him of a number
of charges brought in connection with both the Signal Mountain Trail and Motorcycle
Cases and, in one instance, convicted him of a lesser-included offense. These verdicts
suggest to us that the jury carefully considered each count and did not blur together the
facts and legal theories involved in each case but rather kept them separate.
¶63 Third, as noted above, the evidence and investigations in the Motorcycle and
Signal Mountain Trail Cases were intertwined and overlapping. As a result, even had
there been separate trials in these cases, it would have been difficult, if not impossible, to
keep evidence from each case out of a separate trial of the other.
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¶64 Finally, in each case, the evidence against Bondsteel was strong. In the Signal
Mountain Trail Case, the victims had identified Bondsteel as their assailant in separate
line-ups, and DNA on the victims’ belongings matched Bondsteel’s DNA. In addition,
T.B. testified that Bondsteel had confessed to her that he had committed the acts
underlying both the Signal Mountain Trail and Motorcycle Cases, and he wrote letters to
her apologizing for his conduct and seeking her help in establishing an alibi in the Signal
Mountain Trail Case. And Bondsteel’s actions in trying to dispose of evidence in the
Motorcycle Case (e.g., in trading in his motorcycle because the police would be looking
for it) are strongly indicative of his guilt.
¶65 Accordingly, like the trial court, we are not persuaded that the consolidation of
the two cases at issue unfairly prejudiced Bondsteel.
III. Conclusion
¶66 For the foregoing reasons, we conclude that Bondsteel was not required to renew
at trial his pretrial objection to the joinder of the Motorcycle and Signal Mountain Trail
Cases to preserve that objection for appellate review and therefore his pretrial objection
sufficiently preserved his argument for appeal. On the merits, however, we conclude
that the trial court did not reversibly err when it joined the two cases for trial because the
requirements of Crim. P. 8(a)(2) and Crim. P. 13 were satisfied and Bondsteel established
no actual or unfair prejudice from the joinder.
¶67 Accordingly, we affirm the judgment below.
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