author: ESPINOSA, Judge:

text:
    The STATE of Arizona, Appellant, v. Bryan Mitchell LIETZAU, Appellee.
    No. 2 CA-CR 2018-0011
    Court of Appeals of Arizona, Division 2.
    Filed March 25, 2019
    Barbara LaWall, Pima County Attorney, By Jacob R. Lines, Deputy County Attorney, Tucson, Counsel for Appellant
    Joel Feinman, Pima County Public Defender, By Abigail Jensen and Abigail Okrent, Assistant Public Defenders, Tucson, Counsel for Appellee
    Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred.
   ESPINOSA, Judge:

¶1 The state appeals the trial court's suppression of evidence taken from Bryan Lietzau's cell phone, arguing the court erred in denying its request to present testimony from Lietzau's probation officer at the suppression hearing and in granting Lietzau's motion to suppress. For the following reasons, we reverse and remand.

Factual and Procedural Background

¶2 "We discuss only those facts relevant to the suppression ruling challenged on appeal," State v. Navarro , 241 Ariz. 19, ¶ 2, 382 P.3d 1234 (App. 2016), viewing them "in the light most favorable to sustaining the trial court's ruling," State v. Gonzalez , 235 Ariz. 212, ¶ 2, 330 P.3d 969 (App. 2014). Because no testimony was taken at the suppression hearing under review, we draw the facts from the record of the hearing, including the materials appended to the motions, and non-disputed facts presented in the parties' briefs. See Navarro , 241 Ariz. 19, n.1, 382 P.3d 1234.

¶3 In August 2014, Lietzau was placed on probation for aggravated harassment. In accordance with the terms of his written conditions of supervised probation, Lietzau agreed to submit to "search and seizure of person and property" by the Adult Probation Department "without a search warrant." He also agreed to grant safe access to his residence and property, submit to searches and seizures of "person and property by any probation officer," and provide probation officers with truthful answers to inquiries.

¶4 In early December 2014, a woman contacted Lietzau's probation officer to report "an inappropriate relationship" she believed Lietzau was having with her thirteen-year-old daughter, S.E. A few weeks later, a probation surveillance officer arrested Lietzau for violating conditions of his probation based on his failure to provide access to his residence, participate in counseling programs, comply with drug testing, and perform community restitution. On the way to the jail, the surveillance officer examined Lietzau's cell phone and saw numerous text messages between Lietzau and S.E. The probation department reported these findings to the Tucson Police Department ("TPD"); a police detective then obtained a search warrant and discovered incriminating photos and text messages in the phone. Lietzau was subsequently indicted on charges of sexual conduct with a minor.

¶5 Lietzau filed a motion to suppress all evidence gleaned from his cell phone, citing Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and arguing the initial search violated his Fourth Amendment rights because warrants "are required for searches of cell phones incident to arrest." He also contended, in the alternative, that the search was unreasonable under the totality of the circumstances, citing State v. Adair , 241 Ariz. 58, 383 P.3d 1132 (2016). The state countered that no constitutional violation occurs when a warrantless search is expressly authorized in a probationer's terms of probation, and maintained that the search of Lietzau's phone fell within the scope of the search conditions in his probation orders, and therefore was "within the probation search exception to the warrant requirement." The state further argued that Riley was "inapposite" because the defendants there were not on probation, and the search here was in compliance with Adair . The trial court granted Lietzau's motion to suppress, reasoning that the surveillance officer's search of the phone had not been related to Lietzau's "administrative" violations of probation, and was therefore "arbitrary," and impermissible. The state appealed; we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(6).

Discussion

¶6 The state contends the trial court erred by suppressing the cell phone evidence because the surveillance officer's examination of Lietzau's phone "was reasonable," and therefore "constitutional" under Adair . It also suggests the search was consensual pursuant to Lietzau's conditions of probation, in which he "agreed and acknowledged" that his personal property could be searched without a warrant. We review a trial court's ruling on a motion to suppress for abuse of discretion, Adair , 241 Ariz. 58, ¶ 9, 383 P.3d 1132, but review de novo the court's ultimate legal determination whether the search complied with the Fourth Amendment, State v. Davolt , 207 Ariz. 191, ¶ 21, 84 P.3d 456 (2004).

¶7 The United States and Arizona Constitutions protect against unreasonable searches and seizures, U.S. Const. amend. IV ; Ariz. Const. art. II, § 8, and a search conducted without a warrant is presumed unreasonable, absent certain exceptions to this rule, State v. Gant , 216 Ariz. 1, ¶ 8, 162 P.3d 640 (2007). A search incident to arrest is one such exception, see Davis v. United States , 564 U.S. 229, 234-35, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), which the United States Supreme Court justified because of "the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime," Chimel v. California , 395 U.S. 752, 764, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The exception, however, does not extend to the search of data contained on cell phones. Riley , 573 U.S. at 386, 134 S.Ct. 2473. In Riley , the Court recognized the significant information stored on cell phones that "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id . at 393, 134 S.Ct. 2473. Thus, a warrant is generally required before a cell phone is searched, even if the search is incident to arrest. Id. at 401, 134 S.Ct. 2473 ; see also State v. Peoples , 240 Ariz. 244, ¶ 13, 378 P.3d 421 (2016) ("[C]ell phones contain 'the privacies of life' and are therefore worthy of Fourth Amendment protection." (quoting Riley , 573 U.S. at 403, 134 S.Ct. 2473 )).

¶8 Here, the trial court considered Riley because the surveillance officer searched Lietzau's cell phone a short time after arresting him for probation violations, but correctly noted that Riley did not "deal with the issue of when someone's on probation, and they've agreed to allow the Probation Department to search their property." The court then considered United States v. Lara , a Ninth Circuit case reversing the denial of a suppression motion based on a warrantless and suspicionless search of a probationer's cell phone, in part because his terms of probation did not clearly encompass such a search. 815 F.3d 605, 607, 610, 614 (9th Cir. 2016). The trial court lastly discussed Adair and concluded the search of Lietzau's phone was improper. The state contends the court erroneously relied on Lara because it is significantly distinguishable from Lietzau's case, and, in any event, not binding on Arizona courts, and argues the court misapplied Adair .

Probationary Search

¶9 Our supreme court has held that when a defendant is on probation, "his expectations of privacy are less than those of other citizens not so categorized." State v. Montgomery , 115 Ariz. 583, 584, 566 P.2d 1329 (1977). More recently in Adair , the court described a probationer's privacy interests as "significantly diminished." 241 Ariz. 58, ¶ 23, 383 P.3d 1132 (quoting United States v. Knights , 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ). The court then balanced those interests against the state's substantial interests in public safety and reducing recidivism and, rejecting the argument that some level of founded suspicion was required to conduct a warrantless search, held that a "search of [a] residence pursuant to the probation conditions complied with the Fourth Amendment if it was reasonable under the totality of the circumstances." Id . ¶¶ 15-23. The court went on to identify factors to consider when determining the reasonableness of a search. Id. ¶ 25. For example, as this court had previously noted, "[t]he target of the search must be a known probationer subject to a valid, enforceable probation condition allowing a warrantless search," "[t]he search must be conducted by a probation officer in a proper manner and for the proper purpose of determining whether the probationer was complying with probation obligations," and "the search must not be arbitrary, capricious[,] or harassing." Id. (quoting State v. Adair , 238 Ariz. 193, ¶ 21, 358 P.3d 614 (App. 2015) ). Other factors bearing on reasonableness include

the nature and severity of the probationer's prior conviction(s) for which he is on probation; the content and scope of the probation conditions; the nature and severity of the suspected criminal offenses or probation violations giving rise to the search; whether the suspected crimes or violations are the same as or similar to the crimes of which the probationer was previously convicted; and the nature, source, and plausibility of any extraneous information supporting the search.

Id. The trial court here cited these factors and concluded the search was unreasonable, finding it "arbitrary" and therefore in violation of Lietzau's constitutional rights. As stated earlier, we review its legal conclusion de novo. Davolt , 207 Ariz. 191, ¶ 21, 84 P.3d 456.

¶10 At the outset, we note that the facts of Lietzau's case may be viewed as falling somewhere on a spectrum between Lara , to the extent that case may be persuasive, and Adair , the binding precedent of our supreme court. As in Lara , the search here involved a cell phone and its data, for which the Supreme Court has afforded heightened protection. See Riley , 573 U.S. at 403, 134 S.Ct. 2473 ("Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' " (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) )). And while the search terms of Lietzau's probation broadly include "property," Lietzau argues they do not expressly or unambiguously include a cell phone. See Lara , 815 F.3d at 610 (terms of probation, "including any residence, premises, container or vehicle" under defendant's control did not "clearly or unambiguously encompass" defendant's cell phone).

¶11 Looking to Adair , however, Lietzau was under active probation supervision and subject to a valid, enforceable condition of his probation expressly authorizing warrantless searches by probation officers. Adair , 241 Ariz. 58, ¶ 12, 383 P.3d 1132 ; see Knights , 534 U.S. at 121, 122 S.Ct. 587 (warrantless search upheld where authorized by terms of probation and new offense suspected). And, unlike Lara , but as in Adair , the search here was not without suspicion. Importantly, the probation department had a reasonable ground to suspect Lietzau might be engaged in an improper relationship with a minor, a serious offense and one that would be a patent violation of his probation. See A.R.S. § 13-1405(B) (sexual conduct with a minor under fifteen is a class two felony). Additionally, given the nature of S.E.'s mother's complaints, there was reason to investigate whether Lietzau's cell phone might contain evidence corroborating her report. Contrary to the trial court's conclusion, the totality of circumstances, as more specifically detailed below, clearly tip towards a finding of reasonableness under Adair .

Application of Adair

¶12 First, Lietzau was on felony probation, and his probation officer had been contacted by an identified individual whose only motivation was that of a mother concerned for her child's safety. She specifically named Lietzau, obviously known to her as a criminal offender, and indicated she had reason to believe he was inappropriately involved with her thirteen-year-old daughter. Indeed, she contacted the probation department on more than one occasion, including the arresting surveillance officer, to voice her fears. The probation department thus had a well-founded, non-arbitrary reason to suspect Lietzau of committing another felony while on probation, rather than "[m]ere speculation," as urged by Lietzau. While Lietzau asserts the probation department "had no information to indicate that the inappropriate nature of that relationship was criminal or otherwise violated [his] conditions of probation," it is well established that reasonable suspicion is not negated by possibilities of innocent conduct. See State v. Evans , 237 Ariz. 231, ¶ 11, 349 P.3d 205 (2015) (to justify suspicion, officer need not rule out the possibility of innocent explanations for conduct); State v. Teagle , 217 Ariz. 17, ¶ 49, 170 P.3d 266 (App. 2007) (reasonable suspicion is based on particularized and objective facts, not hard certainties).

¶13 Although there was no testimony about the arresting officer's motivation in searching Lietzau's phone after the trial court declined to hear the state's probation department witness, and Lietzau argues the state failed to make an offer of proof and thereby waived this issue, the motions before the court at that time contained such evidence, including the transcribed interview of the surveillance officer. See State v. Treadaway , 116 Ariz. 163, 168, 568 P.2d 1061 (1977) (offer of proof not necessary when substance of potential testimony apparent); see also State v. Keener , 110 Ariz. 462, 465, 520 P.2d 510 (1974) (hearsay generally admissible in suppression hearing); Ariz. R. Evid. 104(a) (trial court not bound by the Arizona Rules of Evidence in suppression hearing). The arresting officer expressly stated in his interview that he was aware of the allegations made by S.E.'s mother; in fact, he had spoken with her himself. And even had that not been the case, it would be of little moment because cumulative police information and knowledge are attributed to an arresting officer. See State v. Lawson , 144 Ariz. 547, 553, 698 P.2d 1266 (1985) (arresting officer need not "personally be in possession of all the facts" so long as collective knowledge of all officers sufficient); State v. Keener , 206 Ariz. 29, ¶ 14, 75 P.3d 119 (App. 2003) ; see also United States v. Sutton , 794 F.2d 1415, 1426-27 (9th Cir. 1986) (suspicion justified by collective information known by officers).

¶14 Second, cell phones are "ubiquitous" repositories of communications and photos "for a variety of purposes," State v. Tucker , 231 Ariz. 125, ¶ 17, 290 P.3d 1248 (App. 2012), and "[e]ven the most basic phones ... hold photographs, picture messages, [and] text messages." Riley , 573 U.S. at 394, 134 S.Ct. 2473. The use of these pervasive devices to convey communications of a sexual nature is well known, particularly involving older children and young adults. See, e.g. , State v. Ortiz , 238 Ariz. 329, ¶¶ 1, 24, 360 P.3d 125 (App. 2015) (defendant convicted of sexual conduct with a minor; " 'flirtatious' text messages" to victim evidence of "grooming" for purposes of child abuse); State v. Villegas , 227 Ariz. 344, 258 P.3d 162 (App. 2011) (conviction for luring minor for sexual exploitation arising from text messages and e-mail with police posing as fourteen-year-old girl); United States v. Brackett , 846 F.3d 987 (8th Cir. 2017) (child pornography conviction where minor sent sexually explicit photographs to defendant via cell phone); Miller v. Skumanick , 605 F.Supp.2d 634, 637 (M.D. Pa. 2009) (practice of sending sexually suggestive text messages and images via cell phone "widespread among American teenagers"); State v. Thomas , 197 Ohio App.3d 176, 966 N.E.2d 939, ¶ 5 (2011) (upholding conviction based on "sexually explicit electronic messages" to minors and their "tak[ing] sexually explicit photographs of themselves and ... send[ing] those photographs to [defendant's] cell phone"); State v. Carey-Martin , 293 Or.App. 611, 430 P.3d 98, 112 (2018) ("sending sexually explicit self-portraits" via cell phone "common among teenagers"); see also Elizabeth M. Ryan, Note, Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults , 96 Iowa L. Rev. 357, 360 (2010) (conveying "sexually suggestive text messages and images" via cell phone is a "social phenomenon among minors and young adults"); Oxford University Press, Word of the Year 2009, https://en.oxforddictionaries.com/word-of-the-year/word-of-the-year-2009%20 (last visited Jan. 31, 2019) (recognizing the term "sexting" as "the sending of sexually explicit texts and pictures" by cell phone).

¶15 Third, although the court in Lara determined that "property" does not "unambiguously include cell phone data" when read with specifically enumerated categories of property in defendant Lara's terms of probation, that particular scenario does not exist here. 815 F.3d at 611. And, other courts have held to the contrary. See People v. Sandee , 15 Cal.App.5th 294, 222 Cal.Rptr.3d 858, 864 (2017) (condition allowing search of "property" and "personal effects" included cell phone); State v. White , 890 N.W.2d 825, ¶ 13 (N.D. 2017) (probation conditions authorizing officers to search "person, vehicle or residence" included cell phones found inside residence); see also United States v. Yuknavich , 419 F.3d 1302, 1311 (11th Cir. 2005) (despite absence of probation condition authorizing searches, warrantless search of probationer's computer upheld). But more importantly, whether or not similar probation terms in Lara and this case could be viewed as including cell phones and their data, it is significant that the Lara court implied the search there would have been valid had the officers possessed reasonable suspicion. 815 F.3d at 607, 609-10.

¶16 Because, unlike in Lara , the search of Lietzau's cell phone was supported by reasonable suspicion that he was committing a new offense, we disagree with the trial court's conclusion that the search was not conducted for the proper purpose of determining his compliance with probation conditions. Adair , 241 Ariz. 58, ¶ 25, 383 P.3d 1132. An express condition of Lietzau's probation was "obeying all laws." Accordingly, although the court in Adair listed them as distinct factors, because the search here was for a proper purpose, we cannot say it was arbitrary, capricious, or harassing. See id. ¶ 25.

Trial Court's Findings

¶17 We lastly address Lietzau's assertions that "the [s]tate failed to present any evidence" that the search was conducted for a proper probationary purpose, and "the trial court's factual findings were fully supported by the evidence." The court's only factual findings, however, related to the way the search occurred, which was not disputed. In fact, the court concluded that the search had been conducted in the "proper manner." And after repeatedly denying the state's requests to introduce testimony, the court said it did not "need any" and went on to focus solely on the allegations underlying Lietzau's arrest. As noted earlier, the court proceeded to discuss case law, primarily Lara and Adair , and then concluded that the search had "violated [Lietzau's] constitutional rights," in large part because it found the search arbitrary for being unrelated to the underlying probation violations he was charged with. As already discussed, however, this conclusion was erroneous. Further, we are aware of no basis or authority, and Lietzau identifies none, holding that a probationary search is limited to the confirmation of known or charged probation violations.

¶18 Indeed, not even founded suspicion for a known or suspected violation of probation is required if the search of a probationer's home that would otherwise raise Fourth Amendment prohibitions is reasonable under the totality of the circumstances. Adair , 241 Ariz. 58, ¶ 1, 383 P.3d 1132 (the legality of a probationary search "does not hinge on whether the search is supported by reasonable suspicion"); United States v. King , 736 F.3d 805, 806 n.1, 810 (9th Cir. 2013) (rejecting argument that reasonable suspicion was required to authorize warrantless probationary search). If the search of a probationer's cell phone, however, invokes more constitutional protection than a search of his home, as argued by Lietzau citing Lara , we are nevertheless confident in concluding that actual founded suspicion falls much closer to the governance of Adair and, together with the surrounding circumstances, justified the warrantless search here. Stated differently, the Adair reasonableness standard, as applied to a probationer's cell phone, must necessarily be informed by facts supporting founded suspicion when it exists, as in the case at hand.

Conclusion

¶19 Under the totality of the circumstances, including Lietzau's significantly diminished privacy rights as a probationer, his acceptance of search conditions when he agreed to probation which arguably included his cell phone, the probation department's well-grounded suspicion that Lietzau might be involved in a serious offense with an adolescent child, and the well-known use of cell phones as an aid in committing sexual offenses against children, it cannot be said the officer's search of Lietzau's cell phone was unreasonable. See Adair , 241 Ariz. 58, ¶ 23, 383 P.3d 1132. Accordingly, we conclude the trial court abused its discretion in granting Lietzau's motion to suppress.

Disposition

¶20 Because we have determined the probationary search here was lawful on the specific facts involved, we reverse the trial court's order granting Lietzau's motion to suppress and remand the case for further proceedings consistent with this decision.

      At the hearing, the state repeatedly asked that Lietzau's probation officer be permitted to testify, but the trial court declined its request, stating it had read the parties' "responses," and did not "need any testimony."

      The warrant application stated that S.E.'s mother was aware her minor daughter was "possibly sexually active" with an adult, impliedly identified as Lietzau, S.E. had told a doctor she had been sexually active with a twenty-one-year-old male "on previous occasions," and the probation department had informed TPD they had reviewed Lietzau's cell phone and found "information on that phone that pertained to that relationship."

      Thus, while Lietzau's probation terms are another factor to consider under Adair , it is not necessary to reach the issue of whether they constitute an independent waiver of rights regarding his cell phone or electronic data. See Knights , 534 U.S. at 117-18, 122 S.Ct. 587 (declining to resolve whether acceptance of probation term authorizing warrantless searches constituted waiver of Fourth Amendment rights).

      Because we reverse on this ground, we need not address the state's additional argument that the trial court erred in not permitting its witness to testify at the evidentiary hearing.


source: Caselaw Access Project

license: Public Domain

text:
    James Jud BONDSTEEL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 15SC1096
    Supreme Court of Colorado.
    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
    En Banc
   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.

¶2 We conclude that, to the extent People v. Barker , 180 Colo. 28, 501 P.2d 1041 (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.

¶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.

¶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 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 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.

¶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.

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 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."

¶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 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 dis similar, he was prejudiced by the joinder. We begin by addressing the proper framework for considering 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 , 197 Colo. 219, 591 P.2d 99, 101 (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.

¶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, 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.

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, 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, 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.

¶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 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 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 , 194 Colo. 178, 571 P.2d 1078, 1082 (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").

¶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.

¶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.

      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.


text:
    Francis Gayle BUELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 18SC18
    Supreme Court of Colorado.
    April 22, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Brian Cox, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 Francis Gayle Buell was caught shoplifting at a Sears department store in Greeley and again, about two and one-half months later, at a Safeway supermarket in Greeley. The prosecution initially charged Buell in separate cases arising from these incidents but subsequently moved to consolidate the cases under Crim. P. 13. The trial court granted that motion.

¶2 We granted certiorari to consider Buell's contention that the trial court abused its discretion in consolidating the two cases because, in his view, proper consolidation requires the evidence of each incident to be admissible in a separate trial of the other. We now conclude that the trial court did not abuse its discretion here.

¶3 Consolidation under Crim. P. 13 is proper if (1) the cases could initially have been joined under Crim. P. 8(a)(2), and (2) the consolidation is not prejudicial within the meaning of Crim. P. 14. Contrary to Buell's contention, 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. Here, we have no difficulty in concluding that the cases were of the same or similar character because the facts of these cases closely mirrored one another. Moreover, Buell has not shown that the consolidation was prejudicial because (1) the evidence would, in fact, have been cross-admissible in separate trials and (2) the facts of the incidents at issue were not disputed. Rather, Buell contested only the application of law to those facts.

¶4 Accordingly, we affirm the division's judgment.

I. Facts and Procedural History

¶5 In August 2013, a loss prevention agent at a Sears department store in Greeley saw Buell put jewelry in his pockets and then walk out of the store without paying for it. The agent confronted Buell outside, and Buell responded by pulling out a knife and telling the agent, "Dude, back off. I'm not playing with you." The agent backed away with his hands up, and Buell got on his bicycle and rode off.

¶6 Approximately two and one-half months later, a loss prevention agent at a Safeway supermarket in Greeley saw Buell put several steaks in his jacket. The agent then watched Buell pay for a loaf of bread and a gallon of milk while keeping the steaks hidden away. Buell exited the store, and the agent confronted him about the stolen merchandise and then escorted him back into the store so that they could talk in the store's office. As the two men were waiting for the store manager to come unlock the office, the agent told Buell that he needed to handcuff him as a safety precaution. Buell then pulled out a knife and attempted to stab the agent, cutting the agent's wrist in the process. Fearing additional injury, the agent walked Buell to the store's exit and let him leave.

¶7 A week after the Safeway incident, the police located Buell and arrested him. The prosecution initially charged Buell in separate cases arising from the above-described incidents. In the first case, they charged him with aggravated robbery and theft arising from his conduct at the Sears store. In the second, they charged him with attempted aggravated robbery and second-degree assault arising from the events at the Safeway.

¶8 Thereafter, the prosecution moved to consolidate the two cases, arguing that consolidation was proper because (1) Buell "committed both crimes as part of a common scheme or plan in completing a series of small thefts from different Greeley-area stores" and (2) the charges were similar in nature and contained cross-admissible evidence. Over Buell's objection, the trial court granted the prosecution's motion, concluding that the similarity between the incidents was "striking" and that the evidence established a "common pattern, scheme or plan." The court further found that "[a]lthough there [were] different victims, and perhaps the nature of fleeing the scene ... was somewhat different," consolidating the cases would not result in actual prejudice.

¶9 The consolidated cases proceeded to trial, and at trial, Buell admitted that he was guilty of theft and menacing as to the Sears incident, although he asserted that he was not guilty of aggravated robbery "because when the taking of the jewelry occurred, [he] did not use force, threats, or intimidation." Buell likewise argued, regarding the Safeway incident, that he was not guilty of attempted aggravated robbery because he did not use force, threats, or intimidation when he took the steaks.

¶10 The jury subsequently convicted Buell of aggravated robbery, felony menacing, and theft as to the Sears incident and of attempted aggravated robbery, second-degree assault, and theft as to the Safeway incident, and he appealed. On appeal, he argued, as pertinent here, that (1) the trial court abused its discretion when it consolidated the two cases "because they were not part of a common scheme or plan" and (2) the consolidation prejudiced him because, among other things, the evidence from each case would not have been cross-admissible in separate trials.

¶11 In a unanimous, published decision, the division ultimately rejected Buell's contentions. People v. Buell , 2017 COA 148, ¶¶ 6-19, --- P.3d ----. It began by noting that Crim. P. 8(a)(2) provides three disjunctive bases for consolidation, one of which is that the offenses be "of the same or similar character." Id. at ¶ 10. The division opined that "[r]egardless of whether the two shoplifting incidents [were] part of a common scheme or design, they were 'of the same or similar character....' " Id. And the division observed that "the plain language of Crim. P. 8(a)(2) does not require a cross-admissibility analysis under CRE 404(b) when consolidation is made under the 'same or similar character' criterion." Id. at ¶ 15. Accordingly, the division concluded that the trial court did not abuse its discretion in consolidating the cases at issue. Id. at ¶ 19.

¶12 Buell petitioned this court for certiorari review, and we granted his petition.

II. Analysis

¶13 We begin by discussing the requirements for a motion to consolidate under Crim. P. 13 and note that this rule requires both that joinder would have been permissible under Crim. P. 8(a)(2) and that the consolidation would not have resulted in prejudice under Crim. P. 14. Having established the applicable framework, we proceed to address Buell's contentions that the consolidation of the cases at issue was improper because the evidence of each incident would not have been cross-admissible in separate trials and the consolidation was prejudicial, and we reject those arguments.

A. Standard of Review and Requirements for Consolidation

¶14 We review a trial court's decision to consolidate separate charges under Crim. P. 13 for an abuse of discretion. Brown v. Dist. Court , 197 Colo. 219, 591 P.2d 99, 101 (1979) ; People v. George , 2017 COA 75, ¶ 78, --- P.3d ----.

¶15 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.

¶16 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.

¶17 Here, Buell contends that neither of these conditions for consolidation was satisfied. We address his arguments in turn.

B. "Same or Similar Character" and Cross-Admissibility

¶18 Crim. P. 8(a)(2) allows for the permissive joinder of two or more offenses in the same indictment or information if they are (1) "of the same or similar character"; (2) "based on two or more acts or transactions connected together"; or (3) based on two or more acts or transactions "constituting parts of a common scheme or plan."

¶19 We interpret rules of procedure consistent with principles of statutory construction, giving a rule's language its commonly understood and accepted meaning. People v. Angel , 2012 CO 34, ¶ 17, 277 P.3d 231, 235. If the rule is unambiguous, we apply it as written. Id.

¶20 Here, Buell contends that joinder would not have been permissible under Crim. P. 8(a)(2) because to satisfy that rule, the evidence from each incident had to be cross-admissible (i.e., admissible under CRE 404(b) ) in separate trials. He asserts that it was not.

¶21 Buell's argument ignores the plain language of Crim. P. 8(a)(2). As the division below recognized, that rule establishes three disjunctive bases for joinder. Although the second and third bases-"based on two or more acts or transactions connected together or constituting parts of a common scheme or plan"-might implicate CRE 404(b) (because the language arguably parallels portions of CRE 404(b) ), nothing in the language "same or similar character" suggests any such requirement, and Buell points to no such language. Accordingly, we agree with the division that joinder based on the "same or similar character" prong of Crim. P. 8(a)(2) does not require a showing that the evidence of each incident would have been cross-admissible in separate trials.

¶22 The question thus becomes whether the incidents at issue were, in fact, "of the same or similar character."

¶23 As an initial matter, we acknowledge that prior to our decision today in People v. Bondsteel , 2019 CO 26, 439 P.3d 847, we have not addressed the meaning of the phrase "same or similar character" as that phrase is used in Crim. P. 8(a)(2). Regardless, in our view, under any plausible definition, the cases at issue were of the same or similar character. Buell stole merchandise from two retail stores in the same city, in incidents occurring within two and one-half months of one another, by hiding the merchandise in his clothing. Moreover, when he was confronted by loss prevention agents after having left the stores without paying for the stolen merchandise, he pulled out a knife to allow him to evade arrest and then flee.

¶24 For these reasons alone, we conclude that the requirements of Crim. P. 8(a)(2) were satisfied in this case.

¶25 Even were we to conclude, however, that cross-admissibility was required under the same or similar character prong of Crim. P. 8(a)(2), we would reach the same result because in our view, the evidence in each case would have been cross-admissible in separate trials.

¶26 Under CRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he or she acted in conformity therewith, but it may be admissible to show, for example, motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶27 We have construed the applicable evidence rules to require a four-part analysis to determine whether evidence of prior acts is admissible: (1) the evidence must relate to a material fact; (2) it must be logically relevant (i.e., it must tend to make the existence of a material fact more or less probable than it would be without the evidence); (3) the logical relevance must be independent of the prohibited inference that the defendant has a bad character and acted in conformity therewith; and (4) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. People v. Spoto , 795 P.2d 1314, 1318 (Colo. 1990).

¶28 Here, we believe that the evidence of each incident would satisfy these elements were it to be offered in a separate trial of the other incident. First, the evidence would tend to show, at a minimum, motive, intent, identity, and the absence of mistake or accident, and therefore, it would relate to a material fact. Second, the highly similar facts and circumstances of each of the incidents at issue would tend to make it more probable than not that Buell was the perpetrator of each crime, that he had the requisite motive and intent to commit these crimes, and that his actions were not the result of any mistake or accident. Third, on the facts presented here, we believe that the logical relevance of the evidence of each incident in a trial of the other would be independent of the prohibited inference that Buell acted in conformity with any bad character. Specifically, the evidence would not be offered to show that because Buell committed an aggravated (or attempted aggravated) robbery on another occasion, he likely committed the aggravated (or attempted aggravated) robbery at issue. Rather, because Buell used the same methods to commit each offense and then brandished a knife to evade arrest when he was caught, the evidence would be independently relevant to show, among other things, Buell's motive, intent, identity, and the absence of any mistake or accident. Finally, on the facts of this case, we could not say that the probative value of the evidence of each incident in a trial of the other would be substantially outweighed by the danger of unfair prejudice. All evidence that is adverse to a litigant's interests is, by its nature, prejudicial to that litigant. Here, however, because the incidents at issue were so strikingly similar, the evidence of each strongly tends to establish each of the material facts discussed above, and thus, we cannot say that the admission of such evidence would be unfairly prejudicial.

¶29 For these reasons, we conclude that the two cases could have been joined under Crim. P. 8(a)(2). Accordingly, the consolidation of these cases was proper unless Buell could show prejudice within the meaning of Crim. P. 14. We proceed to address that issue.

C. Prejudice Under Crim. P. 14

¶30 Crim. P. 14 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."

¶31 For purposes of this rule, a defendant may demonstrate prejudice by showing, among other things, that "consolidation caused actual prejudice and that the jury was not able to separate the facts and legal principles applicable to each case." People v. Gross , 39 P.3d 1279, 1282 (Colo. App. 2001). In this regard, divisions of the court of appeals have consistently held, and we agree, that prejudice is generally not established when the evidence of each incident would have been admissible in separate trials. See, e.g. , id.

¶32 Here, for two reasons, we conclude that Buell was not prejudiced by the consolidation at issue.

¶33 First, as explained above, under CRE 404(b), the evidence of each incident would have been admissible in a separate trial of the other incident.

¶34 Second, the facts of these cases were undisputed, making it unlikely that the jury would have been confused or unable to separate the facts and legal principles applicable to each case. Specifically, Buell admitted that he committed each of the thefts at issue. The sole disputed question was whether he could be convicted of aggravated robbery in the Sears case or attempted aggravated robbery in the Safeway case, given that his use of force, threats, or intimidation allegedly occurred after the takings or attempted takings. But see § 18-4-302(1), C.R.S. (2018) (providing, among other things, that a person "is guilty of aggravated robbery if during the act of robbery or immediate flight therefrom ," he or she, by the use of force, threats, or intimidation with a deadly weapon, knowingly puts the person robbed in reasonable fear of death or bodily injury (emphasis added)).

¶35 Accordingly, we are not persuaded that granting the prosecution's pretrial motion for consolidation presented a risk that the jury would convict Buell based solely on an improper inference that he was a career armed criminal, rather than a petty shoplifter who made the mistake of carrying and brandishing a knife. This is particularly true given that the evidence against Buell was largely undisputed and, in our view, overwhelming.

¶36 For these reasons, we perceive no abuse of discretion in the trial court's decision to consolidate Buell's cases under Crim. P. 13.

III. Conclusion

¶37 Because Buell's cases were of the same or similar character under Crim. P. 8(a)(2) and because Buell was not prejudiced by the consolidation of the cases at issue, we conclude that the trial court properly exercised its discretion in consolidating those cases under Crim. P. 13.

¶38 Accordingly, we affirm the division's judgment.

      Specifically, we granted certiorari to review the following issue:
      Whether the trial court abused its discretion when it granted the prosecution's motion to consolidate petitioner's two cases.

      To the extent that People v. Butson , 2017 COA 50, 410 P.3d 744, and cases like it suggest otherwise, we overrule those cases.