Opinion
No. 78-780
Decided July 31, 1980. Rehearing denied September 18, 1980. Certiorari granted December 8, 1980.
Defendant appealed his conviction of aggravated robbery asserting that the trial court erred in admitting testimony of a similar transaction.
Reversed
1. CRIMINAL LAW — Robbery — Another Cleaning Store — Certain Similarities — — Offense Charged — Not Admissible — Show — Scheme, Plan, or Design. Evidence that eight days prior to robbery of cleaning store another cleaners had been robbed at the same time by an individual having same hair color as defendant and, as in instant offense, seeking currency but not checks was not admissible for purpose of showing either scheme, plan, or design.
2. Intent — Established by Act — Prior Transaction Evidence — Not Admissible — Defendant's Intent — Provable — Circumstances of Robbery — Similar Earlier Robbery — Not Admissible. Where intent can be established by commission of the act itself, evidence of a prior transaction to establish such intent may not be introduced, and thus, since in prosecution for robbery, defendant's intent could have been, and must have been established, if at all, from the circumstances surrounding the robbery, the introduction of an earlier similar robbery was not admissible to show intent.
3. Evidence — Prior Similar Robbery — Admission — Not Sought — Identity Issue — Purposes — Scheme, Design and Intent — Reversible Error. Although evidence of a prior similar robbery may have been admissible for purpose of establishing identity, its admission was nonetheless reversible error where state did not seek to introduce it as such, as opposed to showing scheme, design, and intent, and trial court gave no instruction limiting its use to identity issue.
Appeal from the District Court of the City and County of Denver, Honorable Luis D. Rovira, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Shelley Gilman, Deputy State Public Defender, for defendant-appellant.
Defendant appeals his conviction of aggravated robbery asserting that the trial court erred in admitting testimony of a similar transaction. We reverse, and remand for a new trial.
At 6:50 p.m. on December 14, 1977, a Dependable Cleaners on South Monaco Parkway was robbed. A man entered the store, announced a stickup, and ordered one of the employees to surrender all the cash from the cash register. When the employee started to hand over all the cash and the checks from the cash register, the man ordered the employee to separate the checks from the $20 bills.
At trial, the robber was identified as a heavy-set individual who wore a tan double-breasted overcoat and a light brown woolen cap. Witnesses described him as having light brown hair with a red tint, and as being 5' 11" tall.
The prosecution offered evidence of a prior act ostensibly for the purpose of establishing scheme, design, and intent. Over objection, testimony concerning a previous incident involving defendant was admitted. The evidence disclosed that at 6:50 p.m. on December 6, 1977, a man with a gun robbed a Dependable Cleaners in the Bear Valley Shopping Center. In that previous incident, the man wanted the currency but not the checks from the cash register. He was described as wearing a tan trench coat and a reddish brown wig. He was further described as having a greenish-red complexion.
In asserting that the trial court erred in permitting the introduction of evidence of the previous transaction, defendant asserts that People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979) is dispositive. We agree.
In Honey, supra, the court held that the admission of evidence of prior criminal transactions is proper only when the procedural protections of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959) are strictly followed. Thus, the court held, that only if three factors are established, (1) there is a valid purpose for which the evidence is offered, (2) the evidence is relevant to material issue of the case, and (3) the probative value of the evidence of the prior act, when considered in the light of the other evidence which is relative to the issue, outweighs the prejudice to the defendant which would result from the admission of the evidence of the prior transaction, will the evidence of the previous transaction be admissible. The court, citing Stull, supra, further held, that in the event the jury is not instructed that it can consider the evidence of the prior transaction for a particular purpose, even though it satisfies the three pronged test established above, the evidence of the prior transaction may not be admitted.
[1] In the case at bar, the jury was instructed that it could consider the evidence of the previous transaction for the purpose of showing "scheme, plan, design, or intent." In Honey, supra, the court stated, "In order for two or more acts to constitute a scheme or design, they must have a nexus or relationship with each other from which a continuous scheme or common design can be discerned." We can see no relationship between the robbery of the two Dependable Cleaners which would establish the fact that the robbery of the second one, the one at issue in the case at bar, was part of an overall scheme or course of events which included the first robbery. Scheme or design is established only when the doing of an act has, as part of its consummation, the doing of the other act. 2 J. Wigmore, Wigmore on Evidence, § 304 (3d. ed. 1940); see People v. Ihme, 187 Colo. 48, 528 P.2d 380 (1974). The term "plan" is essentially synonymous with "scheme" or "design". Accordingly, we conclude that the trial court erred in admitting evidence of the prior robbery for the purpose of establishing scheme, plan or design.
[2] The jury was also instructed that it could consider the evidence of the previous transaction for the purpose of establishing intent. In this case, the intent the jury must find defendant had in order to convict is the intent to rob, and if resisted, to kill, maim, or wound the person robbed or any other person. The prior transaction had no relationship to the second robbery with respect to establishing intent. In the case at bar, the intent could have been, and must have been established, if at all, from the circumstances surrounding the actual robbery. Where intent can be established by the commission of the act itself, evidence of a prior transaction to establish such intent may not be introduced. Honey, supra.
[3] The prosecution contends that evidence of the prior transaction was admissible for the purpose of establishing identity. Although we agree that this was probably true, the People neither sought its admission for that purpose, nor did the trial court, at the time the evidence was admitted, or at the conclusion of the case, limit the jury's consideration of this evidence to that issue by an appropriate instruction. Therefore, the jury may well have considered it as probative either of issues not present or as some sort of general evidence of guilt. This is the very problem the rule is designed to prevent. Honey, supra.
We therefore reverse the judgment of conviction and remand the matter for a new trial.
JUDGE PIERCE concurs.
JUDGE STERNBERG dissents.