Peo v. Welker

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 22CA1795
• Status: Unpublished

Opinion

22CA1795 Peo v Welker 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1795 Adams County District Court No. 21CR2739 Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Theodore Joseph Welker,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

James West, Alternate Defense Counsel, Longmont, Colorado, for Defendant- Appellant ¶1 Defendant, Theodore Joseph Welker, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of driving

while ability impaired – fourth or subsequent offense, violation of a

protection order, and driving under restraint. He contends that the

district court erred by denying his request for bifurcated or severed

jury trials. We affirm.

I. Background

¶2 The prosecution charged Welker with felony driving under the

influence – fourth or subsequent offense (felony DUI), misdemeanor

violation of a protection order (VOP), misdemeanor driving under

restraint – alcohol related offense (DUR), and two counts of violating

bond conditions.

¶3 In a pretrial motion, Welker requested a bifurcated trial for the

jury to consider the prior conviction element of the felony DUI count

separately from the offense’s other elements. See § 42-4-1301(1)(a),

C.R.S. 2024; Linnebur v. People, 2020 CO 79M, ¶¶ 2, 8, 33,

abrogated on other grounds by People v. Crabtree, 2024 CO 40M. In

another pretrial motion, Welker requested that the court sever the

felony DUI count from the other counts. He asserted that a unitary

trial would unfairly prejudice him regarding the felony DUI count

1 because the other counts would inform the jury that he had other

pending criminal cases and would indicate that he was of “general

criminal disposition.”

¶4 In a written order, the district court denied the request for a

bifurcated trial on the felony DUI count’s prior conviction element;

denied the request for a bifurcated or severed trial on the felony

DUI, VOP, and DUR counts; and granted the request to hold a

severed trial on the violation of bond conditions counts. As relevant

here, the court found that Welker would not be prejudiced by a

unitary trial on the felony DUI, VOP, and DUR counts because they

“share a common connection, namely the alleged use of alcohol by

[Welker] on August 27, 2021.” The court noted that evidence of

Welker’s consumption of alcohol and evidence of a prior alcohol-

related conviction were relevant and admissible as to both the

felony DUI and VOP counts, see § 42-4-1301(1)(a); § 42-2-

138(1)(d)(I), C.R.S. 2024.

¶5 Welker subsequently filed a renewed motion for severed or

bifurcated trials on the felony DUI, VOP, and DUR counts. The

district court denied the renewed motion.

2 ¶6 The jury acquitted Welker of felony DUI but found him guilty

of the lesser included offense of felony driving while ability impaired

– fourth or subsequent offense, as well as the misdemeanor VOP

and DUR counts.1 After community corrections rejected Welker,

the district court sentenced him to a prison term on the felony

conviction and to time served on the misdemeanor convictions.

II. Legal Authority and Standard of Review

¶7 Crim. P. 14 permits a district court to order separate trials of

counts or whatever other relief justice requires “[i]f it appears that a

defendant . . . is prejudiced by a joinder of offenses . . . or by such

joinder for trial together.” See also § 18-1-408(4), C.R.S. 2024

(“When a defendant is charged with two or more offenses based on

the same act or series of acts arising from the same criminal

episode, the court . . . may order any such charge to be tried

separately, if it is satisfied that justice so requires.”).

¶8 Severance means the separation of charges into separate trials

with different juries, which results in the entry of multiple

judgments of conviction. Crim. P. 14; People v. Barajas, 2021 COA

1 The prosecution later dismissed the violation of bond conditions

count.

3 98, ¶¶ 9, 13, 15; People v. Robinson, 187 P.3d 1166, 1174 (Colo.

App. 2008). Bifurcation means the division of a single trial into

stages for one jury to separately address multiple charges, which

results in the entry of a single judgment of conviction. People v.

Fullerton, 525 P.2d 1166, 1168 (Colo. 1974); Barajas, ¶¶ 13-14;

Robinson, 187 P.3d at 1174; see also People v. Kembel, 2023 CO 5,

¶¶ 37-39.

¶9 A decision whether to grant bifurcated or severed trials is

within the sound direction of the district court and will only be

reversed for an abuse of discretion. See Washington v. People, 2024

CO 26, ¶ 37; People v. Pickett, 571 P.2d 1078, 1082 (Colo. 1977);

see also Kembel, ¶ 24; People v. Harris, 2016 COA 159, ¶ 74. A

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. People v.

Johnson, 2021 CO 35, ¶ 16.

¶ 10 “The discretionary nature of a Rule 14 decision creates a high

bar for a defendant hoping for reversal.” Washington, ¶ 37. To

establish that a court’s Crim. P. 14 ruling was an abuse of

discretion, “[t]he defendant bears the burden of demonstrating

(1) ‘actual prejudice’ caused by the joinder and (2) ‘that the trier of

4 fact was unable to separate the facts and legal principles applicable

to each offense.’” Id. (quoting Bondsteel v. People, 2019 CO 26, ¶

59); see also Pickett, 571 P.2d at 1082; Robinson, 187 P.3d at 1175.

The factors relied on to determine whether jurors were able to

separate the facts and legal theories of each offense include

“whether the jury was instructed to consider each charge

separately; whether the charges were factually distinguishable; and

lack of factual, evidentiary, or legal complexity.” People v.

Bondsteel, 2015 COA 165, ¶ 52, aff’d, 2019 CO 26, and overruled

on other grounds by Garcia v. People, 2022 CO 6, ¶ 36.

¶ 11 Additionally, in considering a request to bifurcate, a court

must weigh the risk of prejudice to a defendant in a unitary trial

against the need to prevent the undue interference with the

administration of criminal justice that accompanies a bifurcated

trial. See Kembel, ¶¶ 34-35, 39-41, 44; Fullerton, 525 P.2d at 1167.

III. Analysis

¶ 12 Welker asserts that the district court abused its discretion by

denying his request for bifurcated or severed trials on the felony

DUI, VOP, and DUR counts because in evaluating his guilt on each

5 count, the jury was improperly influenced by evidence pertaining to

the other counts.2 We discern no abuse of discretion.

¶ 13 First, as the district court found, the charged offenses were

based on acts committed at the same time, and there was some

overlap in the evidence relevant to each of the three counts. See

Fullerton, 525 P.2d at 1168 (“[W]here . . . issues sought to be tried

separately are both elements of the same crime, the potential for

disruption of the orderly trial of criminal cases is great.”); People v.

Rosa, 928 P.2d 1365, 1374 (Colo. App. 1996) (“Crimes committed

simultaneously or in close sequence, crimes that occur in the same

or closely related place, and acts that form part of a schematic

whole involve interrelated proof.”); People v. Wortham, 690 P.2d 876,

877 (Colo. App. 1984) (When deciding whether to sever counts for

trial, a court may refer to Crim. P. 8, which indicates that, for the

joinder of offenses, “it is unnecessary that the offenses be related by

an underlying unity of purpose or scheme; they need only be

2 To the extent Welker reasserts his argument that the court should

have bifurcated a trial on the single felony DUI count — by having a jury determine the fact of the prior convictions at a subsequent trial — that argument is foreclosed by Linnebur v. People, 2020 CO 79M, and People v. Kembel, 2023 CO 5, cases that are binding on us. See People v. Eason, 2022 COA 54, ¶ 68.

6 committed within the same period of time, at or near the same

location.”); see also Bondsteel, 2019 CO 26, ¶ 63 (The defendant

was not prejudiced by a unitary trial in part because “the evidence

and investigations in [two cases consolidated for trial] were

intertwined and overlapping.”).

¶ 14 And, while some nonoverlapping evidence that was relevant

and admissible as to one count may have been inadmissible and

potentially prejudicial as to the other counts, all the evidence did

not have to be cross-admissible for a unitary trial to be appropriate.

See Washington, ¶ 27. The question is whether the defendant

suffered actual prejudice from the denial of the severance motion.

But Welker says only that prejudice was “inherent”; he does not

identify any actual prejudice, much less unfair prejudice, from the

admission of evidence related to the other counts. See Kembel, ¶ 53

(Even though the potential prejudice to a defendant in a unitary

trial cannot be completely eliminated, “not all prejudice to a

defendant is unfair.”); People v. Guffie, 749 P.2d 976, 982 (Colo.

App. 1987) (“To establish abuse of discretion, . . . [t]here must be

actual prejudice to the defendant and not just the differences

inherent in any trial of different offenses.”); see also People v.

7 Pasillas-Sanchez, 214 P.3d 520, 530 (Colo. App. 2009) (The district

court did not abuse its discretion by denying a request for a severed

trial in part because the defendant “ha[d] not specifically pointed

. . . to any occasion on which the joint trial of the issues resulted in

any actual prejudice against him.”).

¶ 15 Second, Welker did not establish that the jury was unable to

separate the facts and legal principles applicable to each offense.

Importantly, the Colorado Supreme Court has recognized that

prejudice suffered as a result of a unitary trial can be mitigated

through jury instructions. See Kembel, ¶ 49 (“We realize . . . the

potential for prejudice to a defendant in a unitary trial. But . . .

that potential can be largely neutralized through limiting jury

instructions.”); see also Fullerton, 525 P.2d at 1168.

¶ 16 The district court properly instructed the jurors regarding its

consideration of the evidence and the counts: (1) “[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”; (2) “[t]he fact

that you may find the defendant guilty or not guilty of one of the

offenses charged[] should not control your verdict as to any other

8 offense charged against the defendant”; and (3) evidence of prior

convictions “has been admitted for a limited purpose” and “can only

be used to determine whether the prosecution has met its burden

with regard to element 5 of Driving Under the Influence or element

5 of the lesser included offense of Driving While Ability Impaired.”

See Bondsteel, 2019 CO 26, ¶ 62; Robinson, 187 P.3d at 1175;

People v. Dembry, 91 P.3d 431, 436 (Colo. App. 2003); Rosa, 928

P.2d at 1374; Wortham, 690 P.2d at 878. Absent evidence to the

contrary, we presume the jurors followed these instructions. See

Johnson v. People, 2019 CO 17, ¶ 16; People v. Curtis, 2014 COA

100, ¶ 23.

¶ 17 Third, the evidence against Welker was strong. See

Washington, ¶ 29; Bondsteel, 2019 CO 26, ¶ 64. Indeed, Welker

acknowledges in his briefing that the prosecution presented

evidence establishing that “[a]t the time of his arrest, Mr. Welker

was under a restraining order prohibiting him from the use of

alcohol, [he] had a suspended license, and he had three prior

convictions for driving while intoxicated.” The jury also viewed an

officer’s body camera footage of Welker’s arrest and learned that he

had refused roadside or chemical testing.

9 ¶ 18 Fourth, we are not convinced that the factual, evidentiary, or

legal complexity of each count was so great as to cause juror

confusion. See Bondsteel, 2015 COA 165, ¶ 54 (“The [two cases

consolidated for trial] involved distinct facts and some different legal

theories. But the facts and legal theories were not so complex as to

suggest a risk of jury confusion.”); Wortham, 690 P.2d at 878 (The

district court did not abuse its discretion by denying the request to

sever counts in part because “the facts relating to each were not

complex.”).

¶ 19 Finally, the jury’s acquittal of Welker on the felony DUI count

and its conviction on the lesser included offense of driving while

ability impaired reflects that the jury was able to properly consider

the charges. See Bondsteel, 2019 CO 26, ¶ 62 (The jury’s acquittal

on some counts and conviction on a lesser included offense

“suggest . . . 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.”); Pasillas-Sanchez, 214 P.3d at 530

(“[T]he jury returned a verdict on second degree murder, as opposed

to first degree murder, indicating it was able to separate the

different legal principles and apply them to the necessary facts for

10 each offense.”); Dembry, 91 P.3d at 436 (The defendant did not

demonstrate that the district court abused its discretion in part

because “the jury did not convict [the] defendant of attempted

manslaughter, but of the lesser included offense of reckless

endangerment.”).

IV. Disposition

¶ 20 The judgment of conviction is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.