Beller shot and killed a man during a drug deal. He was tried for felony murder and two counts of aggravated robbery. The aggravated robbery charges, together with the non-charged offenses of attempted aggravated robbery, robbery, and attempted robbery, served as predicate offenses underlying the felony murder count. During Beller’s first trial, the jury acquitted him of both aggravated robbery counts but hung on the felony murder count. In his second trial for felony murder, robbery and attempted robbery served as the predicate offenses. Several witnesses testified about a codefendant’s hearsay statements made the night of the shooting. The codefendant was unavailable. The jury found Beller guilty of felony murder.

On appeal, Beller argued that his retrial for felony murder violated the Double Jeopardy Clause because the first jury found him not guilty of aggravated robbery. The People prosecuted Beller for felony murder and the aggravated robberies through the same information in the same case. The first jury expressly acquitted Beller of aggravated robbery, only one of the four predicate offenses. Therefore, jeopardy did not terminate on the felony murder count after Beller’s first trial and the Double Jeopardy Clause did not preclude retrial on that count for the other predicate offenses.

Beller further argued that the first jury’s verdicts acquitted him of aggravated robbery and the lesser included offenses and therefore the Double Jeopardy Clause precluded further litigation over the predicate offenses in his second trial. Issue preclusion prevents the prosecution from relitigating any issues that a jury necessarily decided through a not guilty verdict in a previous trial. Here, the acquittal on the aggravated robbery charges did not necessarily decide whether Beller engaged in simple or attempted robbery. Thus, issue preclusion did not bar his second trial.

Beller next argued that the trial court violated the hearsay rules and his confrontation rights when it admitted several statements that the unavailable witness made to other witnesses. The statements at issue were properly admitted under the statements against interest exception.

The judgment was affirmed.

Possession of a Controlled Substance—“Wobbler” Statute—Surcharge—Sentence—Felony—Misdemeanor—Inability to Pay.

DeBorde pleaded guilty to one count of possession of a controlled substance, a level 4 drug felony. The court imposed a mandatory $1,500 felony drug offender surcharge as part of his sentence. When DeBorde completed his community corrections sentence, the court vacated his felony conviction and entered a conviction for a class 1 misdemeanor.

On appeal, DeBorde contended that once his conviction was reduced to a misdemeanor, the court should have likewise reduced his drug offender surcharge to the misdemeanor amount of $1,000. CRS § 18-1.3-103.5(2)(a), the “wobbler” statute, contemplates vacation of only the felony conviction, not the sentence. Accordingly, the amount of the drug offender surcharge was properly determined by the initial conviction.

DeBorde also argued that the district court should have waived all or part of the felony drug offender surcharge based on a finding that DeBorde was unable to pay it. While evidence in the presentence report may have supported a finding of DeBorde’s present inability to pay, there was no evidence in the record of DeBorde’s future inability to pay the surcharge. Further, DeBorde had an opportunity to supplement the record with additional evidence of his inability to pay, but he declined the district court’s invitation to do so.

Lastly, DeBorde contended that under the wobbler statute, the court erred by placing the burden on him to show his entitlement to the misdemeanor conviction in place of the felony conviction. The Court concluded this claim was moot because DeBorde was already granted relief on his motion to apply the wobbler statute.

The judgment was affirmed.