Even though nearly seven months passed between the defendant’s arrest and the filing of criminal charges, Colorado’s second-highest court determined a Jefferson County judge was wrong to dismiss the case and ordered him to resume the drug-related proceedings.

Under Colorado law, prosecutors are required to bring charges together in a single case if a defendant commits multiple offenses in the same jurisdiction, the prosecutor is aware of all offenses at the outset and the offenses arise from the “same criminal episode.”

Known as the “mandatory joinder rule,” the purpose is to avoid serial prosecutions stemming from a single set of events.

In December 2020, Dennis Carl Bothwell broke into a Wheat Ridge home. Police found him disoriented and seemingly intoxicated, so they took him to jail. Once there, Bothwell admitted he recently took the synthetic opioid fentanyl, prompting a trip to the hospital for medical clearance.

A few hours later, Bothwell returned to the jail. During a strip search, sheriff’s personnel found a bag with fentanyl pills.

On Dec. 29, the First Judicial District Attorney’s Office charged Bothwell with trespassing and criminal mischief for his unlawful home entry. He pleaded guilty to a misdemeanor in June 2021 and received a year of probation.

The case prosecutors brought did not include any drug charges. Although the sheriff’s office submitted information on Jan. 27 to the district attorney’s office related to Bothwell’s fentanyl possession, prosecutors did not act until mid-July — six months after the sheriff’s report and seven months after Bothwell’s arrest.

Prosecutor Alexandra Jennings blamed the sheriff’s office and her office’s intake unit for the delay, but argued there was nothing improper about failing to join the two sets of charges in a single case. Bothwell’s conduct on the night of his arrest was not part of the “same criminal episode” because it occurred at different places and times, Jennings contended.

District Court Judge Philip J. McNulty disagreed. The trespassing and the discovery of the drugs happened hours apart in the same jurisdiction, he reasoned, and it would violate the “spirit of that law” to allow the prosecution to bring separate cases.

“Even if the two different police agencies didn’t join the cases together, it was the same district attorney’s office that initiated the prosecutions,” McNulty said. “Had the DA filed this sooner — and should have known that it should have been filed sooner — these cases could have been joined.”

Applying the mandatory joinder law, McNulty dismissed the drug case.

On appeal, the district attorney’s office argued Bothwell’s offenses did not involve the same victim, occur in the same location or feature overlapping evidence. The office also denied having knowledge of the drug offense any sooner than mid-July.

“The prosecution acknowledged it hadn’t brought the case earlier out of neglect, not because they lacked prosecutorial knowledge of the several offenses at the commencement of the prosecution,” countered public defender Casey Mark Klekas, noting that Bothwell had just started his probationary sentence and was about to begin a new job when the second case was filed.

A three-judge panel for the Court of Appeals decided there was no need to bring the two cases together, as they did not involve the same criminal conduct.

“The charges in the trespass case arose from Bothwell breaking into a home and damaging a clothing rack inside, whereas the charges in the drug case arose from Bothwell possessing fentanyl when he was searched during booking at the jail,” wrote Judge Jaclyn Casey Brown in the Sept. 14 opinion.

The evidence for each set of charges was not the same, she continued, and the prosecution could have proven guilt in one case independently of the other.

The appeals court ordered McNulty to reinstate the drug charges.

The case is People v. Bothwell.