People v. Sauser, Court of Appeals No. 17CA1233

Docket NºCourt of Appeals No. 17CA1233
Citation490 P.3d 1018
Case DateDecember 31, 2020
CourtCourt of Appeals of Colorado

490 P.3d 1018

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Ian Jed SAUSER, Defendant-Appellant.

Court of Appeals No. 17CA1233

Colorado Court of Appeals, Division VII.

Announced December 31, 2020


Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 Defendant, Ian Jed Sauser, appeals from a judgment of conviction entered on a jury verdict finding him guilty of two counts of menacing and one count of aggravated robbery. Sauser's six appellate arguments include two issues of first impression in this state — whether a trial court abuses its discretion by denying a defendant's last-minute request for a continuance to search for evidence that may not exist, and whether a trial court may allow a prosecutor, in the presence of the jury, to ask a defendant a question on cross-examination, unrelated to any topic addressed during direct examination, that the trial court and the prosecutor know the defendant will respond to by invoking the right against self-incrimination.

¶ 2 We hold that the trial court did not abuse its discretion by denying Sauser's motion for continuance; determine that allowing the prosecutor's question, while improper, constituted harmless error; and disagree

490 P.3d 1024

with Sauser's other contentions of error. As a result, we affirm.

I. Background

¶ 3 Sauser brandished a distinctive handgun at J.D. and S.M. while the victims were sitting in J.D.’s car in the parking lot of a sports bar. Sauser demanded that J.D. and S.M. hand over "everything that [they] had." Sauser ran off after taking a few dollars.

¶ 4 S.M. told a security guard patrolling the area that Sauser had a gun, took a couple of dollars, asked about drugs, and ran away. The security guard called 911 and searched the property. After spotting Sauser, the security guard pursued him and restrained him until the police arrived.

¶ 5 A police officer took Sauser into custody. The security guard and a police officer searched the property for the distinctive handgun. The security guard found the gun in a dumpster.

¶ 6 Sauser was charged with

1. aggravated robbery against J.D. in violation of section 18-4-302(1)(b), C.R.S. 2020 (aggravated robbery with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon);

2. menacing against J.D. in violation of section 18-3-206(1)(a)-(b), C.R.S. 2020;

3. menacing against S.M. in violation of section 18-3-206(1)(a)-(b) ;

4. aggravated robbery against S.M. in violation of section 18-4-302(1)(b) ;

5. aggravated robbery against J.D. in violation of section 18-4-302(1)(d) (aggravated robbery with an article used or fashioned in a manner to lead any person reasonably to believe it to be a deadly weapon); and

6. aggravated robbery against S.M. in violation of section 18-4-302(1)(d).

¶ 7 The jury convicted Sauser of counts 2, 3, 4, and 6, but acquitted him of counts 1 and 5. At sentencing, the trial court merged count 6 into count 4. The court sentenced Sauser to ten years in the custody of the Department of Corrections for count 4, three years for count 2, and three years for count 3. The trial court ordered Sauser to serve the sentences concurrently.

¶ 8 Sauser raises six arguments on appeal. First, he contends that the trial court reversibly erred by denying his motion for a continuance on the morning of trial. Second, he asserts that the trial court erred by limiting his testimony in support of his affirmative defense of duress. Third, Sauser argues that the trial court erred by allowing the prosecutor to ask Sauser, in the presence of the jury, a question allegedly probative of Sauser's character for untruthfulness to which the trial court and the prosecutor knew Sauser would invoke his right against self-incrimination. Fourth, he contends the prosecutor engaged in prosecutorial misconduct. Fifth, he claims that the alleged cumulative errors require reversal. And sixth, he argues that the felony menacing convictions merge into the aggravated robbery conviction.

¶ 9 We affirm.

II. Sauser's Motion for a Continuance

¶ 10 Sauser contends that the trial court abused its discretion by denying his request on the morning of trial for a continuance to allow him additional time to marshal potential DNA evidence. Specifically, Sauser argues that, by denying the continuance, the court "effectively prohibited [him] from presenting evidence material to his defense." We disagree.

A. Standard of Review

¶ 11 We review the denial of a continuance for an abuse of discretion. People v. Villano , 181 P.3d 1225, 1228 (Colo. App. 2008). A trial court abuses its discretion when its denial of a continuance is "arbitrary or unreasonable and materially prejudiced the defendant." People v. Brown , 2014 CO 25, ¶ 19, 322 P.3d 214, 219 (quoting United States v. Simpson , 152 F.3d 1241, 1251 (10th Cir. 1998) ). A defendant must demonstrate actual prejudice to establish that the trial court abused its discretion by denying his or her motion for a continuance. People v. Pratarelli , 2020 COA 33, ¶ 39, 471 P.3d 1177, 1184. "Absent an abuse of discretion that results in injustice, the decision to grant a continuance is left to the sound discretion of

490 P.3d 1025

the trial court." People v. Scales , 763 P.2d 1045, 1048 (Colo. 1988).

¶ 12 There are no "mechanical tests" for determining when the denial of a continuance constitutes an abuse of discretion. People v. Hampton , 758 P.2d 1344, 1353 (Colo. 1988). Rather, an appellate court must consider the totality of the circumstances and pay particular attention to "the reasons presented to the trial judge at the time the request is denied." Id. at 1353-54 (quoting Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) ).

B. Additional Facts

¶ 13 Sauser testified that, at the time of the incident in the parking lot, he was acting under duress because J.D. had threatened him with dire consequences if he did not follow J.D.’s orders. Sauser testified that J.D. had earlier ordered him to get in J.D.’s car and pick up a weapon at Sauser's home. He said he complied with the order because of J.D.’s threats and handed J.D. the distinctive handgun.

C. The Trial Court Did Not Abuse Its Discretion by Denying Sauser's Last-Minute Motion for a Continuance

¶ 14 At a hearing conducted eight days before trial, defense counsel advised the court there were no pending motions and announced that Sauser was ready for trial. But, on the morning of trial, defense counsel moved for a continuance, claiming he needed more time to investigate possible DNA evidence on the handgun that Sauser had handed to J.D. First, defense counsel said he "wanted to investigate the [handgun] to see if there's DNA evidence of another person" on it. (Emphasis added.) Second, assuming the handgun contained DNA evidence, defense counsel said that "one of the alleged victims [i.e., J.D.] had actually had that gun in his possession at one time and ... his DNA would probably appear on that firearm." (Emphasis added.) Defense counsel asserted that Sauser's affirmative defense of duress would be strengthened if the handgun was found to contain DNA evidence.

¶ 15 The prosecutor responded that this was the first time defense counsel had requested DNA testing of the handgun and that a continuance was unwarranted. The prosecutor asserted that, even if testing revealed DNA on the handgun, such evidence would not be determinative of Sauser's coercion theory because "all of the evidence puts the [handgun] in [Sauser's] hand."

¶ 16 The court denied the motion for continuance, noting that defense counsel had made the request for DNA testing "more than a little belatedly," the jury was present in the courthouse, defense counsel had not previously made such a request, and the evidence did not appear essential to the issues in the case.

¶ 17 On appeal, Sauser contends that, by denying his motion for continuance, the trial court deprived him of "an opportunity to develop evidence that would have all but assured his acquittal," citing to People v. Gagnon , 703 P.2d 661 (Colo. App. 1985), and People v. McCabe , 37 Colo. App. 181, 546 P.2d 1289 (1975). We are not persuaded.

¶ 18 Both Gagnon and McCabe involved requests for continuance to obtain evidence that indisputably either would soon come into existence or already existed. In Gagnon , the defendant requested a continuance of his trial until a witness's conviction became final so the defense could impeach the witness on cross-examination. 703 P.2d at 662. The division held that the trial court abused its discretion by not granting the continuance because "the opportunity of the defendant to discredit [the witness's] testimony was an essential part of [the defendant's] case." Id. at 663.

¶ 19 In McCabe , the defendant moved for a continuance because "key alibi witnesses who had been scheduled to testify for the defense had unexpectedly proved unable" to travel to Colorado for the trial. 37 Colo. App. at 182, 546 P.2d at 1290. The division held that the trial court abused its discretion by denying...

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1 practice notes
  • People v. Johnson, Court of Appeals No. 18CA1212
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Julio 2021
    ...12, 288 P.3d at 119 (quoting 498 P.3d 165 Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) ); see People v. Sauser , 2020 COA 174, ¶ 75, 490 P.3d 1018, 1033 (holding that any error resulting from a single, fleeting reference to inadmissible evidence was harmless). Thus, even if the court e......
1 cases
  • People v. Johnson, Court of Appeals No. 18CA1212
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Julio 2021
    ...12, 288 P.3d at 119 (quoting 498 P.3d 165 Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) ); see People v. Sauser , 2020 COA 174, ¶ 75, 490 P.3d 1018, 1033 (holding that any error resulting from a single, fleeting reference to inadmissible evidence was harmless). Thus, even if the court e......

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