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

Docket NºCourt of Appeals No. 17CA1233
Citation2020 COA 174
Case DateDecember 31, 2020
CourtCourt of Appeals of Colorado

2020 COA 174

The People of the State of Colorado, Plaintiff-Appellee,
v.
Ian Jed Sauser, Defendant-Appellant.

Court of Appeals No. 17CA1233

COLORADO COURT OF APPEALS

December 31, 2020


The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY

Criminal LawTrialsContinuance; EvidenceRes GestaeCharacter EvidenceOther Crimes Wrongs or ActsEvidence of Character and Conduct of Witness; Constitutional LawFifth AmendmentRight Against Self-Incrimination

A division of the court of appeals considers for the first time whether a trial court errs by (1) denying a defendant's last-minute request for a continuance to attempt to locate evidence that may not exist and (2) permitting a prosecutor to ask a defendant, in the jury's presence, a question on cross-examination, unrelated to the topics addressed during direct examination, to which the trial court and the prosecutor know the defendant will respond by invoking the right against self-incrimination. The division holds that the trial court did not err by denying the defendant's motion for continuance. The division further holds that, although the trial

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court erred by allowing the prosecutor to compel the defendant to invoke his right against self-incrimination in front of the jury, the error was harmless. Accordingly, the division affirms the trial court's judgment.

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Larimer County District Court No. 16CR2179
Honorable Stephen E. Howard, Judge

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur

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

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¶ 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 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

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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);

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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

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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

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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 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 (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

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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

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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.

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1 practice notes
  • People v. Johnson, Court of Appeals No. 18CA1212
    • United States
    • Colorado Court of Appeals of Colorado
    • July 29, 2021
    ...Hagos , ¶ 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 t......
1 cases
  • People v. Johnson, Court of Appeals No. 18CA1212
    • United States
    • Colorado Court of Appeals of Colorado
    • July 29, 2021
    ...Hagos , ¶ 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 t......

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