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People v. Sauser.

2020 COA 174. No. 17CA1233. Criminal Law—Menacing—Aggravated Robbery—Continuance—Affirmative Defense—Duress—Res Gestae—Character Evidence—Right Against Self-Incrimination—Prosecutorial Misconduct—Merger—Lesser Included Offense.

December 31, 2020

Victims J.D. and S.M. were sitting in J.D.’s car in the parking lot of a sports bar. Defendant approached them while brandishing a handgun and demanded that they hand over everything they had. Defendant ran off after taking a few dollars. A jury found defendant guilty of two counts of menacing and one count of aggravated robbery.

On appeal, defendant contended that the trial court abused its discretion by denying his request for a continuance, on the morning of trial, to allow him additional time to investigate possible DNA evidence on the handgun. However, the new evidence was merely speculative (defendant hoped to obtain evidence that might confirm J.D. had touched the gun), and such evidence would only indirectly and weakly support defendant’s testimony that J.D. coerced him into robbing J.D. and S.M. and would not shed light on why J.D. handled the gun or whether defendant acted under duress. Thus, the trial court did not abuse its discretion in denying defendant’s continuance request.

Defendant next asserted that the trial court abused its discretion by limiting his testimony in support of his affirmative defense of duress, contending the excluded testimony was admissible res gestae evidence. Because the proposed testimony concerned a separate incident between defendant and J.D., the trial court did not abuse its discretion by deciding that the excluded testimony was not admissible res gestae. Further, to the extent the excluded testimony was relevant, its relevance was outweighed by the danger of unfair prejudice. In addition, the trial court did not abuse its discretion by ruling that the excluded testimony was inadmissible under CRE 404(b). Finally, the trial court did not preclude defendant from presenting his duress defense because it did not completely limit his testimony, and the jury heard sufficient evidence to find that defendant acted under duress in complying with J.D.’s orders if it were to believe defendant’s testimony.

Defendant also argued that the trial court erred by allowing the prosecutor to ask defendant, in the presence of the jury, a question allegedly probative of defendant’s character for untruthfulness to which the trial court and the prosecutor knew defendant would respond by invoking his right against self-incrimination. Although the trial court abused its discretion by permitting the prosecutor to ask the question, the error was harmless because the question did not mention the pending criminal charge against defendant in another case, and the topic was not mentioned again during trial.

Defendant further contended that the prosecutor engaged in prosecutorial misconduct. Here, the prosecutor did not commit plain error by using a puzzle analogy to explain reasonable doubt to the jury or by referring to defendant’s testimony as his “story.” And even if it were misconduct for the prosecutor to ask defendant a question that the prosecutor knew defendant would respond to by asserting his right against self-incrimination, the question did not influence the verdict or affect the fairness of the trial and thus did not require reversal.

Defendant also argued that the cumulative effect of the alleged errors deprived him of a fair trial. However, as discussed above, there was no cumulative error here.

Lastly, defendant argued that felony menacing is a lesser included offense of aggravated robbery and his felony menacing convictions must be vacated. However, felony menacing is not a lesser included offense of aggravated robbery. Therefore, defendant’s felony menacing convictions don’t merge into his aggravated robbery conviction.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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