v. Sauser , 2020 COA 174 ( 2021 )

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
December 31, 2020
2020COA174
No. 17CA1233, People v. Sauser — Criminal Law — Trials —
Continuance; Evidence — Res Gestae — Character Evidence —
Other Crimes Wrongs or Acts — Evidence of Character and
Conduct of Witness; Constitutional Law — Fifth Amendment —
Right 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
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.
COLORADO COURT OF APPEALS 2020COA174
Court of Appeals No. 17CA1233
Larimer County District Court No. 16CR2179
Honorable Stephen E. Howard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ian Jed Sauser,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur
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
¶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
1
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);
2
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
3
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
4
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
5
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
6
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.
7
¶ 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 the
continuance because the witnesses’ “testimony was plainly material
and essential to the defense.” Id. at 183-84, 546 P.2d at 1291.
¶ 20 The facts in Gagnon and McCabe are distinguishable from the
facts presented here. Unlike the defendants in those cases, Sauser
did not seek a continuance to obtain evidence he knew would soon
come into existence or already existed. Sauser did not know
8
whether the distinctive handgun contained any DNA evidence,
much less whether it contained DNA evidence from J.D. Rather, he
sought the continuance in the hope of obtaining evidence that
might confirm that J.D. had touched the gun. Defense counsel
merely “suspect[ed] there may be DNA evidence on the [handgun].”
¶ 21 Moreover, even if the handgun contained J.D.’s DNA, such
evidence would only indirectly and weakly support Sauser’s
testimony that J.D. coerced him into robbing J.D. and S.M. The
presence of J.D.’s DNA on the handgun would not shed light on
why J.D. handled the handgun or whether Sauser acted under
duress when he pointed the handgun at J.D. and S.M. (Sauser
indeed testified that J.D. coerced him into robbing J.D. and S.M.
Sauser responded affirmatively to the prosecutor’s question, “You
were being threatened by the man sitting on the other side of the
[car] door and you have a loaded firearm on you; is that true?”
Sauser further testified that “[J.D.] was the sole perpetrator, and he
basically was the one who wanted to get value from what was going
on.”)
¶ 22 Sauser does not point us to, and we have not located, any
Colorado case addressing whether a trial court abuses its discretion
9
by denying a last-minute motion for a continuance to allow the
defense to attempt to search for evidence that may not exist.
Sauser’s counsel merely speculated that the handgun contained
J.D.’s DNA — or any DNA evidence, for that matter. Thus, defense
counsel did not seek the continuance to obtain evidence he knew
would soon come into existence or already existed. Moreover, he
did not ask for the continuance to locate evidence that would
materially impact the prosecution’s ability to disprove his duress
theory.
¶ 23 We hold that a trial court does not abuse its discretion by
denying a defendant’s motion for a continuance on the morning of
trial to hunt down new evidence that may not exist, particularly
where the potential evidence would not materially impact the
prosecution’s ability to disprove an affirmative defense. Cf. Gagnon,
703 P.2d at 663; McCabe, 37 Colo. App. at 183-84, 546 P.2d at
1291.
¶ 24 Thus, we perceive no abuse of discretion in the trial court’s
denial of Sauser’s motion for a continuance.
10
III. The Trial Court’s Exclusion of Portions of Sauser’s Testimony
¶ 25 Sauser next contends that the trial court abused its discretion
by excluding portions of his testimony (the excluded testimony) that
he argues supported his duress defense. Sauser argues that, by
disallowing the excluded testimony, the trial court deprived him of
his constitutional right to present a defense. We disagree.
¶ 26 We first turn to Sauser’s evidentiary arguments concerning the
trial court’s ruling on the excluded testimony. In Part III.E, we
address his argument that the ruling also violated his constitutional
right to present a defense.
A. Standard of Review
¶ 27 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Quintana, 882 P.2d 1366, 1371 (Colo. 1994).
And “we review nonconstitutional trial errors that were preserved by
objection for harmless error.” Hagos v. People, 2012 CO 63, ¶ 12,
288 P.3d 116, 119; Tevlin v. People, 715 P.2d 338, 341 (Colo. 1986).
The parties agree that Sauser preserved his objections to the trial
court’s ruling on the excluded testimony.
11
B. Additional Facts
¶ 28 Sauser elected to testify in his own defense. He testified that,
when he and a friend went to J.D.’s house, J.D. “greeted them”
angrily and wielded a metal baseball bat. The prosecutor objected
and the court asked the parties to approach.
¶ 29 During the sidebar conference, defense counsel told the court
that Sauser would testify that J.D. threatened him with a baseball
bat and a saw blade while Sauser was at J.D.’s house. He said
Sauser would further testify that J.D. demanded that Sauser rob
S.M. and threatened that, if Sauser refused to follow J.D.’s orders,
J.D.’s friends and family, who were members of a “cartel,” would
hurt Sauser, his friends, and his family. The court sustained the
objection regarding the statements concerning the baseball bat and
saw blade.
¶ 30 The court then requested a proffer of Sauser’s testimony out of
the jury’s presence. During the proffer, Sauser said that, when he
and his friend were at J.D.’s house, J.D. claimed that drugs were
missing from the house and accused them of stealing the drugs.
Sauser further said that J.D. made Sauser and his friend search for
the allegedly missing drugs at his friend’s house.
12
¶ 31 After the proffer of Sauser’s testimony, the court ruled that
Sauser’s testimony “about being threatened about missing drugs,”
like the testimony about the baseball bat and saw blade, was
inadmissible. Although the court’s ruling primarily rested on CRE
404(b), the court also referred to relevance, res gestae, and hearsay:
I have a great deal of concern about whether
any of his testimony would be relevant in any
way. . . . I’m going to rule inadmissible
testimony about being threatened about
missing drugs. I do think that’s 404(b). I do
think . . . there was no 404(b) notice. I don’t
think it should be allowed. I think that to the
extent there is relevance — and there may be
some minimal relevance to the case at hand —
that it’s certainly outweighed by the danger of
unfair prejudice.
The issue then becomes at what point does it
— are we really dealing with this particular
incident or the res gestae of this particular
incident? I do think it’s — there are a lot of
hearsay statements in here, and I guess the
issue is that I need to resolve how much of
that is really being offered for a purpose other
than the truth of the matter asserted.
¶ 32 The court did not exclude the entirety of Sauser’s testimony
about his encounters with J.D., however. The court allowed Sauser
to testify that
• he returned to J.D.’s house without his friend;
13
• when he was at J.D.’s house, J.D. pulled out a handgun
and demanded that Sauser pick up a weapon at Sauser’s
home;
• after Sauser retrieved his father’s distinctive handgun
from his home, J.D. ordered Sauser to give it to him and
that, when Sauser handed over his father’s handgun,
J.D. had two handguns;
• Sauser went to the sports bar with J.D. in J.D.’s car, as
J.D. ordered;
• J.D. told Sauser to wait outside the bar, that someone
was watching him, and that if he attempted to leave, he
would be “cut out”;
• outside the bar, J.D. returned the distinctive handgun to
Sauser and told him to wait for S.M. to pull up; walk up
to the driver’s side window of J.D.’s car, where J.D. and
S.M. would be sitting; and ask for everything he and S.M.
had;
• J.D. claimed his family was “cartel-related”; and
14
• Sauser felt threatened by J.D. and that he had to “follow
through with anything [J.D.] was telling [him] to do for
the sake of [Sauser’s] family and [his] friends.”
¶ 33 We first analyze the trial court’s evidentiary ruling through the
lens of the res gestae doctrine because Sauser contends that the
excluded testimony was admissible res gestae evidence. Second, we
review whether the court correctly decided that the excluded
testimony was inadmissible under CRE 404(b), on which the court
primarily rested its decision.
C. Res Gestae
1. Applicable Law
¶ 34 Res gestae is evidence that is “generally linked in time and
circumstances with the charged crime, forms an integral and
natural part of an account of a crime, or is necessary to complete
the story of the crime for the jury.” People v. Greenlee, 200 P.3d
363, 368 (Colo. 2009) (quoting Quintana, 882 P.2d at 1373). Res
gestae provides “the fact-finder with a full and complete
understanding of the events surrounding the crime and the context
in which the charged crime occurred.” People v. Yachik, 2020 COA
15100, ¶ 23, 469 P.3d 582, 587 (quoting People v. Martinez, 24 P.3d
629, 633 (Colo. App. 2000)).
¶ 35 Res gestae evidence is admissible “if it is relevant and if its
probative value is not substantially outweighed by the danger of
unfair prejudice.” Id. at ¶ 24, 469 P.3d at 587; see CRE 403. (Our
supreme court recently agreed to review the continued viability of
the res gestae doctrine in this state. See Rojas v. People, No.
20SC399, 2020 WL 5997143 (Colo. Oct. 6, 2020) (unpublished
order) (granting certiorari to decide, in part, whether the court
“should abolish the res gestae doctrine”). We analyze the res gestae
issue under the law as it currently stands, however, because we are
bound by the Colorado precedent applying the doctrine and neither
party challenges the viability of the doctrine.)
2. Analysis
¶ 36 Sauser argues that the excluded testimony was admissible res
gestae evidence for two reasons. First, he contends it provided
context for the alleged robbery. Second, he argues the jury could
not fairly evaluate Sauser’s duress defense without hearing about
J.D.’s specific threats against him.
16
¶ 37 As noted above, the trial court briefly mentioned res gestae
when determining whether the excluded testimony was admissible.
To the extent the trial court analyzed the excluded testimony as res
gestae, we discern that the trial court found that the excluded
testimony was not res gestae because it was not generally linked in
time or circumstances to the incident in the parking lot.
Specifically, the trial court concluded that the excluded testimony
concerned a “separate incident” from the incident in the parking lot.
¶ 38 The court characterized the two incidents as “drug issues.”
According to the court, the first “drug issue” involved “the alleged
missing drugs.” The court said the second “drug issue” was “the
setup with S.M. or to try to get drugs from [S.M.].” The court
clarified that J.D.’s initial threats were part of the first “drug issue”
and were separate from the “drug issue” involving the incident in
the parking lot.
¶ 39 Based on the trial court’s explanation for its ruling on the
excluded testimony, we hold that the trial court did not abuse its
discretion by deciding that the excluded testimony was not
admissible res gestae. Under the res gestae doctrine, a separate
incident is one that is not “generally linked in time and
17
circumstances with the charged crime.” Greenlee, 200 P.3d at 368
(quoting Quintana, 882 P.2d at 1373); see also People v. Trujillo,
2014 COA 72, ¶ 69, 338 P.3d 1039, 1051 (“Other act evidence
differs from res gestae evidence because it ‘generally occurs at
different times and under different circumstances from the charged
offense.’” (quoting Quintana, 882 P.2d at 1372)).
¶ 40 The trial court also considered whether, for purposes of the res
gestae analysis, the danger of unfair prejudice outweighed the
probative value of the excluded testimony. After the trial court
explained that the excluded testimony involved a “separate
incident,” the trial court said that, “to the extent [the excluded
testimony is] relevant, . . . the relevance is outweighed by the
danger of unfair prejudice.”
¶ 41 The court apparently determined that, if the jury heard the
excluded testimony, it might hand down a verdict based on animus
against J.D. — one of the alleged victims — due to J.D.’s possession
of drugs, the handgun, and the saw blade. Further, the evidence
that J.D. possessed those items, even if relevant, was only
minimally probative of whether J.D. had forced Sauser to rob him
and S.M. At most, it had only a slight tendency to make the
18
existence of the facts underlying Sauser’s duress defense “more
probable or less probable than [they] would be without the
evidence.” CRE 401; see People v. Skufca, 176 P.3d 83, 86 (Colo.
2008) (“To be admissible, res gestae evidence must also be relevant
under CRE 401, which means that it must tend to ‘make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable.’”).
¶ 42 Further, we disagree with Sauser’s argument that the trial
court’s ruling on the excluded testimony effectively barred him from
presenting his affirmative defense of duress. As noted above, the
trial court permitted Sauser to tell the jury about several of J.D.’s
threats, including the threats that, according to Sauser, coerced
him into retrieving the distinctive handgun, giving the handgun to
J.D., accompanying J.D. to the sports bar, and demanding money
from S.M. and J.D. while they sat in J.D.’s car. The jury thus heard
sufficient evidence to find that Sauser acted under duress in
complying with J.D.’s orders — if the jury believed Sauser’s
testimony.
¶ 43 Thus, even if the excluded testimony was res gestae evidence,
it was inadmissible because its prejudicial effect substantially
19
outweighed its minimal probative value. See CRE 403; see also
Yachik, ¶ 24, 469 P.3d at 587; People v. Gladney, 250 P.3d 762, 768
(Colo. App. 2010).
¶ 44 We therefore conclude that the trial court did not abuse its
discretion by holding that the excluded testimony was not
admissible as res gestae evidence.
D. Colorado Rule of Evidence 404(b)
1. Applicable Law
¶ 45 In contrast to res gestae evidence, “‘[o]ther act’ evidence . . .
generally occurs at different times and under different
circumstances from the charged offense.” Quintana, 882 P.2d at
1372 (emphasis added). CRE 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident, provided that upon request by the
accused, the prosecution in a criminal case
shall provide reasonable notice in advance of
trial . . . .
(Emphasis added.)
20
¶ 46 A trial court must apply a four-part test before determining
that evidence of other crimes, wrongs, or acts is admissible under
CRE 404(b). People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
The trial court must determine that (1) the evidence relates to a
material fact; (2) the evidence is logically relevant; (3) the logical
relevance is independent of the intermediate inference that the
person was acting in conformity with his bad character; and (4) the
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice. Id. “‘[E]vidence is properly
designated’ as other act evidence if it ‘involves a separate and
distinct episode wholly independent from the offense charged,’ even
if it is ‘similar in nature’ to the charged offense.” Trujillo, ¶ 69, 338
P.3d at 1051 (quoting Quintana, 882 P.2d at 1372).
2. Analysis
¶ 47 As noted above, the trial court analyzed the excluded
testimony under CRE 404(b) after finding it could not be res gestae
evidence because it concerned a separate “drug incident” from the
“drug incident” in the parking lot.
¶ 48 Although Sauser contends that CRE 404(b) only bars other act
evidence that could prejudice the jury against the defendant, CRE
21
404(b) is not limited to evidence of the defendant’s other acts. It
also allows courts to exclude evidence that could prejudice the jury
against other persons. See People v. Harris, 892 P.2d 378, 381
(Colo. App. 1994) (“[S]ince the plain language of CRE 404(b) refers
to character evidence of a ‘person,’ it cannot be construed only to
apply to the prior acts of an ‘accused.’”). “CRE 404(b) is not, on its
face, limited to evidence offered by the prosecution regarding similar
acts committed by the defendant.” People v. Elmarr, 2015 CO 53,
¶ 36, 351 P.3d 431, 440. Although we apply a “more lenient
standard of admissibility” for a defendant’s other act evidence than
for prosecution-proffered other act evidence, “CRE 404(b) principles
have guided this case-by-case analysis — if not expressly, then at
least implicitly.” Id. at ¶ 39, 351 P.3d at 441.
¶ 49 Even if CRE 404(b) applies to potential prejudice against
nonparty witnesses, Sauser argues that CRE 404(b) is inapplicable
because he did not offer the excluded testimony to impugn J.D.’s
character or suggest that J.D. acted in conformity with a bad
character, but, rather, to “explain[] why J.D. coerced Sauser into
committing a robbery.”
22
¶ 50 The trial court’s analysis of the admissibility of the excluded
testimony under CRE 404(b) and the Spoto test largely overlapped
with its analysis of the excluded testimony under the res gestae
rubric. As explained above, in considering whether the excluded
testimony was admissible under the res gestae doctrine, the trial
court found that it was, at most, minimally probative of whether
Sauser had acted under duress in the parking lot. Similarly, in
conducting its CRE 404(b) and Spoto analysis, the trial court found
that the excluded testimony did not relate to a material fact and
was minimally relevant, if relevant at all.
¶ 51 The prosecutor argued that Sauser’s testimony about the
allegedly missing drugs and baseball bat involved earlier threats
that J.D. had allegedly made to Sauser and, thus, was not
admissible to prove that J.D. acted in conformity with those threats
at the time of the incident in the parking lot. The trial court agreed,
holding that Sauser’s testimony regarding the threats involving the
baseball bat and saw blade was inadmissible other act evidence.
¶ 52 The court acknowledged that all the events “surrounding the
actual incident at [the sports bar]” were not “entirely unrelated,” but
found that evidence of the earlier threats was inadmissible because
23
it was “sufficiently attenuated” from the incident in the parking lot.
As noted above, the trial court found that Sauser’s testimony
regarding J.D.’s possession of drugs, the handgun, and the saw
blade was, at most, only minimally probative of whether Sauser had
acted under duress when he brandished the gun at J.D. and S.M.
and demanded money from them. Further, the trial court found
that the danger of unfair prejudice outweighed the minimal
probative value of the excluded testimony.
¶ 53 For these reasons, we are unpersuaded that the trial court
based its finding that the excluded testimony was inadmissible
under CRE 404(b) on “an erroneous view of the law or a clearly
erroneous assessment of the evidence.” People v. Rojas, 2020 COA
61, ¶ 15, ___ P.3d ___, ___ (cert. granted Oct. 6, 2020).
¶ 54 In light of our holding that the trial court did not abuse its
discretion by ruling that the excluded testimony was inadmissible
under CRE 404(b), we need not address Sauser’s contention that
the trial court erred by holding that the excluded testimony was
also inadmissible because Sauser had not given the prosecution
notice of the testimony under CRE 404(b). See CRE 404(b)
(“provided that upon request by the accused, the prosecution in a
24
criminal case shall provide reasonable notice in advance of trial”)
(emphasis added).
E. Sauser’s Argument Regarding His Constitutional Right to
Present a Defense
¶ 55 Sauser alternatively contends that the trial court violated his
constitutional right to present a complete defense by not allowing
him to present the excluded testimony. (Sauser’s argument refers
to his constitutional rights to testify, present a complete defense,
and due process. These arguments involve a single issue, however
— whether the trial court erred by barring Sauser from presenting
his affirmative defense of duress.) Sauser asserts that we should
review the trial court’s decision on the excluded testimony for
constitutional harmless error.
¶ 56 We agree with the People, however, that Sauser did not
preserve his constitutional argument. Sauser did not raise any
constitutional issues when arguing for the admissibility of the
excluded testimony, nor did he present the trial court with an
opportunity to address any constitutional issues involving such
evidence. See People v. Short, 2018 COA 47, ¶ 53, 425 P.3d 1208,
25
1222. In any event, we hold that the trial court did not preclude
Sauser from presenting his duress defense.
¶ 57 “[T]he standard or test for assessing whether a defendant’s
right to confront or present a defense has been violated by
evidentiary rulings is clearly dependent upon the extent to which he
was permitted to subject the prosecutor’s case to ‘meaningful
adversarial testing.’” Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009) (quoting Crane v. Kentucky, 476 U.S. 683, 691 (1986)).
Thus, the right to present a defense is violated only when a
defendant “was denied virtually his only means of effectively testing
significant prosecution evidence.” Id. But “the right to present a
defense is not absolute; the Constitution requires only that the
accused be permitted to introduce all relevant and admissible
evidence.” People v. Salazar, 2012 CO 20, ¶ 17, 272 P.3d 1067,
1071.
¶ 58 Sauser was not deprived of his ability to present a defense. As
explained in Part III.D.2, the trial court’s ruling on the excluded
testimony did not improperly limit Sauser’s ability to present his
affirmative defense of duress. Rather, the court permitted Sauser to
present evidence supporting every element of duress.
26
¶ 59 The court’s instruction on duress stated:
The defendant’s conduct was legally authorized
if:
1. he engaged in the prohibited conduct at the
direction of another person, because of the
use or threatened use of unlawful force
upon him, and
2. a reasonable person in his situation would
have been unable to resist the use or
threatened use of unlawful force, and
3. he did not intentionally or recklessly place
himself in a situation where it was
foreseeable that he would be subjected to
the use or threatened use of unlawful force.
Sauser provided the jury with evidence that, if the jury believed it,
supported each of these elements.
¶ 60 We disagree with Sauser’s argument that the court’s ruling left
him “with a story that made no sense.” Evidence of J.D.’s previous
threats and the allegedly missing drugs would have expanded on
Sauser’s duress narrative, but was not necessary to make it
coherent. The court allowed the jurors to hear testimony regarding
the facts leading up to the incident in the parking lot and that
Sauser felt scared and threatened if he did not accede to J.D.’s
demands. Therefore, the court’s ruling on the excluded testimony
did not deprive Sauser of “virtually his only means” of effectively
27
presenting a duress affirmative defense. See Krutsinger, 219 P.3d
at 1062.
IV. The Prosecutor’s Question Regarding Sauser’s False Statement
to a Member of the State Patrol
¶ 61 Sauser contends that the trial court abused its discretion by
allowing the prosecutor to ask Sauser a question to which the trial
court and the prosecutor knew Sauser would respond by invoking
his right against self-incrimination in front of the jury. While we
agree that the trial court abused its discretion by permitting the
prosecutor to ask Sauser such a question, we conclude that the
error was harmless.
A. Additional Facts
¶ 62 On cross-examination, in the presence of the jury, the
prosecutor asked Sauser a question allegedly probative of Sauser’s
character for untruthfulness: “[Y]ou were involved with a motor
vehicle crash and lied to the state patrol and gave them your
brother’s name, didn’t you?” Sauser had not testified on direct
examination about the crash or any issue relating to the crash —
the prosecutor’s question did not concern a subject addressed
during direct examination.
28
¶ 63 The court held a bench conference after defense counsel
objected based on relevance. The prosecutor acknowledged that the
question involved an ongoing criminal charge but argued that the
question was nonetheless proper under CRE 608(b) as probative of
Sauser’s character for untruthfulness. The court ruled that it
would allow the question. Defense counsel objected again and
raised the issue of Sauser’s right against self-incrimination.
¶ 64 The court permitted defense counsel to confer with Sauser
about the privilege against self-incrimination but reiterated it would
allow the question because Sauser’s credibility was at issue.
Defense counsel again said that Sauser would assert his right
against self-incrimination if asked the question.
¶ 65 When the jury returned, the prosecutor, knowing that Sauser
would respond by invoking his right against self-incrimination,
asked, “[W]hen you were contacted by the state patrol, you gave
them misleading information, your brother’s name, correct?”
Sauser answered, “On the grounds that this is a pending case, I’m
going to plead the Fifth Amendment.”
29
B. Standard of Review
¶ 66 Although Sauser suggests that the trial court’s decision to
allow the prosecutor’s question violated his constitutional right
against self-incrimination, he primarily challenges the decision as
an abuse of discretion in admitting evidence under CRE 608(b).
Accordingly, we review Sauser’s argument as an evidentiary issue.
See People v. Flockhart, 2013 CO 42, ¶ 20, 304 P.3d 227, 233 (“Only
those errors ‘that specifically and directly offend a defendant’s
constitutional rights are “constitutional” in nature.’”) (citations
omitted); see also People v. Lowe, 969 P.2d 746, 748 (Colo. App.
1998) (“Cross-examination in an effort to impeach the defendant
does not violate his or her Fifth Amendment privilege against self-
incrimination.”). We apply the abuse of discretion standard when
reviewing a trial court’s decision to allow an inquiry into specific
conduct under CRE 608(b). People v. Caldwell, 43 P.3d 663, 670
(Colo. App. 2001); see State v. Culkin, 35 P.3d 233, 246-47 (Haw.
2001) (applying the abuse of discretion standard in holding that the
trial court erred by allowing the prosecutor to elicit the defendant’s
invocation of his right against self-incrimination six times in the
presence of the jury).
30
C. Applicable Law
¶ 67 The United States and Colorado Constitutions protect the
privilege against self-incrimination. See U.S. Const. amend. V;
Colo. Const. art. II, § 18; see also Skufca, 176 P.3d at 85. A
defendant waives the privilege by electing to testify. People v.
McKeel, 246 P.3d 638, 640 (Colo. 2010). CRE 608(b), however,
allows a defendant to invoke the privilege against self-incrimination
in response to questions about prior specific acts that relate only to
the character for truthfulness.
¶ 68 “Neither the prosecution nor the defense . . . has the right to
deliberately and unfairly benefit from any speculative inferences the
jury might draw simply from a witness’ assertions of the privilege.”
People v. Dikeman, 192 Colo. 1, 4, 555 P.2d 519, 521 (1976). The
prosecution “may not call a witness to testify before the jury if it
knows that the witness will claim his privilege against self-
incrimination.” Id. at 3, 555 P.2d at 520.
Otherwise, the refusal of a prosecution witness
to answer certain questions on the ground of
self-incrimination could improperly prejudice
the defendant because it might be interpreted
by the jury as implying the defendant’s guilt.
Moreover, by so inducing the jury to speculate
on matters not in evidence, the prosecutor
31
could manufacture an inference of guilt which
could not be removed by the defendant
through further questioning of the ‘mute’
witness. Fundamental fairness therefore
prohibits a prosecutor from knowingly using a
witness’ claim of privilege to the prosecution’s
advantage.
Id. (citation omitted); see also Battenfield v. State, 816 P.2d 555,
560 (“Under Section 3–5.7(c) of The ABA Standards for Criminal
Justice, The Prosecution Function (1980), ‘[a] prosecutor should not
call a witness who the prosecutor knows will claim a valid privilege
not to testify for the purpose of impressing upon the jury the fact of
the claim of privilege . . . .’”). There is no meaningful distinction
between calling a witness to compel him or her to invoke the right
against self-incrimination in front of the jury, and asking the
witness, on cross-examination in the jury’s presence, a question
unrelated to the topics addressed during direct examination that
the prosecutor knows will result in the witness’s invocation of the
right against self-incrimination.
¶ 69 CRE 608(b) grants trial courts the discretion to allow on cross-
examination inquiry into specific instances of prior conduct that are
probative of the witness’s character for truthfulness or
untruthfulness. A trial court may exclude evidence otherwise
32
admissible under CRE 608(b) if its probative value is substantially
outweighed by the countervailing considerations set forth in CRE
403. See People v. Segovia, 196 P.3d 1126, 1132 (Colo. 2008); see
also CRE 403.
¶ 70 In addition, CRE 608(b) specifically permits a prosecutor to
cross-examine a defendant about a specific instance where the
defendant provided false information to law enforcement. People v.
Gillis, 883 P.2d 554, 561-62 (Colo. App. 1994). A pending criminal
charge against a witness, however, is an improper subject for
impeachment. People v. Pratt, 759 P.2d 676, 682 (Colo. 1988). A
trial court generally should “exclude evidence that has little bearing
on credibility, places undue emphasis on collateral matters, or has
the potential to confuse the jury.” People v. Knight, 167 P.3d 147,
153 (Colo. App. 2006).
D. Analysis
¶ 71 During the bench conference, defense counsel advised the trial
court that Sauser would assert his privilege against
self-incrimination if the prosecutor asked him whether he gave
misleading information to the state patrol in the unrelated case.
Although the trial court properly recognized that Sauser’s credibility
33
was at issue and that the question concerned Sauser’s character for
truthfulness, the court, like the prosecutor, knew Sauser would
respond to the question by invoking his right against
self-incrimination.
¶ 72 We therefore conclude the trial court abused its discretion by
allowing the prosecutor to ask Sauser on cross-examination, in the
presence of the jury, a question unrelated to any topic covered on
direct examination that the trial court and the prosecutor knew
Sauser would respond to by invoking his right against
self-incrimination. See Dikeman, 192 Colo. at 4, 555 P.2d at 520(“The fundamental point is that the exercise of the privilege is not
evidence to be used in the case by any party . . . .” (quoting State v.
Smith, 446 P.2d 571, 581 (1968))); see also People v. Frierson, 808
P.2d 1197, 1203 (Cal. 1991) (“Allowing a witness to be put on the
stand to have the witness exercise the privilege before the jury
would only invite the jury to make an improper inference.”).
¶ 73 Although the trial court abused its discretion, we conclude the
error was harmless for two reasons.
¶ 74 First, although Sauser argues that the prosecutor asked him
about a pending criminal charge, the prosecutor’s question did not
34
refer to a criminal charge. As noted above, the prosecutor asked
Sauser whether he had provided misleading information to a
member of the state patrol. The question did not refer to a pending
charge or suggest that providing misleading information to a
member of the state patrol is a criminal offense. Rather, in
response to the question, Sauser volunteered that “this is a pending
case.” See Gillis, 883 P.2d at 561-62. Sauser, not the prosecutor,
informed the jury that he was facing criminal charges in another
case.
¶ 75 Second, the jury heard only a single, fleeting reference to the
right against self-incrimination — when Sauser responded to the
prosecutor’s question. Cf. Culkin, 35 P.3d at 246-47. After Sauser
invoked his right against self-incrimination, the prosecutor did not
refer to the issue again. In his closing argument, the prosecutor
said nothing about Sauser’s invocation of the right against self-
incrimination. See State v. Feaster, 716 A.2d 395, 433 (N.J. 1998)
(highlighting, in affirming the conviction, the “fleeting nature of the
reference to defendant’s invocation of his right to counsel”).
¶ 76 We also note that the defense did not request a cautionary
instruction after Sauser referred to his right against self-
35
incrimination. See id. Although Sauser refers to a limiting
instruction in his opening brief, he does not contend that the lack
of a cautionary instruction constituted plain error. Sauser’s trial
counsel may have made the strategic decision not to request a
cautionary instruction to avoid drawing special attention to
Sauser’s invocation of his right against self-incrimination. See
People v. Gladney, 194 Colo. 68, 72, 570 P.2d 231, 234 (1977)
(“Defense counsel, for strategic or tactical reasons, may consider
that such an instruction would be more harmful than beneficial.
For example, it might tend to draw special attention to the evidence,
thus giving it greater emphasis and jury impact than it would have
had if left alone.”); Frierson, 808 P.2d at 1204 (“Any benefit of a
cautionary instruction is ‘debatable’ in that it may tend to highlight
the fact it was intended to minimize.”). For these reasons, although
the trial court abused its discretion by allowing the prosecutor to
ask Sauser on cross-examination, in front of the jury, a question
unrelated to the topics covered in direct examination to which the
trial court and the prosecutor knew Sauser would respond by
invoking his right against self-incrimination, we conclude that the
error was harmless. We therefore discern no basis for reversal.
36
V. Prosecutorial Misconduct
¶ 77 Sauser contends that the prosecutors engaged in three
instances of prosecutorial misconduct: (1) compelling Sauser to
invoke his right against self-incrimination in the presence of the
jury; (2) using a puzzle analogy to explain reasonable doubt; and (3)
repeatedly telling the jury that Sauser’s testimony was a “story.”
We are not persuaded that the prosecutors’ actions constituted
prosecutorial misconduct.
A. Standard of Review
¶ 78 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine “whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances.” Id. “We review a trial court’s ruling on
prosecutorial misconduct for ‘a gross abuse of discretion resulting
in prejudice and a denial of justice.’” People v. Camarigg, 2017 COA
115M, ¶ 39, ___ P.3d ___, ___ (quoting People v. Garner, 2015 COA
175, ¶ 26, 439 P.3d 4, 11). Second, we determine “whether such
actions warrant reversal according to the proper standard of
review.” Wend, 235 P.3d at 1096.
37
¶ 79 Where the defense did not object to the prosecutorial
misconduct, the proper standard of review is plain error. Id. at
1097. “An error is plain if it is obvious and substantial and so
undermines the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
People v. Rediger, 2018 CO 32, ¶ 48, 416 P.3d 893, 903.
¶ 80 In contrast, where a defendant objected to a prosecutor’s
improper statements that did not raise a constitutional issue, the
proper standard of review is harmless error. People v. Bowles, 226
P.3d 1125, 1132 (Colo. App. 2009). “Under this standard, reversal
is required only if the error affects the substantial rights of the
parties” by substantially influencing the verdict or affecting the
fairness of the trial. Hagos, ¶ 12, 288 P.3d at 119.
¶ 81 Each step in the harmless error analysis is independent.
Wend, 235 P.3d at 1096. “Thus, an appellate court could find a
prosecutor’s conduct improper, but it could uphold the trial court’s
verdict because the errors were harmless.” Id.
B. The Right Against Self-Incrimination
¶ 82 Sauser asserts that the prosecutor engaged in misconduct
necessitating reversal by compelling Sauser to invoke his right
38
against self-incrimination in front of the jury. We disagree that the
prosecutor’s question that led to Sauser’s invocation of his right
against self-incrimination was reversible error, even if it constituted
prosecutorial misconduct.
¶ 83 The parties have not cited a Colorado case directly addressing
whether it is misconduct for a prosecutor to compel a defendant to
assert his right against self-incrimination in front of the jury on
cross-examination, in response to a question concerning a topic not
covered during direct examination, nor has our research uncovered
one. As discussed in Part IV.D, while a prosecutor may cross-
examine a defendant regarding specific instances of prior conduct
that are probative of the witness’s character for truthfulness or
untruthfulness, Gillis, 883 P.2d at 561-62; see CRE 608(b), a
prosecutor may not call a witness for the purpose of forcing him or
her to invoke the right against self-incrimination in front of the jury.
See De Gesualdo v. People, 147 Colo. 426, 429-33, 364 P.2d 374,
376-78 (1961). Because defense counsel objected to the
prosecutor’s question that Sauser responded to by invoking his
right against self-incrimination, we review for harmless error.
Bowles, 226 P.3d at 1132.
39
¶ 84 For the reasons discussed in Part IV.D, we are unpersuaded
that the question that resulted in Sauser’s invocation of the right
against self-incrimination influenced the verdict or affected the
fairness of the trial. After Sauser responded to the prosecutor’s
question, the jury never again heard about the right against self-
incrimination. Thus, we hold that, even if it was misconduct for the
prosecutor to ask Sauser a question to which the prosecutor knew
Sauser would respond with an assertion of his right against self-
incrimination, the question does not require reversal. See Hagos,
¶ 12, 288 P.3d at 119.
C. Puzzle Analogy
¶ 85 Sauser next asserts that the prosecutors engaged in
misconduct by improperly comparing the reasonable doubt
standard to an incomplete jigsaw puzzle. We do not discern
reversible error.
1. Additional Facts
¶ 86 During voir dire, the prosecutor analogized the reasonable
doubt standard to a puzzle:
Now, reasonable doubt is not vague, it is not
speculative or imaginary. . . . It’s your job to
40
use reason and common sense. Does it make
sense to you?
Now, my — my grandmother used to buy me
those 5,000-piece puzzles. I know some of you
probably got those. You’re shaking your head.
Let’s say you get that box . . . and all it is, it’s
— it drives you crazy when you get it, because
it’s a dolphin with about 4,000 pieces of water
around it. Right? So you know you’re going to
be looking at a hundred different shades of
blue. So you go through and you put together
this puzzle, and you get done and you’re
missing 15, 20 pieces. Can you step back and
look at the big picture and tell me what that
puzzle is? Right? Probably a dolphin, isn’t it?
And I bring that example up . . . because I like
to equate that to reasonable doubt. There may
still be a question here; there still may be a
piece here. And like I said, I don’t have to
prove everything. I might not have to put all
5,000 pieces of that puzzle together, but I’m
asking you to use common sense, take a step
back, and look at the big picture. Do you
think you can do that . . . ?
¶ 87 Another member of the prosecution team referenced the puzzle
analogy in closing argument by stating, “[Y]ou might not have every
single piece, but missing a couple pieces isn’t reasonable doubt.”
Defense counsel did not object to the puzzle analogy either during
voir dire or during closing argument.
41
2. Applicable Law
¶ 88 Lawyers and trial courts should avoid using analogies when
explaining the concept of reasonable doubt to a jury. See People v.
Knobee, 2020 COA 7, ¶¶ 18, 45, ___ P.3d ___, ___ (concluding that
the trial court improperly instructed the jury on reasonable doubt
by analogizing the reasonable doubt standard to buying a home or
choosing doctors) (cert. granted June 29, 2020); see also People v.
Vialpando, 2020 COA 42, ¶¶ 112-115, ___ P.3d ___, ___ (Fox, J.,
concurring in part and dissenting in part) (assuming that the
prosecutor’s analogy of a folded American flag to describe
reasonable doubt was improper, but concluding it was not plain
error) (cert. granted Oct. 12. 2020).
¶ 89 Divisions of this court have specifically held that prosecutors
should avoid using puzzle analogies when explaining reasonable
doubt to a jury. See People v. Van Meter, 2018 COA 13, ¶¶ 31-34,
421 P.3d 1222, 1230-31 (holding that “the prosecutor’s use of a
puzzle analogy, including the display of an incomplete puzzle of the
iconic and easily recognizable space shuttle image, was improper”).
Nonetheless, a prosecutor’s use of a puzzle analogy, without more,
does not require reversal or rise to the level of plain error. See also
42
Camarigg, ¶¶ 44-47, 53, ___ P.3d at ___ (holding that “any
impropriety in the prosecutor’s analogy was harmless beyond a
reasonable doubt”); People v. Carter, 2015 COA 24M-2, ¶¶ 50,
55-61, 402 P.3d 480, 490-92 (holding that the trial court’s and the
prosecutor’s use of puzzle analogies, even if improper, did not
constitute plain error).
¶ 90 Puzzle analogies can be problematic if they (1) “quantify the
concept of reasonable doubt”; (2) “inappropriately trivialize the
state’s burden”; (3) “equate the burden of proof to an everyday
choice”; or (4) “use iconic images, which invite the jury to jump to a
conclusion about a defendant’s guilt.” Camarigg, ¶¶ 44-47, ___
P.3d at ___.
¶ 91 We find Carter particularly instructive. In that case, the trial
court analogized the reasonable doubt standard to an incomplete
jigsaw puzzle in a jury instruction given during voir dire and, in
addition, the prosecution employed the puzzle analogy during
closing arguments. Carter, ¶¶ 54, 56, 402 P.3d at 491. The
division reviewed for plain error because the defense counsel did
not object to the court’s instructions or the prosecutor’s statements.
Id. at ¶ 56, 402 P.3d at 491. The division noted that “[t]he trial
43
court verbally instructed the jury twice on the definition of
reasonable doubt . . . and also provided final written instructions”
containing the correct definition. Id. at ¶ 59, 402 P.3d at 492. It
further said that “the prosecutor’s use of the puzzle analogy was
relatively brief and isolated.” Id. at ¶ 60, 402 P.3d at 492. We
reach a similar conclusion in this case.
3. Analysis
¶ 92 Even assuming the prosecutors’ use of the puzzle analogy
constituted misconduct, it was not plain error.
¶ 93 Here, the prosecutors referred to the puzzle analogy only
briefly during voir dire and closing argument. See id. The trial
court properly instructed the jury on the state’s burden of proof and
the definition of reasonable doubt during voir dire and in the
instructions it read to the jury before deliberations. See id. at ¶ 59,
402 P.3d at 492.
¶ 94 Moreover, the failure of Sauser’s counsel to object to the
analogy may indicate his counsel did not believe it was overly
damaging. People v. Villa, 240 P.3d 343, 356 (Colo. App. 2009)
(“The fact that the defendant did not object to the remarks may
indicate his belief that the live argument was not overly
44
damaging.”). And, as noted above, the Colorado appellate courts
have not previously held that a prosecutor’s use of a puzzle analogy
to explain reasonable doubt alone results in plain error.
¶ 95 In any event, although the decisions cited above indicate that
a prosecutor’s use of a puzzle analogy to explain reasonable doubt
may be an “obvious” error, the use of the analogy was not so grave
an error that it undermined the fundamental fairness of the trial so
as to cast serious doubt on Sauser’s convictions. See People v.
Ujaama, 2012 COA 36, ¶ 43, 302 P.3d 296, 305; see also People v.
Constant, 645 P.2d 843, 847 (Colo. 1982) (“Unless a prosecutor’s
misconduct is flagrant or ‘glaringly or tremendously’ improper, it is
not plain error under Crim. P. 52(b) . . . .” (quoting People v.
Simbolo, 188 Colo. 49, 53, 532 P.2d 962, 964 (1975))).
¶ 96 Moreover, Sauser does not contend that the trial court
incorrectly instructed the jury on the meaning of reasonable doubt.
We must presume, in the absence of evidence to the contrary, that
the jury followed the court’s instruction. See Carter, ¶ 59, 402 P.3d
at 492.
¶ 97 We therefore conclude that the prosecutors’ use of the puzzle
analogy was not plain error.
45
D. Testimony Characterized as a “Story”
¶ 98 Sauser next asserts that the prosecutors engaged in
misconduct by characterizing his testimony as a “story.” We are
not persuaded.
1. Additional Facts
¶ 99 The prosecution team referred to Sauser’s testimony as a
“story” throughout closing argument. For example, one of the
prosecutors told the jury that, to believe “Mr. Sauser’s story, you
also have to completely discredit [J.D.]” and, according to J.D.,
“that story . . . never happened.” During rebuttal closing argument,
another member of the prosecution team said, “[A]ccording to the
defendant’s story, [J.D.] didn’t have a problem just handing the
defendant a gun”; “I’m going to tell you that’s exactly what
[Sauser’s] story is, speculation and imagination. It’s a story that
was contrived to save his hide”; and “You get to consider that when
the defendant took the stand, why he told you what he told you,
why he told you this imaginary speculative story . . . .” The
prosecutor also referred to J.D.’s and S.M.’s testimony as a “story”
when he said, “What do [J.D.] and [S.M.] have to lose or have to
gain from this trial, from testifying and telling you their version of
46
the story? . . . I would be worried if both of those individuals have
the exact same story and there were no issues.” Sauser did not
object to any of these statements.
2. Applicable Law
¶ 100 A prosecutor is prohibited from misstating the law, see People
v. Strock, 252 P.3d 1148, 1154 (Colo. App. 2010), and expressing a
personal opinion as to a witness’s veracity or a defendant’s guilt,
see Domingo-Gomez v. People, 125 P.3d 1043, 1049-50 (Colo. 2005).
For this reason, a prosecutor should avoid characterizing a
defendant’s testimony as a “story.” See People v. Marion, 941 P.2d
287, 294 (Colo. App. 1996) (noting that a prosecutor should avoid
stating a defendant’s testimony was “all a crock” and “a story,
make-believe,” but determining the statements did not result in
plain error). But a prosecutor may comment on the evidence
presented at trial and argue any reasonable inferences that may be
drawn from that evidence. Domingo-Gomez, 125 P.3d at 1048.
¶ 101 “During closing arguments, a prosecutor has wide latitude and
may refer to the strength and significance of the evidence,
conflicting evidence, and reasonable inferences that may be drawn
from the evidence.” People v. Walters, 148 P.3d 331, 334 (Colo.
47
App. 2006). Accordingly, “[p]rosecutorial misconduct in closing
argument rarely constitutes plain error.” Strock, 252 P.3d at
1152-53; see People v. Rhea, 2014 COA 60, ¶ 43, 349 P.3d 280, 291
(“[P]rosecutorial misconduct in closing arguments rarely, if ever, is
so egregious as to constitute plain error.” (quoting Constant, 645
P.2d at 847)).
3. The Prosecutors’ References to Sauser’s Testimony as a “Story”
Do Not Require Reversal
¶ 102 Sauser argues that the prosecutors improperly suggested he
was lying by referring to his testimony as a “story.” While the
prosecutors should have avoided characterizing Sauser’s testimony
as a “story,” see Marion, 941 P.2d at 294, they made the statements
to highlight the inconsistencies between Sauser’s testimony and
that of J.D. and S.M. See Domingo-Gomez, 125 P.3d at 1048-51;
see also People v. Kendall, 174 P.3d 791, 797 (Colo. App. 2007)
(concluding that the prosecutor’s comments, which included
references to “stories,” were not improper because they “relate[d] to
reasonable inferences regarding the credibility of witnesses”). One
of the prosecutors also characterized J.D.’s and S.M.’s testimony as
48
“stories” to stress the inconsistencies between their and Sauser’s
versions of the key events.
¶ 103 Thus, we conclude that the prosecutors’ references to “story”
were not expressions of personal opinion but, instead, were
intended to remind the jury that the victims’ accounts contradicted
Sauser’s version of events. See People v. Clark, 214 P.3d 531, 543
(Colo. App. 2009) (holding that the prosecutor’s analogy to listening
to a friend tell a story was not improper and noting that, “[a]lthough
this particular approach clearly constituted commentary on
defendant’s veracity, it was not a clear statement of the prosecutor’s
personal opinion”), aff’d on other grounds, 232 P.3d 1287 (Colo.
2010); see also People v. Gilmore, 97 P.3d 123, 131-32 (Colo. App.
2003) (concluding that “the prosecutor’s reference to the witness’s
‘story’ was an acceptable reference to the witness’s testimony about
the events”).
¶ 104 In addition, even if the “story” references constituted
prosecutorial misconduct, they were not so “flagrantly, glaringly, or
tremendously improper” as to constitute plain error. People v.
Avila, 944 P.2d 673, 676 (Colo. App. 1997) (quoting Vialpando, 804
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P.2d at 224). We therefore conclude that the prosecution team’s
use of “story” does not require reversal of Sauser’s convictions.
VI. Cumulative Error
¶ 105 Sauser contends that the cumulative effect of the alleged
errors deprived him of a fair trial and requires reversal. We
disagree.
¶ 106 The doctrine of cumulative error requires that numerous
errors be committed, not merely alleged. People v. Thomas, 2014
COA 64, ¶ 61, 345 P.3d 959, 969. Although a single instance of
prosecutorial misconduct may be deemed harmless, “[n]umerous
formal irregularities . . . may in the aggregate show the absence of a
fair trial, in which event a reversal would be required.”
Howard-Walker v. People, 2019 CO 69, ¶ 24, 443 P.3d 1007, 1011
(quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446
(1962)). But “[a] conviction will not be reversed if the cumulative
effect of any errors did not substantially prejudice the defendant’s
right to a fair trial.” People v. Whitman, 205 P.3d 371, 387 (Colo.
App. 2007) (citing People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986)).
¶ 107 As noted above, the only error at Sauser’s trial was the trial
court’s decision to let the prosecutor ask Sauser a question that the
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trial court and the prosecutor knew would elicit an invocation of
Sauser’s right against self-incrimination. Thus, we conclude there
was no cumulative error. See People v. Thames, 2019 COA 124,
¶ 69, 467 P.3d 1181, 1194 (“[A] single error is insufficient to reverse
under the cumulative error standard.”). (Even if we were to assume
the prosecutors’ use of the puzzle analogy was prosecutorial
misconduct, that error, coupled with the error involving Sauser’s
right against self-incrimination, did not deprive Sauser of a fair
trial. See Carter, ¶¶ 80-81, 402 P.3d at 496.)
VII. Merger
¶ 108 Sauser contends that felony menacing is a lesser included
offense of aggravated robbery. Thus, he argues that his felony
menacing convictions must be vacated. We disagree.
A. Standard of Review
¶ 109 We review de novo whether merger applies to criminal
offenses. People v. Esparza-Treto, 282 P.3d 471, 478 (Colo. App.
2011).
B. Applicable Law
¶ 110 The Double Jeopardy Clauses of the United States and
Colorado Constitutions prohibit multiple punishments for the same
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offense. U.S. Const. amend. V; Colo. Const. art. II, § 18.
Accordingly, the merger doctrine precludes a defendant’s conviction
of both a greater and lesser included offense. § 18-1-408(1)(a),
C.R.S. 2020; People v. Rock, 2017 CO 84, ¶ 11, 402 P.3d 472, 476.
¶ 111 We apply a strict elements test to determine whether one
offense is a lesser included offense of another. Reyna-Abarca v.
People, 2017 CO 15, ¶ 53, 390 P.3d 816, 824. “Under this test, we
compare the elements of the two criminal statutes . . . .” Id. “[A]n
offense is a lesser included offense of another offense if the
elements of the lesser offense are a subset of the elements of the
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.” Id. at
¶ 3, 390 P.3d at 818; see People v. Leske, 957 P.2d 1030, 1036
(Colo. 1998) (comparing the statutory elements of the offenses to
determine whether an offense is a lesser included one).
C. Analysis
¶ 112 As noted above, Sauser was convicted of felony menacing
against J.D. and S.M. and aggravated robbery against S.M. A
person commits aggravated robbery if, “during the act of robbery or
immediate flight therefrom[,] . . . by the use of force, threats, or
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intimidation with a deadly weapon [he] knowingly puts the person
robbed or any other person in reasonable fear of death or bodily
injury.” § 18-4-302(1)(b) (emphasis added). In contrast, a person
commits felony menacing “if, by any threat or physical action, he or
she knowingly places or attempts to place another person in fear of
imminent serious bodily injury” by use of a “deadly weapon or any
article used or fashioned in a manner to cause a person to
reasonably believe that the article is a deadly weapon.”
§ 18-3-206(1)(a) (emphasis added).
¶ 113 A division of this court held that felony menacing does not
merge into aggravated robbery. People v. Sisneros, 44 Colo. App.
65, 67, 606 P.2d 1317, 1318 (1980). Sisneros explained that
aggravated robbery may be committed without committing felony
menacing because “[t[he requirement in the felony menacing statute
that the actor knowingly places a victim in fear of ‘serious bodily
injury’ is distinguishable from the requirement that the robber
knowingly places a victim in fear of ‘bodily injury.’” Id.¶ 114 Sauser contends that, while the division in Sisneros accurately
distinguished between bodily injury and serious bodily injury, it
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erred by ignoring the reference to “death” in the aggravated robbery
statute. We are not persuaded.
¶ 115 The language in the aggravated robbery statute includes
“reasonable fear of death or bodily injury,” § 18-4-302(1)(b)
(emphasis added), while felony menacing includes fear of “imminent
serious bodily injury.” § 18-3-206(1). We agree with the analysis in
Sisneros that the elements are distinguishable because the degree
of injury required for the fear element of felony menacing is greater
than the degree of injury required for the fear element of aggravated
robbery. See Sisneros, 44 Colo. App. at 67, 606 P.2d at 1318.
¶ 116 Fear of death is different from fear of serious bodily injury, just
as fear of bodily injury is different from fear of serious bodily injury.
If this were not so, the General Assembly’s use of “death” and
“bodily injury” in section 18-4-302(1)(b) and use of “serious bodily
injury” in section 18-3-206(1) would make no sense. See People v.
Abiodun, 111 P.3d 462, 465 (Colo. 2005) (“Where the general
assembly proscribes conduct in different provisions of the penal
code and identifies each provision with a different title, its intent to
establish more than one offense is generally clear.”); see also Dep’t
of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (“We construe
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a statute as a whole, ascribing to each word and phrase its familiar
and generally accepted meaning, so as to reflect the legislative
intent of the General Assembly.”); People v. McNeese, 865 P.2d 881,
884 (Colo. App. 1993) (“It is presumed that the General Assembly
has knowledge of the legal import of the words it uses and that it
intends each part of the statute to be given effect.”). We further
note that, unlike the aggravated robbery statute, the menacing
statute includes the concept of imminence.
¶ 117 Thus, we hold that felony menacing is not a lesser included
offense of aggravated robbery, and we reject Sauser’s contention
that his convictions for felony menacing merge into his conviction
for aggravated robbery.
VIII. Conclusion
¶ 118 The judgment is affirmed.
JUDGE NAVARRO and JUDGE TOW concur.
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