People v. Faussett

COLORADO COURT OF APPEALS 2016COA94
Court of Appeals No. 15CA0278
Adams County District Court No. 13CR3552
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wesley Faussett,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE DAILEY
Taubman and Freyre, JJ., concur
Announced June 16, 2016
Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado,
for Defendant-Appellant
¶1 Defendant, Wesley Faussett, appeals the judgment of
conviction entered on a jury verdict finding him guilty of aggravated
motor vehicle theft in the first degree. We affirm.
I. Background
¶2 Defendant’s conviction arose out of a theft of a Honda PCX150
scooter from a residential parking lot.
¶3 Four days after the scooter was reported missing, police
located a stolen pickup truck parked outside an apartment
complex. With the use of GPS surveillance technology, they were
able to follow the pickup and the individual operating it (the driver)
as he drove the pickup to various places, including a storage unit,
and ultimately arrested him.
¶4 Later, police discovered that the driver was “possibly involved”
with the disappearance of other vehicles besides the pickup. While
in custody, the driver made several phone calls to defendant and
the driver’s girlfriend (the girlfriend). During these calls — which
were monitored by the police — the driver talked to both defendant
and the girlfriend about disposing of or selling the “bike” or
“scooter.”
1
¶5 Defendant was arrested for his involvement in the scooter’s
theft. At trial, the prosecution presented the following evidence:
 On the day the scooter was stolen, the girlfriend rented a
storage unit at the facility to which police had followed
the driver in the pickup.
 The day after the scooter was stolen, the driver sent a
text message to defendant saying, “[y]a, its [sic] a Honda
PCX 150.”
 Inside the girlfriend’s storage unit, police found the
stolen scooter’s license plate.
 Photographs captured from video surveillance footage
obtained from the storage facility showed “three parties,
what looks like moving a scooter, a motorcycle, into the
back of a pickup” within weeks of the driver’s arrest.
 The storage facility’s manager testified that, the day after
the video surveillance footage recorded three parties
moving a “scooter” or “motorcycle” from the unit,
defendant told her he broke the lock on the storage unit.
 The girlfriend testified that defendant told her that “he
went to remove the bike” from the storage unit, to which
2
only he and the driver had a key, and damaged the unit’s
lock in the process.
¶6 Defendant presented no witnesses or evidence on his behalf;
he asserted, however, that the prosecution’s case against him was
merely “[s]peculation, conjecture, [and] surmise.”
¶7 The jury found defendant guilty as charged, and the trial court
sentenced him to six years in the custody of the Department of
Corrections and three years’ parole.
II. Denial of Continuance
¶8 Defendant first contends that the trial court erred in denying
his motion for a continuance. We disagree.
¶9 A week before trial, defense counsel moved for a continuance,
as pertinent here, on two grounds: (1) the prosecutor had
re-interviewed the girlfriend and defense counsel wished to review a
written report of the interview, once it had been completed; and
(2) defense counsel had never met defendant outside of court to
discuss the trial, and defendant had just that morning “mentioned
3
additional witnesses that should be interviewed and possibly
subpoenaed.”1
¶ 10 The prosecution responded that it “did have conversations
with the [girlfriend] . . . [b]ut it is consistent with what’s in
discovery” and not “anything exculpatory or really ground
shattering . . . .” On defendant’s other ground, the prosecution did
not comment.
¶ 11 The trial court ultimately denied defendant’s motion for a
continuance. First, it noted that, without any indication that the
girlfriend had said something “relevant and important” to the
prosecution, “the other side [does not] automatically get[] a chance
to continue the matter” just because the prosecution re-interviewed
her. Concerning “defendant’s noncooperation,” the trial court
stated, “[T]hat’s his business. . . . [H]e made a choice. . . . If he
decides not to talk to his attorney, I know that puts his attorney in
1 In the trial court, defense counsel asserted a third ground for a
continuance: that morning, the prosecution provided defense
counsel with new discovery, i.e., video surveillance footage of the
storage unit that contained the motor scooter. The videotape,
which was not admitted at trial, was the source of the still
photographs that were admitted without objection at trial. Because
defendant appears to abandon on appeal this third ground for a
continuance, we do not address it. See People v. Brooks, 250 P.3d
771, 772 (Colo. App. 2010).
4
an exceedingly difficult situation. . . . But her client has to take the
case seriously . . . .”
¶ 12 We review a trial court’s denial of a motion for a continuance
for an abuse of discretion. See People v. Alley, 232 P.3d 272, 274
(Colo. App. 2010). “A trial court abuses its discretion in denying a
motion to continue if, under the totality of the circumstances, its
ruling is manifestly arbitrary, unreasonable, or unfair.” People v.
Smith, 275 P.3d 715, 721 (Colo. App. 2011) (quoting People v.
Mandez, 997 P.2d 1254, 1265 (Colo. App. 1999)).
¶ 13 “No mechanical test exists for determining whether the denial
of a request for a continuance constitutes an abuse of discretion.
Rather, the answer must be found within the circumstances of each
case, particularly in the reasons presented to the trial judge at the
time of the request.” People v. Roybal, 55 P.3d 144, 150 (Colo. App.
2001). To obtain a reversal, a defendant must also show he or she
was actually prejudiced by the denial of the continuance. Alley,
232 P.3d at 274.
¶ 14 Here, we perceive no abuse of discretion or prejudicial error
committed by the trial court.
5
¶ 15 With respect to defendant’s first ground for requesting a
continuance, there was no suggestion either at the time or later,
when the defense received a written report of the prosecution’s
interview of the girlfriend, that she had said anything new or
different from what she had previously said. See People v. Rivers,
727 P.2d 394, 399 (Colo. App. 1986) (“Because no new information
was unearthed . . . , the trial court did not abuse its discretion in
denying defendant’s motion for continuance.”). Indeed, defense
counsel notified the court that she “had an opportunity to speak at
length” with the prosecution about the content of the interview.
And, during cross-examination, defense counsel specifically
referenced the additional interview and questioned the girlfriend
about particular statements she made to the prosecution at that
time. Thus, we are not persuaded by defendant’s assertion on
appeal that “in order to adequately prepare for trial and to
cross-examine [the girlfriend], the continuance was necessary.”
¶ 16 With respect to defendant’s other ground for requesting a
continuance, as we read the record, any lack of communication
between him and his counsel was the result of defendant’s own
6
actions,2 for which the court need not grant a continuance. See
Johnson v. People, 172 Colo. 72, 80, 470 P.2d 37, 42 (1970) (finding
no abuse of discretion in the trial court’s denial of a continuance
where “the defendant had, at first, refused to cooperate with [his
counsel],” leaving “[n]o real justification for the [continuance]” when
the defendant asserted he was not prepared for trial); People in
Interest of J.T., 13 P.3d 321, 322 (Colo. App. 2000) (finding no
abuse of discretion in the trial court’s denial of a continuance on
the eve of trial where “[the defendant] was responsible for not
making himself available to his attorney”); see also People v.
Jenkins, 997 P.2d 1044, 1138 (Cal. 2000) (affirming denial of
continuance sought because of the defendant’s “persistent failure
. . . to cooperate with counsel”).
¶ 17 Further, the defense made no offer of proof regarding what
substantive testimony defendant expected from the additional
witnesses, let alone who they were. See United States v. Johnson,
977 F.2d 1360, 1366 (10th Cir. 1992) (“[W]hen a continuance is
sought to obtain witnesses, the accused must show who . . . [the
2Defense counsel informed the court that she had “made [her]self
available to [defendant] on a number of occasions.”
7
witnesses] are, what their testimony will be, that the testimony will
be competent and relevant, that the witnesses can probably be
obtained if the continuance is granted, and that due diligence has
been used to obtain their attendance on the day set for trial.”
(quoting United States v. Harris, 441 F.2d 1333, 1336 (10th Cir.
1971))); cf. People in Interest of N.F., 820 P.2d 1128, 1133
(Colo. App. 1991) (noting where counsel makes no offer of proof as
to what the witness’s testimony would have been, the
reviewing court will not consider the alleged error to be prejudicial if
it cannot determine from the record how the exclusion of evidence
harmed the defendant’s case).
¶ 18 Under these circumstances, we perceive no error in the court’s
exercise of discretion to deny a continuance on these grounds.
III. Conflict of Interest
¶ 19 Defendant contends that “the trial court erred in failing to
conduct an adequate inquiry [into the deteriorated relationship
between him and his counsel] and further, should have appointed
conflict-free counsel to represent [him].” We are not persuaded.
¶ 20 “When a defendant objects to court-appointed counsel, the
trial court must inquire into the reasons for the [defendant’s]
8
dissatisfaction.” People v. Kelling, 151 P.3d 650, 653 (Colo. App.
2006). If the defendant establishes good cause (e.g., a complete
breakdown in communication, a conflict of interest, or an
irreconcilable conflict that could lead to an apparently unjust
verdict), the court must appoint substitute counsel. Id. However,
before the substitution of counsel is warranted, the court must
confirm that the defendant has “some well[-]founded reason for
believing that the appointed attorney cannot or will not competently
represent him.” Id. (quoting 3 Wayne R. LaFave, Jerold H. Israel &
Nancy J. King, Criminal Procedure § 11.4(b), at 555 (2d ed. 1999)).
¶ 21 Here, defendant asserts that a substitution of counsel was
warranted by a conflict of interest that he had with his appointed
counsel. But before the trial court, defendant did not move for a
substitution of counsel, nor did he voice any objection to or
dissatisfaction with counsel. Indeed, defendant said nothing to the
trial court about any concerns he had, if any, with counsel. Having
expressed no dissatisfaction with counsel, he was not entitled to
have the court make any inquiry, much less provide him with
different counsel.
9
¶ 22 Yet on appeal, defendant argues otherwise, asserting that the
court was obliged to sua sponte make inquiries where the record
demonstrated a conflict of interest arising from a “deteriorated”
relationship or counsel’s insistence that defendant plead guilty
contrary to defendant’s wishes.
¶ 23 Defendant’s assertions are not supported by the record. With
respect to the deterioration, it was defense counsel, not defendant,
who indicated that they had had limited communication, and even
then, only to suggest that she needed a continuance to adequately
represent him:
[Defendant] and I have not met one time
outside of court on this matter. When we
appeared for the motions hearing, a new offer
was extended to [him]. . . . I did speak with --
by phone with [him] about that. And he
ultimately rejected the offer. I have made
myself available to [defendant] on a number of
occasions. I have made discovery available to
him, and here we stand a week before trial and
we’ve never once reviewed this discovery
together, old or new.
I am fearful of my ability to present an
adequate defense for [defendant] without his
assistance. Having gone through again with
him this morning what the discovery contains,
. . . he does believe that he can provide some
information that would be helpful for me. . . .
10
And so, . . . I am asking for a continuance
of this matter. . . . He is willing to waive [his]
right [of speedy trial] in order to assist me in
preparing his defense.
(Emphasis added.)
¶ 24 The type of “total breakdown” in communication which would
warrant substitution of counsel must be evidenced by proof “of a
severe and pervasive conflict with [the defendant’s] attorney or
evidence that he had such minimal contact with the attorney that
meaningful communication was not possible.” United States v. Lott,
310 F.3d 1231, 1249 (10th Cir. 2002). Such a “total breakdown” is
not evident from the record. To the contrary, defense counsel
stated that she had discussed a possible plea agreement with
defendant by phone and had made herself and the discovery
available to defendant on multiple occasions. And, if anything,
defense counsel’s statements provided hope that the attorney-client
relationship could improve because she said “[defendant] believes
that he can provide some information that would be helpful” and
“he is willing . . . to assist [counsel] in preparing his defense.”
¶ 25 With respect to defendant’s assertion that “defense counsel
was insistent upon [defendant] accepting a plea bargain,” the record
11
reflects only that (1) an offer was extended to defendant; (2) he and
defense counsel spoke about the offer by phone; and
(3) “[defendant] ultimately rejected the offer.” Nothing in the record
suggests defense counsel did anything but “accept this decision and
provide the best defense possible,” to which defendant says he was
entitled. Cf. Duhon v. Nelson, 126 P.3d 262, 268 (Colo. App. 2005)
(“Bare statements made in the litigants’ briefs cannot supply that
which must appear from a certified record.”).
¶ 26 Because the record contains no reason to believe defendant
was dissatisfied with counsel, the court was neither required to
make any inquiry nor provide substitute counsel for defendant.
IV. Co-Conspirator Statements
¶ 27 Lastly, defendant contends that the trial court erred in
admitting evidence of four telephone calls made by the driver to
either him or the girlfriend. We conclude that reversal is not
warranted.
¶ 28 Prior to trial, the prosecution filed a “Motion in Limine
Regarding the Admissibility of Co-Defendant Statements,” arguing
that the statements made during the calls were admissible under
12
CRE 801(d)(2)(E) because they “were made by co-conspirators
during the course and in furtherance of the conspiracy.”
¶ 29 Defense counsel objected to the introduction of or reference to
any of the four calls (three with the girlfriend and one with
defendant), arguing that she was “not sure” that the prosecution
could, as required, prove (1) the existence of a conspiracy
independent of the calls and (2) the calls were made during and in
furtherance of the conspiracy.
¶ 30 The prosecution countered, arguing there was evidence of a
conspiracy independent of the calls: (1) the girlfriend would testify
that defendant was staying at her house and that she and
defendant were working together to accumulate enough money to
“bond out” the driver by selling the stolen scooter; and (2) the
prosecution would present “testimony and evidence that [defendant]
did, in fact, go to [the girlfriend’s] storage unit to get the bike in an
effort to sell it, which is still an ongoing commission of the motor
vehicle theft.”
¶ 31 The trial court found that there was evidence other than the
calls themselves that suggested a conspiracy between the three
13
individuals,3 and that “disposing of [an] item to turn that item into
money” is “part of stealing something” and therefore furthers the
conspiracy. Thus, the trial court ruled the calls were admissible “as
non-hearsay statements of co-conspirators, in furtherance of the
conspiracy,” under CRE 801(d)(2)(E).
¶ 32 On appeal, defendant contends that the trial court erred in
admitting the evidence under the co-conspirator statement rule.4
We agree, in part.
¶ 33 We review a trial court’s evidentiary rulings for an abuse of
discretion, People v. Douglas, 2012 COA 57, ¶ 41, which “will only
be found upon a showing that the court misconstrued or misapplied
3 The court noted there was evidence that (1) the three individuals
“were working in concert with one another”; (2) they were all living
together; and (3) defendant was seen with several other people, on
different occasions, at the storage facility.
4 Defendant also contends that the evidence was inadmissible
because it was irrelevant. See CRE 401, 402. Defendant did not,
however, object on this ground in the trial court. Consequently,
reversal is not warranted on this ground absent a finding of plain
error. See People v. Ujaama, 2012 COA 36, ¶¶ 37-38. No plain
error is evident to us. See People v. Osorio-Bahena, 2013 COA 55,
¶ 69 (Plain error is error that is obvious, substantial, and “so
undermine[s] the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”).
14
the law or otherwise reached a manifestly arbitrary, unreasonable,
or unfair result.” People v. Pollard, 2013 COA 31M, ¶ 10.
¶ 34 CRE 801(d)(2)(E) allows “a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy” to be
admitted.5
The proponent of the statement bears the
burden to establish by a preponderance of the
evidence that the party against whom the
statement is offered and the declarant were
members of a conspiracy and that the
declarant’s statement was made during the
course of and in furtherance of the conspiracy.
People v. Rivera, 56 P.3d 1155, 1166 (Colo. App. 2002). “The
contents of the statement may be considered to establish the
existence of a conspiracy and participation by the party against
whom the statement is offered. However, there must be
corroborating evidence apart from the contents of the statement
itself.” Id.; see CRE 801(d)(2).
5In Van Riper v. United States, 13 F.2d 961 (2d Cir. 1926), Judge
Learned Hand described the reason for admitting such statements:
“When men enter into an agreement for an unlawful end, they
become ad hoc agents for one another, and have made ‘a
partnership in crime.’ What one does pursuant to their common
purpose, all do, and, as declarations may be such acts, they are
competent against all.” Id. at 967.
15
¶ 35 Here, the prosecution asserted that there was a conspiracy, of
which defendant and the driver were a part, to steal and sell the
scooter. The calls supported that assertion: in the first call, the
driver tells the girlfriend that defendant “ordered that f***ing thing”
and “said [he] could sell that”; in the second, defendant tells the
driver that he still wants to sell the scooter and can make money
doing so; and, in the third and fourth conversations, the driver and
the girlfriend discuss defendant’s removal of the scooter from the
storage unit, with the driver saying defendant “made money on that
scooter.”
¶ 36 Further, there was corroborative evidence, apart from the calls
themselves, of such a conspiracy:
 The girlfriend testified that the driver had admitted that
he stole the scooter.
 The day after the scooter was stolen, the driver sent a
text message to defendant saying, “[y]a, its [sic] a Honda
PCX 150.”
 The girlfriend testified that, at the driver’s behest, she
had rented the storage unit at which the scooter’s license
plate was later found and, although the unit was rented
16
in her name, only the driver and defendant had keys to
the unit (and were with the girlfriend when she rented it).
 Photographs captured from video surveillance footage
showed “three parties, what looks like moving a scooter,
a motorcycle, [from the storage unit] into the back of a
pickup.”
 The girlfriend testified that defendant told her that he
had damaged the storage unit’s lock in the process of
removing the scooter therefrom.
 The storage facility’s manager identified defendant as the
person who reported having broken the lock on the
storage unit.
¶ 37 When combined with the proffered statements, the evidence
was sufficient to support a finding that a conspiracy existed
involving the driver and defendant.
¶ 38 Defendant asserts, however, that the calls were not made
during the pendency of the conspiracy because, in his view, the
conspiracy ended upon the theft of the scooter.
¶ 39 To be sure, “co-conspirator statements made after the
conspirators attain the object of the conspiracy are not admissible
17
under [the co-conspirator] exception unless the proponent
demonstrates ‘an express original agreement among the
conspirators to continue to act in concert.’” Blecha v. People, 962
P.2d 931, 938 (Colo. 1998) (quoting Grunewald v. United States,
353 U.S. 391, 404 (1957)). The proponent of the evidence “can
satisfy this requirement by showing that the objectives of the
original conspiracy include such an agreement or that there exists a
separate conspiracy to conceal.” Id.
¶ 40 We discern no evidence tending to show that the objectives of
the original conspiracy — or of a separate conspiracy — included
concealment of evidence of the theft. That, however, does not end
the inquiry because the “object of a conspiracy” is not necessarily
confined to the commission of a particular crime. Rather,
sometimes it includes events closely related to the commission of
that crime. See, e.g., 2 McCormick on Evidence § 259, at 291 n.52
(Kenneth S. Broun ed., 7th ed. 2013) (“[T]he aims of the conspiracy
may extend beyond the commission of the crime to include
additional related acts, such as a perpetrator receiving payment for
his part, or securing proceeds from [a] murder victim’s trust.”)
(citations omitted); id. at 291 (“Under some circumstances, the
18
duration of the conspiracy is held to extend beyond the commission
of the principal crime to include closely connected disposition of its
fruits . . . .”); 4 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 8:60, at 506-07 (4th ed. 2013) (noting, e.g., that
“the crime of arson, if committed for the purpose of collecting
insurance, continues after the property in question has been
destroyed, at least until the object of collecting payment has been
realized, and for similar reasons conspiracy to commit robbery does
not end until the thieves divide the loot”); see also State v. Yslas,
676 P.2d 1118, 1122 (Ariz. 1984) (indicating that a conspiracy is
still operative “where conspirators make specific pre-planned efforts
of escape, payment, concealment, or conversion of the fruits of the
crime”) (emphasis omitted).6
6 Because CRE 801(d)(2)(E) is identical to a provision found in the
federal rules of evidence and in the rules of evidence of many states,
we consider cases from, and authorities concerning, those
jurisdictions persuasive. See, e.g., Faris v. Rothenberg, 648 P.2d
1089, 1091 n.1 (Colo. 1982) (“Fed.R.Civ.P. 63 is identical to
C.R.C.P. 63. Thus, federal cases and authorities interpreting the
federal rule are highly persuasive.”); cf. Pueblo Bancorporation v.
Lindoe, Inc., 63 P.3d 353, 364 (Colo. 2003) (“The interpretation of
other states is especially persuasive” in part because “the language
of the Colorado statute . . . is nearly identical to the language of
dissenters’ rights statutes around the country.”).
19
¶ 41 Here, the record supports the conclusion that the aim of the
conspiracy was not just to steal the scooter, but to sell (and obtain
the proceeds from the sale of) it as well. Thus, the conspiracy
would not terminate until the scooter was sold and the proceeds of
the sale were distributed. See, e.g., United States v. Kahan, 572
F.2d 923, 935 (2d Cir. 1978) (“It is too easy to argue that the
conspiracy was at an end when the object of the conspiracy as
charged was realized in appellants’ receipt and possession of the
stolen property . . . . But the Court was not free to rule as a matter
of law that the conspiracy did not include payment by appellants as
a term or to rule that the conspiracy ended with the seizure and
arrests.”) (citation omitted); Williams v. United States, 655 A.2d 310,
314 (D.C. 1995) (“Many courts have recognized that the division of
the spoils is a continuing part of the crime, including conspiracy.”).
¶ 42 Because the calls indicate the scooter had not been sold by the
time of at least the first two conversations, and that the proceeds
had not been distributed between defendant and the driver by the
time of any of the four conversations, the statements in each of the
four calls were made during the pendency of the conspiracy.
20
¶ 43 The remaining question is whether the statements were made
“in furtherance” of the conspiracy.
¶ 44 “The [in furtherance] limitation is usually expressed in terms
of an exclusion of statements that were casual conversation, idle
gossip, or mere narratives of past events.” Williams, 655 A.2d at
313; see 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence § 801.34[5], at 801-117 (Joseph M. McLaughlin
ed., 2d ed. 2015) (“In general, this requirement bars ‘mere
narratives of past successes or failures’ and a ‘conspirator’s casual
comments.’”); see also, e.g., Fratta v. Quarterman, 536 F.3d 485,
504 (5th Cir. 2008) (reporting the conspiracy’s status without
“advanc[ing] the cause of or facilitat[ing] the conspiracy” did not
constitute statements in furtherance of the conspiracy); United
States v. Darwich, 337 F.3d 645, 657 (6th Cir. 2003) (finding casual
conversation about how much marijuana was bagged was simply
“idle chatter” that did not further the conspiracy (quoting United
States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000))); United States v.
Desena, 260 F.3d 150, 158 (2d Cir. 2001) (finding “casual
storytelling in a bar, more than two years after the event,” was “idle
chatter” that was not in furtherance of the conspiracy); United
21
States v. Fielding, 645 F.2d 719, 726-27 (9th Cir. 1981) (finding
mere narrative declarations that do not further the objectives of the
conspiracy, such as those that induce others to join, are not in
furtherance of the conspiracy).
¶ 45 The furtherance requirement is satisfied, however, by “any
statement that ‘can reasonably be interpreted as encouraging a
co-conspirator or other person to advance the conspiracy, or as
enhancing a co-conspirator[’s] or other person’s usefulness to the
conspiracy.’” 5 Weinstein & Berger, § 801.34[5], at 801-117
(quoting United States v. Tarantino, 846 F.2d 1384, 1412 (D.C. Cir.
1988)); see United States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir.
2010) (noting that a statement susceptible of alternative
interpretations need not have been made exclusively or even
primarily to further the conspiracy as long as a reasonable basis
exists for concluding it furthered the conspiracy). “Statements
generally satisfy the furtherance requirement if the speaker is trying
to get transactions started on behalf of the conspiracy . . . .” 4
Mueller & Kirkpatrick, § 8:61, at 514.7
7 The furtherance requirement can also be satisfied by statements
that describe past occurrences to other members in order to map
22
¶ 46 With these principles in mind, we consider the four calls, the
pertinent parts of which are attached as Appendix 1 to this opinion.
¶ 47 The first call was between the driver and the girlfriend, while
the second call was between the driver and defendant. In those
calls, first the driver, then defendant, proposed a course of action,
consistent with what the driver indicated was the original object of
the conspiracy — i.e., selling the stolen scooter (regardless of
whether the money would be used to post bail for the driver).
Because the conspirators were not, in either instance, involved in
idle chatter or merely a narrative of past events, but rather, were
proposing measures to advance the aims of the conspiracy, the
statements in those two calls were properly admitted under CRE
801(d)(2)(E).8
out future strategy and by statements that keep other members of
the venture current on the progress and problems that are being
encountered, and certainly statements relating to payment or
compensation or reward for participating and contributing to the
criminal enterprise can further the venture.
4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 8:61, at 515-16 (4th ed. 2013) (footnotes omitted).
8The statements in the second call — the one involving the driver
and defendant — were admissible on other grounds as well. See
People v. Chase, 2013 COA 27, ¶ 17 (noting an appellate court “may
23
¶ 48 The same cannot, however, be said with respect to the
statements recorded in the latter two calls. Both of those calls were
between the driver and the girlfriend.
¶ 49 In the third call, the driver does not propose anything be done
with the scooter or its proceeds. He instead postulates that the
scooter had been sold, adding, “[Defendant] didn’t go down there to
get rid of [the scooter] for you or for me. He made money on it. . . .
[T]he bottom line is [defendant] is getting over on us.” A statement
indicating that one conspirator believed he had been betrayed by
the other can hardly be characterized as having a purpose of
furthering or advancing the aims of the conspiracy.
¶ 50 The fourth call does not satisfy this requirement either. In
that call, the driver seems surprised, and then displeased, to find
out that defendant is now renting the storage unit and has moved
all of the driver’s possessions out of it. The driver’s disparaging
affirm a [district] court’s ruling on grounds different from those
employed by that court, as long as they are supported by the
record”). Defendant’s statements during the call constituted
admissions by a party-opponent. See CRE 801(d)(2); People v.
Gable, 647 P.2d 246, 255 (Colo. App. 1982). And, the driver’s
statements were admissible nonhearsay because they placed
defendant’s statements in context, making the call understandable
to the jury. See People v. Glover, 2015 COA 16, ¶ 42.
24
remark about defendant —“[Defendant] probably kept some stuff
that he wanted. Like the scooter, for instance. You know? I
guarantee you he made money on that scooter.” — is more akin to
idle chatter or speculation than direction, encouragement, or a
proposed course of action for advancing the aims of the conspiracy.
Thus, it too would not satisfy the furtherance requirement of CRE
801(d)(2)(E).
¶ 51 Because the statements in the third and fourth calls did not
satisfy the “in furtherance” requirement of CRE 801(d)(2)(E), the
trial court abused its discretion in admitting them at trial.
¶ 52 Under Crim. P. 52(a), we are to disregard a harmless error.
“Because the trial court’s error is not one of constitutional
dimension, defendant bears the burden of showing prejudice from
the error.” People v. Casias, 2012 COA 117, ¶ 60 (citation omitted).
To obtain reversal, defendant must establish a reasonable
probability that the inadmissible detail contributed to his
conviction. See id. at ¶ 62.
¶ 53 A “reasonable probability” does not mean that it is “more likely
than not” that the error caused the defendant’s conviction; rather, it
25
means only a probability sufficient to undermine confidence in the
outcome of the case. Id. at ¶ 63.
¶ 54 In assessing the harmlessness of error in admitting evidence,
we consider a number of factors, including the importance of the
evidence to the prosecution’s case, see People v. Bass, 155 P.3d
547, 551 (Colo. App. 2006); whether the proffered evidence was
cumulative; the presence of other evidence corroborating or
contradicting the point for which the evidence was offered; and the
overall strength of the state’s case, Casias, ¶ 64. “‘[T]he single most
important factor’ in a nonconstitutional harmless error inquiry is
whether the case was ‘close.’” Id. at ¶ 69 (quoting United States v.
Ince, 21 F.3d 576, 584 (4th Cir. 1994)).
¶ 55 Here, we cannot say that the statements in the erroneously
admitted third and fourth calls were wholly unimportant to the
prosecution. However, unlike the first two calls, the prosecution
never referenced the third or fourth call in its opening statement or
opening and rebuttal closing arguments. The prosecution, then,
did not place any emphasis on the statements in the third and
fourth calls.
26
¶ 56 The statements contained in the third and fourth calls were
not technically cumulative of other evidence, nor were they
corroborated or contradicted by other evidence in the case. They
were, though, of relatively minor consequence compared to those in
the admissible first two calls.
¶ 57 Finally, this was not, in our view, a close case. In addition to
the admissible evidence of the first two calls, the prosecution
presented (1) a text message from the driver to defendant in which
the driver identified the type of scooter that had been stolen;
(2) testimony from the girlfriend identifying defendant as being with
her (and receiving a key) when she rented the storage unit in which
the scooter’s license plates were later found; (3) security footage of
three men removing what appeared to be a “scooter” or “motorcycle”
from the storage unit; and (4) testimony, from the girlfriend and the
storage unit manager, that defendant admitted, the day after the
three men were surveilled removing the “scooter” or “motorcycle”
from the unit, that he had broken the lock to get into the storage
unit the previous day. In response, the defense presented no
evidence and argued only that the prosecution’s case was based on
speculation.
27
¶ 58 Because the inadmissible evidence was not an important part
of the prosecution’s case, because the inadmissible evidence paled
in significance to the properly admitted phone call evidence, and
because this was not a “close” case, we perceive no reasonable
probability that the court’s evidentiary error influenced the jury’s
verdict in any manner. Consequently, the erroneously admitted
evidence was harmless, and reversal is not warranted.
V. Conclusion
¶ 59 The judgment of conviction is affirmed.
¶ 60 JUDGE TAUBMAN and JUDGE FREYRE concur.
28
APPENDIX 1
The first call (between the driver and the girlfriend):
Driver: Was [defendant] not helping you come
up with this money [for bail] or what?
Girlfriend: [Defendant] is trying, babe. With
what we have for . . . pawning, there’s
nothing. . . . He was like, it would be different
if he would have put some of the good stuff in
your, um, shed. But nothing of value is in
yours. I’m like, I know.
Driver: Well, that scooter.
Girlfriend: Nobody wants to touch that thing
with a 10-foot pole.
Driver: Why? The f***ed up thing is
[defendant] and [another individual] ordered
that f***ing thing. They said they could sell
that.
Girlfriend: There’s [sic] too many cc’s.
Driver: It doesn’t matter how many cc’s,
babe. Nobody can get it legal no matter if it’s
59 cc’s or 49 cc’s or higher. It doesn’t matter
how many cc’s it is, nobody can get it legal
anyway. Well, go pick up another one
then. And sell that to them, ya know?
The second call (between the driver and defendant):
Defendant: We got raided this morning. You
know that don’t you?
Driver: I heard something about that, yeah.
29
Defendant: . . . All the good shit I brought over
to [the girlfriend]. . . . She wants to just move
the bike out ‘cause she’s scared and I keep
telling her hang on I’ll sell it. . . . I’ll get
something for it. I’m trying to, I’m trying to.
Driver: Yeah, even if it’s fifty bucks.
Defendant: That’s what I’m saying. So don’t let
her just throw it away, ‘cause I’ll find
somebody . . . .
Driver: Well if it’s still in there by the time I get
out, I’m gonna go take it back to where it
belongs (laughing).
The third call (between the driver and the girlfriend):
Driver: Guess what happened with the scooter
too. . . . [Defendant] didn’t go down there to
get rid of that for you or for me, he made
money on it. He made money on that.
Girlfriend: . . . I tried to call down there today
because there were two locks on there . . . .
Driver: . . . Maybe [defendant] put two on
there.
Girlfriend: I don’t know.
Driver: You think [defendant] got rid of that
scooter for no reason? F*** no, he made
money on it.
...
Girlfriend: I know this much, I’m glad it’s gone.
30
Driver: I know, I’m glad it’s gone too. Don’t get
me wrong, I woulda paid to f***in’ get rid of
that thing. You know? But still, the bottom
line is [defendant] is getting over on us. Ok?
Um, also, there’s license plates, too, that
somebody needs to get rid of.
Girlfriend: Where?
Driver: Um, same room as the other deal. . . .
It’s hidden kinda good. It’s not like out in the
open. It’s up and, ya know, tucked away
somewhere. . . . I think there’s two of
them. . . . I found those walking down the
street.
The fourth call (between the driver and the girlfriend):
Driver: You can try to send [defendant] over
there and clean it.
....
Girlfriend: [Defendant] is renting it.
....
Driver: How would you not tell me that?
....
Girlfriend: Your stuff’s not in there.
Driver: Well it was in there and . . . as far as
we know [defendant] moved it all out. He
probably kept some stuff that he wanted. Like
the scooter, for instance. You know? I
guarantee you he made money on that scooter.
31
Girlfriend: I’m sure he did.
32