21CA1940 Peo v Sais 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1940 Pueblo County District Court No. 19CR540 Honorable Thomas B. Flesher, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeffrey Kelvin Sais,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jeffrey Kelvin Sais, appeals his convictions for
sexual assault and kidnapping. We affirm.
I. Background
¶2 One afternoon in April of 2017, A.S. got into an argument with
a friend she was visiting in Pueblo and decided to go to another
friend’s apartment. A.S. was upset, her phone was dead, and she
had been unable to get a ride, so she decided to walk. On her way,
she passed Sais standing on a sidewalk near an alley. As she
approached where Sais was standing, he asked A.S. for a cigarette.
While A.S. was searching in her purse for a cigarette, Sais grabbed
her by the arms, forced her down the alley, and into an abandoned
shed. In the shed, Sais forced A.S. on to a mattress on the floor,
pulled a hatchet from his pants and laid it on the floor next to her,
and sexually assaulted her. Sais fled the scene.
¶3 After Sais left, A.S. dressed, gathered her belongings, and went
to a nearby 7-Eleven. There, she called the police and then called
her sister to take her to the hospital. According to A.S.’s sister, A.S.
was very distraught, shaking, and crying when she got to her. The
police met A.S. at the hospital, and she gave them an account of
what had happened despite being distraught and in physical pain.
1 A nurse interviewed A.S., conducted a physical examination, and
took DNA samples from her. The nurse reported that A.S. had a
vaginal tear and abrasions on both of her knees.
¶4 Several weeks later, A.S. accompanied a detective to the
location where the assault had occurred. They drove around
different streets in the area until A.S. recognized the shed where
she had been assaulted. She was crying and scared after they
found the location. In January of 2018, after she had moved to Las
Vegas, A.S. met with a detective who showed her pictures of six
different men. A.S. wrote a note on the picture of Sais stating that
she was 100% sure that he was the man who had raped her and
signed it. In 2019, Sais was charged with sexual assault and
kidnapping.
¶5 At the first trial Sais endorsed a general denial defense. But,
during opening argument defense counsel began explaining that the
evidence would show that A.S. had consented to the sexual
encounter in exchange for money. The prosecution objected to this
line of argument, claiming that Sais was required, but had failed, to
give the prosecution notice of a consent defense, which the
prosecutor had argued was required by Criminal Procedure Rule
2 16(II)(c). After hearing extensive argument about whether pretrial
endorsement of a consent defense was required, the trial court
eventually agreed that disclosure was required and hadn’t been
given. As a remedy for failing to disclose, the court limited Sais’s
ability to present his consent defense. Due to these restrictions,
Sais requested a mistrial. After the prosecution agreed, the court
granted Sais’s request.
¶6 Before the second trial, Sais endorsed a consent defense in
which he claimed A.S. had agreed to have sex with him for money,
and only after he refused to pay her did she claim that he had
kidnapped and sexually assaulted her. Based on this defense, Sais
argued that the jury should convict him of patronizing a prostitute
instead of kidnapping and sexual assault.
¶7 Ultimately, the jury convicted Sais of sexual assault and
kidnapping and rejected his requested prostitution charge.
II. Issues on Appeal
¶8 Sais argues that the trial court committed reversible error
when it (1) determined he committed a discovery violation and
thereafter granted his request for a mistrial, (2) allowed A.S. to
testify regarding her own credibility, and (3) refused to give a
3 contemporaneous limiting instruction to the jury during Sais’s
testimony. Lastly, he argues that cumulative error requires
reversal. We address, and reject, each contention in turn.
A. The Mistrial
¶9 Sais first argues the court erred when it ruled that he was
required to give the prosecution notice of his intent to present a
consent defense and that this error forced him to choose between
his right to present the consent defense and his right to a speedy
trial and against double jeopardy. Sais argues that the court’s
discovery ruling during the first trial put him in a lose-lose situation
and, as a result, his request for a mistrial was made under duress.
1. Additional Facts
¶ 10 At the first trial, after concluding that Sais was required to
disclose his consent defense, the trial court restricted his ability to
present the defense. The court precluded Sais from explicitly
arguing that A.S. had consented or using the word “consent.”
Notably, the trial court ruled that it would allow Sais to testify to his
belief that A.S. had agreed to sex in exchange for payment and
would allow Sais to argue that the prosecution had not proven all
the elements of the charged crimes. When the prospect of a mistrial
4 as a remedy for the discovery violation was first raised, the court
made it clear that it would not grant a mistrial unless both Sais and
the prosecution agreed to a mistrial.
¶ 11 Thereafter, Sais requested a mistrial — twice. First:
[Defense Counsel]: Given the Court’s ruling, I think we have to request a mistrial, for [Defendant’s] benefit. I understand that the Court of Appeals could reverse this decision. But [Defendant] is, you know, if he’s convicted, is waiting for that to happen. . . .
¶ 12 And again:
[Prosecutor]: Your Honor, I think at this point, under [section] 18-1-301, [C.R.S. 2024,] if the Defense consents to termination, which them moving to mistrial I think is them consenting to termination and mistrial here, we will also consent to a mistrial.
....
THE COURT: [Defense Counsel], is that your request, then?
[Defense Counsel]: Yes, given the Court’s ruling, I think it is.
2. Standard of Review and Relevant Legal Principles
¶ 13 We review a trial court’s discovery rulings and the sanctions it
fashions as a remedy for an abuse of discretion. See People v.
Mendes, 2017 COA 129, ¶ 32. Section 18-1-301(2)(a) provides that
5 termination is not improper when a “defendant consents to the
termination or waives his right to object to the termination.”
¶ 14 “[I]f a criminal trial is terminated before a verdict, guarantees
against double jeopardy will bar a second trial unless the defendant
consented to the termination or it was manifestly necessary.” Paul v.
People, 105 P.3d 628, 633 (Colo. 2005) (emphasis added) (citation
omitted). “[A] waiver occurs whenever the defendant fails to register
an objection on the record, contemporaneously with the court’s
order.” Id.
3. Analysis
¶ 15 Sais argues that because the trial court erroneously concluded
that he was required to disclose his consent defense to the
prosecution, his motion for a mistrial was coerced and retrial was
barred. However, because Sais requested the mistrial without
preserving the double jeopardy and speedy trial arguments he
raises on appeal, and that mistrial cured any prejudice from the
court’s discovery ruling, we discern no basis for reversal.
¶ 16 Sais describes his request for a mistrial as coerced because he
was forced to choose between a mistrial and his right to present a
defense. We reject this contention.
6 ¶ 17 Regardless of the propriety of the court’s discovery ruling, Sais
could have litigated the case. The court’s discovery ruling at the
first trial would have allowed Sais to testify to his belief that A.S.
had consented to sex and to argue that the prosecution had not
proved all the elements of the charged crimes. If acquitted, Sais
would have been protected by double jeopardy. If he was found
guilty, Sais could have then appealed the trial court’s discovery
ruling. This was an available alternative to moving for a mistrial.
Thus, we aren’t persuaded that his request was coerced or made
under duress, regardless of the merits of the trial court’s discovery
ruling.
¶ 18 Moreover, a party waives their right to appeal based on a
mistrial if they don’t object on the record when the court orders the
mistrial. Id. Not only did Sais not object to the mistrial — he
requested it twice. If the absence of a contemporaneous objection
to a mistrial can qualify as a waiver, then certainly requesting one
twice without an objection serves as a clear waiver. Because we
reject Sais’s claim that his requests for a mistrial were coerced,
those requests for a mistrial waived his other options for a remedy.
7 ¶ 19 Accordingly, we need not decide whether the trial court erred
in determining that Sais was required to disclose his consent
defense. Simply put, the granting of his motion for a mistrial
extinguished any challenge he may have had to the court’s
discovery ruling, and he may not revive that challenge here by
recasting his motion for a mistrial as coerced.
B. Improper Bolstering
¶ 20 During A.S.’s redirect, Sais objected to testimony that he
argues improperly bolstered her credibility. The People counter that
improper bolstering only occurs when one witness comments on the
credibility of another witness and that A.S. was not commenting on
her credibility but clarifying why her accounts over the years
differed.
¶ 21 During cross-examination of A.S., Sais’s counsel vigorously
challenged discrepancies in the different accounts she had given
during the years-long investigation and the first trial (which was
referred to as a “hearing” during the second trial). In response, on
redirect the prosecutor questioned A.S. as follows:
8 [Prosecutor]. If I asked you today to tell me verbatim what you said in July of 2019, the first time you testified in this case, could you tell me?
A. No.
[Defense Counsel]: Objection, relevance.
THE COURT: Overruled.
Q. ([Prosecutor]) Okay. Do you have the independent memory of what you said back then?
Q. Do you remember the events of April 7th, 2017?
A. Yes.
Q. To the best of your recollection, have you testified of those events as you remembered them?
[Defense Counsel]: Objection, this is asking the witness to --
THE WITNESS: Yes.
[Defense Counsel]: -- testify about her own veracity.
Q. (By [Prosecutor]) To the best of your recollection of the events of April 7th, 2017, have you testified as you remember those events today?
9 A. Yes.
¶ 22 “We review a trial court’s evidentiary decisions for an abuse of
discretion.” Venalonzo v. People, 2017 CO 9, ¶ 15. To be an abuse
of discretion, a ruling must be manifestly arbitrary, unreasonable,
or unfair, or based on a misunderstanding or misapplication of the
law. People v. Heredia-Cobos, 2017 COA 130, ¶ 6. We review
questions of law de novo. People v. Clark, 2015 COA 44, ¶ 180.
¶ 23 Witnesses may not testify that another witness is telling the
truth or lying. Venalonzo, ¶ 32. Eliciting “testimony from the victim
about the truthfulness of her own testimony . . . does not constitute
bolstering as discussed in . . . Venalonzo.” People v. West, 2019
COA 131, ¶ 42.
¶ 24 Sais argues that the court erred by allowing A.S.’s testimony
because doing so allowed her to improperly bolster her own
credibility by commenting on her own truthfulness. We reject his
argument for two independent reasons.
¶ 25 First, A.S.’s testimony — while perhaps relevant to her own
truthfulness — wasn’t a statement explicitly claiming that she told
10 the truth on a particular occasion. Instead, A.S. was clarifying the
basis for her testimony, i.e. that it was based on her memory of the
events of the attack, and not her previous statements to
investigators.
¶ 26 Second, even if we agreed with Sais’s contention that A.S.’s
answers were an explicit attempt to comment directly on the
veracity of her own testimony, we discern no error. It’s true that
witnesses may not comment on the veracity of another witness’s
testimony, Venalonzo, ¶ 32, but that prohibition doesn’t reach a
witness’s testimony regarding her own truthfulness, West, ¶ 42.
¶ 27 In West, the defendant was convicted of sexual assault on a
child, contributing to the delinquency of a minor, and a drug felony.
West, ¶ 1. On appeal, West challenged a part of the victim’s
testimony from the trial as being improper bolstering of her own
testimony. Specifically, the victim in West testified, as follows:
Q. [W]hen you first sat down today, the judge asked you about -- to raise your hand and to talk about telling the truth today. Do you recall him asking you that?
11 Q. Okay. When, um, you came in here before, did I talk to you as well about the -- about what's the number one rule about testifying?
Q. What’s the number one rule?
A. Tell the truth.
Q. Okay. Is that what you have done today while you’ve been here testifying?
Id. at ¶¶ 34-35.
¶ 28 The division in West concluded that the court did not err by
allowing this testimony because the witness wasn’t commenting on
the truthfulness of another witness but only on her own veracity.
Id. at ¶¶ 42, 44. Just as in West, A.S. didn’t comment on the
veracity of any other witness’s testimony but only indirectly on her
own truthfulness.
¶ 29 Indeed, the conclusion in West makes good sense, since such
testimony would, at worst, be a reaffirmation of the oath that every
witness takes in the presence of the jury to testify truthfully.
Accordingly, we discern no error in the court’s decision to allow
A.S.’s testimony.
12 C. The Limiting Instruction
¶ 30 Sais argues the court erred by not granting his request for a
contemporaneous limiting instruction when information about
several previous felony convictions was elicited during his
testimony. The People argue the instruction was not required to be
read at the same time Sais’s convictions were introduced and, in
the alternative, that any error was harmless.
¶ 31 Sais’s convictions were going to be introduced by the
prosecution in order to impeach his credibility. He requested the
court give a specific limiting jury instruction at the end of trial and
contemporaneously read the instruction when Sais was asked
about his previous convictions. The court agreed to distribute the
jury instruction at the end of trial. The following colloquy captures
the court’s decision not to contemporaneously read the instruction:
THE COURT: . . . [I]t sounds to me like you’re asking that I read a limiting instruction before he testifies?
[Defense Counsel]: My request would be contemporaneous to when the question is asked, when the felony conviction is elicited.
THE COURT: . . . I think, certainly, it is appropriate to give that instruction to the jury,
13 as part of the jury instructions. But I don’t know, necessarily, that I’m required to give it as a limiting instruction while he testifies or before he testifies. Do you have a case that says that that’s -- the Court should handle it that way?
[Defense Counsel]: I don’t have a case that says the Court has to do it that way, that is just my request.
THE COURT: Okay. Do you have a position on that, [Prosecutor]?
...
[Prosecutor]: I think it is appropriate -- it is definitely appropriate to give it in the jury instructions. That’s required under COL-JI, I believe. I don’t think it is appropriate to give it as a limiting instruction.
THE COURT: Okay. And I’m going to — that’s the way I’m going to approach it, [Defense Counsel].
¶ 32 Sais’s counsel questioned him about the previous convictions
on direct, and then the prosecution asked him about the
convictions again on cross-examination. After Sais’s testimony, the
defense did not call any more witnesses and rested. The court
adjourned for lunch, and upon resuming proceedings the court gave
the jury instructions to the jury, including Sais’s requested
instruction.
14 2. Standard of Review
¶ 33 We review a trial court’s decision not to give a jury instruction
for an abuse of discretion. People v. Payne, 2019 COA 167, ¶ 16.
Where error exists and the defendant objects to a jury instruction,
we review for harmless error. McDonald v. People, 2021 CO 64,
¶ 55. An error is harmless if there is not a reasonable probability
that it contributed to the conviction. Id.
¶ 34 Sais argues that a court must grant a defendant’s request for
a contemporaneous limiting instruction when the defendant’s prior
convictions are being introduced. Sais grounds his argument that a
limiting instruction is required upon request by pointing out that
Colorado statutes and case law require limiting instructions in
other similar contexts where prior convictions or bad acts are
introduced. For example, Sais argues that when prior bad acts are
introduced under CRE 404(b), if a defendant requests a
contemporaneous limiting instruction, then the court must give
one. Rojas v. People, 2022 CO 8, ¶ 27. We disagree that such an
instruction is required in the circumstances before us.
15 ¶ 35 To begin, all the authorities Sais cites for the proposition that
a contemporaneous limiting instruction is required upon request
arise in a context where a statute or rule requires the giving of such
an instruction. See id. (limited to CRE 404(b) evidence); § 16-10-
301(4)(d), C.R.S. 2024 (limited to sexual offenses); § 18-6-801.5(5),
C.R.S. 2024 (limited to domestic violence). Sais requests that we
extend the requirement in other contexts to this one, but without
explicit requirements by statute or legal precedent, we decline Sais’s
invitation to adopt such a categorical obligation.1 Cf. People v.
Brown, 2019 CO 50, ¶ 17 (where a statute is silent on an issue, it is
not the role of the courts to add language to the statute). Doing so
is the prerogative of the legislature or the supreme court, and we
decline to do so for the first time here. Cf. Nat’l Farmers Union Prop.
& Cas. Co. v. Estate of Mosher, 22 P.3d 531, 534 (Colo. App. 2000)
(“We are not at liberty to read additional terms into, or to modify,
the plain language of a statute, particularly where, as here, the
1 While we conclude that a contemporaneous instruction isn’t
required, it seems that granting such a request is certainly best practice, absent a compelling countervailing reason.
16 General Assembly has elsewhere enacted the very limitation urged
upon the court.”) (citations omitted).
¶ 36 Next, Sais argues that even if giving a contemporaneous
limiting instruction is discretionary, the trial court failed to exercise
any discretion because the court declined to give the instruction
simply because it wasn’t required to give such an instruction. This,
he says, is a failure to exercise discretion. See People v. Hardin,
2016 COA 175, ¶ 30. Assuming without deciding that doing so was
an abuse of discretion, we conclude any such error is harmless for
four reasons.
¶ 37 First, the jury did ultimately receive the requested instruction,
and we presume that jurors follow the instructions given to them.
Johnson v. People, 2019 CO 17, ¶ 16. Second, there was little time
between when both sides questioned Sais about his prior
convictions and the jury’s receipt of the limiting instruction. Sais
was the final witness and following his testimony, and without a
substantial passage of time, the court read aloud and distributed
the written jury instructions, which contained the requested
instruction. Third, both Sais and the prosecution referenced the
limited purpose of the convictions correctly in their closing
17 arguments. And finally, the prosecution never made a propensity
argument with the convictions or otherwise took advantage of the
lack of a contemporaneous limiting instruction. See People v.
Coughlin, 304 P.3d 575, 586 (Colo. App. 2011) (holding that it was
not error for a court not to give an instruction where a general
credibility instruction was given and where neither party took
advantage of the lack of instruction during their closing argument).
¶ 38 The combination of these factors convinces us that the
admission of the previous convictions without a contemporaneous
limiting instruction did not contribute to the jury’s decision to
convict Sais of sexual assault and kidnapping. Accordingly, we
conclude that any potential error in not giving the limiting
instruction contemporaneously with Sais’s testimony was harmless.
D. Cumulative Error
¶ 39 Finally, Sais argues that the cumulative prejudice of multiple
claimed errors is sufficient to overturn his convictions.
¶ 40 To put it simply, cumulative error presumes cumulative
prejudice. Howard-Walker v. People, 2019 CO 69, ¶ 25. Therefore,
“a single error is insufficient to reverse under the cumulative error
standard.” People v. Thames, 2019 COA 124, ¶ 69.
18 ¶ 41 Because we could discern only one potential error — the
failure to give the contemporaneous limiting instruction — there is
no possibility for cumulative error or any basis for reversal.
Accordingly, we reject Sais’s argument that the combined errors of
the trial court deprived him of a fair trial.
III. Disposition
¶ 42 The judgment is affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.