People v. Faussett

2016 COA 94, 2016 COA 94M, 409 P.3d 477, 2016 Colo. App. LEXIS 845
CourtColorado Court of Appeals
DecidedJune 16, 2016
DocketCourt of Appeals 15CA0278
StatusPublished
Cited by828 cases

This text of 2016 COA 94 (People v. Faussett) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Faussett, 2016 COA 94, 2016 COA 94M, 409 P.3d 477, 2016 Colo. App. LEXIS 845 (Colo. Ct. App. 2016).

Opinion

Opinion by

JUDGE DAILEY

¶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 disappear- *481 anee 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.”

¶ 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 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 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, “[TJhat’s his business.... [H]e made a choice.... If he decides not to talk to his attorney, I know that puts his attorney in 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 *482 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.

¶ 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 actions, 2 for which the court need not grant a continuance. See Johnson v. People, 172 Colo.

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Cite This Page — Counsel Stack

Bluebook (online)
2016 COA 94, 2016 COA 94M, 409 P.3d 477, 2016 Colo. App. LEXIS 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-faussett-coloctapp-2016.