Peo v. Sais

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.

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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

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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

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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

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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

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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.

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¶ 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.

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¶ 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.

1. Additional Facts

¶ 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:

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[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?

A. No.

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.

THE COURT: Overruled.

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?

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A. Yes.

2. Standard of Review and Relevant Legal Principles

¶ 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.

3. Analysis

¶ 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

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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?

A. Yes.

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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?

A. Yes.

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?

A. Yes.

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.

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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.

1. Additional Facts

¶ 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,

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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.

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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.

3. Analysis

¶ 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.

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¶ 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.

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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

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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.

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¶ 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.

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