County District Court No. 13CR3552 Honorable Thomas R. Ensor,
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
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
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"
5 Defendant was arrested for his involvement in the
scooter's theft. At trial, the prosecution presented the
• 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
• 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]
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.
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
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
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 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
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
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,  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
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 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
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] 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
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
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. . . .
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
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