Peo v. Henderson

24CA1304 Peo v Henderson 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1304
El Paso County District Court No. 23CR4274
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Robert Neal Henderson,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE KUHN
J. Jones and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Michael J. Allen, District Attorney, Doyle Baker, Senior Deputy District
Attorney, Tanya A. Karimi, Deputy District Attorney, Amanda Byrne, Deputy
District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant

The Bussey Law Firm, P.C., Timothy R. Bussey, Colorado Springs, Colorado,
for Defendant-Appellee
¶1 The People appeal the district court’s order dismissing their

case against defendant, Robert Neal Henderson, entered after the

court denied the prosecutor’s request to continue trial. We reverse

and remand the case to the district court for further proceedings

consistent with this opinion.

I. Background

¶2 Early one morning in September 2023, an alleged domestic

violence altercation occurred between Henderson and his girlfriend,

J.B. (the victim). According to the probable cause affidavit for his

arrest, Henderson took the victim’s personal belongings and

physically attacked her when she attempted to leave his residence.

During the incident, Henderson grabbed the victim by the neck,

causing her to “black[] out for approximately one minute”; threw her

on the ground several times and “into a railing where she hit her

head and saw stars”; and “punched her five or more times in the

face.” The responding officer observed that the victim’s right eye

was swollen shut and “had turned a purplish color,” she had a large

welt on her right temple, and she had another large welt on the

right side of her head.

1
¶3 The prosecution charged Henderson with felony second degree

assault and three misdemeanor offenses: third degree assault,

harassment, and false imprisonment. See § 18-3-203(1)(i), (2)(b),

C.R.S. 2024 (class 4 felony second degree assault); § 18-3-204(1)(a),

(3), C.R.S. 2024 (class 1 misdemeanor third degree assault);

§ 18-9-111(1)(a), (2)(a), C.R.S. 2024 (class 1 misdemeanor

harassment); § 18-3-303(1), (2), C.R.S. 2024 (class 2 misdemeanor

false imprisonment). Henderson pleaded not guilty on January 2,

2024, and the district court set trial for April 23, roughly two and a

half months before the expiration of his six-month statutory speedy

trial period.

¶4 In connection with this trial date, the court conducted pretrial

readiness conferences on April 1 and April 22. On both occasions,

the prosecutor said that she wasn’t ready to go to trial because she

hadn’t been able to serve the victim with a subpoena to testify at

trial. Specifically, during the April 22 conference, the prosecutor

told the district court that a process server had been attempting to

serve the victim. But while the process server had “some

communication with [the victim] regarding meeting to receive the

subpoena,” he hadn’t been able to meet with her. The prosecutor

2
said that it was unclear whether the victim had told the process

server that she was available at times when she wasn’t really

available “and [was] kind of trying to evade service that way.” Over

Henderson’s counsel’s objection, the court granted the prosecutor’s

request for a continuance and reset trial for June 4.

¶5 The victim was personally served on May 15 with a subpoena

to appear at trial, and both parties announced their readiness to

proceed during a June 3 pretrial readiness conference. However,

the victim didn’t appear on the morning of trial. The prosecutor

asked the district court to issue a bench warrant for the victim’s

arrest but stay its execution until the next morning. She also asked

the court to continue the trial for one day. Alternatively, she asked

the court to impanel the jury as originally planned but to delay the

presentation of evidence until the next morning. The district court

denied the prosecutor’s requests. And after the prosecutor

indicated to the court that she couldn’t prove her case without the

victim’s testimony, the court dismissed the case at Henderson’s

counsel’s request.

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II. Analysis

¶6 The People contend that the district court erred by denying the

request for a continuance and then dismissing the charges against

Henderson. The People also contend that the court should have

issued a bench warrant and considered the effect of the warrant on

the circumstances pending before it. We agree with these

contentions and, therefore, reverse.

A. Standard of Review and Applicable Law

¶7 We review a district court’s denial of a motion to continue trial

for an abuse of discretion. People v. Ahuero, 2017 CO 90, ¶ 11. To

the extent the court’s decision here involved the interpretation of a

rule of criminal procedure, we review that question de novo

“employing the ‘same interpretive rules applicable to statutory

construction.’” People v. Bueno, 2018 CO 4, ¶ 18 (quoting People v.

Corson, 2016 CO 33, ¶ 44).

¶8 A court abuses its discretion if its decision is manifestly

arbitrary, unreasonable, or unfair, or is based on a

misunderstanding or misapplication of the law. People v. Senette,

2018 COA 105, ¶ 8. “[A]n unreasoning and arbitrary insistence

upon a trial date in the face of a justifiable request for delay can

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amount to an abuse of discretion . . . .” People v. Hampton, 758

P.2d 1344, 1353 (Colo. 1988). But “[t]here are no ‘mechanical tests’

for determining whether a trial court abuses its discretion by

denying a continuance.” People v. Brown, 2014 CO 25, ¶ 20

(quoting Hampton, 758 P.2d at 1353). Rather, we consider the

totality of the circumstances of the case. Id. In doing so, we must

evaluate the circumstances confronting the court at the time the

motion to continue was filed, including the reasons underlying the

motion. Ahuero, ¶ 11. “When the continuance is sought to locate a

missing witness, the court may consider whether the movant

exercised due diligence to secure the witness’s attendance.”

Senette, ¶ 9. Other factors relevant to our inquiry are the prejudice

that the movant would suffer from the denial of the continuance,

whether the continuance would cure that prejudice, and the

potential prejudice to the nonmoving party if the continuance were

granted. Id.

¶9 Even if a district court abuses its discretion by denying a

motion to continue, the movant must also “demonstrate actual

prejudice arising from [the] denial of the continuance.” People v.

Garrison, 2017 COA 107, ¶ 21 (quoting People v. Denton, 757 P.2d

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637, 638 (Colo. App. 1988)). Otherwise, the error is harmless and

therefore doesn’t warrant reversal. See People v. Hagos, 2012 CO

63, ¶ 12 (“[W]e review nonconstitutional trial errors that were

preserved by objection for harmless error.”); Crim. P. 52(a).

B. Additional Background

¶ 10 As noted above, the district court held a pretrial readiness

conference on June 3. The prosecutor informed the court that the

victim had been personally served with a subpoena to appear at

trial the next day and that the prosecution was ready to proceed.

¶ 11 However, the victim failed to appear in court on the morning of

trial and wasn’t responding to the victim advocate’s calls and

messages. The prosecutor informed the court that she was

nonetheless expecting the victim to testify in the case because the

victim was under a subpoena. The prosecutor said that while she

“had initially not been in good communication with [the

victim], . . . [she] was able to get [the victim] on the phone [the day

before the trial].” During that conversation, the prosecutor provided

information regarding the place and time of trial, and the victim

confirmed that she intended to come to court. The prosecutor

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noted that the victim was aware that there was “always a potential

[that] the [c]ourt could issue a warrant if she [didn’t] show [up].”

¶ 12 Then, the prosecutor requested a bench warrant with a stay of

execution until the next morning and a short one-day continuance.

She explained that Henderson’s speedy trial deadline was set to

expire on July 2, and June 25 was the only other available trial

setting within that deadline.

¶ 13 The court clarified that June 25 wasn’t available because a

reverse transfer hearing in an unrelated matter had been set for

that day. The court clerk also said that the jury commissioner had

indicated that if the court were to continue the trial until June 5 as

requested by the prosecutor, jury selection wouldn’t be guaranteed

because the jury pool for that day was smaller than usual and there

were three county court cases on the docket scheduled to call jurors

before Henderson’s case. Specifically, the clerk said,

We would have to wait till those judges pick
their jurors, and then we will get whatever that
is left over if there’s any left over or if, you
know, their trial goes away. So we will have to
wait to see the results for the other judges first
before we can get a panel for tomorrow.

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¶ 14 In response to this information, the prosecutor asked to move

forward with picking a jury that morning, but starting the

presentation of evidence the next morning, at which time the stayed

bench warrant for the victim could also be addressed. In support,

the prosecutor reiterated that the victim had been personally served

with a subpoena and that she had spoken with the victim just

recently.

¶ 15 The district court denied this specific request:

We were set for trial on April 1. Defense was
ready. People were not ready because they
didn’t have [the victim] served. So we set it
over to April 22[]. We were ready for trial on
April 22[], and the People, again, had made
efforts to serve [the victim] and were unable to
do so, and we set it over for trial today.

The . . . Court finds [that] the People certainly
have been trying to gain the cooperation of [the
victim] but are unable to do so. We’ve now
been waiting over an hour for her to appear,
for her to return your . . . victim advocate[’s]
call to say, I’m sorry. I slept in. I had an
emergency. I need an accommodation, and
that hasn’t happened.

¶ 16 Additionally, the court was concerned that granting the

prosecution’s request would be an inconvenience to jurors:

And so we’re set for trial today, and the Court
of Appeals may disagree with me. They may

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think it’s a de minimis concern that I think it’s
important that I not call jurors up here and
take two days of their time to serve as jurors
without anything more than the hope that [the
victim] is going to appear.

¶ 17 Finally, the district court also denied the prosecutor’s renewed

request that the entire trial be pushed back one day:

Well, I don’t have . . . a trial pool for tomorrow.
We summoned our pool for today, and so what
I’ve been told is that we can wait until the
county court has gone through their pool, see
if . . . we could bring in a pool. We may or may
not be able to.

But, again, now we’ve pushed the trial back a
day, and I have to get this trial done by
Friday[, June 7]. [During the June 3 pretrial
readiness conference, the prosecutor] told me
this was a three-[day], possibly four-day trial
with deliberations. I can’t accommodate that.

The court summarized its decision to deny a continuance as

follows:

We don’t have a [jury] pool available. So,
again, the plan is we’re going to hope for a jury
pool. We’re going to hope for [the victim]
cooperating with a court ordered subpoena.
Hope is not a plan that I can make decisions
on, and the request is denied.

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C. The District Court Erred by Denying the Prosecutor’s
Continuance Request and Dismissing the Case

¶ 18 The People contend that the district court erred by “denying

the prosecution’s request to continue trial for [the] unavailable

[victim-]witness because [the court] failed to issue a bench warrant

as required under the rules of criminal procedure and because it

failed to weigh the effect the bench warrant would have [had] in

gaining the witness’s presence for trial.” In advancing this

argument, the People direct our attention to Senette.

¶ 19 In that case, the trial court denied the prosecutor’s request for

a one-week continuance and dismissed the charges against Senette

after the victim-witness failed to appear at trial. Senette, ¶¶ 2, 4.

On the prosecution’s appeal, a division of this court reversed the

dismissal order and remanded for reinstatement of the charges. Id.

at ¶ 24. The division concluded that the trial court abused its

discretion by denying the prosecutor’s continuance request because

that ruling was arbitrary and based on the court’s misapplication of

the law. See id. at ¶¶ 10-19.

¶ 20 Specifically, “[i]t was arbitrary for the trial court to deny the

requested continuance without recognizing the prosecutor’s

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diligence in attempting to procure [the witness’s] attendance at

trial.” Id. at ¶ 10. Indeed, the division observed, “the prosecutor

and the prosecution’s investigators knew where [the witness] lived

and worked; had been in contact with [the witness] by phone and

text message throughout the case, including on the morning of trial;

and had personally served her with a subpoena to attend trial.” Id.

¶ 21 The Senette court concluded that the trial court misapplied the

law when it failed to grant the prosecutor’s request for a bench

warrant and when it determined that a continuance would “do little

to procure [the witness’s] attendance at trial without placing any

weight on the fact that an active bench warrant during the period of

any continuance would help compel [the witness’s] attendance and

make it far more likely she would appear at the rescheduled trial.”

Id. at ¶¶ 12, 15. Finally, the division concluded that the trial

court’s denial of a continuance was arbitrary because while the

court concluded that the requested continuance would prejudice

Senette, the court didn’t consider that the prosecution would be

unable to prove its case without the witness whose testimony was

essential to the case, and whose attendance the prosecution could

have compelled with a bench warrant. Id. at ¶¶ 16, 19.

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¶ 22 We agree that the rationale from Senette applies to this case.

We conclude that the district court abused its discretion by denying

a one-day continuance because the court (1) misapplied the law by

not issuing a bench warrant for the victim’s arrest and (2) failed to

consider the facts suggesting that the continuance was warranted.

1. The District Court Misapplied the Law in Handling the
Prosecutor’s Request for Issuance of a Bench Warrant

¶ 23 When a subpoenaed witness doesn’t appear at trial, the court,

at the request of the subpoenaing party, “shall issue a bench

warrant directing that any peace officer apprehend the person and

produce the person” for trial. Crim. P. 17(h)(2)(A) (emphasis added).

¶ 24 Here, when the subpoenaed victim failed to appear on the

morning of trial, the prosecutor asked the court three times to issue

a bench warrant. Yet the district court never explicitly addressed

those requests — let alone issued a bench warrant — before

denying a continuance and dismissing the case against Henderson.

Consequently, the court misapplied the law because the plain

language of Rule 17(h)(2)(A) required the court to issue a bench

warrant. See Senette, ¶ 12 n.1 (“[The rule] does not give a trial

court discretion to issue a warrant to compel the attendance of a

12
properly served witness.”); People v. Huckabay, 2020 CO 42, ¶ 16

(“[T]here is a presumption that the word ‘shall’ when used in a

statute is mandatory.” (quoting Mook v. Bd. of Cnty. Comm’rs, 2020

CO 12, ¶ 80)).

¶ 25 True, while Senette involved a request for an active bench

warrant, the prosecutor here requested a warrant with its execution

stayed for one day. Nonetheless, we’re not persuaded by

Henderson’s argument that “[b]y asking for a stayed bench warrant

and not an active warrant, the [prosecutor] was literally waiving any

of the process and remedies offered by [Rule 17(h)(2)].” In essence,

Henderson posits that Rule 17(h)(2) didn’t apply to the prosecutor’s

request because the specific remedy that she sought wasn’t

“authorized” by that provision.

¶ 26 But Henderson cites no authority supporting the sweeping

proposition that a request for a stayed bench warrant seeks a

separate and distinct remedy outside the ambit of Rule 17(h)(2),

precluding the prosecutor from obtaining a warrant under that rule.

In any event, the prosecutor here repeatedly asked for the issuance

of a bench warrant for the victim. Under Rule 17(h)(2), absent

exceptions not applicable here, the district court had to grant that

13
request. Nothing in the rule precluded the court from staying any

issued warrant until the next morning; to the contrary, other courts

have granted that exact relief. See, e.g., People v. Myers, 969 P.2d

701, 702 (Colo. 1998) (acknowledging in an attorney discipline

action that the court in the underlying criminal case stayed a bench

warrant for the attorney’s arrest). Finally, there’s no indication in

the record that the district court had any concern about the effect

of the requested stay on its ability to enforce the subpoena under

Rule 17(h)(2). Accordingly, Henderson’s argument doesn’t alter our

conclusion that the court misapplied the law by not issuing the

requested bench warrant for the subpoenaed nonappearing witness.

¶ 27 Having reached this conclusion, we now turn to the court’s

denial of the continuance request itself.

2. The District Court Failed to Fully Examine
the Circumstances Before Denying a Continuance

¶ 28 Like the trial court in Senette, the district court here erred in

its assessment of the factual circumstances surrounding its

decision not to continue the case. For starters, the court denied the

prosecutor’s request after observing that the trial was initially set

for April 1 and that it had already been continued twice, first to

14
April 23 and then to June 4. However, as explained above, April 23

was the original trial date, and the court only conducted a pretrial

readiness conference on April 1. During that proceeding, the court

reset the pretrial readiness conference to April 22 because the

prosecution was still attempting to serve the victim with a

subpoena. When the victim still hadn’t been served by the reset

conference, the court continued the trial to June 4. Thus, to the

extent the court determined that a continuance wasn’t warranted

because Henderson’s trial had already been continued twice, that

determination is contradicted by the record.

¶ 29 Next, the district court failed to consider certain facts

indicating that the requested continuance would have allowed the

prosecutor to procure the victim’s attendance in court. For

example, in noting that the prosecutor had been diligent but

ultimately unsuccessful in her attempts “to gain the cooperation” of

the victim, the court told the prosecutor that it “sound[ed] like [she]

maybe had some difficulty all along” and emphasized that the

victim advocate hadn’t been able to reach the victim on the morning

of trial. But there’s no indication that the court considered that the

prosecutor had spoken with the victim just the day before. During

15
that conversation, the prosecutor told the victim that she was

required to appear in court the next morning and confirmed the

courtroom where the trial would be held. The victim confirmed that

she intended to appear at trial and that she knew where to go given

that “[s]he had been here once initially in the case to modify the

protection order.” The prosecutor also informed the court that at

the time of the case, the victim worked late nights and it was

possible that she had overslept.

¶ 30 More importantly, because the district court declined to first

address the prosecutor’s request for a bench warrant, the court also

didn’t consider whether the warrant would make it more likely that

the victim would appear at the rescheduled trial. See Senette, ¶ 12.

After all, the prosecutor knew where the victim lived and was in

contact with her. The prosecutor had even warned the victim that

the court could issue a bench warrant for her arrest if she failed to

comply with her subpoena. Under these circumstances, the district

court should have considered whether the requested bench warrant

and a one-day continuance would have allowed the prosecutor to

use the threat of arrest associated with the warrant to compel the

victim’s attendance in court.

16
¶ 31 In arguing otherwise, Henderson again points out that the

prosecutor only requested a stayed bench warrant and asserts that

this warrant would have been futile given that it would have expired

the next day “by operation of law under [Rule 17(h)(2)(A)(ii)] due to

cancellation of the trial.” But this assertion presumes that only an

active bench warrant would have been effective in securing the

victim’s appearance, and we have already rejected that proposition

above. Further, even if the victim were to not appear at the

rescheduled trial despite the stayed warrant, that doesn’t mean that

the prosecutor couldn’t ask for further relief from the court. Thus,

Henderson’s argument that the requested bench warrant would

have been “illusory” because the court would have canceled the trial

anyway is based on speculation.

¶ 32 This brings us to the People’s final argument: the district court

abused its discretion by giving more weight to the possible

inconvenience to prospective jurors than to the prejudice of

dismissal to the prosecution. In evaluating the prosecution’s

request, the court reasoned that a continuance was improper

because the court didn’t have a jury pool for the next morning, and

regardless, the trial couldn’t be completed by June 7, the only

17
available three-day period in the court’s calendar before the end of

Henderson’s speedy trial deadline the following month.

¶ 33 It’s true that the jury commissioner was uncertain whether a

jury pool would be available if jury selection was continued to June

5. But while the jury commissioner indicated that there was no

guarantee that there would be a sufficient jury pool left after the

county court docket, there was still a possibility that a jury pool

would be available. The district court concluded that this

uncertainty meant that continuing the case would be futile because

there was no pool from which a panel could be drawn. The court

also denied the prosecutor’s request for a jury to be selected from a

pool summoned for the June 4 trial on the grounds that imposing

an extra day of jury duty would be inconvenient to jurors. Thus,

the court first declined to impanel a jury from the jury pool that was

readily available on the morning of trial and then it denied a

continuance because there was a chance that a pool wouldn’t be

available the next morning.

¶ 34 Likewise, there was considerable uncertainty over whether the

trial could be completed by June 7 if the court continued it to June

5. Specifically, after the court noted that it couldn’t accommodate

18
“a three-[day], possibly four-day trial with deliberations,” the

prosecutor clarified, “[T]he People never said it would be four days.

I said it might spill over to the morning of the [third day], but I

believe that our testimony would be done by the morning of the

second day [i.e., June 6].” The court then said,

That’s what I heard. But what you fail to take
into account is the Defense case and [the] time
for deliberation[s]. I’m out of the office next
week. And so this case would have to end by
Friday[, June 7], and . . . from what I
understood, [the] parties were expecting, at
best, [that] evidence would be concluded on
the third day, which would be Friday, if we
were to start tomorrow. That’s even with
starting early in the morning, which we’re not
going to be able to.

It doesn’t appear that the court confirmed with defense counsel the

anticipated length of Henderson’s case-in-chief. Instead, the court

presumed that the presentation of all evidence wouldn’t conclude

until June 7, and therefore, there wouldn’t be enough time left for

the jury to deliberate and return a verdict by the end of that day.

¶ 35 We recognize that the court had to balance significant

competing interests, including the prosecution’s interest in having

the victim testify in the case, Henderson’s statutory right to speedy

trial, the availability of a jury pool, and the court’s limited

19
availability. As a general rule, the difficulties inherent in

“assembling the witnesses, lawyers, and jurors at the same place at

the same time . . . counsel[] against [a] continuance[] except for

compelling reasons.” Ahuero, ¶ 12 (quoting Morris v. Slappy, 461

U.S. 1, 11 (1983)). And to be sure, there is nothing wrong with a

court considering these types of factors in deciding how to manage

its docket. See People v. Sandoval-Candelaria, 2014 CO 21, ¶ 26

(“[O]ur cases make clear that trial courts have broad discretion to

manage their dockets.”).

¶ 36 However, while we can’t say that — standing alone — the

district court incorrectly weighed the impact of the prosecution’s

plan on the jurors against the impact on the prosecution’s case,

these scheduling pressures all appear to have contributed to the

court’s decision to dismiss the case.

¶ 37 Regardless, this point does not alter the conclusion we reach

above: the court misapplied the law by not issuing a bench warrant

for the nonappearing subpoenaed victim at the prosecution’s

request. And at that point, it also should have examined whether

the warrant was likely to obtain the victim’s presence at trial.

Under these circumstances, then, we conclude that the court

20
abused its discretion by denying the requests for a warrant and a

continuance. Given that the error resulted in dismissal of the

People’s case, we conclude the error was not harmless.1 We

therefore conclude that the charges must be reinstated.

III. Disposition

¶ 38 The judgment of dismissal is reversed, and the case is

remanded to the district court to reinstate the charges against

Henderson and to conduct further proceedings consistent with this

opinion.

JUDGE J. JONES and JUDGE MOULTRIE concur.

1 In his briefing, Henderson contends that because the prosecutor

didn’t pursue a continuance in accordance with section
18-1-405(6)(g)(I), C.R.S. 2024, the People can’t establish that they
suffered prejudice as a result of the district court’s decision, and
additionally, they are precluded from seeking reinstatement of the
charges. This argument misses the mark by a wide margin. The
record clearly shows that after the court denied a continuance, the
court dismissed the charges because the prosecutor couldn’t prove
her case without the victim’s testimony. Indeed, the prosecutor
explicitly conveyed that point to the court. So the prejudice to the
People is obvious — their charges against Henderson were
dismissed as a consequence of the court’s decision not to push
back the trial for one day. And because these “two decisions simply
cannot be separated,” the proper remedy on remand is for the court
to reinstate the charges. People v. Senette, 2018 COA 105, ¶¶ 21,
24.

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