v. Coahran , 436 P.3d 617 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 24, 2019
2019COA6
No. 15CA1147, People v. Coahran — Crimes — Criminal
Mischief; Affirmative Defenses — Self-Defense — Use of
Physical Force in Defense of Person
In this criminal case, a division of the court of appeals is faced
with the question whether a defendant charged with criminal
mischief may be entitled to a jury instruction on self-defense as an
affirmative defense under section 18-1-704(1), C.R.S. 2018. The
division answers that question “yes.”
Specifically, the division concludes that the legislature didn’t
foreclose self-defense as an affirmative defense where a defendant is
charged with a property crime, uses force to defend himself or
herself from the use or imminent use of unlawful physical force by
another, and takes only those actions which are reasonably
necessary to do so — whether his or her actions are upon the other
person directly or indirectly.
COLORADO COURT OF APPEALS 2019COA6
Court of Appeals No. 15CA1147
El Paso County District Court No. 14CR5013
Honorable Thomas K. Kane, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
April Jo Coahran,
Defendant-Appellant.
JUDGMENT REVERSED, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE HAWTHORNE
Tow and Nieto*, JJ., concur
Announced January 24, 2019
Philip J. Weiser, Attorney General, Jillian J. Price, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey Svehla, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, April Jo Coahran, was convicted of criminal
mischief arising from damage she caused to her ex-boyfriend’s car
door after he grabbed her wrist and wouldn’t let go. But according
to Coahran, she kicked the car door to distract the ex-boyfriend and
also to gain enough leverage to free herself and get away. So, she
argued, she acted in self-defense and was entitled to an affirmative
defense instruction under section 18-1-704(1), C.R.S. 2018. The
prosecution responded that Colorado’s self-defense statute applies
only to situations involving the use of physical force against other
persons, not against property, and so it didn’t apply to Coahran’s
situation. The trial court agreed. Now on appeal, Coahran
challenges her conviction because of this alleged instructional error,
among other reasons. She also appeals the trial court’s restitution
order.
¶2 As a matter of first impression in Colorado, we are faced with
the question whether a defendant charged with criminal mischief
may be entitled to a jury instruction on self-defense as an
affirmative defense. We answer that question “yes.” We reverse
Coahran’s conviction, vacate the restitution order, and remand for a
new trial.
1
I. Background
¶3 At trial, the facts surrounding what happened between
Coahran and her ex-boyfriend were disputed.
¶4 In November 2014, according to Coahran, her ex-boyfriend
owed her money, so she reached out to him and suggested they
meet for lunch, at which time the ex-boyfriend could repay her. On
the day they planned to meet, Coahran had another appointment.
So she suggested they cancel their lunch plans and meet instead at
the ex-boyfriend’s workplace. The ex-boyfriend rejected this idea,
and he went to the restaurant during his lunch break as originally
planned.
¶5 Coahran arrived as soon as she could and saw the
ex-boyfriend walking out of the restaurant. According to Coahran,
he looked frustrated. When she asked him what was wrong, the
ex-boyfriend began yelling at her for being late. Coahran asked the
ex-boyfriend for the money, which he refused to give her. Coahran
turned to walk away, but the ex-boyfriend grabbed her wrist to stop
her. She asked him twice to let her go, but he refused. Worried the
situation would escalate and “not wanting to see that side of him,”
Coahran kicked the ex-boyfriend’s car door, hoping to distract him
2
momentarily and gain enough leverage to free herself. The
ex-boyfriend let go of her wrist and she quickly returned to her car
and drove away.
¶6 At trial, the prosecution introduced photos of the damage to
the ex-boyfriend’s car door. Coahran admitted she had kicked the
car door, but denied that she had intended to cause any damage to
it. Instead, Coahran argued in a pretrial conference that she had
kicked the car door in self-defense. Specifically, she argued that
after the ex-boyfriend grabbed her wrist and wouldn’t let go, she
was worried the situation would escalate. She kicked the car door
to distract the ex-boyfriend so he’d let her go. Kicking the door also
gave her leverage to pull away from the ex-boyfriend’s grasp, which
she didn’t have the power to do on her own.
¶7 The prosecutor argued, and the trial court agreed, that
self-defense as an affirmative defense wasn’t available for Coahran’s
criminal mischief charge because her use of physical force was
directed toward property (the car) rather than another person (the
ex-boyfriend). The court, however, permitted Coahran to argue that
self-defense was an element-negating traverse, that is, her actions
3
were taken in self-defense and negated the “knowingly” mens rea
required for the criminal mischief charge.
¶8 Coahran was convicted of criminal mischief and ordered to pay
restitution to the ex-boyfriend.
¶9 On appeal, Coahran asserts that (1) the court improperly
instructed the jury on self-defense; (2) the court erred by
prohibiting evidence of the ex-boyfriend’s prior bad acts; (3) the
prosecution failed to prove the damage amount necessary to sustain
a conviction for class 6 felony criminal mischief; (4) comments by
the ex-boyfriend and the prosecutor improperly shifted the burden
of proof to Coahran to prove her innocence; and (5) the court
ordered restitution without a hearing and without requiring the
prosecution to prove actual pecuniary loss.
II. Self-Defense
¶ 10 Coahran contends the trial court made two critical errors
regarding the self-defense jury instructions, warranting reversal of
her conviction, by (1) refusing to instruct the jury on self-defense as
an affirmative defense, which impermissibly lowered the
prosecution’s burden of proof; and (2) misstating the law in its jury
instruction.
4
¶ 11 The People respond that Coahran wasn’t entitled to an
affirmative defense self-defense instruction because the self-defense
statute applies only to situations involving physical force used
against other persons, not against property. And, the People
contend, even if the jury instruction given by the court incorrectly
stated the law, it inured to Coahran’s benefit because she wasn’t
entitled to such an instruction in the first place. Thus, the People
continue, any error is harmless.
¶ 12 Because we conclude that Coahran was entitled to an
affirmative defense self-defense jury instruction, we don’t address
her second contention as to the instruction given to the jury.
A. Standard of Review
¶ 13 A trial court has a duty to correctly instruct the jury on the
governing law. Townsend v. People, 252 P.3d 1108, 1111 (Colo.
2011). We review jury instructions de novo to determine whether
the instructions accurately do so. Riley v. People, 266 P.3d 1089,
1092 (Colo. 2011). We consider all the instructions given by the
trial court together to determine whether they properly informed the
jury. Id.5
¶ 14 We review a court’s decision whether to give a particular jury
instruction for an abuse of discretion. People v. Gwinn, 2018 COA
130, ¶ 31. A court abuses its discretion if it bases its ruling on an
erroneous understanding or application of the law. Id. We review
such legal issues de novo.
¶ 15 We also review de novo whether there’s sufficient evidence in
the record to support a self-defense jury instruction. People v.
Newell, 2017 COA 27, ¶ 19. “When considering an affirmative
defense instruction, we consider the evidence in the light most
favorable to the defendant.” Id.¶ 16 “A defendant need only present ‘some credible evidence’ in
support of the affirmative defense . . . .” People v. DeWitt, 275 P.3d
728, 733 (Colo. App. 2011) (quoting § 18-1-407(1), C.R.S. 2018). If
the defendant meets this standard, the prosecution has the burden
to disprove the affirmative defense beyond a reasonable doubt. Id.
If a trial court refuses to give an affirmative defense self-defense
instruction in circumstances where one was appropriate, the
prosecution’s burden of proof is impermissibly lowered. This error
implicates a defendant’s constitutional rights and is reviewed for
constitutional harmless error. People v. Sabell, 2018 COA 85, ¶ 22
6
(“Where, as here, the trial court erroneously instructs the jury in a
manner that lessens the prosecution’s burden of proof with respect
to an affirmative defense, constitutional error has been
committed.”); DeWitt, 275 P.3d at 733; see also People v. Kanan,
186 Colo. 255, 259, 526 P.2d 1339, 1341 (1974) (“Prejudice to the
defendant is inevitable when the court instructs the jury in such a
way as to reduce the prosecution’s obligation to prove each element
of its case beyond a reasonable doubt.”). “These errors require
reversal unless the reviewing court is ‘able to declare a belief that
[the error] was harmless beyond a reasonable doubt.’” Hagos v.
People, 2012 CO 63, ¶ 11 (quoting Chapman v. California, 386 U.S.
18, 24 (1967)).
B. Legal Framework and Analysis
¶ 17 Generally, there are two types of defenses in criminal cases:
affirmative defenses and traverses. See People v. Pickering, 276
P.3d 553, 555 (Colo. 2011). Affirmative defenses are defenses that
admit the defendant committed the elements of the charged act, but
seek to justify, excuse, or mitigate the act. Id. By contrast,
traverses are defenses that effectively refute the possibility that the
7
defendant committed the charged act by negating an element of it.
Id.¶ 18 “Whether an asserted defense is an affirmative defense or a
traverse dictates the applicable burden of proof as to the defense’s
existence or nonexistence.” Roberts v. People, 2017 CO 76, ¶ 22.
When a defendant alleges an affirmative defense and presents a
minimal amount of evidence to support it, the court must instruct
the jury that the prosecution has the burden of proving beyond a
reasonable doubt that the affirmative defense is inapplicable.
Pickering, 276 P.3d at 555 (“In Colorado, if presented evidence
raises the issue of an affirmative defense, the affirmative defense
effectively becomes an additional element” and the jury must be
instructed that the “prosecution bears the burden of proving
beyond a reasonable doubt that the affirmative defense is
inapplicable.”); see also DeWitt, 275 P.3d at 733 (noting that “some
credible evidence” is “another way of stating the ‘scintilla of
evidence’ standard” for purposes of amassing enough evidence to
warrant an affirmative defense instruction). “The evidence
necessary to justify an affirmative defense instruction may come
solely from the defendant’s testimony, however improbable.”
8
DeWitt, 275 P.3d at 733. “It is for the jury and not for the court to
determine the truth of the defendant’s theory.” People v. Fuller, 781
P.2d 647, 651 (Colo. 1989).
¶ 19 By contrast, where the evidence presented raises the issue of
an elemental traverse, “the jury may consider the evidence in
determining whether the prosecution has proven the element
implicated by the traverse beyond a reasonable doubt, but the
defendant is not entitled to an affirmative defense instruction.”
Pickering, 276 P.3d at 555.
¶ 20 While self-defense may be an affirmative defense where a
crime requires intent, knowledge, or willfulness, Pickering doesn’t
automatically require an affirmative defense self-defense instruction
in every such case. See Roberts, ¶¶ 27-28. Where a crime requires
recklessness, criminal negligence, or extreme indifference,
self-defense is an element-negating traverse. Pickering, 276 P.3d at
556.
¶ 21 A person commits criminal mischief when he or she
“knowingly damages the real or personal property of one or more
other persons . . . in the course of a single criminal episode.”
9
§ 18-4-501(1), C.R.S. 2018. Criminal mischief is a general intent
crime. See § 18-1-501(6), C.R.S. 2018.
¶ 22 Colorado’s self-defense statute states, in relevant part, as
follows:
[A] person is justified in using physical force
upon another person in order to defend
himself or a third person from what he
reasonably believes to be the use or imminent
use of unlawful physical force by that other
person, and he may use a degree of force
which he reasonably believes to be necessary
for that purpose.
§ 18-1-704(1). The legislature didn’t expressly eliminate
self-defense for particular crimes, such as criminal mischief, or for
a particular class of crimes, such as crimes against property. See
§ 18-1-704; People v. DeGreat, 2015 COA 101, ¶ 12, aff’d on other
grounds, 2018 CO 83. And, the self-defense statute is found in the
part of the Colorado criminal code titled “Provisions Applicable to
Offenses Generally.”
¶ 23 Still, the People argue that the legislature intended to confine
self-defense to crimes against persons,1 so it isn’t available when a
1However, the People concede even this categorization isn’t black
and white. For example, the People assert that for some general
10
defendant is charged with criminal mischief — a crime against
property. For the following reasons, we disagree.
¶ 24 In construing a statute, we turn first to the statute’s language.
See Castillo v. People, 2018 CO 62, ¶ 42. And in doing so, we
accord words and phrases their plain and ordinary meanings. Id.We also “examine the statutory language in the context of the
statute as a whole and strive to give ‘consistent, harmonious, and
sensible effect to all parts.’” Reno v. Marks, 2015 CO 33, ¶ 20
(quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo.
2011)).
¶ 25 By its plain language, the self-defense statute permits the use
of physical force “upon another person” to defend oneself from that
other person. The dictionary defines the word “upon” to include
“having a powerful influence on” and “in or into close proximity or
contact with by way of or as if by way of attack.” Webster’s Third
New International Dictionary 2517 (2002); see also Griego v. People,
intent crimes against persons, including sexual assault, internet
sexual exploitation of a child, and stalking, self-defense is never
available. We don’t address this issue because it’s not necessary to
do so to resolve the case before us.
11
19 P.3d 1, 9 (Colo. 2001) (“We consult definitions contained in
recognized dictionaries to determine the ordinary meaning of
words.”). Using physical force that has a powerful influence on or is
in close proximity with another person is a broad concept that may
be applied directly or indirectly.2 Also, the statute provides that an
individual is only permitted to “use a degree of force which [s]he
reasonably believes to be necessary for that purpose.”
§ 18-1-704(1).
¶ 26 Reading the subsection as a whole, we conclude the legislature
intended to allow an individual, in situations where she uses force
to defend herself from the use or imminent use of unlawful physical
force, to take only those actions which are reasonably necessary to
do so — whether her actions are upon the other person directly or
indirectly (e.g., where her actions are designed to have an impact on
that other person, change his or her conduct, or trigger a reaction).
In either situation, she is using force to defend herself “from what
2 For purposes of this case, we don’t decide whether a defendant
may assert self-defense as an affirmative defense in situations
where the defendant and the other person aren’t in close proximity
to one another, i.e., in the same location.
12
[s]he reasonably believes to be the use or imminent use of unlawful
physical force by that other person,” and she is using only “a degree
of force which [s]he reasonably believes to be necessary for that
purpose.” Id.
¶ 27 According to Coahran’s testimony, the ex-boyfriend grabbed
her wrist when she tried to walk away. She asked the ex-boyfriend
twice to let her go and he refused. Even though they were in a
public parking lot, Coahran worried that the situation would
escalate, so she kicked the car door in an effort to get away from the
ex-boyfriend. Under these circumstances, we conclude there was
sufficient evidence presented to support a self-defense instruction.
See Pickering, 276 P.3d at 555. Coahran’s testimony supports
giving the instruction because a reasonable jury could have
concluded that she knowingly kicked the ex-boyfriend’s car door to
defend herself by distracting him and by giving herself leverage to
pull away from his grasp. See Riley, 266 P.3d at 1092 (a defendant
is entitled to an instruction on her theory of defense); Fuller, 781
P.2d at 651 (“It is for the jury and not for the court to determine the
truth of the defendant’s theory.”). Because the charged criminal
13
mischief arose out of her use of force upon the ex-boyfriend (albeit
indirectly), Coahran was entitled to a self-defense instruction.
¶ 28 To disallow the instruction under these circumstances would
create a perverse incentive where persons in Coahran’s situation
are encouraged to direct physical force exclusively against the other
person (i.e., kick the other person rather than kick the car door).
This not only encourages violent behavior, it’s inconsistent with the
legislature’s mandate in the self-defense statute that an individual
use only “a degree of force which [s]he reasonably believes to be
necessary” to defend herself. § 18-1-704(1). Coahran’s theory is
that the force necessary to defend herself was kicking the car door
to free herself from the ex-boyfriend’s grasp and she didn’t need to
use a greater amount of force, such as kicking the ex-boyfriend.
Allowing a self-defense instruction in these circumstances is
consistent with the statutory language and its purpose.
¶ 29 We disagree with the People that the self-defense statute
contains the additional requirement that the defendant’s force be
used directly upon another person, such that the defendant must
injure or make contact with that other person before she is entitled
to an affirmative defense instruction. To impose this additional
14
requirement would not only read language into the statute that isn’t
there, see People v. Jaramillo, 183 P.3d 665, 671 (Colo. App. 2008)
(“[W]e ‘respect the legislature’s choice of language . . . [and] do not
add words to the statute or subtract words from it.’”) (citation
omitted), it would also create the perverse incentives discussed
above. This conclusion is supported by other jurisdictions faced
with a similar dilemma.
¶ 30 For example, the defendant in Boget v. State argued that he
damaged the windows on a truck only after the driver was trying to
— and did — hit him. 74 S.W.3d 23, 24-25 (Tex. Crim. App. 2002).
He was charged with criminal mischief, but the trial court refused
to instruct the jury on self-defense. The prosecution argued that
“self-defense ‘by its own terms’ involves the use of force against
another person” and that “criminal mischief, on the other hand,
requires the intentional or knowing damage or destruction of
another’s tangible property,” so the defendant wasn’t entitled to a
self-defense instruction. Id. at 26.
¶ 31 The Texas Court of Criminal Appeals concluded that a
self-defense affirmative defense instruction was appropriate,
explaining that the defendant’s “criminal mischief was part and
15
parcel of his ‘use of force against another.’ In other words, without
[the defendant’s] use of force there would have been no criminal
mischief.” Id. at 27. To reach this conclusion, the court analyzed
the legislative history of the Texas self-defense statute,3 which is
similar to Colorado’s, and also examined the law in other
jurisdictions. Id. at 27-31. Ultimately, it concluded that the statute
was intended to “encourage[] the use of restraint in defensive
situations. A rule that allows a charge on self-defense where a
person kills another, but prohibits the defense when a person
merely damages the other’s property is inconsistent with the
purposes of the statute.” Id. at 30. We’re persuaded by this
reasoning. See also State v. Arth, 87 P.3d 1206, 1208-09 (Wash. Ct.
App. 2004) (allowing self-defense4 as a defense to “malicious
3 The Texas self-defense statute states, in relevant part, as follows:
“[A] person is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted
use of unlawful force.” Tex. Penal Code Ann. § 9.31 (2017)
(emphasis added).
4 The Washington self-defense statute states, in relevant part, as
follows: “The use, attempt, or offer to use force upon or toward the
person of another is not unlawful in the following cases . . . .”
Wash. Rev. Code § 9A.16.020 (2018) (emphasis added).
16
mischief” charge where defendant damaged vehicle in order to
prevent driver from injuring him, and endorsing Boget’s policy
rationale of “encourag[ing] a defendant to use the least amount of
force necessary to protect himself without compromising his
defense at trial”).
¶ 32 The People attempt to distinguish Boget and Arth, arguing that
the defendants in those cases were threatened by the property that
was eventually damaged. While this may be true, it doesn’t change
our conclusion. Colorado’s self-defense statute allows an individual
to defend herself by taking only those actions which are reasonably
necessary to do so. In some circumstances, such as those in the
case before us, this may involve defensive actions designed to affect
the other person indirectly or to cause a reaction, which in turn
causes property damage (rather than physical injury). See D.M.L. v.
State, 976 So. 2d 670, 672-73 (Fla. Dist. Ct. App. 2008) (allowing
self-defense instruction where the defendant testified he “was using
force in self-defense against [the victim] when [the victim] swung [a]
bat at him,” the defendant held up his skateboard to block the bat,
but the skateboard was knocked into the victim’s truck and
damaged it). So even if the victim isn’t threatening the defendant
17
with the damaged property, it may be appropriate to defend oneself
in such a way that property is damaged, rather than that the victim
is injured. Additionally, these out-of-state cases emphasize the
broader policy considerations underlying their decisions. See
Boget, 74 S.W.3d at 30-31; Arth, 87 P.3d at 1208-09. Coahran’s
situation implicates these considerations because, according to her
testimony, she used the least amount of force necessary to defend
herself from further injury.
¶ 33 The People also argue that Colorado case law doesn’t support
giving an affirmative defense instruction for crimes against
property.
¶ 34 The parties have identified only three Colorado cases that
discuss self-defense jury instructions when a defendant is charged
with criminal mischief, and we have found no others. See Fuller,
781 P.2d 647; People v. Smith, 754 P.2d 1168 (Colo. 1988); People v.
Waters, 641 P.2d 292 (Colo. App. 1981). In each, the court didn’t
need to address the exact question that’s before us. Instead, each
case rejected — implicitly or explicitly — giving the self-defense
instruction because there was insufficient evidence showing the
property damage resulted from the defendant actually defending
18
himself. See Fuller, 781 P.2d at 648, 651 (the defendant wasn’t
entitled to a self-defense instruction on a criminal mischief charge
for kicking out a police car window because at that point the
defendant was “arrested, handcuffed and placed in the back seat of
the car”); Smith, 754 P.2d at 1170 (the defendant wasn’t entitled to
a self-defense instruction when he shot at the victim’s car after a
fistfight with the victim because “the jury could not reasonably have
inferred from the evidence presented either that [the defendant]
fired his rifle at [the victim’s] car with the intent of defending
himself or that [the defendant] believed — much less reasonably so
— that his shooting [the victim’s] car was necessary to defend
himself”); Waters, 641 P.2d at 295 (there was insufficient evidence
to support giving a self-defense instruction where the defendant
kicked the victim’s car at an intersection and “no evidence in the
record [suggested] that the property damage to the victim’s
automobile resulted from defendant’s use of force in defending
himself”).
¶ 35 Also, some Colorado cases have concluded that a self-defense
instruction is appropriate for a property crime. See, e.g., DeGreat,
¶ 17 (permitting self-defense instruction for aggravated robbery
19
charge); People v. Mullins, 209 P.3d 1147, 1151 (Colo. App. 2008)
(permitting self-defense instruction for inciting or engaging in a
riot). For example, in People v. Taylor, 230 P.3d 1227, 1229 (Colo.
App. 2009), overruled on other grounds by Pickering, 276 P.3d 553,
the defendant was charged with illegal discharge of a firearm, but
the trial court disallowed a self-defense instruction. A division of
this court reversed, relying in part on the following policy reasons
explained in State v. Henley, 740 N.E.2d 1113, 1116 (Ohio Ct. App.
2000)5:
To hold that an individual cannot act in
self-defense for fear of incurring a charge of
criminal damaging or another related charge
when the action behind the charge is so
intertwined with the attack necessitating
self-defense would be to produce an inane
legal paradox; it would be illogical, for
example, to hold that an individual may be
innocent of assault or an even more significant
charge due to self-defense, but nonetheless
guilty of criminal damaging because property
5 In Ohio, self-defense as an affirmative defense is different from
that in Colorado because it’s derived both from statute and case
law. See State v. Henley, 740 N.E.2d 1113, 1115-16 (Ohio Ct. App.
2000) (discussing case law and Ohio Rev. Code Ann. § 2901.05).
Even so, the division in People v. Taylor, 230 P.3d 1227, 1230-31
(Colo. App. 2009), adopted the rationale underlying Henley, which
is sound despite Ohio’s distinguishable self-defense legal
framework.
20
was necessarily damaged in the course of
doing that which the law allows.
The Taylor division determined that because “the jury could have
concluded that defendant knowingly discharged his firearm in order
to defend himself by scaring off his attackers,” a self-defense
instruction was appropriate. Taylor, 230 P.3d at 1230; see also id.
at 1231 (“We are unpersuaded by the People’s assertion that
self-defense does not apply because illegal discharge of a firearm is
a crime against property, not persons.”).
¶ 36 So, we aren’t persuaded by the People’s argument that merely
because Coahran was charged with a crime against property, the
jury shouldn’t have been instructed on self-defense as an
affirmative defense.
¶ 37 Finally, our conclusion isn’t altered by the People’s argument
as to the availability of the “choice of evils” defense. See
§ 18-1-702, C.R.S. 2018. The choice of evils affirmative defense
arises where there is a sudden and unforeseen emergency and the
actor must take action to prevent imminent injury. See, e.g., People
v. Trujillo, 682 P.2d 499, 501 (Colo. App. 1984); see also Andrews v.
People, 800 P.2d 607, 609-10 (Colo. 1990). But because a
21
defendant is entitled to an instruction on her theory of defense, see
Riley, 266 P.3d at 1092, the mere availability of a choice of evils
affirmative defense doesn’t preclude Coahran from asserting
self-defense under section 18-1-704.
¶ 38 Because the trial court didn’t properly instruct the jury on
self-defense as an affirmative defense, the prosecution didn’t bear
the burden of disproving self-defense, and Coahran was deprived of
her right to possible acquittal on that ground. Because the
prosecution didn’t have to disprove the affirmative defense — an
element of the crime — the court’s error wasn’t harmless beyond a
reasonable doubt. See Hagos, ¶ 11; Sabell, ¶ 22. Thus, the error
warrants reversal of Coahran’s conviction. See Idrogo v. People, 818
P.2d 752, 756 (Colo. 1991) (“A trial court’s failure to properly
instruct a jury on the applicable law of self-defense deprives the
defendant of the right to an acquittal on the ground of self-defense
if the jury could have had a reasonable doubt as to whether the
defendant acted in necessary self-defense.”); Newell, ¶ 20 (if there is
any evidence in the record supporting a self-defense instruction, a
court’s refusal to give one deprives the accused of the constitutional
right to trial by jury).
22
III. Other Contentions
¶ 39 Coahran raises several other contentions, including that the
prosecution failed to prove the damage amount necessary to sustain
a conviction for class 6 felony mischief. At trial, the prosecution
introduced a repair shop estimate and the ex-boyfriend also
testified about how much he thought it would cost to repair his car
door. Coahran contends the former was hearsay and the latter was
improper expert opinion testimony. Because, according to her, this
evidence wasn’t admissible, she argues there wasn’t any competent
evidence supporting the damage amount necessary to sustain her
conviction.
¶ 40 We must address this sufficiency challenge “because if a
defendant is entitled to reversal of her convictions on appeal due to
insufficient evidence, the guarantees against double jeopardy in the
United States and Colorado Constitutions may preclude retrial.”
People v. Marciano, 2014 COA 92M-2, ¶ 42. But we don’t address
Coahran’s more specific arguments regarding the admissibility of
23
certain evidence because it’s not necessary to the resolution of this
case.6
¶ 41 We review de novo whether there was sufficient evidence
supporting a conviction. Id. at ¶ 43. “When reviewing the
sufficiency of the evidence, we consider whether the evidence, when
viewed in the light most favorable to the prosecution, is substantial
and sufficient to support the jury’s verdict beyond a reasonable
doubt.” Id. In doing so, we consider the evidence admitted at trial,
“whether or not in error.” Id. at ¶ 45; see also People v. Hard, 2014
COA 132, ¶ 39 (“In assessing the sufficiency of the evidence, we
must consider all the evidence admitted at trial, including the
erroneously admitted evidence . . . .”); People v. Sisneros, 44 Colo.
App. 65, 67-68, 606 P.2d 1317, 1319 (1980).
¶ 42 The prosecution presented the following evidence to support
the damage amount of Coahran’s conviction for felony mischief:
 A repair shop estimate for approximately $1171.
6 For the same reason, we also decline to address Coahran’s other
remaining contentions raised in this appeal.
24
 The ex-boyfriend’s testimony on direct examination that
he estimated the damage at around $1100.
 A police officer’s testimony that, on the day of the
incident, the ex-boyfriend said it would probably cost
about $1500 to fix the car door based on previous repair
costs.
¶ 43 Giving the prosecution the benefit of every reasonable
inference that might fairly be drawn from the evidence, we conclude
that a rational fact finder could’ve found beyond a reasonable doubt
that Coahran caused damage of $1000 or more but less than
$5000. See § 18-4-501(4)(d). Because the evidence admitted at
trial was sufficient to sustain her conviction for felony mischief,
Coahran may be retried on this charge. See Hard, ¶¶ 39-41;
Marciano, ¶¶ 47-49; see also Lockhart v. Nelson, 488 U.S. 33, 40-42
(1988) (a reviewing court must consider all evidence admitted by the
district court in deciding whether retrial is permissible under the
Double Jeopardy Clause).
IV. Conclusion
¶ 44 We reverse Coahran’s conviction, vacate the restitution order,
and remand for a new trial.
25
JUDGE TOW and JUDGE NIETO concur.
26