19CA1227 Peo v Johnson 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1227
Mesa County District Court No. 18CR512
Honorable Gretchen B. Larson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sedona Paige Johnson,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division II
Opinion by JUDGE BERGER
Román and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Daniel J. De Cecco, Assistant Attorney General Fellow, Denver,
Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
A jury convicted defendant, Sedona Paige Johnson, of criminal
mischief. As part of her sentence, the court ordered her to pay
restitution for property damage. Johnson appeals the conviction
and the restitution order, making five arguments:
the district court erred in excluding two lines of
testimony, which deprived Johnson of her constitutional
right to present a meaningful defense;
the district court erred in allowing a police service
technician to testify regarding “signs of deception”
displayed by a witness in the investigation without
qualifying the technician as an expert;
the prosecutor engaged in prosecutorial misconduct
during closing argument and rebuttal closing argument;
the above alleged errors constituted cumulative error;
and
the district court erred in calculating the restitution
amount, contrary to the relevant statute.
We address and reject each argument and affirm the conviction and
the restitution order.
2
I. Relevant Facts and Procedural History
¶ 2
While at a bar with a group of people, Johnson had a verbal
altercation with the alleged victim. Johnson later left with the
group. What happened next, during the drive home from the bar,
was disputed at trial.
¶ 3
The group’s designated driver testified that while driving home
from the bar, Johnson gave him directions to a party. But
according to the driver, instead of going to the party, Johnson
“jumped out” and “started beating” on a parked car door. He tried
“yanking her off” but Johnson continued to kick the car until “she
finally gave up and went into the car.” The group then drove away
from the car, which turned out to be the victim’s. Another
passenger in the car similarly testified that he saw Johnson get out
and attack the victim’s car before the driver tried to stop her.
¶ 4
The victim was not home when the car was damaged, but she
discovered the damage the next day and eventually reported the
damage to the police.
¶ 5
Johnson denied that she damaged the victim’s car and
testified, contrary to other witnesses, that she was driven home.
3
The designated driver initially supported Johnson’s account in an
interview with Police Officer Donnie Smith.1 But when Officer
Smith (believing the driver was being untruthful) told him that it
was a crime to lie to the police, he changed his story.
¶ 6
A jury convicted Johnson of felony criminal mischief, and as
part of her sentence, the district court ordered her to pay restitution
for the damage.
II. Analysis
A. Excluded Testimony
¶ 7
Johnson first contends that the district court reversibly erred
by excluding two lines of her testimony regarding her relationship
with the victim.
1. Additional Facts
¶ 8
Before trial, the district court had made a preliminary ruling
that testimony regarding Johnson’s prior history with the victim
was not “relevant or admissible.”
1 While Officer Smith’s official title was “Police Service Technician,”
he testified that was another name for a “desk officer.” For the sake
of clarity, we refer to him as “Officer Smith.”
4
¶ 9
On direct examination, the victim testified that the “main
reason” she knew Johnson was because Johnson kicked her car,
though she acknowledged she had known Johnson since seventh
grade. The victim said she saw Johnson at the bar and asked
Johnson “why are you pregnant at the bar” before the two “kind of
swapped words” and were separated.
¶ 10
The jury then asked a question, which the court posed to the
victim: “Did you say anything else to Ms. Johnson other than why
are you pregnant at the bar? And did she say anything to you?”
Defense counsel twice objected to the victim’s answers, and the
court sustained the objections. Then, the victim said, “Well,
honestly, that was a year ago, so I don’t remember exactly word for
word what was said.”
¶ 11
When Johnson testified, she sought to introduce evidence of
two interactions with the victim: the victim threatened to fight her
at the bar, and the victim had hit Johnson’s car while Johnson was
with the victim’s ex-boyfriend at a mall.2
2 In the opening brief, Johnson asserts both that she “sought to
testify that, a month before trial,” the victim had seen her at the
5
¶ 12
Defense counsel argued that the victim’s testimony opened the
door to this evidence. Counsel argued: (1) the alleged threats were
admissible to explain Johnson’s state of mind when she sent a
tweet3 after leaving the bar that disparaged the victim; and (2) the
mall incident was admissible to show the context of their
relationship and the victim’s motive to falsely accuse Johnson. The
prosecution objected under Colorado Rules of Evidence 403, 404,
and 608.
¶ 13
Ultimately, the district court ruled as follows:
With respect to the incident alleged where Ms.
Johnson and [the boyfriend] were at the mall
and saw [the victim] approximately a month
before. And [the victim] followed them to Ms.
Johnson’s vehicle and allegedly hit Ms.
Johnson’s vehicle, although no charges were
filed. The Court is not going to permit that
evidence to come in. That is evidence that is
the proper subject of a 404(b) motion. The
Court finds that the probative value of the
evidence is substantially outweighed by the
mall and that the mall incident “occurred only one month before the
alleged offense.” (Emphasis added.) The record supports that the
mall incident allegedly occurred one month before the alleged
offense, not one month before trial.
3 The tweet read, “Ayyyyyy [victim’s name] YOU RATCHET B****
LETS THROW HANDS YOU MANNNNNNN A** B**** F*** YOU. Pull
up. [Victim’s name] N**** A** COME GRT IF,” and was followed
with a spelling correction: “Get it.”
6
danger of unfair prejudice and confusion of the
issues before the jury. Whether or not that
incident did or did not happen is not what is
before the Court at this time. With respect to
the information that [the victim] threatened to
fight Ms. Johnson on February 22nd, as a
preliminary matter, the Court does not find
that [the victim’s] statement, the main reason I
know her, in any way, opened the door to prior
misconduct to other acts, evidence,
whatsoever. There could be a variety of
reasons [by] which [the victim] know[s] Ms.
Johnson, or for a variety of reasons [sic]. And
just saying that the main reason is because of
this doesn’t open up the door to other acts
evidence coming in. Furthermore, [the victim]
started to talk about whatever interaction that
occurred between her and Ms. Johnson at the
[bar], and Defense objected, and the Court
sustained the objection. So the Court is not
going to now permit, once [the victim] has not
been permitted to testify to her version of
whatever happened at the [bar] which sent this
series of events, whatever events they were,
into effect, to now permit Ms. Johnson to
testify about those things. And so the request
to introduce that evidence is, likewise, denied.
2. Preservation and Standard of Review
¶ 14
The parties agree that this issue was preserved. We review
evidentiary rulings for abuse of discretion. People v. Osorio-Bahena,
2013 COA 55, ¶ 21. A court abuses its discretion if the ruling is
7
“manifestly arbitrary, unreasonable, or unfair,” or if it is based on
an “erroneous view of the law.” Id.
3. Analysis
¶ 15
Johnson argues on appeal that both lines of testimony were
admissible for three reasons: they were relevant and not
inadmissible under CRE 403; they were admissible as res gestae;
and they were admissible because the victim’s testimony opened the
door.
¶ 16
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence . . . more probable or
less probable” than without it. CRE 401. Relevant evidence is
generally admissible. CRE 402. Even relevant evidence may be
excluded, though, if its “probative value is substantially outweighed
by the danger of . . . confusion of the issues, or misleading the jury,
or by considerations of . . . needless presentation of cumulative
evidence.” CRE 403.
¶ 17
Courts should “exclude evidence that has little bearing on
credibility, places undue emphasis on collateral matters, or has the
potential to confuse the jury.” People v. Wilson, 2014 COA 114,
8
¶ 36 (quoting People v. Knight, 167 P.3d 147, 153 (Colo. App. 2006))
(discussing CRE 403 in the CRE 608 context).
¶ 18
Moreover, “[a] trial court retains the discretion to assess the
incremental probative value of evidence offered by a criminal
defendant and to exclude even logically relevant evidence that
would be more wasteful of time, confusing, or misleading than
helpful to the jury.” People v. Brown, 2014 COA 155M-2, ¶ 15
(quoting People v. Saiz, 32 P.3d 441, 449 (Colo. 2001)).
a. Relevance
¶ 19
We seriously doubt the relevance of the alleged threats and the
mall incident. The probative connection to any facts of
consequence in this case is tenuous at best. But even accepting
Johnson’s contentions that the threats demonstrated her state of
mind when she sent the tweet and that the mall incident
demonstrated the victim’s motive to make a false report, we
conclude that the district court did not abuse its discretion in
excluding this testimony.
b. Alleged Threats and CRE 403
¶ 20
The district court did not cite CRE 403 in its pretrial ruling or
the ruling at trial excluding testimony regarding the victim’s alleged
9
threats. On appeal, however, the Attorney General argues the
threats added little to the evidence of Johnson’s state of mind after
leaving the bar, presumably relying on the principle that “a party
may defend a trial court’s judgment on any ground supported by
the record, regardless of whether that ground was relied on by the
trial court.” People v. Garcia, 179 P.3d 250, 257 (Colo. App. 2007),
as modified on denial of reh’g (Nov. 21, 2007).
¶ 21
We agree that the incremental probative value of the alleged
threats was minimal. The jury heard other testimony regarding the
altercation between Johnson and the victim, including that the
victim had accused her of being at a bar while pregnant. Although
the threats may have provided additional context for Johnson’s
tweet, the jury already heard that the two had “swapped words.”
¶ 22
To the extent, therefore, that the district court concluded the
alleged threats had minimal probative value that was substantially
outweighed by the cumulative nature of the threats, we perceive no
abuse of discretion.
¶ 23
If the district court did not consider CRE 403 in excluding the
alleged threats, we affirm because the record supports the
10
conclusion that the probative value of the threats was substantially
outweighed by their cumulative nature. See Garcia, 179 P.3d at
257-58 (engaging in CRE 403 balancing on appeal where the
district court did not). “We can affirm the trial court’s evidentiary
ruling on any ground supported by the record, even if that ground
was not articulated or considered by the trial court.” Brown, ¶ 15.
c. Mall Incident and CRE 403
¶ 24
Similarly, while the district court did not expressly cite CRE
403 in its ruling that the mall incident was inadmissible, it did
conclude that under CRE 404(b) that incident’s probative value was
substantially outweighed by the risk of unfair prejudice and
confusion of the issues.
¶ 25
Johnson argues that the “jury could easily understand the
difference between the mall incident and the conduct underlying
Ms. Johnson’s charge.” But “[i]f reasonable persons could differ as
to the propriety of the action taken by the trial court, then it cannot
be said that the trial court abused its discretion.’” Wilson, ¶ 35
(quoting People v. Hoover, 165 P.3d 784, 802 (Colo. App. 2006)).
Because reasonable persons could differ on whether the mall
11
incident would have confused the jury, we conclude the district
court did not abuse its discretion in excluding that evidence on that
basis.
d. Other Bases for Admission
¶ 26
Johnson separately argues that the alleged threats and the
mall incident were admissible as res gestae evidence and because
the victim’s testimony opened the door. But our CRE 403 analysis
applies to each of those arguments such that even if they did
provide an independent basis for admission, we conclude it was not
an abuse of discretion to exclude the evidence under CRE 403.
¶ 27
Ultimately, because the district court did not abuse its
discretion in excluding the alleged threats or the mall incident,
reversal is not warranted.
e. Constitutional Error
¶ 28
We have concluded that the district court did not abuse its
discretion and that reversal is not warranted. Even if we assume
that the district court abused its discretion by excluding the
evidence, however, it was not constitutional error because Johnson
was not “denied virtually [her] only means of effectively testing
12
significant prosecution evidence.” Krutsinger v. People, 219 P.3d
1054, 1062 (Colo. 2009).
¶ 29
“An erroneous evidentiary ruling may rise to the level of
constitutional error if it ‘deprived the defendant of any meaningful
opportunity to present a complete defense.’” Osorio-Bahena, ¶ 17
(quoting Krutsinger, 219 P.3d at 1061-62).
¶ 30
An evidentiary error that is constitutional requires reversal
“unless we are ‘confident beyond a reasonable doubt that the error
did not contribute to the guilty verdict.’” Id. (quoting Bernal v.
People, 44 P.3d 184, 200 (Colo. 2002)). However, a preserved, non-
constitutional evidentiary error will be reversed only if the error
“substantially influence[d] the verdict or affect[ed] the fairness of
the trial proceedings.” Krutsinger, 219 P.3d at 1063.
¶ 31
Even without the alleged threats, there was substantial
evidence of an altercation between the victim and Johnson at the
bar, which was similarly probative of Johnson’s state of mind when
she sent the disparaging tweet. And although the mall incident was
not admitted, defense counsel was able to cross-examine the victim
13
about her ex-boyfriend dating Johnson to establish the context of
their relationship and a possible motive to make a false accusation.
¶ 32
Indeed, the court made clear that it was not limiting
defendant’s theory of the case, it was only excluding evidence that
had a tenuous connection to the case:
I’m not, in any way, suggesting, [defense
counsel], that you cannot argue to the jury
that [the victim] made this up or did these
other things because of this animosity about
the statement that was testified to. I’m not
saying that you can’t make those arguments,
whatsoever. The Court’s just not going to
permit testimony about these other acts
evidence -- other acts to come into evidence.
¶ 33
For the same reasons, we also conclude that any assumed
abuse of discretion was harmless because it did not “substantially
influence the verdict or affect the fairness of the trial proceedings.”
Id.
B. Police Service Technician Testimony
¶ 34
Johnson next argues that the district court erred when it
allowed Officer Smith to testify that the designated driver was
showing “signs of deception” during an interview without first
qualifying him as an expert.
14
1. Additional Facts
¶ 35
During trial, the prosecution called Officer Smith, who had
investigated the car damage. Officer Smith testified that the
designated driver had given him two different stories during their
interview — the first did not accuse Johnson of the damage and the
second did.
¶ 36
In explaining the differing accounts, Officer Smith testified
that “[b]ased on my experience and my training, I was detecting
deception,” to which defense counsel objected. The court overruled
the objection. Officer Smith continued:
Based on my training, [the designated driver]
was giving signs of deception, so I decided to
let him know that it is a crime to lie to the
police department. And lying by omission is
still lying. And I asked him if he wanted to add
anything to his statement. And at that point,
he said let’s start over. And then he started
from the very beginning at [the bar]. And
that’s when he told the story that was in my
report.
2. Preservation and Standard of Review
¶ 37
Again, we review evidentiary rulings for abuse of discretion,
which occurs when a “ruling is manifestly arbitrary, unreasonable,
15
or unfair,” People v. Murphy, 2021 CO 22, ¶ 16, or if it is based on
an erroneous view of the law. Osorio-Bahena, ¶ 21.
¶ 38
The parties dispute whether Johnson preserved this issue and
whether we should apply the harmless error or plain error standard
of reversal. Because we conclude there was no error, we need not
decide this question.
3. Analysis
¶ 39
Johnson argues that Officer Smith’s testimony constituted
“expert opinion in the guise of lay witness opinion” because Officer
Smith was not familiar with the designated driver personally and
because he invoked his training and experience. According to
Johnson, this alleged error deprived her of her constitutional right
to present a defense and meaningfully cross-examine Officer Smith.
We reject these arguments because Officer Smith’s testimony was
properly admitted.
¶ 40
The Colorado Rules of Evidence authorize expert and lay
opinions under the appropriate circumstances. See CRE 701, 702.
“[T]he critical factor in distinguishing between lay and expert
16
testimony is the basis for the witness’s opinion.” Venalonzo v.
People, 2017 CO 9, ¶ 22.
¶ 41
Johnson relies on this court’s decision in People v. Murphy,
2019 COA 39, ¶ 21, but the Colorado Supreme Court reversed
Murphy and it forecloses Johnson’s arguments. See Murphy, 2021
CO 22, ¶ 42.
¶ 42
First, like the officer’s interpretation of body language in
Murphy, we conclude that ordinary people “could rationally infer,
based on their own experiences,” that they think someone is
deceiving them. Id. at ¶ 25. Here, Officer Smith merely explained
to the jury why he did not believe the driver’s first account of what
happened. If Officer Smith had not done so, “the jury would not
understand why” he continued to question the driver after the first
account. Id. at ¶ 28.
¶ 43
Second, although Officer Smith testified that he thought the
driver was showing signs of deception “based on [his] experience
and [his] training,” that does not necessarily mean he was testifying
as an expert. “[S]imply referencing one’s ‘training and experience’
does not transform an officer’s lay opinion testimony into expert
17
testimony.” Id. at ¶ 31. Rather, the basis of the witness’s opinion
is determinative. Id. at ¶ 32. Here, the basis of Officer Smith’s
opinion was his everyday experiences, not his police training.
¶ 44
True, the supreme court recognized that it was “significant [in
Murphy] that the prosecution did not elicit any testimony regarding
[the officer’s] training and experience in conducting witness
interviews.” Id. at ¶ 33. Here, Officer Smith did briefly testify about
training he had received in interrogation. But that testimony was
not sufficiently extensive to make his opinion one based on training,
rather than the experiences of an ordinary person.
¶ 45
Finally, to the extent that Johnson separately argues that
Officer Smith’s testimony improperly bolstered the designated
driver’s testimony, we also reject that argument under Murphy.
While asking a witness to comment on the credibility of another is
generally prohibited, it is proper to elicit testimony “for the narrow
purpose of explaining an officer’s interviewing tactics.” Id. at ¶¶ 36-
37. Officer Smith’s testimony was for the narrow purpose of
explaining why he continued questioning the driver, not to bolster
the driver’s second version of the story.
18
¶ 46
“Mindful of the trial court’s broad discretion regarding
evidentiary questions,” we conclude that the district court did not
abuse its discretion in allowing Officer Smith’s testimony without
first qualifying him as an expert. Id. at ¶ 23. Because we conclude
there was no abuse of discretion, reversal is not required under any
standard of reversal.
C. Prosecutorial Misconduct
¶ 47
Next, Johnson argues that the district court plainly erred by
allowing the prosecutor to make certain statements during closing
argument and rebuttal closing argument.
1. Additional Facts
¶ 48
During closing argument and rebuttal closing argument, the
prosecutor made comments about several of the witnesses and their
testimony. Concerning the designated driver, the prosecutor stated
the following:
“Starting with [the driver], who I would submit is
probably the most important witness in this case.”
“I would submit that [the driver] is the true, independent,
objective witness with no reason to be untruthful.”
19
“I would submit that his evidence is consistent, largely,”
with other evidence.
“And [the driver] realized that he should just come clean
and be honest about what happened. I submit to you
that that’s what he did when he fully disclosed to [Officer]
Smith.”
“I would submit that any evidence that [the driver] made
up [the second account] is vague, speculative and
imaginary.”
¶ 49
Similarly, regarding one of the eyewitness passengers who was
in the car, the prosecutor stated, “I think he’s also somewhat
independent and objective. He testified that he’s friends with both
[Johnson] and [the victim].” He also recounted that witness’s
testimony:
He said I told [the victim] because if something
like that happened to me, I would want to find
out. I would want someone to tell me. And
doesn’t that make perfect sense? That he did
what anyone else -- what he would want
anyone else in his position to do? I would
submit that that’s what he did when he
testified, as well. He told the truth because
that’s what anyone else in his position, he
20
would want them to do.
¶ 50
The prosecutor stated of a second eyewitness passenger, “Why
would [she] say that she saw [the designated driver] restrain
[Johnson] and get her back into the car if that didn’t happen? Why
would [she] say that?”
¶ 51
Concerning evidence that the victim had offered to “pay” a
witness for “proof” that Johnson did the damage, the prosecutor
said, “I would submit that [the victim] was asking for evidence. The
same thing that you all want in this case. You all want to see and
hear all of the best evidence that you can. And I would submit that
that’s all she wanted, as well.”
¶ 52
Finally, the prosecutor made the following statements about
Johnson:
“Was she aware that she was damaging [the victim’s]
property. And I would respectfully submit that she was.
That she knew what she was doing, she intended to do
that. She intended to damage [the victim’s] car,
specifically.”
21
“I would submit that an angry, upset, drunk girl, wearing
high heels absolutely could do that kind of damage.”
“I submit the evidence here is very strong that Ms.
Johnson caused this damage. It’s consistent with your
reason and common sense. Any doubts in this case are
vague, speculative, and imaginary. Ms. Johnson is
guilty.”
2. Preservation and Standard of Review
¶ 53
We review claims of prosecutorial misconduct under a two-
step framework. First, we “determine whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances,” then we determine “whether such actions warrant
reversal according to the proper standard of review.” Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010).
¶ 54
The parties agree that all the claims of prosecutorial
misconduct are unpreserved and that we therefore review only for
plain error. “Plain error occurs only when an error so undermines
the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the jury’s verdict.” Domingo-Gomez v. People,
22
125 P.3d 1043, 1053 (Colo. 2005). In the context of prosecutorial
misconduct, reversal is required only when the misconduct was
“flagrantly, glaringly, or tremendously improper.” Id. (quoting
People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
3. Analysis
¶ 55
Prosecutors may not make “expressions of personal belief as to
the guilt of the defendant” or “communicate [their] opinion on the
truth or falsity of witness testimony.” Id. at 1049. However,
prosecutors may “argue from reasonable inferences anchored in the
facts in evidence.” Id. at 1051. Whether a statement is one of
improper personal opinion “requires a reviewing court to consider
the language used, the context in which the statement was made,
and any other relevant factors.” Id.
¶ 56
Johnson contends that the prosecutor made eleven statements
during closing argument and rebuttal closing argument that
constituted improper statements of personal opinion on witness
credibility and Johnson’s guilt.
¶ 57
Johnson emphasizes the prosecutor’s use of the phrase “I
submit” and argues that it constituted an expression of personal
23
opinion. See People v. Clark, 214 P.3d 531, 542 (Colo. App. 2009),
aff’d on other grounds, 232 P.3d 1287 (Colo. 2010); People v.
Washington, 179 P.3d 153, 169 (Colo. App. 2007), aff’d on other
grounds, 186 P.3d 594 (Colo. 2008). While we assume without
deciding that there may be a case in which the use of that phrase
constitutes improper opinion, this is not it. Rather, viewed in
context, each statement constituted permissible comment that was
based on reasonable inferences drawn from the evidence.
¶ 58
The statement that is the closest call is “I think [an eyewitness
passenger was] also somewhat independent and objective.” But the
prosecutor immediately followed up by noting the witness was
friends with the victim and Johnson. In context, that later
statement made clear that the prosecutor was only drawing the
jury’s attention to the evidence of the witness’s credibility as a
friend of both Johnson and the victim.
¶ 59
Johnson also argues that the prosecutor misstated the
evidence when he said, “Why would [the second eyewitness
passenger] say that she saw [the designated driver] restrain
[Johnson] and get her back in the car if that didn’t happen? Why
24
would [the second eyewitness passenger] say that?” According to
Johnson, she did not.
¶ 60
But the prosecutor impeached that witness by asking, “[Y]ou
[said] you remember [the designated driver] having to get out and
get [Johnson] back in the car,” to which the witness answered,
“Yes.” Recognizing that “arguments delivered in the heat of trial are
not always perfectly scripted,” we conclude the word “restrain” was
a reasonable characterization that was based on the evidence.
People v. McBride, 228 P.3d 216, 221 (Colo. App. 2009).
¶ 61
Ultimately, “based on the totality of the circumstances,” none
of the prosecutor’s statements were improper, and reversal is
therefore not required. Wend, 235 P.3d at 1096.
D. Cumulative Error
¶ 62
Next, Johnson contends that reversal is required because the
above alleged errors constituted cumulative error under Howard-
Walker v. People, 2019 CO 69. Because we conclude there were no
errors, this claim fails.
E. Restitution Order
¶ 63
Finally, Johnson argues that the district court erred when it
imposed restitution equal to the estimated cost of repairing the
25
victim’s car even though the victim traded in the car without
making the repairs.
1. Additional Facts
¶ 64
At the sentencing and restitution hearing, the victim testified
that she had received an estimate for the damage to her car before
selling it without having the damage repaired. The court admitted
the written estimate into evidence. The victim also testified that the
dealer who later bought the car “took almost three thousand dollars
off for all the damage.”
¶ 65
After defense counsel and the prosecutor disputed whether the
cost of repair established the restitution award even though the
victim had never had the car repaired, the court ordered restitution
based on the estimate.
2. Preservation and Standard of Review
¶ 66
The parties agree this issue was preserved. The appropriate
standard of review of a restitution order depends on the particular
issue we are asked to review. People v. Barbre, 2018 COA 123,
¶ 24. Johnson’s claim raises a question of statutory interpretation,
which we review de novo. People in Interest of A.N., 2019 COA 67,
¶ 5.
26
3. Analysis
¶ 67
Under Colorado law, “restitution” is defined as “any pecuniary
loss suffered by a victim and includes but is not limited to all out-
of-pocket expenses, . . . anticipated future expenses, . . . and other
losses or injuries proximately caused by an offender’s conduct and
that can be reasonably calculated and recompensed in money.”
§ 18-1.3-602(3)(a), C.R.S. 2021.
¶ 68
“The value of property for purposes of restitution is determined
by the victim’s actual, pecuniary loss, or the amount of money that
will fulfill the statutory purpose of making the victim whole to the
extent practicable.” People v. Henson, 2013 COA 36, ¶ 23.
¶ 69
Johnson argues that the estimate amount would have been
appropriate had the victim testified that she intended to fix the car
before selling it. But because she did not do that, according to
Johnson, “the cost of repair was not [the victim’s] actual, pecuniary
loss” under the statute and the court’s order based on the cost of
repair estimate was therefore contrary to the statute.
¶ 70
We reject this argument. When Johnson damaged the victim’s
car, the value of the car declined by the cost to repair it. That lost
27
value was a “pecuniary loss” for the victim and the estimate
represented the amount that could be “reasonably calculated and
recompensed in money” to the victim. § 18-1.3-602(3)(a). The
court’s order was therefore consistent with the statute.
¶ 71
In any event, the district court also heard testimony from the
victim that the dealer reduced the trade-in value by nearly $3,000
because of the damage. Although the district court based the order
amount on the written estimate instead of this testimony, this
statement provided independent evidence for the court to conclude
that the victim suffered a pecuniary loss that was proximately
caused by Johnson’s conduct.
III. Disposition
¶ 72
The judgment of conviction and the restitution order are
affirmed.
JUDGE ROMÁN and JUDGE YUN concur.
