v. Knapp , 2020 COA 107 ( 2020 )

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
July 16, 2020
2020COA107
No. 17CA0678, People v. Knapp — Criminal Law — Sentencing
— Restitution
Applying the reasoning in Cowen v. People, 2018 CO 96, a
division of the court of appeals holds that where a defendant is
charged with one level of offense but is convicted of only a lower-
level offense, an award of restitution for the offense is limited to the
amount consistent with the jury verdict.
In this case, the prosecution charged Mr. Knapp with criminal
mischief as a class 6 felony, but the jury found, through its
interrogatories, that he committed only a class 1 misdemeanor.
Mr. Knapp was also convicted of other several other offenses.
Consistent with Cowen, the division holds that the trial court’s
award of restitution for the criminal mischief charge was limited by
the jury’s answer on its interrogatory. The division holds, however,
that the trial court could impose restitution for property and
nonproperty losses attributable to other offenses for which
Mr. Knapp was convicted.
The division also considers and rejects four other arguments
raised by Mr. Knapp: (1) that the trial court erred by instructing the
jury on the provocation exception to self-defense; (2) that the trial
court abused its discretion by admitting evidence that the victim’s
brother called him a “wife beater”; (3) that the prosecutor
improperly questioned him about his post-arrest silence and
improperly argued that he had tailored his testimony to the
evidence; and (4) that the trial court plainly erred by calculating
restitution using the replacement value of several items of property
without the necessary foundation.
COLORADO COURT OF APPEALS 2020COA107
Court of Appeals No. 17CA0678
Montezuma County District Court No. 16CR88
Honorable Todd Jay Plewe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joshua Knapp,
Defendant-Appellant.
JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE GOMEZ
J. Jones and Welling, JJ., concur
Announced July 16, 2020
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Joshua Knapp, raises several challenges to his
convictions and order of restitution, one of which presents an issue
of first impression: whether the rationale in Cowen v. People, 2018
CO 96, which precludes a trial court from imposing restitution for
acquitted conduct, applies when a jury convicts a defendant of a
lesser-level offense than that charged. We conclude that it does.
Accordingly, although we affirm Mr. Knapp’s convictions, we reverse
the restitution order and remand the case to the trial court with
directions.
I. Background
¶2 A multi-day argument between Mr. Knapp and the victim,
A.J., turned violent and culminated with the filing of multiple
domestic violence charges against Mr. Knapp. At the time,
Mr. Knapp and A.J. had been dating on and off for about six years.
During a break in the relationship, A.J. had dated another man.
According to A.J., Mr. Knapp was “constantly obsessed” about her
relationship with her ex-boyfriend.
¶3 The argument started on a weekend camping trip to Utah. On
Friday evening, A.J. spoke with her sister and brother-in-law on the
phone. During the call, Mr. Knapp overheard A.J.’s brother-in-law
1
refer to him as a “wife beater.”1 Mr. Knapp became upset, both at
A.J.’s brother-in-law for making the comment and at A.J. for not
defending him to her brother-in-law. He remained agitated about
the incident throughout the weekend, even as they returned to
A.J.’s house.
¶4 According to A.J., that Sunday, Mr. Knapp remained upset
and continued “obsessing” about her ex-boyfriend and her brother-
in-law. Eventually, he left the house. Later that evening, in a
series of texts to A.J., he expressed frustration that she didn’t “stick
up for the one [she] love[s]” and asked “why would you want to be
with me any way fucking woman beater.” He also texted, “If you
won’t stand up for me I’m gonna stand up for myself” and included
the brother-in-law’s contact information.
¶5 When A.J. woke up the next morning, she discovered
Mr. Knapp had come back and slept at the house. She took her
children to school and returned to find him awake and still agitated,
1 The evidence differed as to whether A.J.’s brother-in-law used the
term “woman beater” or “wife beater.” We use “wife beater” because
that’s the terminology the parties used in obtaining a ruling from
the trial court on the admissibility of the evidence.
2
so she left again. While she was out, Mr. Knapp began tracking her
location with the “Find My Phone” application on his phone and
texting her about her whereabouts. Believing she was lying about
where she was, and was actually with her ex-boyfriend, he sent
back angry texts calling her derogatory names, warning her that he
was watching her (e.g., “I fucking watch you bitch” and “I watched
you drive by his work”), and telling her that he was waiting for her
at the house. The messages scared her, and she decided to pick
her children up from school rather than have them arrive at the
house with Mr. Knapp there.
¶6 The events that occurred next were hotly disputed at trial.
A.J. testified as follows. As she was driving toward the school, she
saw Mr. Knapp’s truck rapidly approach and bump the back of her
truck. She could see from his face that he was “super mad.” She
continued driving and, after she passed a sheriff’s deputy,
Mr. Knapp turned and drove away.
¶7 A.J. got her children and went to a friend’s house. Mr. Knapp
continued barraging her with text messages throughout the
afternoon, including referencing her friend’s name, noting her
location when she and her friend went to the store, alternating
3
between telling her he loved her and hated her, and suggesting he
was destroying items at her home. One of his texts also seemed to
refer to her brother-in-law’s comment, stating, “Will just make all
the shit talking true.”
¶8 That evening, believing from his texts that Mr. Knapp had left
the house, A.J. headed home with her children. She took an
alternative driving route to avoid running into Mr. Knapp. But, as
she neared the house, she saw him driving toward her. He stopped,
got out of his truck, punched in her driver’s side window, leaned
inside, punched her, and bit through her lip. He warned her she
“better get [her] ass home.” Then he jumped into her truck, took
her and her daughter’s phones, and returned to his truck.
¶9 A.J. started driving forward but stopped and got out because
glass from the broken window was cutting into her back. When she
did so, Mr. Knapp stopped his truck and ran back toward her. He
grabbed her, threw her against the truck, hit her again, and told
her she “better get back home.”
¶ 10 A.J. got back in her truck and drove toward her house. Not
seeing Mr. Knapp, she drove past the house and headed to the
highway to get away. But as soon as she got on the highway,
4
Mr. Knapp sped past her. He blocked both lanes in front of her,
and she stopped. He then jumped up on the hood of the truck,
screamed, banged on the hood, pulled on the windshield wiper, and
told A.J. to return home. This time he followed her closely.
¶ 11 When they got to the house, Mr. Knapp continued to assault
A.J., including hitting her with the butt of a gun. At one point, he
shot off a gun in the house, hitting A.J.’s mattress. Eventually, he
fell asleep. A.J. got her children, left the house, and went to
another friend’s house, where they called the authorities.
¶ 12 A.J.’s thirteen-year-old daughter testified at trial, and her
version of events largely tracked A.J.’s.
¶ 13 Mr. Knapp, however, gave a vastly different version of events.
His version was as follows. When he believed A.J. was with her ex-
boyfriend, he started fighting with her by text and packing his
belongings to move out of her house. He didn’t leave the house at
any point during the day, but stayed there packing and sleeping.
¶ 14 He finally left at dusk and, as he was driving away from the
house, he saw A.J. driving toward him. They both stopped. He got
out and approached her door to talk to her, but her window was up.
He started walking around the front of her truck to get in from the
5
passenger side, at which point she drove into him, forcing him up
onto the hood of the truck. He initially held onto the windshield
wiper, but when she turned onto the highway, he couldn’t hold on
and was flung off the truck onto the pavement.
¶ 15 Mr. Knapp headed back to his truck, but A.J. turned her truck
around and rejoined him. As she approached, he went to open the
driver’s side door of her truck to “ask her what the heck she was
doing.” He also wanted to get her keys so she wouldn’t hurt him
again or hurt her children. When he grabbed at the door handle
and the window (which was at that point halfway down), the
window shattered. He reached through the broken window to try to
get the keys, but A.J. hit him in the back and head. So he stopped,
and only then did he realize A.J.’s nose was bleeding. He went back
to his truck, and she drove off in the direction of the house. After a
moment, he drove to the house to check on her and the children.
¶ 16 Back at the house, Mr. Knapp resumed gathering his things to
leave, but A.J. begged him to stay. They talked for a while, and he
eventually fell asleep. He later awoke when law enforcement
officers came to the house. He spoke briefly with the officers, but
once they arrested him, he invoked his right to remain silent.
6
¶ 17 The jury convicted Mr. Knapp of some, but not all, of the
charged offenses. The convictions included second degree assault,
menacing, illegal discharge of a firearm, criminal mischief, third
degree assault, reckless endangerment, prohibited use of a weapon,
and harassment. The jury found Mr. Knapp had committed most of
these offenses (all but the illegal discharge of a firearm and
prohibited use of a weapon counts) as acts of domestic violence.
The trial court sentenced Mr. Knapp to a term of seven years in the
custody of the Department of Corrections and ordered him to pay
$13,070.40 in restitution.
II. Discussion
¶ 18 Mr. Knapp raises four arguments on appeal: (1) the trial court
erred by instructing the jury on the provocation exception to self-
defense; (2) the trial court abused its discretion by admitting
evidence that A.J.’s brother-in-law called him a “wife beater”; (3) the
prosecutor improperly questioned him about his post-arrest silence
and improperly argued at closing that he had tailored his testimony
to the evidence; and (4) the trial court erred in its findings on
restitution. We disagree with the first two arguments, agree in part
7
with the third but find no plain error, and agree in part with the
fourth.
A. Provocation Instruction
¶ 19 Mr. Knapp contends that the trial court erred by instructing
the jury on the provocation exception to self-defense.2 We disagree.
¶ 20 A trial court has a duty to instruct the jury correctly on all
matters of law for which there is sufficient evidence to support
giving instructions. Castillo v. People, 2018 CO 62, ¶ 34. However,
a court shouldn’t instruct a jury “on abstract principles of law
unrelated to the issues in controversy, nor . . . on doctrines or
principles which are based upon fanciful interpretations of the facts
unsupported by the record.” Id. (quoting People v. Alexander, 663
P.2d 1024, 1032 (Colo. 1983)).
¶ 21 We review de novo the question of whether there was sufficient
evidence to support a requested instruction. Id. at ¶ 32. In doing
2 This issue pertains only to the second degree assault charge, as
that was the only charge for which the jury was given instructions
on, and asked to apply, the affirmative defense of self-defense and
the provocation exception to self-defense.
8
so, we view the evidence in the light most favorable to giving the
instruction. Id. at ¶¶ 52-53; People v. Rios, 2014 COA 90, ¶ 42.
¶ 22 The right to self-defense isn’t limitless. For instance, under
the plain language of the self-defense statute, a defendant’s right to
claim self-defense is lost if he or she acted with an intent to provoke
the victim into attacking first to provide the defendant with the
excuse to injure or kill the victim. People v. Silva, 987 P.2d 909,
914 (Colo. App. 1999); see also § 18-1-704(3)(a), C.R.S. 2019. This
provocation exception to self-defense applies in situations where the
defendant wasn’t the initial aggressor. Silva, 987 P.2d at 914. To
be entitled to a provocation instruction, the prosecution bears the
burden of establishing that the defendant intended to harm the
victim and “to goad the victim into attacking him or her as a pretext
for injuring or killing the victim.” Id.¶ 23 A provocation instruction should be given if (1) self-defense is
an issue in the case; (2) the victim made an initial attack on the
defendant; and (3) the defendant’s conduct or words were intended
to cause the victim to make the attack and provide a pretext for
injuring the victim. Rios, ¶ 47; Silva, 987 P.2d at 914.
9
¶ 24 Mr. Knapp challenges only the third element — that is,
whether there was sufficient evidence to establish that his conduct
or words were intended to cause A.J. to attack him and provide a
pretext for injuring her.
¶ 25 As the parties note, there is some uncertainty about what
quantum of proof is required to give an instruction on an exception
to an affirmative defense like self-defense. See, e.g., Castillo, ¶ 37
n.4; People v. Galvan, 2019 COA 68, ¶ 21 (cert. granted Jan. 13,
2020). Yet, even applying the more stringent sufficiency of the
evidence standard, we conclude that there is sufficient evidence
from which a rational jury could find provocation beyond a
reasonable doubt. See Castillo, ¶ 37 n.4 (citing but not deciding
whether to apply the sufficiency of the evidence standard used in
Texas).
¶ 26 According to Mr. Knapp’s own testimony, A.J.’s initial “attack”
on him (in which she allegedly ran her truck into him) occurred just
after he approached A.J.’s car window, attempted to talk to her, and
started walking around her truck to get in on the passenger’s side.
And her second “attack” (in which she allegedly hit him in the back
and head) occurred just after he again approached her truck,
10
grabbed at her door handle and window to get in, shattered the
window, and reached inside to take her keys from her. These
events happened only after Mr. Knapp spent hours barraging A.J.
with angry texts in which he called her derogatory names, asked
about her whereabouts, revealed that he was tracking her location,
and suggested he was damaging things at her house. And,
according to A.J., they happened after an encounter earlier that day
in which he raced up to her truck, tapped her bumper, and left only
after they passed a sheriff’s deputy.
¶ 27 We are satisfied that the altercation at A.J.’s truck and the
events leading up to it were all part of a single, continuous episode.
See Marquez v. People, 2013 CO 58, ¶¶ 9, 16 (defining an “incident,”
for purposes of applying the legislative requirements for sentencing
crimes of violence, as “a single, rather than more than one,
happening or unit of experience,” considering such factors as time,
place, circumstances, and schematic wholeness); Castillo, ¶ 48
(finding Marquez’s definition “instructive” in determining whether
events were part of a single episode for purposes of giving an
instruction on the initial aggressor exception to self-defense).
11
¶ 28 But, even considering only the encounter at A.J.’s truck, there
was sufficient evidence to support the instruction. Mr. Knapp’s
testimony regarding that encounter was itself sufficient to support a
finding that he intended to provoke A.J. into attacking him as a
pretext for injuring her. And, of course, the jury was “entitled to
accept parts of [his] testimony and reject other parts,” Gordon v.
Benson, 925 P.2d 775, 778 (Colo. 1996), particularly given that A.J.
and her daughter gave a completely different account of the
encounter from his. If the jury believed even some of what A.J. and
her daughter said (which it apparently did, given the convictions on
several other counts), it could’ve found that Mr. Knapp intentionally
provoked any attack by A.J. that may have led him to act in self-
defense. Thus, there was ample basis to support a finding of
provocation.
¶ 29 Therefore, we conclude that the trial court didn’t err in
instructing the jury on the provocation exception to self-defense.
B. “Wife Beater” Comment
¶ 30 Mr. Knapp contends that the trial court abused its discretion
by admitting evidence that A.J.’s brother-in-law called him a “wife
beater.” We disagree.
12
¶ 31 We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Brown, 2014 COA 155M-2, ¶ 5. A trial court
abuses its discretion when it misconstrues or misapplies the law, or
when its decision is manifestly arbitrary, unreasonable, or unfair.
People v. Sosa, 2019 COA 182, ¶ 10.
¶ 32 The trial court allowed the prosecutor to introduce A.J.’s
brother-in-law’s comment referring to Mr. Knapp as a “wife beater”
as res gestae evidence to provide context and explain Mr. Knapp’s
motive for his actions. As to motive, the prosecutor argued that
Mr. Knapp acted both out of anger that A.J. failed to stand up for
him after her brother-in-law made this comment and out of jealousy
that A.J. might have gone to see her ex-boyfriend.
¶ 33 Res gestae evidence is “generally linked in time and
circumstances with the charged crime, forms an integral and
natural part of an account of a crime, or is necessary to complete
the story of the crime for the jury.” People v. Miranda, 2014 COA
102, ¶ 47 (quoting People v. Greenlee, 200 P.3d 363, 368 (Colo.
2009)). Such evidence provides a jury “a full and complete
understanding of the events surrounding the crime and the context
in which the charged crime occurred,” such as showing the
13
defendant’s motive and intent. Id. at ¶¶ 47-48 (citation omitted).
To be admissible, res gestae evidence must be relevant, and its
relevance must not be outweighed by the danger of unfair prejudice.
People v. Thomeczek, 284 P.3d 110, 114 (Colo. App. 2011).
¶ 34 Mr. Knapp doesn’t argue that the “wife beater” comment was
improperly regarded as res gestae evidence. Instead, he claims the
trial court abused its discretion by overruling his hearsay and CRE
403 objections to the evidence. We are not persuaded.
1. Hearsay
¶ 35 As to hearsay, we conclude that the trial court acted within its
discretion in overruling Mr. Knapp’s objection. In doing so, we
agree with the trial court that the comment was not hearsay, as it
was offered not to prove the truth of the matter asserted but,
rather, to show its effect on the listener.
¶ 36 Hearsay is a statement, other than one made by a declarant
while testifying at a trial or hearing, offered in evidence to prove the
truth of the matter asserted. CRE 801(c). “If an out-of-court
statement is not offered for its truth, it is admissible as nonhearsay
evidence as long as it is relevant.” People v. Van Meter, 2018 COA
13, ¶ 64. More specifically, an out of court statement offered solely
14
to show its effect on the listener is not hearsay. People v. Robinson,
226 P.3d 1145, 1151 (Colo. App. 2009).
¶ 37 Here, the prosecutor offered evidence concerning the “wife
beater” comment, not to establish that Mr. Knapp was a wife beater,
but to show the comment’s effect on Mr. Knapp. The statement’s
relevance was in how it enraged Mr. Knapp and led him to commit
the criminal acts charged in this case.
¶ 38 Indeed, A.J.’s brother-in-law, who reportedly made the
comment, didn’t even testify at trial. Nor did any witness refer to
any specific acts of domestic violence Mr. Knapp had allegedly
committed in the past. Most of the references to the “wife beater”
comment came from A.J.’s testimony about how Mr. Knapp reacted
after hearing the comment and how he continued referring to it over
the course of the weekend, Mr. Knapp’s testimony about how he felt
when he heard the comment, and Mr. Knapp’s texts to A.J. referring
to the comment and expressing dismay that A.J. hadn’t defended
him when her brother-in-law made it.
¶ 39 Nonetheless, Mr. Knapp argues that the prosecutor
impermissibly relied on the comment for its truth at two points
during the trial: in cross-examining him, when the prosecutor
15
asked why Mr. Knapp believed the comment referred to him and
why A.J.’s brother-in-law would call him a wife beater; and in
closing argument, when he asserted that Mr. Knapp “fulfilled the
prophecy he was upset about earlier in the week” by committing the
charged acts of domestic violence. But these references didn’t
directly imply that the comment was true at the time it was made.
Rather, the reference in cross-examination delved into why
Mr. Knapp reacted to the comment the way he did, and the
reference in closing suggested Mr. Knapp had committed domestic
violence after (not before) the comment was made.
2. CRE 403
¶ 40 As to CRE 403, we conclude that the trial court acted within
its discretion by ruling that the probative value of the comment
wasn’t substantially outweighed by the danger of unfair prejudice.
¶ 41 CRE 403 strongly favors the admission of evidence. People v.
Dominguez, 2019 COA 78, ¶ 29. But even relevant evidence may be
excluded where it is unfairly prejudicial. Id. To be excluded, the
danger of unfair prejudice must substantially outweigh the
legitimate probative value of the evidence. Id.16
¶ 42 In reviewing the evidence on appeal, we “must afford [it] the
maximum probative value attributable by a reasonable fact finder
and the minimum unfair prejudice to be reasonably expected.” Id.
at ¶ 30 (quoting People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995)).
Evidence isn’t unfairly prejudicial simply because it damages the
defendant’s case. Id. Instead, to be unfairly prejudicial, it “must
have an ‘undue tendency to suggest a decision on an improper
basis, commonly but not necessarily an emotional one, such as
sympathy, hatred, contempt, retribution, or horror.’” Id. (quoting
People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990)).
¶ 43 Here, the trial court acted within its discretion in concluding
that the danger of unfair prejudice didn’t substantially outweigh the
comment’s probative value. We agree with the trial court that any
prejudicial impact of the comment was diminished by “the serious
nature of the accusations” made at trial, including the specific
allegations of assault A.J. and her daughter detailed in their
testimony. The comment was also general in nature, limiting its
potential prejudicial impact.
¶ 44 In contrast, the comment was highly relevant as res gestae
evidence to provide context for Mr. Knapp’s mood throughout the
17
weekend and to establish a possible motive for his criminal
conduct. Mr. Knapp heard the comment a few days before he
committed the offenses and, by his own admission, remained upset
about the comment — and A.J.’s failure to defend him from it —
through the date of the offenses. And, even if Mr. Knapp’s jealousy
toward A.J.’s ex-boyfriend offered an additional potential motive,
evidence about his reactions to the “wife beater” comment still
provided necessary context and helped the jury have a full and
complete understanding of the events leading up to the crimes. See
Miranda, ¶ 47.
¶ 45 Accordingly, we conclude that the trial court didn’t abuse its
discretion by admitting evidence of the “wife beater” comment.
C. Prosecutorial Misconduct
¶ 46 Mr. Knapp contends that the prosecutor committed
misconduct by (1) eliciting testimony about his post-arrest silence
and (2) arguing at closing that he tailored his testimony to the
evidence presented at trial. We disagree as to the first argument.
As to the second, we agree the argument was improper but find the
prosecutor’s misconduct didn’t constitute plain error.
18
¶ 47 We engage in a two-step analysis to review claims of
prosecutorial misconduct. People v. Robinson, 2019 CO 102, ¶ 18.
First, we determine whether the prosecutor’s conduct was improper
based on the totality of the circumstances. Id. Second, if we
conclude the conduct was improper, we determine whether it
warrants reversal according to the applicable standard of review.
Id. Here, because Mr. Knapp’s attorney didn’t raise his objections
at trial, the plain error standard applies. See id. at ¶ 19. Plain
error addresses error that was obvious and substantial and so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction. Id.
In the context of plain error review of prosecutorial misconduct, we
will reverse only when the misconduct was “flagrantly, glaringly, or
tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo.
App. 1997)). Prosecutorial misconduct rarely constitutes plain
error. Van Meter, ¶ 26.
1. Post-Arrest Silence
¶ 48 Mr. Knapp first complains about the prosecutor’s questions on
cross-examination inquiring about his statements to law
19
enforcement on the night he was arrested. The colloquy about
which he complains went as follows:
Q Okay. And is that when Police were
there?
A Yes, sir.
Q All right. And that’s when you told them
that you and [A.J.] had a fight that night,
right?
A Yes.
Q Okay. And you said, though, that it was
only verbal, right?
A Yes, sir.
Q Okay. But that wasn’t exactly true, was
it?
A No, sir.
Q Okay. And -- now, you could have told
Police at that moment that [A.J.] hit you
with the car, right?
A Yes, sir.
Q But you didn’t?
A Correct.
Q Okay. And you didn’t seek medical
attention for this injury on your head you
testified about?
A I did not.
20
Q Okay. And you could have told Police
about how concerned you were that the
kids were in the car with [A.J.] that day,
right?
A Yes, sir.
Q Okay. But you didn’t?
A Correct.
Q Okay. Instead, you told them that you
had a verbal argument, right?
A Correct.
¶ 49 Mr. Knapp contends that this questioning improperly inquired
into his post-arrest silence. We are not persuaded.
¶ 50 A prosecutor can neither present evidence of nor comment on
a defendant’s post-arrest silence. People v. Coleman, 2018 COA 67,
¶ 34. This is because a prosecutorial comment that has the effect
of creating an inference of guilt by referring to the defendant’s
silence “effectively penalizes the defendant for exercising [the]
constitutional privilege” against being compelled to act as a witness
against himself or herself. Id. (quoting People v. Ortega, 198 Colo.
179, 182, 597 P.2d 1034, 1036 (1979)).
¶ 51 But not every reference to a defendant’s post-arrest silence
warrants reversal. People v. Davis, 312 P.3d 193, 198 (Colo. App.
21
2010), aff’d on other grounds, 2013 CO 57. For instance, as
relevant here, “[a] testifying defendant may . . . be cross-examined
on his partial silence where he makes a statement to law
enforcement officials but the statement omits significant details
which are later included in a subsequent statement.” Id. at 199.
As prior divisions of our court have put it: “A defendant cannot have
it both ways. If he talks, what he says or omits is to be judged on
its merits or demerits.” Id. (quoting People v. Rogers, 68 P.3d 486,
492 (Colo. App. 2002)). In such a situation, the omission of key
details is akin to a prior inconsistent statement, and inquiring
about those details is permissible because it doesn’t seek to have
jurors infer guilt from silence but, rather, seeks to respond to
statements made by the defendant. Id.; accord People v. Quintana,
665 P.2d 605, 610 n.7 (Colo. 1983).
¶ 52 Here, the prosecutor’s questioning focused primarily on
Mr. Knapp’s statements to law enforcement authorities (before he
was arrested and invoked his right to remain silent) that he and
A.J. had had a fight that was “only verbal,” as contrasted with his
testimony at trial that A.J. had hit him with her car. The questions
didn’t suggest that Mr. Knapp’s post-arrest silence should be
22
construed as evidence of guilt. Instead, they attempted to impeach
Mr. Knapp’s trial testimony by pointing to his prior inconsistent
statement that the fight had been only verbal. Therefore, the
questions were proper.
¶ 53 People v. Reynolds, 194 Colo. 543, 575 P.2d 1286 (1978), on
which Mr. Knapp primarily relies, is distinguishable. In that case,
as in this one, the defendant talked briefly with law enforcement
officers before invoking his right to remain silent. Id. at 550, 575
P.2d at 1292. But there, unlike here, the defendant made only a
few vague statements to officers about the incident and later was
asked why he didn’t provide the additional details to which he
testified at trial. Id. The critical difference in this case is that
Mr. Knapp provided specific information to officers — saying the
altercation was strictly verbal — that was inconsistent with his later
statements at trial. Thus, the questioning didn’t inquire so much
into his post-arrest silence as into his prior inconsistent statement.
2. Tailoring
¶ 54 Mr. Knapp also complains about the prosecutor’s statements
in closing argument, which he claims impermissibly argued that he
tailored his testimony to the evidence.
23
¶ 55 In closing, the prosecutor argued, among other things, that
the evidence didn’t support Mr. Knapp’s claim of self-defense and
that his testimony about the events wasn’t credible. The prosecutor
then made the following comment, to which defense counsel didn’t
object, but which Mr. Knapp now challenges on appeal:
There is not evidence supporting the
defendant’s claim. The defendant got to sit
and listen to the evidence, and then testify,
based upon the evidence heard in court.
The prosecutor went on to argue that A.J. and her daughter had
given a credible recounting of the events and that the evidence
didn’t support Mr. Knapp’s theory of self-defense.
¶ 56 A prosecutor’s closing argument should be based on the
evidence in the record and all reasonable inferences to be drawn
from it. Martinez v. People, 244 P.3d 135, 140 (Colo. 2010). Thus,
a prosecutor may draw reasonable inferences from the evidence
about the credibility of witnesses. Id. at 141. But a prosecutor may
not make arguments about a defendant’s opportunity to tailor
evidence simply because the defendant exercises his or her right of
confrontation and has a duty to be present at trial. Id.
24
¶ 57 Whether a prosecutor’s tailoring argument runs afoul of these
principles depends on whether it is generic or specific. Generic
tailoring — which is improper — occurs when the prosecutor
attacks the defendant’s credibility by “simply drawing the jury’s
attention to the defendant’s presence at trial and his resultant
opportunity to tailor his testimony,” without “referenc[ing] any
instances in the record where the defendant actually engaged in
tailoring.” Id. By contrast, specific tailoring — which is proper —
occurs when the prosecutor ties a tailoring argument to an
evidentiary basis in the record. Id. For instance, our supreme
court has explained that a reference to “facts in the record
indicating that a defendant has tailored ‘specific elements of his
testimony to fit with particular testimony given by other witnesses’”
is specific tailoring and therefore permissible. Id. (citation omitted).
¶ 58 Here, the People claim the prosecutor’s comment in closing
that Mr. Knapp “got to sit and listen to the evidence, and then
testify, based upon the evidence heard in court” was neither a
generic nor a specific tailoring argument because the prosecutor
argued, both before and after the comment, that Mr. Knapp’s
testimony was not credible or consistent with the evidence. In other
25
words, the People claim the prosecutor’s point was that Mr. Knapp
had had the opportunity to tailor his testimony but nonetheless
hadn’t done so. Thus, they contend, the argument wasn’t really
tailoring at all and was permissible.
¶ 59 The People don’t cite any authority supporting this novel
argument, and we haven’t found any. And the prosecutor’s
tailoring comment was generic, as neither the comment itself nor
the arguments that immediately preceded and followed it were tied
to any specific testimony at trial. Instead, the comment “attack[ed]
[Mr. Knapp’s] credibility by simply drawing the jury’s attention to
[his] presence at trial and his resultant opportunity to tailor his
testimony.” Id. Therefore, it was improper.
¶ 60 However, we don’t believe the prosecutor’s tailoring comment
rose to the level of plain error. Rather, we conclude that, even
assuming the error in allowing the comment was obvious, it wasn’t
substantial and didn’t so undermine the fundamental fairness of
the trial as to cast serious doubt on the reliability of Mr. Knapp’s
conviction. See Robinson, ¶ 18.
¶ 61 We reach this conclusion for several reasons. First, the
prosecutor made only one brief reference to tailoring in the course
26
of a lengthy closing argument. See People v. Villa, 240 P.3d 343,
358 (Colo. App. 2009). Second, as the People note, the prosecutor
didn’t directly argue that Mr. Knapp had in fact tailored his
testimony. Rather, the implication was that he’d had the
opportunity to do so but hadn’t. This softened the impact and
rendered the argument less potentially harmful. Third, defense
counsel’s lack of an objection “may demonstrate [a] belief that the
live argument, despite its appearance in a cold record, was not
overly damaging.” Domingo-Gomez, 125 P.3d at 1054 (citation
omitted). And fourth, the court provided the jury with a proper
credibility instruction, which we must assume the jury followed.
See Villa, 240 P.3d at 358.
¶ 62 As a result, we cannot say that the prosecutor’s tailoring
argument was “flagrantly, glaringly, or tremendously improper,”
Domingo-Gomez, 125 P.3d at 1053 (quoting Avila, 944 P.2d at 676),
and “so undermine[d] the fundamental fairness of the trial itself as
to cast serious doubt on the reliability of the jury’s verdict,” id.Therefore, we find no plain error.
27
D. Restitution
¶ 63 Mr. Knapp raises two primary arguments in challenging the
trial court’s restitution order. First, he argues that the court
imposed a greater amount of restitution than that authorized by the
jury’s verdict. Second, he argues that the court erroneously
calculated restitution using the replacement value of several items
of property without the necessary foundation. We agree with him
on the first issue and remand to the trial court with instructions,
but we find no plain error as to the second issue.
¶ 64 The prosecution’s criminal mischief charge against Mr. Knapp
alleged that he knowingly damaged A.J.’s real or personal property
in violation of section 18-4-501(1), C.R.S. 2019. The prosecution
charged criminal mischief as a class 6 felony, alleging that
Mr. Knapp caused $1000 or more but less than $5000 in damages
to A.J.’s property. § 18-4-501(4)(d). A.J. testified at trial that
Mr. Knapp caused more than $13,000 in damage to her truck, her
camper, and various items at her house. Although the jury found
Mr. Knapp guilty of the offense of criminal mischief, it found, in a
series of interrogatories corresponding to the different levels of
offense, that the aggregate damage Mr. Knapp caused to A.J.’s
28
property was $750 or more but less than $1000. The court
therefore entered a conviction for a class 1 misdemeanor.
¶ 65 After trial, the prosecution filed a motion seeking $13,070.40
in restitution for two types of pecuniary losses: (1) $11,155.54 for
property Mr. Knapp damaged or destroyed and (2) $1914.86 for
other losses resulting from Mr. Knapp’s conduct, including lost
wages and school books.3 A.J. had testified about the same items
of damage at trial, though she gave slightly smaller damage
estimates for some of the items during the restitution proceedings.
Defense counsel objected on the basis that the request exceeded the
amount supported by the jury’s interrogatory on criminal mischief.
¶ 66 Following an evidentiary hearing, the trial court ordered
restitution in the full $13,070.40 requested, though it noted that
some of that amount was directly payable to A.J. and some was
payable to her landlords.
3 A.J. sought reimbursement for books she’d purchased for a
semester of school she could no longer attend due to her injuries
from the assault. Initially, she also requested tuition
reimbursement, but she withdrew that request when she obtained a
refund on the tuition.
29
1. Acquitted Conduct
¶ 67 Mr. Knapp contends that the trial court erred by awarding
restitution in an amount exceeding that supported by the jury’s
interrogatory on the criminal mischief count. We agree in part.
¶ 68 We review a trial court’s restitution order for an abuse of
discretion. Sosa, ¶ 10. A court abuses its discretion when it
misconstrues or misapplies the law, or when its decision is
manifestly arbitrary, unreasonable, or unfair. Id.
¶ 69 We review questions of statutory construction de novo. Id. at
¶ 11. We likewise review questions of law de novo, and whether a
trial court has authority to impose restitution for losses suffered as
a result of acquitted conduct is a question of law. Cowen, ¶ 11;
Sosa, ¶ 11.
¶ 70 Our primary purpose in interpreting a statute is “to ascertain
and give effect to the General Assembly’s intent.” Cowen, ¶ 12
(citation omitted). We first examine the plain meaning of the
statutory language, construing terms according to their statutory
definitions or plain and ordinary meanings. Id. at ¶¶ 12, 14. If the
language is clear and unambiguous, we give effect to its plain
meaning without looking any further. Id. at ¶ 12. In applying the
30
plain meaning, we give consistent effect to all parts of the statute,
construe each provision in harmony with the overall statutory
design, and give effect to all legislative acts if possible. Id. at ¶ 13.
¶ 71 Restitution in criminal cases is part of a trial court’s
sentencing function. Roberts v. People, 130 P.3d 1005, 1006 (Colo.
2006); see also § 18-1.3-603, C.R.S. 2019. Section 18-1.3-603(1)
provides that “[e]very order of conviction of a felony, misdemeanor,
petty, or traffic misdemeanor offense . . . shall include consideration
of restitution.” The statute defines restitution as “any pecuniary
loss suffered by a victim . . . [that is] 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. 2019. “We
liberally construe the restitution statute to accomplish its goal of
making victims whole for the harms suffered as the result of a
defendant’s criminal conduct.” Sosa, ¶ 14 (quoting People v. Rivera,
250 P.3d 1272, 1274 (Colo. App. 2010)).
¶ 72 However, a sentence that exceeds the court’s statutory
authority is illegal. Roberts, 130 P.3d at 1006. Our supreme court
recently made clear that “Colorado’s restitution statutes do not
allow a trial court to impose restitution for pecuniary losses caused
31
by conduct that formed the basis of a charge of which the defendant
has been acquitted[,] [e]ven where . . . the defendant has been
convicted of a separate charge.” Cowen, ¶ 2; accord id. at ¶ 24. In
other words, “when an individual is acquitted of one charge and
convicted of another, the conduct underlying the acquitted charge
cannot serve as the basis of a restitution order.” Id. at ¶ 23.
¶ 73 The court in Cowen largely based its ruling on a close reading
of the restitution statutes, concluding that “the legislature’s choice
of wording reflects its intent to exclude from the restitution
umbrella any losses caused by acquitted conduct.” Id. at ¶ 22; see
also id. at ¶ 19 (“The legislature clearly meant to limit restitution
liability to individuals found guilty of causing injury or property loss
that resulted in suffering or hardship to victims harmed by their
misconduct.”); id. at ¶ 21 (“[T]he legislature did not intend to
empower trial courts to order someone acquitted of a charge to pay
restitution for losses caused by the conduct underlying that
charge.”).
¶ 74 The Cowen court also stated that a contrary holding would
raise constitutional concerns in the wake of the United States
Supreme Court’s decision in Nelson v. Colorado, 581 U.S. ___, 137
32
S. Ct. 1249, 1252, 1255-56 (2017), which held that, when a
criminal conviction is overturned or vacated and there is no retrial
or a retrial results in an acquittal, the state must refund all
restitution imposed on the defendant as a result of the conviction.
See Cowen, ¶¶ 34-37. As the Cowen court noted, “the Court [in
Nelson] reminded us that, ‘[a]bsent conviction of a crime, one is
presumed innocent’ . . . [and] explained that . . . ‘Colorado may not
presume a person, adjudged guilty of no crime, nonetheless guilty
enough for monetary exactions.’” Id. at ¶ 35 (quoting Nelson, 581
U.S. at ___, ___, 137 S. Ct. at 1252, 1256).
¶ 75 Recognizing that this presumption of innocence applies to
each crime charged, the Cowen court expressed that, “[i]f the jury
acquits a defendant of a particular charge, the defendant retains
the presumption of innocence with respect to that charge regardless
of whether he is found guilty of a different charge.” Id. at ¶ 38. “To
hold otherwise,” the court explained, “would be tantamount to
declaring that when the jury finds a defendant guilty of one charge
and not guilty of another, the trial court may nevertheless consider
the defendant guilty of the acquitted charge by a less demanding
33
standard of proof” — a result the court found “would be nonsensical
even in the context of restitution.” Id.
¶ 76 The Cowen court applied this rule to hold that the defendant
in that case, who was charged with two counts of fraud by check
based on two separate checks and was convicted of one count but
acquitted of the other, couldn’t be ordered to pay restitution in the
total amount of both checks. Id. at ¶¶ 5-6, 39-42. The court held
that, because the jury had acquitted the defendant of the fraud
charge relating to the second check, the trial court lacked authority
to order the defendant to pay restitution for any pecuniary losses
suffered as a result of that check. Id. at ¶¶ 39-42.
¶ 77 The procedural posture of this case is different than that of
Cowen, but we conclude that the same reasoning applies. The
prosecution charged Mr. Knapp with criminal mischief as a class 6
felony (based on damage of at least $1000 but less than $5000), but
the jury found, through its interrogatories, that he committed only
a class 1 misdemeanor (based on damage of at least $750 but less
than $1000). We agree with Mr. Knapp that the jury’s guilty verdict
on misdemeanor criminal mischief should be viewed as an implied
34
(if not express) acquittal of the felony criminal mischief count
charged by the prosecution.
¶ 78 Ordinarily, a defendant is impliedly acquitted of a greater
offense when he or she is charged with greater and lesser offenses
and the jury finds him or her guilty of only the lesser offense. See,
e.g., § 18-1-301(1)(a), C.R.S. 2019; People v. Cardenas, 25 P.3d
1258, 1261 (Colo. App. 2000). Technically speaking, the value of
the property damaged operates as a sentence enhancer rather than
an element of the offense of criminal mischief and, thus, these were
not in fact greater and lesser included offenses. But, because the
sentence enhancer had to be pleaded, proved, and found beyond a
reasonable doubt by a jury, it makes sense to apply the same
construct. See People v. Jamison, 220 P.3d 992, 995 (Colo. App.
2009) (acknowledging that theft of property valued between $100
and $500 technically wasn’t a lesser included offense of theft of
property valued between $500 and $15,000, but treating it as such
for purposes of entering judgment for the lesser offense supported
by the evidence); see also People v. Hopkins, 2013 COA 74, ¶¶ 22-
23 (recognizing that any finding that increases the maximum
35
penalty for a crime must be proved to a jury, regardless of whether
that fact is an element or a sentence enhancer).
¶ 79 In this case, through its interrogatories, the jury plainly found
that Mr. Knapp was not guilty of the greater offense but was guilty
of the lesser one. Thus, Mr. Knapp was essentially acquitted of
class 6 felony criminal mischief, even as he was convicted of class 1
misdemeanor criminal mischief. Under the reasoning in Cowen,
then, he retains a presumption of innocence with respect to any
actions of (or damages for) criminal mischief beyond the amount
equating to a class 1 misdemeanor offense — that is, $999.99.
¶ 80 Accordingly, just as the trial court in Cowen lacked authority
to order restitution for the second check after the jury found the
defendant hadn’t committed fraud as to that check, so did the trial
court here lack authority to order restitution for additional property
damage based on the criminal mischief count after the jury found
Mr. Knapp hadn’t committed criminal mischief as to any more than
$999.99 in property damage.
¶ 81 We therefore hold that, where a defendant is charged with one
level of offense but is convicted of only a lower-level offense, an
award of restitution for that offense is limited to the amount
36
consistent with the jury verdict. Thus, here, where Mr. Knapp was
charged with criminal mischief as a class 6 felony but was
convicted for this offense only as a class 1 misdemeanor, restitution
for the offense is limited to the maximum amount of $999.99 set
out for a class 1 misdemeanor. To the extent that prior divisions of
this court reached different conclusions under similar facts, we
believe their holdings are no longer valid after the supreme court’s
decision in Cowen. Indeed, part of the reasoning in those decisions
was that trial courts could consider acquitted conduct in
determining the amount of restitution, see, e.g., People v. Stotz,
2016 COA 16, ¶¶ 89-91; People v. Pagan, 165 P.3d 724, 730-31
(Colo. App. 2006), and Cowen expressly held that that is not the
case.4
¶ 82 The People point to other cases where divisions of this court
allowed restitution awards to exceed the amount of a jury verdict for
a different reason: the pecuniary losses were calculated differently
4 Some of these decisions added that trial courts could consider
uncharged conduct as well in determining the amount of
restitution. A division of this court recently held that this also is no
longer proper after Cowen. See People v. Sosa, 2019 COA 182,
¶¶ 24-28.
37
for purposes of restitution than for purposes of proving an element
of an offense. See, e.g., People v. Smith, 181 P.3d 324, 327 (Colo.
App. 2007). But, in this case, the People don’t explain how any
minor variations in the calculation of damages for restitution
purposes — for instance, in counting repair costs that exceed the
value of an object or using replacement value as opposed to fair
market value — could account for the significant difference between
the amount of restitution the trial court awarded and the amount
supported by the jury’s verdict. In fact, it appears from the record
that such variations don’t account for any of this difference, for two
reasons. First, the property damage calculations A.J. presented
during the restitution proceedings were nearly identical to those she
had presented at trial, just slightly lower (not higher). And second,
the jury instructions didn’t constrain what the jury could consider
in calculating the amount of property damage Mr. Knapp had
caused. Thus, any difference in the way restitution may be
calculated doesn’t justify increasing the amount of restitution above
the amount supported by the jury’s verdict.
¶ 83 We hold, however, that the restitution may be supported by
property and nonproperty losses attributable to other offenses for
38
which Mr. Knapp was convicted. For instance, the trial court
appropriately awarded restitution for lost wages ($1800) and
unneeded school books ($114.86), which are attributable to
Mr. Knapp’s assault on A.J., causing her to miss work and drop out
of school for the semester.5 Likewise, the court appropriately
awarded restitution for the cost to replace a mattress and bedding
($3834.98), which is attributable to Mr. Knapp’s illegal discharge of
a firearm, putting two holes in the mattress, and to his assault,
causing blood to stain the bedding. The same is true of the cost to
replace carpet ($1300) stained by blood as a result of Mr. Knapp’s
assault. Because it’s not entirely clear from the record what
5 Even if these losses hadn’t been attributable to a different offense,
they still would’ve been recoverable. The jury’s verdict on criminal
mischief pertained only to damages to real and personal property.
See § 18-4-501, C.R.S. 2019. But the restitution statute more
broadly allows for recovery of “any pecuniary loss,” including,
among other things, “out-of-pocket expenses” and “other losses or
injuries [that are] 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. 2019. Accordingly, while the jury’s
verdict precluded the trial court from awarding restitution based on
the criminal mischief count for real and personal property damage
in an amount greater than $999.99, it didn’t affect the trial court’s
ability to award restitution for other types of pecuniary losses.
39
additional items, if any, may properly be attributed to other
offenses, we remand for the trial court to make that determination.
¶ 84 We recognize that some of these items, like the damage to the
mattress and bedding, could be perceived as attributable to the
criminal mischief count as well as the other counts — and thus,
conceivably, the amount of restitution for these items could be
limited by the jury’s verdict on criminal mischief. But Mr. Knapp
doesn’t maintain a presumption of innocence as to those actions
and damages, since he was found guilty of the other offenses to
which they relate and since, even in the absence of a guilty verdict
on criminal mischief, the value of those items would’ve been
recoverable in restitution. We are also mindful of the fact that the
restitution statute must be liberally construed “to accomplish its
goal of making victims whole for the harms suffered as the result of
a defendant’s criminal conduct.” Sosa, ¶ 14 (quoting Rivera, 250
P.3d at 1274).
¶ 85 Thus, the maximum amount of restitution the trial court could
lawfully order was $8049.83 ($999.99 plus the amount of the items
listed above) plus the amount of any additional items the trial court
40
determines on remand are properly attributable to offenses other
than (or in addition to) criminal mischief.
¶ 86 Finally, we reject Mr. Knapp’s argument that any award of
restitution in an amount greater than $999.99 (the amount in the
jury’s interrogatories) violates Apprendi v. New Jersey, 530 U.S. 466(2000), and Blakely v. Washington, 542 U.S. 296 (2004). We agree
with the division of this court that previously concluded that
Apprendi and Blakely — which hold that any fact, other than the
fact of a prior conviction, that increases the penalty for an offense
beyond the prescribed statutory maximum must be admitted by the
defendant or proved to a jury beyond a reasonable doubt — don’t
apply to restitution orders. See Smith, 181 P.3d at 327. We also
note that nothing in the supreme court’s decision in Cowen calls
that conclusion into question and that, following Southern Union Co.
v. United States, 567 U.S. 343 (2012), federal courts have
consistently continued to recognize that Apprendi doesn’t apply to
restitution, see, e.g., United States v. Sawyer, 825 F.3d 287, 297
(6th Cir. 2016); United States v. Thunderhawk, 799 F.3d 1203, 1209
(8th Cir. 2015); United States v. Bengis, 783 F.3d 407, 413 (2d Cir.
41
2015); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir.
2014); United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012).
¶ 87 Accordingly, we reverse the restitution order and remand to
the trial court to modify the amount of restitution to $8049.83 plus
the amount of any additional items the trial court determines on
remand are properly attributable to offenses other than (or in
addition to) criminal mischief.6
2. Replacement Value
¶ 88 Mr. Knapp also contends that the trial court erroneously
calculated restitution using the replacement value of several items
of property without the necessary foundation.
¶ 89 Section 18-1.3-602(3)(a) defines restitution to include “any
pecuniary loss suffered by a victim,” including but 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.”
Accordingly, “the value of property for purposes of restitution is
6 We also leave it to the trial court to determine how to allocate the
restitution as between A.J. and her landlords.
42
determined by the victim’s ‘actual, pecuniary loss’ or the amount of
money that will ‘fulfill[ ] the statutory purpose of simply making the
victim whole to the extent practicable.’” People v. Stafford, 93 P.3d
572, 575 (Colo. App. 2004) (quoting People v. Courtney, 868 P.2d
1126, 1128 (Colo. App. 1993)).
¶ 90 Recognizing that victims are entitled to be placed in the same
financial condition they would’ve been in had the crime not been
committed, prior divisions of this court have recognized that a court
can award restitution of a “reasonable replacement value” — rather
than being limited to recovery of fair market value — when the
victim demonstrates that he or she will need to replace an item that
isn’t readily replaceable at a fair market value cost. Stafford, 93
P.3d at 575-76; accord People v. Henson, 2013 COA 36, ¶ 24.
¶ 91 Mr. Knapp argues that A.J.’s restitution calculations for
several items were based on replacement value, rather than fair
market value, and that the trial court adopted those calculations
and awarded those amounts notwithstanding the lack of any
evidence demonstrating that A.J. needed to replace the items and
43
couldn’t readily do so at a fair market value cost. Because defense
counsel didn’t raise this issue below, our review is for plain error.7
¶ 92 Mr. Knapp challenges only those portions of the restitution
award for which the calculations were based on replacement value.
These include the restitution awarded for the replacement of two
cell phones, a towel rack, a mattress and bedding, carpet, a home
phone, a computer and printer, a refrigerator, a microwave, a
dishwasher, other kitchen items, and a wind chime.
¶ 93 Mr. Knapp cites only two cases in urging that the trial court
plainly erred by awarding the replacement value of these items
without evidence demonstrating that they weren’t readily
replaceable at fair market value cost. But in those two cases,
divisions of this court held merely that “the award of a reasonable
replacement value is appropriate when the victim demonstrates that
he or she must or will replace an item that is not readily replaceable
at a fair market value cost.” Stafford, 93 P.3d at 575-76; see also
7 Mr. Knapp claims that, despite the lack of any objection, the trial
court ruled on this issue by saying it wasn’t limited to a fair market
valuation determination and just had to make sure the value was
reasonable to make the victim whole. We disagree.
44
Henson, ¶ 24 (quoting the same language from Stafford). The
divisions didn’t hold that evidence that an item is not readily
replaceable at fair market value cost is always a necessary predicate
to recovery of reasonable replacement value. Critically, in both
cases, the objections had apparently been preserved in the trial
court and the divisions approved the use of replacement value.
Henson, ¶¶ 22-27; Stafford, 93 P.3d at 576.
¶ 94 Here, where defense counsel made no objection to the use of
replacement value and where it was fair to assume (in the absence
of evidence or argument indicating otherwise) that there wasn’t a
broad and active used market for items like a mattress, bedding,
carpet, and kitchen appliances, we conclude that it wasn’t plain
error for the court to award restitution based on replacement value.
And even for the items as to which there might be a used market,
like the cell phone, computer, and printer, we cannot conclude that
the trial court’s decision to award replacement value rose to the
level of plain error. See Stafford, 93 P.3d at 576 (“[T]he trial court
reasonably assumed that there was not a broad and active market
for used computers comparable to those stolen, particularly
considering today’s constantly evolving technological
45
marketplace.”); see also United States v. Shugart, 176 F.3d 1373,
1375 (11th Cir. 1999) (recognizing, under the federal restitution
statute, that replacement cost may be a better measure of value
when “an item is unique” or “there is not a broad and active market
for it”), cited with approval in Stafford, 93 P.3d at 576.
¶ 95 Therefore, we discern no plain error in the trial court’s use of
replacement value in calculating the amount of restitution.
III. Conclusion
¶ 96 We affirm Mr. Knapp’s convictions. However, we reverse the
restitution order and remand to the trial court to (1) determine what
items of restitution, if any, are properly attributable to offenses
other than (or in addition to) criminal mischief, in addition to the
lost wages, school books, mattress and bedding, and carpet
addressed in this opinion, and (2) modify the amount of restitution
to $8049.83 plus the amount of any such items.
JUDGE J. JONES and JUDGE WELLING concur.
46