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People v. Knapp

2020 COA 107. No. 17CA0678. Criminal Law—Domestic Violence—Provocation Exception to Self-Defense Jury Instruction—Hearsay—Prosecutorial Misconduct—Sentencing—Restitution.

July 16, 2020

Defendant and the victim, A.J., had a multiday argument that turned violent and culminated with A.J. filing multiple domestic violence charges against defendant. The jury convicted defendant of some of the charged offenses, including second degree assault, menacing, illegal discharge of a firearm, criminal mischief, third degree assault, reckless endangerment, prohibited use of a weapon, and harassment. The trial court sentenced defendant to seven years in the custody of the Department of Corrections and ordered him to pay $13,070.40 in restitution.

On appeal, defendant contended that the trial court erred by instructing the jury on the provocation exception to self-defense. The provocation exception to self-defense applies in situations where the defendant wasn’t the initial aggressor. Here, according to defendant’s own testimony, A.J.’s initial “attack” on him (in which she allegedly ran her truck into him) occurred just after he approached her car window, attempted to talk to her, and started walking around her truck to get in on the passenger’s side. A.J.’s second “attack” (in which she allegedly hit defendant in the back and head) occurred just after he again approached her truck, grabbed at her door handle and window, shattered the window, and reached inside to take her keys from her. These events happened after defendant spent hours sending A.J. 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. Thus, there was sufficient evidence from which a rational jury could find provocation beyond a reasonable doubt, and the trial court did not err.

Defendant also contended that the trial court abused its discretion by overruling his hearsay and CRE 403 objections to the admission of evidence that A.J.’s brother-in-law called him a “wife beater.” This comment was offered to show how it enraged defendant and led him to commit the criminal acts charged, not to prove the truth of the matter asserted. Thus, the comment was not hearsay, and the trial court did not abuse its discretion in allowing the prosecutor to introduce it as res gestae evidence to provide context and explain defendant’s motive for his actions. Further, any prejudicial impact from the comment was diminished by the serious accusations made at trial, so the trial court also acted within its discretion by ruling that the probative value of the comment wasn’t substantially outweighed by the danger of unfair prejudice.

Defendant also argued that the prosecutor committed prosecutorial 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. A prosecutor can neither present evidence of nor comment on a defendant’s post-arrest silence. Here, the prosecutor attempted to impeach defendant’s testimony by pointing to his prior inconsistent statements to law enforcement, before he was arrested and invoked his right to remain silent, that the fight had been only verbal, as contrasted with his testimony at trial that A.J. had hit him with her car. The questions didn’t suggest that defendant’s post-arrest silence should be construed as evidence of guilt and were therefore proper. As to the closing argument, while a prosecutor may draw reasonable inferences from the evidence about the credibility of witnesses, a prosecutor may not make arguments about a defendant’s opportunity to tailor evidence just because the defendant exercises the right of confrontation and has a duty to be present at trial. Here, the prosecutor’s comments attacking defendant’s credibility by simply drawing the jury’s attention to his presence at trial and his resultant opportunity to tailor his testimony was improper. However, the error in allowing the comment wasn’t substantial and didn’t so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of defendant’s conviction. Therefore, there was no plain error.

Defendant also argued that the court imposed a greater amount of restitution than that authorized by the jury’s verdict. Where a defendant is charged with one level of offense but is convicted of a lower level offense, a restitution award for the offense is limited to the amount consistent with the jury verdict. Here, the prosecution charged defendant with criminal mischief as a class 6 felony, but the jury found, through its interrogatories, that he committed only a class 1 misdemeanor. Therefore, restitution for the offense is limited to the maximum amount of $999.99 set out for a class 1 misdemeanor. However, the restitution may be supported by property and non-property losses attributable to other offenses for which defendant was convicted, but the record is unclear as to which additional items, if any, may properly be attributed to other offenses.

Defendant also contended that the trial court erroneously calculated restitution using the replacement value, rather than fair market value, of several items of property without the necessary foundation. Defense counsel did not object to the use of replacement value, and it was fair to assume that there wasn’t an active used market for items like a mattress, bedding, carpet, and kitchen appliances. Therefore, it wasn’t plain error for the court to award restitution based on replacement value. Further, as to the items for which there might be a used market, such as the cell phone, computer, and printer, the trial court’s decision to award replacement value did not rise to the level of plain error.

The convictions were affirmed. The restitution order was reversed and the case was remanded with directions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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