Peo v. Johnson

Opinion

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.