23CA1702 Peo v Podoba 05-21-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1702 Boulder County District Court No. 22CR143 Honorable J. Keith Collins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeremy Podoba,
Defendant-Appellant.
JUDGMENT AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE PAWAR Sullivan and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jeremy Podoba, appeals his conviction of various
offenses, including assault and witness tampering. He also appeals
the restitution order. We affirm his convictions, reverse the
restitution order, and remand with directions.
I. Background
¶2 Podoba and his girlfriend, J.M., were involved in a series of
verbal and physical altercations over a period of several months
from January 2022 to May 2022. After the first altercation in
January, during which Podoba choked J.M., a protection order
issued that prohibited Podoba from having any contact with her.
¶3 Despite the protection order, J.M. and Podoba continued to
see each other. And during a May incident, Podoba threw J.M. to
the ground and broke her collarbone.
¶4 The prosecution filed various charges against Podoba based on
these altercations. Less than two weeks before the scheduled trial
(it was later continued), Podoba and J.M. had a direct message (DM)
exchange during which Podoba wrote, “As long as you don’t go to
court. Should be all good.”
¶5 Ultimately, Podoba was charged with five counts of second
degree assault, five counts of violating a protection order, one count
1 of witness tampering for the DM, and various other counts. J.M.
testified about the alleged assaults at trial and admitted to using
physical force against Podoba on various occasions. The jury found
Podoba guilty of two of the five assault counts (based on the
January choking incident and the May broken collarbone incident),
as well as all the non-assault counts. Podoba was convicted and
sentenced accordingly, and the sentence included a restitution
award.
¶6 Podoba appeals. He argues that (1) he was entitled to a self-
defense instruction for one of the assault counts; (2) the evidence
was insufficient to support the witness tampering conviction; (3) the
court erred by admitting various testimony; (4) the prosecutor
engaged in misconduct during closing argument; (5) there was
cumulative error; and (6) the court improperly ordered restitution.
We disagree with all his arguments except his challenge to the
restitution order.
II. Self-Defense Instruction
¶7 Podoba argues that the trial court erred by denying his request
for a self-defense instruction for the assault count based on the
collarbone incident. We disagree.
2 ¶8 A defendant is entitled to an affirmative self-defense
instruction if he presents some credible evidence that he acted in
self-defense. See § 18-1-407(1), C.R.S. 2025; Galvan v. People,
2020 CO 82, ¶ 24. As relevant here, a defendant acts in self-
defense if he uses a reasonable degree of force to defend himself
from what he reasonably believes to be the use or imminent use of
unlawful physical force. § 18-1-407(1). Therefore, Podoba was
entitled to a self-defense instruction if there was any evidence that
he reasonably believed he had to throw J.M. to the ground with
enough force to break her collarbone to protect himself from her use
or imminent use of physical force against him.
¶9 We review de novo whether there was any such evidence.
People v. Garcia, 113 P.3d 775, 784 (Colo. 2005). Like the trial
court, we conclude there was not.
¶ 10 On the night of the collarbone incident, Podoba was at
someone else’s apartment in Denver. When J.M. finished work, she
noticed that Podoba’s phone indicated he was somewhere different
than where he said he was. Suspecting that he was cheating on
her, J.M. drove to the Denver apartment. After they had an
argument outside the apartment, Podoba and J.M. agreed to drive
3 their respective vehicles back to Podoba’s house. On the way, J.M.
bought a pint of tequila and drank a portion of it.
¶ 11 Once back at Podoba’s house, the two argued for about ten
minutes before Podoba threw J.M. to the ground, breaking her
collarbone. J.M. also testified that after she was thrown to the
ground, she threw a curling iron at Podoba.
¶ 12 The above description of the incident, which Podoba does not
challenge on appeal, includes no evidence that throwing J.M. to the
ground was an act of self-defense. Indeed, Podoba urges us to look
elsewhere for such evidence, primarily to J.M.’s testimony about
two physical altercations that occurred in the days leading up to the
collarbone incident.
¶ 13 The first preceding physical altercation occurred about two
weeks earlier. J.M. testified that a verbal argument turned physical
when Podoba put her in “a headlock from behind.” J.M. testified
that in response she “put her arm up” and struck him in the eye “in
self-defense.”
¶ 14 The second preceding physical altercation occurred three days
before the collarbone incident. Again, the two were arguing and
Podoba threw a butane torch at J.M. J.M. testified that Podoba
4 physically restrained her in various ways, pinned her up against the
wall, and choked her. While being choked, J.M. reached for a knife
block that held kitchen knives. J.M. testified that “[s]omehow we
ended up both falling on the floor and the knife block fell with us.”
Although both J.M. and Podoba sustained cuts from the fall with
the knives, there was no evidence that J.M. stabbed or threatened
Podoba with a knife.
¶ 15 We reject Podoba’s argument that these preceding physical
altercations supported any reasonable belief that J.M. was about to
use unlawful physical force when he threw her down with enough
force to break her collarbone. The evidence showed that in both
preceding altercations, Podoba initiated the physical part of the
altercation, not J.M. Consequently, they might have supported a
reasonable belief that J.M. would respond to physical force with her
own physical force. But it could not have supported a reasonable
belief that J.M. would initiate physical force. And in the collarbone
incident, the evidence was clear that Podoba, not J.M., was the first
to use physical force.
¶ 16 Podoba also contests this last proposition: that the evidence
was clear that he initiated the physical part of the collarbone
5 incident. He claims that the evidence was not clear on this point.
According to Podoba, the evidence could have been seen as
suggesting that J.M. used physical force first because although she
testified that she threw the curling iron at him after he threw her
down, there was general expert testimony that people sometimes
remember events out of order. Therefore, according to Podoba,
there was at least some evidence that J.M. threw the curling iron at
Podoba first.
¶ 17 Even if we accepted this view of the evidence, it would not be
enough to support a self-defense instruction. The degree of force
Podoba used (throwing J.M. down with enough force to break her
collarbone) was beyond what was reasonably necessary to defend
himself from J.M. throwing a curling iron at him, even when
considered in the context of J.M.’s past use of physical force against
him.
¶ 18 We therefore conclude that Podoba was not entitled to a self-
defense instruction for the assault count based on the collarbone
incident.
6 III. Witness Tampering
¶ 19 Podoba next argues that the evidence was insufficient to
support his witness tampering conviction. We review the
sufficiency of the evidence de novo, People v. Black, 2020 COA 136,
¶ 34, and disagree.
¶ 20 When assessing whether the evidence was sufficient, we view
it in the light most favorable to the prosecution, giving the
prosecution the benefit of all reasonable and fair inferences. Id.
The evidence is sufficient if, when viewed this way, it would support
a conclusion by a reasonable mind that the defendant is guilty
beyond a reasonable doubt. People v. Donald, 2020 CO 24, ¶ 18.
¶ 21 As relevant here, witness tampering requires that the
defendant intentionally attempted to induce a witness to testify
falsely or unlawfully withhold testimony. § 18-8-707(1)(a), C.R.S.
2025. This offense does not require that the witness be under
subpoena or legal summons at the time of the alleged inducement.
People v. Cunefare, 102 P.3d 302, 306-07 (Colo. 2004).
¶ 22 Here, less than two weeks before the scheduled trial, J.M. sent
Podoba a DM asking what he had been doing all day and Podoba
wrote, “I talked to the lawyer. Did some account budgeting and
7 cooked tacos. As long as you don’t go to court. Should be all good.”
J.M. testified about her understanding of that message, saying
Podoba “was trying to get me to either not come to court or to — or
to work with him and his lawyer on his side of the arguments to
make sure that the cases were dropped.” She further explained
that the messages meant that she “would be able to make sure that
[Podoba] didn’t end up in jail if I didn’t show up to court.”
¶ 23 Viewing this evidence in the light most favorable to the
prosecution, a reasonable juror could have fairly inferred that
Podoba was trying to get J.M. to unlawfully withhold trial testimony
that she might have been under subpoena to give. This is all that is
required for witness tampering. See id.
¶ 24 Podoba argues otherwise, relying primarily on People v.
Nozolino, 2014 COA 95. But that reliance is misplaced. In
Nozolino, the evidence was insufficient to support witness
tampering because the defendant merely advised witnesses to do
something legal: not cooperate with or speak to police when they
had no legal obligation to do so. Nozolino, ¶ 13. In contrast, here,
because Podoba had been charged and his trial was mere days
away, it was likely that J.M. either had been or would be
8 subpoenaed to testify against him. Thus, it was reasonable to infer
that Podoba urged J.M. to do something illegal: defy a subpoena to
testify at trial. Id. at ¶ 9 (a person commits witness tampering if he
intentionally attempts to induce a person he believes is to be called
to testify as a witness to unlawfully withhold any testimony (citing §
18-8-707(1)(a))). We therefore conclude that the evidence was
sufficient to support the witness tampering conviction.
IV. Alleged Evidentiary Error
¶ 25 Podoba next argues that the trial court erred by admitting
various testimony from the prosecution’s domestic violence expert
and an officer involved in the case. We review the court’s
evidentiary rulings for an abuse of discretion. People v. Russell,
2014 COA 21M, ¶ 22. The parties disagree about whether some of
these alleged errors were preserved, which would impact our
standard of reversal. See Hagos v. People, 2012 CO 63, ¶¶ 12, 14.
We need not resolve that disagreement because we conclude that
the court did not err in the first place.
A. Domestic Violence Expert’s Testimony
¶ 26 Barbara Lamanna was qualified as an expert in “domestic
violence, victim/offender dynamics, counterintuitive victim
9 behaviors and trauma memory.” She gave general testimony about
these topics, including general comments about strangulation in
domestic violence situations.
¶ 27 Podoba argues that the trial court erred by admitting
Lamanna’s testimony that (1) strangulation causes mostly internal
injuries; (2) these injuries can compound with successive
strangulations; and (3) strangulation is frightening to the victim.
According to Podoba, Lamanna’s testimony about internal injuries
and successive strangulations was inadmissible because it was
beyond the scope of her expertise and the testimony lacked
foundation and reliability. He argues that the strangulation-is-
frightening testimony was irrelevant. We disagree with all of these
arguments.
¶ 28 Expert testimony must be both relevant and reliable. See
People v. Cooper, 2021 CO 69, ¶ 46. Evidence is relevant if it makes
the existence of any material fact more or less probable. Id. at ¶ 45.
And expert testimony is reliable if the underlying scientific
principles are reasonably reliable and the expert is qualified to give
the testimony. Id. at ¶ 47.
10 ¶ 29 We first address Lamanna’s testimony that strangulation
causes internal injuries that can compound with successive
strangulations. Lamanna was qualified as an expert in domestic
violence and testified that she had worked with approximately
1,500 domestic violence victims, including “lots” who had been
strangled, some repeatedly. Based on her personal experience and
expert qualification, Lamanna was qualified to opine about the
physical injuries from a domestic violence strangulation. Likewise,
we see no problem with the reliability of or foundation underlying
this testimony — Lamanna simply described phenomena that she
had seen repeatedly in her professional experience.
¶ 30 We also conclude that Lamanna’s testimony that strangulation
is frightening was relevant. As suggested by the scope of her expert
qualification, which included counterintuitive victim behaviors,
Lamanna described strangulation as frightening when explaining
the role it can play in the dynamic of an abusive relationship.
Although J.M. testified that Podoba choked her, the evidence also
showed that she subsequently maintained an intimate relationship
with him. Lamanna’s testimony provided an explanation for why
11 someone in J.M.’s position would do this, lending credibility to
J.M.’s choking allegation even considering her subsequent actions.
B. Officer’s Testimony
¶ 31 Podoba also challenges the admission of an investigating
police officer’s testimony about what kind of injuries different
mechanisms of strangulation cause. This testimony occurred on
redirect examination, and we conclude that defense counsel opened
the door to its admission during the immediately preceding cross-
examination.
¶ 32 In criminal trials, courts try to prevent one party from gaining
an unfair advantage through the selective presentation of evidence
that creates an incorrect or misleading impression. Golob v. People,
180 P.3d 1006, 1012 (Colo. 2008). Thus, when a party first elicits
otherwise inadmissible testimony, the opposing party can then elicit
additional testimony about the previously inadmissible topic to
correct any misleading impressions. Id.
¶ 33 The officer here was a lay witness. On cross-examination,
defense counsel asked her a series of questions about what kinds of
external or visible injuries strangulation can cause. This
questioning created the impression that because J.M. had no visible
12 injuries in the days after the alleged choking, J.M. might not have
been strangled.
Defense counsel: [Referencing a photo of J.M.’s neck] And you didn’t see any marks in that picture, correct?
Officer: I could not.
Defense counsel: And then we’ve heard — and although you’ve only been an officer for a year or so that it’s possible that someone did have some sort of contact injury with their skin such that a couple days later a bruise would come out, correct?
Officer: There could have been.
Defense counsel: Are you familiar with that?
Officer: Yes.
Defense counsel: Okay. But we didn’t receive anything like that in this case, correct?
Officer: I’m unaware.
¶ 34 Defense counsel then questioned the officer about a photo of
J.M.’s eyes, which counsel pointed out did not show burst blood
vessels in the eyes due to strangulation, a condition called
petechiae.
Defense counsel: And in this picture, we can really see the whites of her eyes, correct?
13 Defense counsel: And you asked her to send that picture of her eyes, did you not, because of this — I was going to say phenomenon or medical condition called petechiae? Did I say that right, pe-teach-ia?
Officer: Petechiae.
Defense counsel: Petechiae. And what is petechiae?
Officer: It is when blood vessels of the eyes can burst and make red dots in and around the eye.
Defense counsel: And what causes that?
Officer: Lack of . . . oxygen.
....
Defense counsel: So what you were looking for is red spots on the eyes because you’ve been trained that that could be evidence that the person had lost their air supply?
Officer: Yes, significant loss of air supply.
¶ 35 The testimony that Podoba challenges on appeal occurred on
redirect, immediately after this cross-examination. In it, the
prosecutor merely sought to correct the misleading impression that
the absence of visible signs of strangulation, including petechiae,
did not necessarily mean that J.M. was not strangled:
14 Prosecutor: [D]o you recognize whether the type or mechanism of strangulation can affect whether there are external marks?
Prosecutor: And how so?
[Defense counsel objection that the court overruled]
Officer: I — based on my training and experience, I have seen if the hands are used and placed around the neck, we usually see bruising from the finger marks. When there’s an arm placed around the neck, the force can be applied in a much greater surface area, so there’s much less bruising. Usually, we can’t see bruising just to the naked eye, so there’s usually more internal injury with that than external injury.
¶ 36 Defense counsel was the first to ask the officer to explain,
based on her “training” and implicitly her experience, what types of
injuries strangulation can cause. This opened the door for the
prosecutor to ask the officer to clarify that not all strangulation
injuries are external or visible. Because defense counsel opened the
door to the testimony challenged on appeal, the trial court did not
abuse its discretion by admitting it.
15 V. Prosecutorial Misconduct
¶ 37 We review Podoba’s argument that some of the prosecutor’s
comments during closing argument constituted misconduct using a
two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010). First, we determine if the prosecutor’s comments were
improper based on the totality of the circumstances. Id. Second, if
there was any impropriety, we determine whether it warrants
reversal under the applicable standard of review. Id.
¶ 38 All of Podoba’s prosecutorial misconduct arguments are
unpreserved. Therefore, the applicable standard of review here is
plain error, which requires that the error be both obvious and
substantial. Hagos, ¶ 14. An error is substantial if it so
undermined the fundamental fairness of the trial that it casts doubt
on the reliability of the conviction. Id.
¶ 39 We conclude that none of the alleged prosecutorial misconduct
warrants relief.
¶ 40 Prosecutors have wide latitude in the language and style they
use during closing argument. People v. McMinn, 2013 COA 94,
¶ 60. Because closing arguments are not always perfectly scripted,
we give prosecutors the benefit of the doubt when their remarks are
16 ambiguous or inartful. Id. A prosecutor may not misstate the law
or refer to facts not in evidence. Id. at ¶ 62. But a prosecutor may
argue all reasonable inferences from the evidence. Id.
¶ 41 Podoba challenges three statements the prosecutor made
during closing argument. First, he points out that the prosecutor
incorrectly asserted that Lamanna had worked with over 4,500
domestic violence victims when the actual number was 1,500.
Podoba claims this must have been intentional because two days
earlier when Lamanna testified to having worked with 1,500
victims, a different prosecutor asked if it was 1,500 or 15,000, and
Lamanna clarified that it was 1,500.
¶ 42 We see no indication in the record that this was an intentional
misstatement. Instead, we conclude that it was simply an
unintentional and minor misstatement of Lamanna’s experience.
See People v. Peters, 2026 COA 24, ¶ 130 (“A prosecutor may not
intentionally misstate the evidence.” (emphasis added)). But even if
it was intentional, we conclude that it does not rise to the level of
plain error. Lamanna’s experience was unquestionably extensive
regardless of how many hundreds of victims she had worked with.
We therefore conclude that this misstatement, regardless of
17 whether it was intentional, did not undermine the fundamental
fairness of the trial.
¶ 43 Second, Podoba challenges the prosecutor’s following
comments about the evidence and, allegedly, the burden of proof:
Think back to what is not evidence and think back to that burden where you’re not to speculate.
You’re not to say, hey, what if hypothetically, little green men came down and they’re the ones that cause [J.M.] to break her collarbone? That’s speculation. That’s a vague, imaginary doubt. That’s not what reasonable doubt means when you go back and look at the evidence in this case.
The prosecutor added during rebuttal closing: “Please consider what
evidence is in evidence that you have received and what has not
been provided to you.”
¶ 44 Considered in the context of the argument as a whole, we
disagree with Podoba’s suggestion that these comments implied
that he bore a burden of proof. Instead, we conclude that these
statements were proper reminders to decide the case based only on
the evidence presented. And the prosecutor’s use of an example of
doubt that is not reasonable (potential involvement of little green
men) did not misstate the reasonable doubt standard. See People v.
18 Samson, 2012 COA 167, ¶ 36 (concluding that prosecutor’s use of
similar rhetorical flourish did not preclude the jury from finding a
reasonable doubt based on the lack of evidence).
¶ 45 Third, Podoba argues that the prosecutor committed
misconduct by referring to Podoba’s collective actions as a “reign of
terror over [J.M.].” We disagree. The evidence in the case
suggested that Podoba repeatedly physically assaulted J.M. over a
period of months. The characterization of Podoba’s actions as a
reign of terror was within the prosecutor’s wide latitude to use
rhetorical flourishes and comment on facts in evidence. See
McMinn, ¶ 61 (Prosecutors can “employ rhetorical devices and
engage in oratorical embellishment.”).
VI. Cumulative Error
¶ 46 Because we have determined that there were not multiple
errors at trial, we necessarily reject Podoba’s argument that the
cumulative effect of alleged errors warrants relief.
VII. Restitution
¶ 47 Finally, Podoba argues that the trial court erred by entering a
restitution award before Podoba received service of the
19 prosecution’s request for a specific amount of restitution. The
Attorney General agrees, and so do we.
¶ 48 A restitution order is invalid if the defendant is not given
notice of the amount of restitution requested and the opportunity to
challenge that amount. People in Interest of J.L.R., 895 P.2d 1151,
1153 (Colo. App. 1995). The parties agree that Podoba received
neither notice of the amount requested nor the opportunity to
challenge it. The record does not suggest otherwise.
¶ 49 The parties also agree that reversal and remand is
appropriate. We do too, regardless of whether this issue was or
even could have been preserved. Even if plain error review applied,
this error would suffice. We therefore reverse the restitution award.
VIII. Disposition
¶ 50 The restitution order is reversed, and the judgment of
conviction is otherwise affirmed. The case is remanded to the trial
court with directions to provide Podoba an opportunity to challenge
the amount of requested restitution.
JUDGE SULLIVAN and JUDGE MEIRINK concur.