author: Opinion by JUDGE DAILEY

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Justin Walter RIEGER, Defendant-Appellee.
    Court of Appeals No. 18CA1506
    Colorado Court of Appeals, Division II.
    Announced January 24, 2019
    Daniel P. Rubinstein, District Attorney, George Alan Holley, II, Senior Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
    Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE DAILEY

¶ 1 Pursuant to section 16-12-102(1), C.R.S. 2018, the People appeal the district court's order dismissing, after a preliminary hearing, the case charging the defendant, Justin Walter Rieger, with solicitation to commit tampering with physical evidence. We reverse and remand with directions.

I. Background

¶ 2 Rieger had been charged in a separate case with numerous offenses committed in connection with an alleged assault on his girlfriend. While in jail, Rieger corresponded with the girlfriend through Telmate, an electronic messaging system that allows detainees to communicate with people outside the jail.

¶ 3 Through Telmate, the girlfriend forwarded to Rieger a picture of bruises on her arms that he had allegedly caused during the assault. Two days after she uploaded the picture on Telmate, Rieger asked her to "take that [picture] off, because it ... can incriminate me." The girlfriend removed the picture from the Telmate account.

¶ 4 A District Attorney's investigator who was reviewing Rieger's Telmate account had seen the picture and Rieger's correspondence with the girlfriend.

¶ 5 The prosecution charged Rieger in this separate case with solicitation to commit tampering with physical evidence. After a preliminary hearing, the district court dismissed the case because

the definition of physical evidence ... doesn't apply to this electronic record; and so that-that's the basis for me finding that there is not probable cause for that because I find it's not physical evidence under ... [section] 18-8-610.

II. Analysis

¶ 6 The People contend that the district court improperly dismissed the case. We agree.

¶ 7 Because we review a trial court's probable cause ruling at a preliminary hearing for an abuse of discretion, People v. Hall , 999 P.2d 207, 221 (Colo. 2000), we will not overturn such a ruling absent a showing that it is either manifestly arbitrary, unreasonable, or unfair, People v. Castro , 854 P.2d 1262, 1265 (Colo. 1993), or based on an erroneous view of the law, People v. Moore , 226 P.3d 1076, 1081 (Colo. App. 2009).

¶ 8 Here, the trial court dismissed the case based on its interpretation of section 18-8-610, C.R.S. 2018. The court's interpretation of the statute presents a question of law that we review de novo. People v. Johnson , 2015 CO 70, ¶ 9, 363 P.3d 169.

¶ 9 In interpreting a statute, our task is to ascertain and give effect to the intent of the General Assembly. Dubois v. People , 211 P.3d 41, 43 (Colo. 2009). "To discern the legislative intent, we look first to the language of the statute itself, reading words and phrases in context and construing them according to rules of grammar and common usage." People v. Butler , 2017 COA 117, ¶ 24, 431 P.3d 643 (citation omitted). "Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." § 2-4-101, C.R.S. 2018.

¶ 10 When the statutory language is clear and unambiguous, "we apply the words as written without resort to other rules of statutory interpretation." People v. Shores , 2016 COA 129, ¶ 16, 412 P.3d 894 (citing People v. Van De Weghe , 2012 COA 204, ¶ 8, 312 P.3d 231 ). But "[w]hen the language of a statute is susceptible of more than one reasonable understanding and is therefore considered ambiguous," People v. Jones , 2015 CO 20, ¶ 10, 346 P.3d 44, "a court must look beyond the language [of the statute] and consider other factors, such as the statute's legislative history and the objective sought to be achieved by the legislation," People v. Lovato , 2014 COA 113, ¶ 23, 357 P.3d 212.

¶ 11 Pursuant to section 18-8-610(1)(a), "[a] person commits tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal right or authority, he ... [d]estroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding[.]" (Emphasis added.) " 'Physical evidence', as used in this section, includes any article, object, document, record, or other thing of physical substance[.]" § 18-8-610(2).

¶ 12 The People contend that the trial court erred in interpreting the definition of "physical evidence" to exclude electronic documents such as the photograph the girlfriend uploaded to the Telmate system. They argue that under the "last antecedent rule," the phrase "of physical substance" modifies only the last noun (i.e., "other thing") and not the previous ones (i.e., "any article, object, document, record"). Rieger, on the other hand, argues that, even if the "last antecedent rule" applies, an exception to the rule also applies-an exception that would tie the phrase "of physical substance" as much to the words "article," "object," "document," and "record," as it is tied to the phrase "other thing."

¶ 13 We do not, however, apply either of the parties' proffered rules of statutory construction because it is otherwise clear to us that electronically stored documents or information falls within the ambit of the phrase "physical evidence." See, e.g. , Holliday v. Bestop, Inc. , 23 P.3d 700, 706 n.5 (Colo. 2001) ("Because the language of the statute is unambiguous on this point, we do not resort to interpretive rules of statutory construction and thus do not address the parties' arguments regarding the effect of various rules of statutory construction, such as the 'last antecedent rule'....").

¶ 14 In this regard, we note that the definition of "physical evidence" is phrased not in terms of "physical evidence means" but, rather, in terms of "physical evidence includes." "The word 'includes' is generally used as a term of extension or enlargement when used in a statutory definition." Freedom Newspapers, Inc. v.Tollefson , 961 P.2d 1150, 1154 (Colo. App. 1998). It "denotes that the examples listed are not exhaustive or exclusive," Preston v. Dupont , 35 P.3d 433, 439 (Colo. 2001), but only illustrative, People v. Patton , 2016 COA 187, ¶¶ 14-16, 425 P.3d 1152 ; see Bryan A. Garner, Garner's Dictionary of Legal Usage 439 (3d ed. 2011) ("[I]ncluding ... should not be used to introduce an exhaustive list, for it implies that the list is only partial[;] ... 'the use of the word including indicates that the specified list ... is illustrative, not exhaustive.' ").

¶ 15 The phrase "physical evidence" has an established meaning in law, representing the form in which evidence is presented to a fact-finder. As noted in one commentary:

There are generally two types of evidence: the words or testimony of the witnesses, and physical evidence. Most broadly viewed, the second type of evidence is anything that conveys a firsthand impression to [factfinders]. It includes weapons, writings, photographs, and charts.

U.S. Dep't of Army, Pamphlet No. 27-22, Military Criminal Law Evidence, § 11-1 (July 15, 1987), 1987 WL 61783 ; see 23 C.J.S. Criminal Procedure and Rights of the Accused § 1148 ("[P]hysical evidence is evidence addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court, or an object which relates to or explains the issues or forms a part of a transaction."). At least one state court has applied this meaning to the phrase "physical evidence" in deciding an issue under a statute similar to ours prohibiting tampering with physical evidence. See State v. Peplow , 2001 MT 253, ¶ 22, 307 Mont. 172, 36 P.3d 922 (equating "physical evidence" with "a 'thing presented to the senses' ").

¶ 16 Other jurisdictions recognize that photographs are a form of "physical evidence." See, e.g. , Medina v. Williams , 565 F. App'x 644, 646 (9th Cir. 2014) (photographs of bruises and cuts inflicted in assault); People v. Elizalde , 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010, 1016 (2015) ("Examples of 'real or physical evidence' include fingerprints, photographs, handwriting exemplars, blood samples....");

England v. State , 940 So.2d 389, 395 (Fla. 2006) (autopsy photographs); State v. Beynon , 484 N.W.2d 898, 907 (S.D. 1992) (photographs of injuries inflicted in assault).

¶ 17 CRE 1001(2) defines "photographs" as "includ[ing] still photographs, X-ray films, and motion pictures." In State v. William M. , 225 W.Va. 256, 692 S.E.2d 299, 304 (2010), the West Virginia Supreme Court held that "digital images are 'photographs' under Rule 1001(2) of the West Virginia Rules of Evidence ," a rule identical to Colorado's. In reaching its conclusion, the court noted that there was "no requirement under our rule that an image must be stored on photographic film or paper to be considered a photograph." Id. ; see 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 1001.3, Westlaw (4th ed. database updated Aug. 2018) ("Nothing is excluded from the definition [of 'photographs' in Wisconsin Statute section 910.01(2) (West 2018) ]; it comfortably reaches electronic images captured by Smartphones and other digital technology.").

¶ 18 Further, courts have upheld the admissibility of digital photographs based on the same or similar type of foundation required for admitting traditional photographs. See, e.g. , Owens v. State , 363 Ark. 413, 421, 214 S.W.3d 849 (2005) ; People v. Goldsmith , 59 Cal.4th 258, 172 Cal.Rptr.3d 637, 326 P.3d 239, 248-49 (Cal. 2014) ; State v. Marquardt , 2017 WI App 34, ¶ 22, 375 Wis.2d 797, 899 N.W.2d 737.

¶ 19 Because (1) we find persuasive the authorities treating, for evidentiary purposes, digital images as "photographs"; and (2) "photographs" fall within well-accepted notions of "physical evidence," we conclude that electronically stored, digital images like the one deleted here qualify as "physical evidence" for purposes of the tampering with physical evidence statute.

¶ 20 To reach any other conclusion would, in our view, lead to an absurd result. The intent of the General Assembly in enacting the tampering statute is clear: to punish attempts to subvert the administration of justice. See People v. Atencio , 140 P.3d 73, 77 (Colo. App. 2005) ("[I]t is evident from the language of [ section 18-8-610 ] that the General Assembly intended to criminalize behavior that interferes with an official proceeding...."); cf. People v. Yascavage , 101 P.3d 1090, 1092 (Colo. 2004) (The purpose of the witness tampering statute "was to punish any attempt to induce another to testify falsely or otherwise to subvert the administration of justice.").

¶ 21 In today's society, vast amounts of documents, files, photographs, and records are stored electronically. Allowing individuals to conceal, remove, or alter digitally stored information about a crime would run contrary to the intent of the statute to protect the administration of justice.

¶ 22 Consequently, we conclude that the trial court erred in dismissing the case on the ground that electronically stored images do not qualify as "physical evidence." That conclusion does not, however, end our analysis.

¶ 23 "[O]n appeal a party may defend the judgment of the trial court on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court." People v. Quintana , 882 P.2d 1366, 1371 (Colo. 1994). In this regard, Rieger contends that even if an electronically stored photograph falls with the meaning of physical evidence, this court should still affirm the district court's order dismissing the case because

• an electronic duplicate of an image uploaded to Telmate does not constitute "physical evidence," and
• "the removal of this image from that communications system does not evince a specific intent to make the image unavailable at trial."

¶ 24 Rieger bases the first argument, factually, on the investigator's testimony that he believed that the original photograph was taken by the girlfriend with her cell phone and that only "a copy" of the picture was uploaded to Telmate. Rieger bases the legal component of this argument not on the definition of "physical evidence," but on an interpretation of that term in light of the actus reus (i.e., "[d]estroys, mutilates, conceals, removes or alters physical evidence," § 18-8-610(1)(a) ) and mens rea (i.e., to impair the "verity or availability" of the item "in the pending or prospective official proceeding," id. ) elements of the crime. Thus, he argues,

the definition of physical evidence is limited to evidence, which, when destroyed, mutilated, concealed, removed or altered would impair that item's verity or availability. Therefore, this definition does not encompass an electronic duplicate uploaded to a particular platform. Because the uploaded file is a copy, and not the original, any tampering with it could not affect the verity or availability of the original photograph-any changes to the duplicate would simply not affect the underlying data file, which is the actual evidence in the case. Thus, this type of evidence is not "physical evidence" within the meaning of the tampering with physical evidence statute.

¶ 25 The problem with this argument is its premise, i.e., that without satisfying the other elements of the crime, there can be no "physical evidence." A proper analysis, though, produces this result: without satisfying the other (actus reus and mens rea) elements of the crime, there is no crime.

¶ 26 We perceive no reason why a duplicate of a photograph cannot constitute "physical evidence" for purposes of the tampering statute. Eliminating a copy of a photograph that could have been used at trial impairs the availability of the photograph, even if other copies exist.

¶ 27 The significant issue is the intent with which a person acts with respect to "physical evidence," copy or otherwise. As recognized by the drafters of a provision in the Model Penal Code similar to ours, the "limiting factor" of the offense

is the requirement of specific intent. The statute punishes any kind of tampering with any document or thing, but only if the defendant acts 'with purpose to impair its verity or availability' in an official proceeding.... This designation of specific purpose identifies the ultimate evil as obstruction of justice rather than destruction of property and restricts the scope of the offense to persons who consciously intend to accomplish the forbidden harm.... [The statute] therefore applies only when the conduct is undertaken with purpose to impair verity or availability of a record in a proceeding....

Model Penal Code and Commentaries § 241.7 cmt. 3, at 180 (Am. Law Inst. 1980).

¶ 28 We now turn to Rieger's second argument, that is, whether the desired removal of a duplicate image from the Telmate communications system evinces a specific intent to make the image unavailable at trial.

¶ 29 At the outset, we acknowledge that there are some circumstances in which the removal of one of several identical items may not tend to prove a specific intent to make evidence unavailable for use in an official proceeding. Take, for instance, the circumstances in Costanzo v. State , 152 So.3d 737 (Fla. Dist. Ct. App. 2014). In Costanzo , the defendant, a police officer, made a video on his cell phone of statements from a suspect about a criminal case where the defendants were two other police officers and friends of the defendant. Id. at 738. He then showed the video to his supervisor, texted it to one of the defendants, and used his work email to send it to an attorney for the Police Benevolent Association. Id. He then deleted the video from his cell phone. Id. A jury convicted him of tampering with physical evidence.

¶ 30 On appeal, the Florida District Court of Appeal reversed the defendant's conviction, reasoning as follows:

[A] defendant's equivocal conduct toward evidence is insufficient to demonstrate the intent necessary for a section 918.13 violation....
....
Such equivocal conduct differs from that conduct that completely destroys potential evidence, such as swallowing an object.
....
In this case, after appellant recorded the video on his cell phone, he showed it to his supervisor, texted it to [his friend], and e-mailed it to an attorney for the Police Benevolent Association. As we know from videos that have gone viral, texting or e-mailing a video is the antithesis of trying to destroy it. In fact, with the assistance of technology, the video was recovered from two separate locations. There was insufficient evidence of appellant's intent to violate the tampering statute. In addition, there was insufficient evidence that the video was "destroy[ed]" within the meaning of the statute; the statute does not criminalize deleting evidence existing in the memory of a particular electronic device, particularly where such evidence resides elsewhere in the electronic ether. The trial court's denial of appellant's motion for judgment of acquittal was therefore erroneous.

Id. at 738-39.

¶ 31 In Costanzo , the defendant created the video, distributed it to others, and then deleted the video he had created on his cellphone. Under these circumstances (i.e., without any further insight into the defendant's state of mind), it would be counterintuitive to find that, in deleting the video from his phone, the defendant intended to impair the discovery or use of the video, or that he "destroyed" it, making it unavailable for trial.

¶ 32 The present case is readily distinguishable from Costanzo . In this case, there was no evidence of a number of duplicates of which Rieger was shown to be aware, much less shown to have distributed to others. Although Rieger never said anything to the girlfriend about destroying or concealing any "original" of the photo, he asked that the photograph on Telmate be removed because it could "incriminate [him]."

¶ 33 Most importantly, in contrast to Costanzo , here we are reviewing the sufficiency of the evidence not in relation to a conviction after trial but in relation to a probable cause determination after preliminary hearing.

¶ 34 "[P]robable cause is a low standard." People v. Fry , 92 P.3d 970, 976-77 (Colo. 2004). The prosecution is not required to produce evidence establishing beyond a reasonable doubt that the defendant committed the crime or even the likelihood that the defendant committed the crime; instead, it need only present evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crime. Hall , 999 P.2d at 221.

¶ 35 In determining whether the prosecution has met its burden at a preliminary hearing, the trial court must view the evidence as a whole and draw all reasonable inferences in the light most favorable to the prosecution. People v. Keene , 226 P.3d 1140, 1144 (Colo. App. 2009).

¶ 36 Rieger's statement that he wanted the picture removed from the Telmate account because it "incriminate[d]" him is some evidence that he intended to make that picture unavailable for use by the prosecution. That he did not ask the girlfriend further to delete the original picture does not, in our view, undermine that intent as a matter of law. Unlike in Costanzo , Rieger had no reason to believe that the authorities knew or had reason to know of the picture on Telmate or any other place; it could reasonably be inferred from his statement that Rieger meant to have the picture removed from the account before the authorities learned of its existence-in which case they would have had no reason to suspect that another such picture existed anywhere.

¶ 37 In our view, the evidence was sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that Rieger intended to deprive the prosecution of the ability to use that picture. Because probable cause supported the charge of solicitation to commit tampering with physical evidence, the case should not have been dismissed.

III. Disposition

¶ 38 The district court's order of dismissal is reversed, and the matter is remanded with directions to reinstate the case and for further proceedings with respect thereto.

Ashby and Vogt , JJ., concur

      According to the investigator, the bruising shown in the picture appeared worse than that depicted in the evidence gathered in the assault case. The investigator explained, though, that this was consistent with the nature of bruising "as bruising develops over time."

      "Physical evidence" does not, however, "include a human body, part of a human body, or human remains subject to a violation of section 18-8-610.5." § 18-8-610(2), C.R.S. 2018.

      Under the last antecedent rule-which was legislatively repudiated in 1981 after the tampering statute had been enacted-there is a "presumption that referential and qualifying words and phrases refer solely to the last antecedent clause immediately preceding them." People v. O'Neal , 228 P.3d 211, 214 (Colo. App. 2009).

      The "exception" to which Rieger refers is this: "When a referential or qualifying clause follows several words or phrases and is applicable as much to the first word or phrase as to the others in the list, ... the clause should be applied to all of the words or phrases that preceded it." Estate of David v. Snelson , 776 P.2d 813, 818 (Colo. 1989).

      We need not, then, independently determine the precise meaning of the term "physical substance"; whether the phrase "any ... record" can be read independently of the phrase "physical substance"; and, if so, whether an electronically stored photograph qualifies as a "record" encompassed within the definition of "physical evidence." Cf. Henson v. State , 314 Ga.App. 152, 723 S.E.2d 456, 459 (2012) ("[T]he ordinary signification of 'record' is '[a]n account of some fact or event preserved in writing or other permanent form ...' or 'any thing ... serving to indicate or give evidence of, or preserve the memory of, a fact or event.' " And given that a picture certainly preserves or gives evidence of a fact or event-in many instances as efficiently as a thousand words-Henson's claim that the term "electronic records" does not encompass pictures or photographs lacks merit.").

      Notably, perhaps, the court did not decide the case based on whether the video constituted "physical evidence."

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.


source: Caselaw Access Project

author: Opinion by JUDGE HAWTHORNE

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. April Jo COAHRAN, Defendant-Appellant.
    Court of Appeals No. 15CA1147
    Colorado Court of Appeals, Division IV.
    Announced January 24, 2019
    Philip J. Weiser, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Jeffrey Svehla, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE HAWTHORNE

¶ 1 Defendant, April Jo Coahran, was convicted of criminal mischief arising from damage she caused to her ex-boyfriend's car door after he grabbed her wrist and wouldn't let go. But according to Coahran, she kicked the car door to distract the ex-boyfriend and also to gain enough leverage to free herself and get away. So, she argued, she acted in self-defense and was entitled to an affirmative defense instruction under section 18-1-704(1), C.R.S. 2018. The prosecution responded that Colorado's self-defense statute applies only to situations involving the use of physical force against other persons, not against property, and so it didn't apply to Coahran's situation. The trial court agreed. Now on appeal, Coahran challenges her conviction because of this alleged instructional error, among other reasons. She also appeals the trial court's restitution order.

¶ 2 As a matter of first impression in Colorado, we are faced with the question whether a defendant charged with criminal mischief may be entitled to a jury instruction on self-defense as an affirmative defense. We answer that question "yes." We reverse Coahran's conviction, vacate the restitution order, and remand for a new trial.

I. Background

¶ 3 At trial, the facts surrounding what happened between Coahran and her ex-boyfriend were disputed.

¶ 4 In November 2014, according to Coahran, her ex-boyfriend owed her money, so she reached out to him and suggested they meet for lunch, at which time the ex-boyfriend could repay her. On the day they planned to meet, Coahran had another appointment. So she suggested they cancel their lunch plans and meet instead at the ex-boyfriend's workplace. The ex-boyfriend rejected this idea, and he went to the restaurant during his lunch break as originally planned.

¶ 5 Coahran arrived as soon as she could and saw the ex-boyfriend walking out of the restaurant. According to Coahran, he looked frustrated. When she asked him what was wrong, the ex-boyfriend began yelling at her for being late. Coahran asked the ex-boyfriend for the money, which he refused to give her. Coahran turned to walk away, but the ex-boyfriend grabbed her wrist to stop her. She asked him twice to let her go, but he refused. Worried the situation would escalate and "not wanting to see that side of him," Coahran kicked the ex-boyfriend's car door, hoping to distract him momentarily and gain enough leverage to free herself. The ex-boyfriend let go of her wrist and she quickly returned to her car and drove away.

¶ 6 At trial, the prosecution introduced photos of the damage to the ex-boyfriend's car door. Coahran admitted she had kicked the car door, but denied that she had intended to cause any damage to it. Instead, Coahran argued in a pretrial conference that she had kicked the car door in self-defense. Specifically, she argued that after the ex-boyfriend grabbed her wrist and wouldn't let go, she was worried the situation would escalate. She kicked the car door to distract the ex-boyfriend so he'd let her go. Kicking the door also gave her leverage to pull away from the ex-boyfriend's grasp, which she didn't have the power to do on her own.

¶ 7 The prosecutor argued, and the trial court agreed, that self-defense as an affirmative defense wasn't available for Coahran's criminal mischief charge because her use of physical force was directed toward property (the car) rather than another person (the ex-boyfriend). The court, however, permitted Coahran to argue that self-defense was an element-negating traverse, that is, her actions were taken in self-defense and negated the "knowingly" mens rea required for the criminal mischief charge.

¶ 8 Coahran was convicted of criminal mischief and ordered to pay restitution to the ex-boyfriend.

¶ 9 On appeal, Coahran asserts that (1) the court improperly instructed the jury on self-defense; (2) the court erred by prohibiting evidence of the ex-boyfriend's prior bad acts; (3) the prosecution failed to prove the damage amount necessary to sustain a conviction for class 6 felony criminal mischief; (4) comments by the ex-boyfriend and the prosecutor improperly shifted the burden of proof to Coahran to prove her innocence; and (5) the court ordered restitution without a hearing and without requiring the prosecution to prove actual pecuniary loss.

II. Self-Defense

¶ 10 Coahran contends the trial court made two critical errors regarding the self-defense jury instructions, warranting reversal of her conviction, by (1) refusing to instruct the jury on self-defense as an affirmative defense, which impermissibly lowered the prosecution's burden of proof; and (2) misstating the law in its jury instruction.

¶ 11 The People respond that Coahran wasn't entitled to an affirmative defense self-defense instruction because the self-defense statute applies only to situations involving physical force used against other persons, not against property. And, the People contend, even if the jury instruction given by the court incorrectly stated the law, it inured to Coahran's benefit because she wasn't entitled to such an instruction in the first place. Thus, the People continue, any error is harmless.

¶ 12 Because we conclude that Coahran was entitled to an affirmative defense self-defense jury instruction, we don't address her second contention as to the instruction given to the jury.

A. Standard of Review

¶ 13 A trial court has a duty to correctly instruct the jury on the governing law. Townsend v. People , 252 P.3d 1108, 1111 (Colo. 2011). We review jury instructions de novo to determine whether the instructions accurately do so. Riley v. People , 266 P.3d 1089, 1092 (Colo. 2011). We consider all the instructions given by the trial court together to determine whether they properly informed the jury. Id.

¶ 14 We review a court's decision whether to give a particular jury instruction for an abuse of discretion. People v. Gwinn , 2018 COA 130, ¶ 31, 428 P.3d 727. A court abuses its discretion if it bases its ruling on an erroneous understanding or application of the law. Id. We review such legal issues de novo.

¶ 15 We also review de novo whether there's sufficient evidence in the record to support a self-defense jury instruction. People v. Newell , 2017 COA 27, ¶ 19, 395 P.3d 1203. "When considering an affirmative defense instruction, we consider the evidence in the light most favorable to the defendant." Id.

¶ 16 "A defendant need only present 'some credible evidence' in support of the affirmative defense...." People v. DeWitt , 275 P.3d 728, 733 (Colo. App. 2011) (quoting § 18-1-407(1), C.R.S. 2018 ). If the defendant meets this standard, the prosecution has the burden to disprove the affirmative defense beyond a reasonable doubt. Id. If a trial court refuses to give an affirmative defense self-defense instruction in circumstances where one was appropriate, the prosecution's burden of proof is impermissibly lowered. This error implicates a defendant's constitutional rights and is reviewed for constitutional harmless error. People v. Sabell , 2018 COA 85, ¶ 22, --- P.3d ---- ("Where, as here, the trial court erroneously instructs the jury in a manner that lessens the prosecution's burden of proof with respect to an affirmative defense, constitutional error has been committed."); DeWitt , 275 P.3d at 733 ; see also People v. Kanan , 186 Colo. 255, 259, 526 P.2d 1339, 1341 (1974) ("Prejudice to the defendant is inevitable when the court instructs the jury in such a way as to reduce the prosecution's obligation to prove each element of its case beyond a reasonable doubt."). "These errors require reversal unless the reviewing court is 'able to declare a belief that [the error] was harmless beyond a reasonable doubt.' " Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116 (quoting Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ).

B. Legal Framework and Analysis

¶ 17 Generally, there are two types of defenses in criminal cases: affirmative defenses and traverses. See People v. Pickering , 276 P.3d 553, 555 (Colo. 2011). Affirmative defenses are defenses that admit the defendant committed the elements of the charged act, but seek to justify, excuse, or mitigate the act. Id. By contrast, traverses are defenses that effectively refute the possibility that the defendant committed the charged act by negating an element of it. Id.

¶ 18 "Whether an asserted defense is an affirmative defense or a traverse dictates the applicable burden of proof as to the defense's existence or nonexistence." Roberts v. People , 2017 CO 76, ¶ 22, 399 P.3d 702. When a defendant alleges an affirmative defense and presents a minimal amount of evidence to support it, the court must instruct the jury that the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable. Pickering , 276 P.3d at 555 ("In Colorado, if presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element" and the jury must be instructed that the "prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable."); see also DeWitt , 275 P.3d at 733 (noting that "some credible evidence" is "another way of stating the 'scintilla of evidence' standard" for purposes of amassing enough evidence to warrant an affirmative defense instruction). "The evidence necessary to justify an affirmative defense instruction may come solely from the defendant's testimony, however improbable." DeWitt , 275 P.3d at 733. "It is for the jury and not for the court to determine the truth of the defendant's theory." People v. Fuller , 781 P.2d 647, 651 (Colo. 1989).

¶ 19 By contrast, where the evidence presented raises the issue of an elemental traverse, "the jury may consider the evidence in determining whether the prosecution has proven the element implicated by the traverse beyond a reasonable doubt, but the defendant is not entitled to an affirmative defense instruction." Pickering , 276 P.3d at 555.

¶ 20 While self-defense may be an affirmative defense where a crime requires intent, knowledge, or willfulness, Pickering doesn't automatically require an affirmative defense self-defense instruction in every such case. See Roberts , ¶¶ 27-28. Where a crime requires recklessness, criminal negligence, or extreme indifference, self-defense is an element-negating traverse. Pickering , 276 P.3d at 556.

¶ 21 A person commits criminal mischief when he or she "knowingly damages the real or personal property of one or more other persons ... in the course of a single criminal episode." § 18-4-501(1), C.R.S. 2018. Criminal mischief is a general intent crime. See § 18-1-501(6), C.R.S. 2018.

¶ 22 Colorado's self-defense statute states, in relevant part, as follows:

[A] person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

§ 18-1-704(1). The legislature didn't expressly eliminate self-defense for particular crimes, such as criminal mischief, or for a particular class of crimes, such as crimes against property. See § 18-1-704 ; People v. DeGreat , 2015 COA 101, ¶ 12, --- P.3d ----, aff'd on other grounds , 2018 CO 83, 428 P.3d 541. And, the self-defense statute is found in the part of the Colorado criminal code titled "Provisions Applicable to Offenses Generally."

¶ 23 Still, the People argue that the legislature intended to confine self-defense to crimes against persons, so it isn't available when a defendant is charged with criminal mischief-a crime against property. For the following reasons, we disagree.

¶ 24 In construing a statute, we turn first to the statute's language. See Castillo v. People , 2018 CO 62, ¶ 42, 421 P.3d 1141. And in doing so, we accord words and phrases their plain and ordinary meanings. Id. We also "examine the statutory language in the context of the statute as a whole and strive to give 'consistent, harmonious, and sensible effect to all parts.' " Reno v. Marks , 2015 CO 33, ¶ 20, 349 P.3d 248 (quoting Denver Post Corp. v. Ritter , 255 P.3d 1083, 1089 (Colo. 2011) ).

¶ 25 By its plain language, the self-defense statute permits the use of physical force "upon another person" to defend oneself from that other person. The dictionary defines the word "upon" to include "having a powerful influence on" and "in or into close proximity or contact with by way of or as if by way of attack." Webster's Third New International Dictionary 2517 (2002); see also Griego v. People , 19 P.3d 1, 9 (Colo. 2001) ("We consult definitions contained in recognized dictionaries to determine the ordinary meaning of words."). Using physical force that has a powerful influence on or is in close proximity with another person is a broad concept that may be applied directly or indirectly. Also, the statute provides that an individual is only permitted to "use a degree of force which [s]he reasonably believes to be necessary for that purpose." § 18-1-704(1).

¶ 26 Reading the subsection as a whole, we conclude the legislature intended to allow an individual, in situations where she uses force to defend herself from the use or imminent use of unlawful physical force, to take only those actions which are reasonably necessary to do so-whether her actions are upon the other person directly or indirectly (e.g., where her actions are designed to have an impact on that other person, change his or her conduct, or trigger a reaction). In either situation, she is using force to defend herself "from what [s]he reasonably believes to be the use or imminent use of unlawful physical force by that other person," and she is using only "a degree of force which [s]he reasonably believes to be necessary for that purpose." Id.

¶ 27 According to Coahran's testimony, the ex-boyfriend grabbed her wrist when she tried to walk away. She asked the ex-boyfriend twice to let her go and he refused. Even though they were in a public parking lot, Coahran worried that the situation would escalate, so she kicked the car door in an effort to get away from the ex-boyfriend. Under these circumstances, we conclude there was sufficient evidence presented to support a self-defense instruction. See Pickering , 276 P.3d at 555. Coahran's testimony supports giving the instruction because a reasonable jury could have concluded that she knowingly kicked the ex-boyfriend's car door to defend herself by distracting him and by giving herself leverage to pull away from his grasp. See Riley , 266 P.3d at 1092 (a defendant is entitled to an instruction on her theory of defense); Fuller , 781 P.2d at 651 ("It is for the jury and not for the court to determine the truth of the defendant's theory."). Because the charged criminal mischief arose out of her use of force upon the ex-boyfriend (albeit indirectly), Coahran was entitled to a self-defense instruction.

¶ 28 To disallow the instruction under these circumstances would create a perverse incentive where persons in Coahran's situation are encouraged to direct physical force exclusively against the other person (i.e., kick the other person rather than kick the car door). This not only encourages violent behavior, it's inconsistent with the legislature's mandate in the self-defense statute that an individual use only "a degree of force which [s]he reasonably believes to be necessary" to defend herself. § 18-1-704(1). Coahran's theory is that the force necessary to defend herself was kicking the car door to free herself from the ex-boyfriend's grasp and she didn't need to use a greater amount of force, such as kicking the ex-boyfriend. Allowing a self-defense instruction in these circumstances is consistent with the statutory language and its purpose.

¶ 29 We disagree with the People that the self-defense statute contains the additional requirement that the defendant's force be used directly upon another person, such that the defendant must injure or make contact with that other person before she is entitled to an affirmative defense instruction. To impose this additional requirement would not only read language into the statute that isn't there, see People v. Jaramillo , 183 P.3d 665, 671 (Colo. App. 2008) ("[W]e 'respect the legislature's choice of language ... [and] do not add words to the statute or subtract words from it.' ") (citation omitted), it would also create the perverse incentives discussed above. This conclusion is supported by other jurisdictions faced with a similar dilemma.

¶ 30 For example, the defendant in Boget v. State argued that he damaged the windows on a truck only after the driver was trying to-and did-hit him. 74 S.W.3d 23, 24-25 (Tex. Crim. App. 2002). He was charged with criminal mischief, but the trial court refused to instruct the jury on self-defense. The prosecution argued that "self-defense 'by its own terms' involves the use of force against another person" and that "criminal mischief, on the other hand, requires the intentional or knowing damage or destruction of another's tangible property," so the defendant wasn't entitled to a self-defense instruction. Id. at 26.

¶ 31 The Texas Court of Criminal Appeals concluded that a self-defense affirmative defense instruction was appropriate, explaining that the defendant's "criminal mischief was part and parcel of his 'use of force against another.' In other words, without [the defendant's] use of force there would have been no criminal mischief." Id. at 27. To reach this conclusion, the court analyzed the legislative history of the Texas self-defense statute, which is similar to Colorado's, and also examined the law in other jurisdictions. Id. at 27-31. Ultimately, it concluded that the statute was intended to "encourage[ ] the use of restraint in defensive situations. A rule that allows a charge on self-defense where a person kills another, but prohibits the defense when a person merely damages the other's property is inconsistent with the purposes of the statute." Id. at 30. We're persuaded by this reasoning. See also State v. Arth , 121 Wash.App. 205, 87 P.3d 1206, 1208-09 (2004) (allowing self-defense as a defense to "malicious mischief" charge where defendant damaged vehicle in order to prevent driver from injuring him, and endorsing Boget 's policy rationale of "encourag[ing] a defendant to use the least amount of force necessary to protect himself without compromising his defense at trial").

¶ 32 The People attempt to distinguish Boget and Arth , arguing that the defendants in those cases were threatened by the property that was eventually damaged. While this may be true, it doesn't change our conclusion. Colorado's self-defense statute allows an individual to defend herself by taking only those actions which are reasonably necessary to do so. In some circumstances, such as those in the case before us, this may involve defensive actions designed to affect the other person indirectly or to cause a reaction, which in turn causes property damage (rather than physical injury). See D.M.L. v. State , 976 So.2d 670, 672-73 (Fla. Dist. Ct. App. 2008) (allowing self-defense instruction where the defendant testified he "was using force in self-defense against [the victim] when [the victim] swung [a] bat at him," the defendant held up his skateboard to block the bat, but the skateboard was knocked into the victim's truck and damaged it). So even if the victim isn't threatening the defendant with the damaged property, it may be appropriate to defend oneself in such a way that property is damaged, rather than that the victim is injured. Additionally, these out-of-state cases emphasize the broader policy considerations underlying their decisions. See Boget , 74 S.W.3d at 30-31 ; Arth , 87 P.3d at 1208-09. Coahran's situation implicates these considerations because, according to her testimony, she used the least amount of force necessary to defend herself from further injury.

¶ 33 The People also argue that Colorado case law doesn't support giving an affirmative defense instruction for crimes against property.

¶ 34 The parties have identified only three Colorado cases that discuss self-defense jury instructions when a defendant is charged with criminal mischief, and we have found no others. See Fuller , 781 P.2d 647 ; People v. Smith , 754 P.2d 1168 (Colo. 1988) ; People v. Waters , 641 P.2d 292 (Colo. App. 1981). In each, the court didn't need to address the exact question that's before us. Instead, each case rejected-implicitly or explicitly-giving the self-defense instruction because there was insufficient evidence showing the property damage resulted from the defendant actually defending himself. See Fuller , 781 P.2d at 648, 651 (the defendant wasn't entitled to a self-defense instruction on a criminal mischief charge for kicking out a police car window because at that point the defendant was "arrested, handcuffed and placed in the back seat of the car"); Smith , 754 P.2d at 1170 (the defendant wasn't entitled to a self-defense instruction when he shot at the victim's car after a fistfight with the victim because "the jury could not reasonably have inferred from the evidence presented either that [the defendant] fired his rifle at [the victim's] car with the intent of defending himself or that [the defendant] believed-much less reasonably so-that his shooting [the victim's] car was necessary to defend himself"); Waters , 641 P.2d at 295 (there was insufficient evidence to support giving a self-defense instruction where the defendant kicked the victim's car at an intersection and "no evidence in the record [suggested] that the property damage to the victim's automobile resulted from defendant's use of force in defending himself").

¶ 35 Also, some Colorado cases have concluded that a self-defense instruction is appropriate for a property crime. See, e.g. , DeGreat , ¶ 17 (permitting self-defense instruction for aggravated robbery charge); People v. Mullins , 209 P.3d 1147, 1151 (Colo. App. 2008) (permitting self-defense instruction for inciting or engaging in a riot). For example, in People v. Taylor , 230 P.3d 1227, 1229 (Colo. App. 2009), overruled on other grounds by Pickering , 276 P.3d 553, the defendant was charged with illegal discharge of a firearm, but the trial court disallowed a self-defense instruction. A division of this court reversed, relying in part on the following policy reasons explained in State v. Henley , 138 Ohio App.3d 209, 740 N.E.2d 1113, 1116 (2000) :

To hold that an individual cannot act in self-defense for fear of incurring a charge of criminal damaging or another related charge when the action behind the charge is so intertwined with the attack necessitating self-defense would be to produce an inane legal paradox; it would be illogical, for example, to hold that an individual may be innocent of assault or an even more significant charge due to self-defense, but nonetheless guilty of criminal damaging because property was necessarily damaged in the course of doing that which the law allows.

The Taylor division determined that because "the jury could have concluded that defendant knowingly discharged his firearm in order to defend himself by scaring off his attackers," a self-defense instruction was appropriate. Taylor , 230 P.3d at 1230 ; see also id. at 1231 ("We are unpersuaded by the People's assertion that self-defense does not apply because illegal discharge of a firearm is a crime against property, not persons.").

¶ 36 So, we aren't persuaded by the People's argument that merely because Coahran was charged with a crime against property, the jury shouldn't have been instructed on self-defense as an affirmative defense.

¶ 37 Finally, our conclusion isn't altered by the People's argument as to the availability of the "choice of evils" defense. See § 18-1-702, C.R.S. 2018. The choice of evils affirmative defense arises where there is a sudden and unforeseen emergency and the actor must take action to prevent imminent injury. See, e.g. , People v. Trujillo , 682 P.2d 499, 501 (Colo. App. 1984) ; see also Andrews v. People , 800 P.2d 607, 609-10 (Colo. 1990). But because a defendant is entitled to an instruction on her theory of defense, see Riley , 266 P.3d at 1092, the mere availability of a choice of evils affirmative defense doesn't preclude Coahran from asserting self-defense under section 18-1-704.

¶ 38 Because the trial court didn't properly instruct the jury on self-defense as an affirmative defense, the prosecution didn't bear the burden of disproving self-defense, and Coahran was deprived of her right to possible acquittal on that ground. Because the prosecution didn't have to disprove the affirmative defense-an element of the crime-the court's error wasn't harmless beyond a reasonable doubt. See Hagos , ¶ 11 ; Sabell , ¶ 22. Thus, the error warrants reversal of Coahran's conviction. See Idrogo v. People , 818 P.2d 752, 756 (Colo. 1991) ("A trial court's failure to properly instruct a jury on the applicable law of self-defense deprives the defendant of the right to an acquittal on the ground of self-defense if the jury could have had a reasonable doubt as to whether the defendant acted in necessary self-defense."); Newell , ¶ 20 (if there is any evidence in the record supporting a self-defense instruction, a court's refusal to give one deprives the accused of the constitutional right to trial by jury).

III. Other Contentions

¶ 39 Coahran raises several other contentions, including that the prosecution failed to prove the damage amount necessary to sustain a conviction for class 6 felony mischief. At trial, the prosecution introduced a repair shop estimate and the ex-boyfriend also testified about how much he thought it would cost to repair his car door. Coahran contends the former was hearsay and the latter was improper expert opinion testimony. Because, according to her, this evidence wasn't admissible, she argues there wasn't any competent evidence supporting the damage amount necessary to sustain her conviction.

¶ 40 We must address this sufficiency challenge "because if a defendant is entitled to reversal of her convictions on appeal due to insufficient evidence, the guarantees against double jeopardy in the United States and Colorado Constitutions may preclude retrial." People v. Marciano , 2014 COA 92M-2, ¶ 42, 411 P.3d 831. But we don't address Coahran's more specific arguments regarding the admissibility of certain evidence because it's not necessary to the resolution of this case.

¶ 41 We review de novo whether there was sufficient evidence supporting a conviction. Id. at ¶ 43. "When reviewing the sufficiency of the evidence, we consider whether the evidence, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support the jury's verdict beyond a reasonable doubt." Id. In doing so, we consider the evidence admitted at trial, "whether or not in error." Id. at ¶ 45 ; see also People v. Hard , 2014 COA 132, ¶ 39, 342 P.3d 572 ("In assessing the sufficiency of the evidence, we must consider all the evidence admitted at trial, including the erroneously admitted evidence...."); People v. Sisneros , 44 Colo. App. 65, 67-68, 606 P.2d 1317, 1319 (1980).

¶ 42 The prosecution presented the following evidence to support the damage amount of Coahran's conviction for felony mischief:

• A repair shop estimate for approximately $1171.
• The ex-boyfriend's testimony on direct examination that he estimated the damage at around $1100.
• A police officer's testimony that, on the day of the incident, the ex-boyfriend said it would probably cost about $1500 to fix the car door based on previous repair costs.

¶ 43 Giving the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence, we conclude that a rational fact finder could've found beyond a reasonable doubt that Coahran caused damage of $1000 or more but less than $5000. See § 18-4-501(4)(d). Because the evidence admitted at trial was sufficient to sustain her conviction for felony mischief, Coahran may be retried on this charge. See Hard , ¶¶ 39-41 ; Marciano , ¶¶ 47-49 ; see also Lockhart v. Nelson , 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (a reviewing court must consider all evidence admitted by the district court in deciding whether retrial is permissible under the Double Jeopardy Clause).

IV. Conclusion

¶ 44 We reverse Coahran's conviction, vacate the restitution order, and remand for a new trial.

Tow and Nieto , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.

      However, the People concede even this categorization isn't black and white. For example, the People assert that for some general intent crimes against persons, including sexual assault, internet sexual exploitation of a child, and stalking, self-defense is never available. We don't address this issue because it's not necessary to do so to resolve the case before us.

      For purposes of this case, we don't decide whether a defendant may assert self-defense as an affirmative defense in situations where the defendant and the other person aren't in close proximity to one another, i.e., in the same location.

      The Texas self-defense statute states, in relevant part, as follows: "[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31 (2017) (emphasis added).

      The Washington self-defense statute states, in relevant part, as follows: "The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases...." Wash. Rev. Code § 9A.16.020 (2018) (emphasis added).

      In Ohio, self-defense as an affirmative defense is different from that in Colorado because it's derived both from statute and case law. See State v. Henley , 138 Ohio App.3d 209, 740 N.E.2d 1113, 1115-16 (2000) (discussing case law and Ohio Rev. Code Ann. § 2901.05 ). Even so, the division in People v. Taylor , 230 P.3d 1227, 1230-31 (Colo. App. 2009), adopted the rationale underlying Henley , which is sound despite Ohio's distinguishable self-defense legal framework.

      For the same reason, we also decline to address Coahran's other remaining contentions raised in this appeal.