     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 24, 2019

                                 2019COA6

No. 15CA1147, People v. Coahran — Crimes — Criminal
Mischief; Affirmative Defenses — Self-Defense — Use of
Physical Force in Defense of Person

     In this criminal case, a division of the court of appeals is 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 under section 18-1-704(1), C.R.S. 2018. The

division answers that question “yes.”

     Specifically, the division concludes that the legislature didn’t

foreclose self-defense as an affirmative defense where a defendant is

charged with a property crime, uses force to defend himself or

herself from the use or imminent use of unlawful physical force by

another, and takes only those actions which are reasonably
necessary to do so — whether his or her actions are upon the other

person directly or indirectly.
COLORADO COURT OF APPEALS                                             2019COA6


Court of Appeals No. 15CA1147
El Paso County District Court No. 14CR5013
Honorable Thomas K. Kane, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

April Jo Coahran,

Defendant-Appellant.


                  JUDGMENT REVERSED, ORDER VACATED,
                  AND CASE REMANDED WITH DIRECTIONS

                                  Division IV
                       Opinion by JUDGE HAWTHORNE
                         Tow and Nieto*, JJ., concur

                         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


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


                                   1
                          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


                                  2
 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




                                   3
  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.


                                       4
¶ 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.




                                     5
¶ 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. 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. “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


                                     6
  (“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 (quoting Chapman v. California, 386 U.S.

  18, 24 (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




                                     7
  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.

  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.”


                                     8
  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.”




                                     9
  § 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, aff’d on other

  grounds, 2018 CO 83. 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,1 so it isn’t available when a




  1However, the People concede even this categorization isn’t black
  and white. For example, the People assert that for some general

                                    10
  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. 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

  (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,




  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.

                                   11
  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.2 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




  2 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.

                                    12
  [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




                                    13
  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


                                    14
  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


                                     15
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,3 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, 87 P.3d 1206, 1208-09 (Wash. Ct.

App. 2004) (allowing self-defense4 as a defense to “malicious




3 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).
4 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).

                                  16
  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


                                    17
  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


                                    18
  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


                                      19
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, 740 N.E.2d 1113, 1116 (Ohio Ct. App.

2000)5:

          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


5 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, 740 N.E.2d 1113, 1115-16 (Ohio Ct. App.
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.

                                  20
             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



                                     21
  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).


                                    22
                         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. But we don’t address

  Coahran’s more specific arguments regarding the admissibility of




                                    23
  certain evidence because it’s not necessary to the resolution of this

  case.6

¶ 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 (“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.




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

                                    24
            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

  (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.


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JUDGE TOW and JUDGE NIETO concur.




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