People v. Knapp, Court of Appeals No. 17CA0678

Docket NºCourt of Appeals No. 17CA0678
Citation487 P.3d 1243
Case DateJuly 16, 2020
CourtCourt of Appeals of Colorado

487 P.3d 1243

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Joshua KNAPP, Defendant-Appellant.

Court of Appeals No. 17CA0678

Colorado Court of Appeals, Division V.

Announced July 16, 2020


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GOMEZ

¶ 1 Defendant, Joshua Knapp, raises several challenges to his convictions and order of restitution, one of which presents an issue of first impression: whether the rationale in Cowen v. People , 2018 CO 96, 431 P.3d 215, which precludes a trial court from imposing restitution for acquitted conduct, applies when a jury convicts a defendant of a lesser-level offense than that charged. We conclude that it does. Accordingly, although we affirm Mr. Knapp's convictions, we reverse the restitution order and remand the case to the trial court with directions.

I. Background

¶ 2 A multi-day argument between Mr. Knapp and the victim, A.J., turned violent and culminated with the filing of multiple domestic violence charges against Mr. Knapp. At the time, Mr. Knapp and A.J. had been dating on and off for about six years. During a break in the relationship, A.J. had dated another man. According to A.J., Mr. Knapp was "constantly obsessed" about her relationship with her ex-boyfriend.

¶ 3 The argument started on a weekend camping trip to Utah. On Friday evening, A.J. spoke with her sister and brother-in-law on the phone. During the call, Mr. Knapp overheard A.J.’s brother-in-law refer to him as a "wife beater."1 Mr. Knapp became upset, both at A.J.’s brother-in-law for making the comment and at A.J. for not defending him

487 P.3d 1249

to her brother-in-law. He remained agitated about the incident throughout the weekend, even as they returned to A.J.’s house.

¶ 4 According to A.J., that Sunday, Mr. Knapp remained upset and continued "obsessing" about her ex-boyfriend and her brother-in-law. Eventually, he left the house. Later that evening, in a series of texts to A.J., he expressed frustration that she didn't "stick up for the one [she] love[s]" and asked "why would you want to be with me any way fucking woman beater." He also texted, "If you won't stand up for me I'm gonna stand up for myself" and included the brother-in-law's contact information.

¶ 5 When A.J. woke up the next morning, she discovered Mr. Knapp had come back and slept at the house. She took her children to school and returned to find him awake and still agitated, so she left again. While she was out, Mr. Knapp began tracking her location with the "Find My Phone" application on his phone and texting her about her whereabouts. Believing she was lying about where she was, and was actually with her ex-boyfriend, he sent back angry texts calling her derogatory names, warning her that he was watching her (e.g., "I fucking watch you bitch" and "I watched you drive by his work"), and telling her that he was waiting for her at the house. The messages scared her, and she decided to pick her children up from school rather than have them arrive at the house with Mr. Knapp there.

¶ 6 The events that occurred next were hotly disputed at trial. A.J. testified as follows. As she was driving toward the school, she saw Mr. Knapp's truck rapidly approach and bump the back of her truck. She could see from his face that he was "super mad." She continued driving and, after she passed a sheriff's deputy, Mr. Knapp turned and drove away.

¶ 7 A.J. got her children and went to a friend's house. Mr. Knapp continued barraging her with text messages throughout the afternoon, including referencing her friend's name, noting her location when she and her friend went to the store, alternating between telling her he loved her and hated her, and suggesting he was destroying items at her home. One of his texts also seemed to refer to her brother-in-law's comment, stating, "Will just make all the shit talking true."

¶ 8 That evening, believing from his texts that Mr. Knapp had left the house, A.J. headed home with her children. She took an alternative driving route to avoid running into Mr. Knapp. But, as she neared the house, she saw him driving toward her. He stopped, got out of his truck, punched in her driver's side window, leaned inside, punched her, and bit through her lip. He warned her she "better get [her] ass home." Then he jumped into her truck, took her and her daughter's phones, and returned to his truck.

¶ 9 A.J. started driving forward but stopped and got out because glass from the broken window was cutting into her back. When she did so, Mr. Knapp stopped his truck and ran back toward her. He grabbed her, threw her against the truck, hit her again, and told her she "better get back home."

¶ 10 A.J. got back in her truck and drove toward her house. Not seeing Mr. Knapp, she drove past the house and headed to the highway to get away. But as soon as she got on the highway, Mr. Knapp sped past her. He blocked both lanes in front of her, and she stopped. He then jumped up on the hood of the truck, screamed, banged on the hood, pulled on the windshield wiper, and told A.J. to return home. This time he followed her closely.

¶ 11 When they got to the house, Mr. Knapp continued to assault A.J., including hitting her with the butt of a gun. At one point, he shot off a gun in the house, hitting A.J.’s mattress. Eventually, he fell asleep. A.J. got her children, left the house, and went to another friend's house, where they called the authorities.

¶ 12 A.J.’s thirteen-year-old daughter testified at trial, and her version of events largely tracked A.J.’s.

¶ 13 Mr. Knapp, however, gave a vastly different version of events. His version was as follows. When he believed A.J. was with her ex-boyfriend, he started fighting with her by text and packing his belongings to move out of her house. He didn't leave the house at

487 P.3d 1250

any point during the day, but stayed there packing and sleeping.

¶ 14 He finally left at dusk and, as he was driving away from the house, he saw A.J. driving toward him. They both stopped. He got out and approached her door to talk to her, but her window was up. He started walking around the front of her truck to get in from the passenger side, at which point she drove into him, forcing him up onto the hood of the truck. He initially held onto the windshield wiper, but when she turned onto the highway, he couldn't hold on and was flung off the truck onto the pavement.

¶ 15 Mr. Knapp headed back to his truck, but A.J. turned her truck around and rejoined him. As she approached, he went to open the driver's side door of her truck to "ask her what the heck she was doing." He also wanted to get her keys so she wouldn't hurt him again or hurt her children. When he grabbed at the door handle and the window (which was at that point halfway down), the window shattered. He reached through the broken window to try to get the keys, but A.J. hit him in the back and head. So he stopped, and only then did he realize A.J.’s nose was bleeding. He went back to his truck, and she drove off in the direction of the house. After a moment, he drove to the house to check on her and the children.

¶ 16 Back at the house, Mr. Knapp resumed gathering his things to leave, but A.J. begged him to stay. They talked for a while, and he eventually fell asleep. He later awoke when law enforcement officers came to the house. He spoke briefly with the officers, but once they arrested him, he invoked his right to remain silent.

¶ 17 The jury convicted Mr. Knapp of some, but not all, of the charged offenses. The convictions included second degree assault, menacing, illegal discharge of a firearm, criminal mischief, third degree assault, reckless endangerment, prohibited use of a weapon, and harassment. The jury found Mr. Knapp had committed most of these offenses (all but the illegal discharge of a firearm and prohibited use of a weapon counts) as acts of domestic violence. The trial court sentenced Mr. Knapp to a term of seven years in the custody of the Department of Corrections and ordered him to pay $13,070.40 in restitution.

II. Discussion

¶ 18 Mr. Knapp raises four arguments on appeal: (1) the trial court erred by instructing the jury on the provocation exception to self-defense; (2) the trial court abused its discretion by admitting evidence that A.J.’s brother-in-law called him a "wife beater"; (3) the prosecutor improperly questioned him about his post-arrest silence and improperly argued at closing that he had tailored his testimony to the evidence; and (4) the trial court erred in its findings on restitution. We disagree with the first two arguments, agree in part with the third but find no plain error, and agree in part with the fourth.

A. Provocation Instruction

¶ 19 Mr. Knapp contends that the trial court erred by instructing the jury on the provocation exception to self-defense.2 We disagree.

¶ 20 A trial court has a duty to instruct the jury correctly on all matters of law for which there is sufficient evidence to support giving instructions. Castillo v. People , 2018 CO 62, ¶ 34, 421 P.3d 1141. However, a court...

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3 practice notes
  • Rojas v. People, Supreme Court Case No. 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • 22 Febrero 2022
    ...(Colo. App. 2011) ; People v. Cisneros, 2014 COA 49, ¶¶ 105-06, 108, 356 P.3d 877, 898 ; People v. Knapp, 2020 COA 107, ¶¶ 32–34, 44, 487 P.3d 1243, 1252–53.¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colorado's ......
  • Rojas v. People, 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • 21 Febrero 2022
    ...114-15 (Colo.App. 2011); People v. Cisneros, 2014 COA 49, ¶¶ 105-06, 108, 356 P.3d 877, 898; People v. Knapp, 2020 COA 107, ¶¶ 32-34, 44, 487 P.3d 1243, 1252-53. ¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colora......
  • People v. Roberts-Bicking, Court of Appeals No. 17CA1396
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Febrero 2021
    ...Law ¶ 17 The trial court has a duty to instruct the jury correctly on all matters of law. People v. Knapp , 2020 COA 107, ¶ 20, 487 P.3d 1243. We review jury instructions de novo to determine if they correctly informed the jury of the applicable law. People v. Luna , 2020 COA 123M, ¶ 8, 474......
3 cases
  • Rojas v. People, Supreme Court Case No. 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • 22 Febrero 2022
    ...(Colo. App. 2011) ; People v. Cisneros, 2014 COA 49, ¶¶ 105-06, 108, 356 P.3d 877, 898 ; People v. Knapp, 2020 COA 107, ¶¶ 32–34, 44, 487 P.3d 1243, 1252–53.¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colorado's ......
  • Rojas v. People, 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • 21 Febrero 2022
    ...114-15 (Colo.App. 2011); People v. Cisneros, 2014 COA 49, ¶¶ 105-06, 108, 356 P.3d 877, 898; People v. Knapp, 2020 COA 107, ¶¶ 32-34, 44, 487 P.3d 1243, 1252-53. ¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colora......
  • People v. Roberts-Bicking, Court of Appeals No. 17CA1396
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Febrero 2021
    ...Law ¶ 17 The trial court has a duty to instruct the jury correctly on all matters of law. People v. Knapp , 2020 COA 107, ¶ 20, 487 P.3d 1243. We review jury instructions de novo to determine if they correctly informed the jury of the applicable law. People v. Luna , 2020 COA 123M, ¶ 8, 474......

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