People v. Sheldon M. Ryan

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
December 1, 2022

2022COA136

No. 19CA0172, Peo v Ryan — Crimes — Domestic Violence —
Habitual Domestic Violence Offenders; Criminal Law —
Sentencing — Penalty Enhancers — Prior Convictions

As a matter of first impression, a division of the court of

appeals interprets the language of the habitual domestic violence

offender (HDVO) statute, § 18-6-801(7), C.R.S. 2022, to require that

a jury determine whether a defendant has been previously convicted

of a domestic violence offense, unless the defendant previously

admitted the domestic violence finding as part of a plea agreement,

or a jury previously made the domestic violence finding. Because

the trial court erroneously made the domestic violence finding for

two of the defendant’s four prior convictions, we reverse the

judgment and remand the case for entry of a misdemeanor

conviction and sentence or for retrial under the HDVO statute, at

the prosecution’s discretion. We reject the defendant’s unanimity
contention, but we agree that he is entitled to a restitution hearing

on remand.
COLORADO COURT OF APPEALS 2022COA136

Court of Appeals No. 19CA0172
City and County of Denver District Court No. 18CR3097
Honorable A. Bruce Jones, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sheldon M. Ryan,

Defendant-Appellant.

JUDGMENT AND ORDER REVERSED
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE FREYRE
Lipinsky and Casebolt*, JJ., concur

Announced December 1, 2022

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, 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. 2022.
¶1 Sheldon M. Ryan, the defendant, appeals his misdemeanor

convictions for third degree assault and criminal mischief and their

enhancement to felonies under the habitual domestic violence

offender (HDVO) statute, § 18-6-801(7), C.R.S. 2022. He contends

that the trial court erroneously (1) instructed the jury on unanimity;

(2) denied his right to have a jury decide the HDVO counts; and (3)

denied his request for a restitution hearing. As a matter of first

impression, we conclude that the HDVO statute requires the merits

fact-finder (here the jury) to determine whether a defendant has

been previously convicted of a domestic violence offense, unless the

defendant previously admitted the domestic violence finding as part

of a plea, or a jury previously made the domestic violence finding.

Because the trial court denied Ryan’s request for a jury

determination of his HDVO status, we reverse his conviction and

remand the case for resentencing on the misdemeanor conviction or

retrial under the HDVO statute, at the prosecution’s discretion. We

reject Ryan’s unanimity argument, but we agree that he is entitled

to a restitution hearing on remand.

¶2 The State charged Ryan with misdemeanor third degree

assault, obstruction of telephone services, and criminal mischief. It

1
also charged him with three corresponding HDVO sentence

enhancers which, if proved, would increase each misdemeanor

conviction to a class 5 felony.

¶3 The jury found Ryan guilty of third degree assault as an act of

domestic violence and criminal mischief as an act of domestic

violence, and the trial court subsequently adjudicated him an

HDVO and enhanced his sentence accordingly.1 Ryan appeals his

third degree assault conviction and criminal mischief convictions

and HDVO adjudication. He also appeals the court’s order

imposing restitution.

¶4 We first consider and reject Ryan’s unanimity challenge to his

third degree assault conviction. Second, concerning his HDVO

enhancements, we agree with his contention that the language of

the HDVO statute required a jury to determine whether his prior

convictions included an act of domestic violence when the prior

convictions did not involve a jury finding or admission by him. In

light of these conclusions, we need not consider Ryan’s remaining

assertions that, consistent with Linnebur v. People, 2020 CO 79M,

1 The jury acquitted him of obstruction of telephone services.
2
the prior convictions constitute an element of the offense that must

be tried to a jury, or that, under Blakely v. Washington, 542 U.S.

296 (2004), the “fact” that increased his punishment (the prior

convictions) had to be found by a jury, not a judge. See People v.

Curtis, 2014 COA 100, ¶ 12 (“[T]he cardinal principle of judicial

restraint — if it is not necessary to decide more, it is necessary not

to decide more.” (quoting PDK Lab’ys Inc. v. U.S. Drug Enf’t Admin.,

362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part

and concurring in judgment))). Thus, we conclude that the trial

court erred when, following the guilt phase of the trial, it

determined that the HDVO counts had been proven. We therefore

reverse the HDVO adjudication and felony convictions and remand

the case for further proceedings.

¶5 Finally, because Ryan was entitled to a hearing on the issue of

restitution, we reverse the restitution order and remand the case for

a hearing.

I. Background

¶6 According to the trial evidence, on March 9, 2018, Ryan and

the victim argued and ended their domestic relationship. The

victim testified that Ryan struck her during their argument.

3
¶7 The next day, Ryan returned to the victim’s home in the

afternoon to collect his things. He entered the home and confronted

the victim in her bedroom. While the victim was on the phone with

Ryan’s mother, Ryan grabbed and broke the victim’s phone and

slapped her. Ryan’s mother called 911, and an officer responded to

the residence. The officer left after the victim assured him that

everything was fine.

¶8 Ryan then began threatening the victim, and she ran to a

neighbor’s house and used the neighbor’s phone to call 911. Ryan

followed the victim to the neighbor’s house. The victim agreed to

return with him to her house so he could collect a necklace and

leave.

¶9 Ryan kicked and pushed the victim while walking back to the

house. He then pushed the victim inside the house and continued

kicking her. Ryan also slapped the victim in the head, which

knocked off her glasses and broke them, and then pulled out some

of the victim’s hair. As Ryan collected his remaining belongings,

the victim ran from the house and encountered the returning

officer.

4
II. Unanimity

¶ 10 Ryan contends that, because the prosecution presented

evidence of multiple acts that could have supported his third degree

assault conviction, the trial court erred by failing to require the

prosecution to elect the act supporting that count or by failing to

give the jury a modified unanimity instruction informing the jury

that it had to agree on the same act to convict him of third degree

assault. We perceive no reversible error.

A. Standard of Review and Applicable Law

¶ 11 A jury verdict must be unanimous. § 16-10-108, C.R.S. 2022.

“Unanimity means only that each juror agrees that each element of

the crime charged has been proved to that juror’s satisfaction

beyond a reasonable doubt.” People v. Linares-Guzman, 195 P.3d

1130, 1134 (Colo. App. 2008).

¶ 12 “When evidence of many acts is presented, any one of which

could constitute the offense charged, and there is a reasonable

likelihood that jurors may disagree on the act the defendant

committed, the trial court must take one of two actions to ensure

jury unanimity.” People v. Rivera, 56 P.3d 1155, 1159-60 (Colo.

App. 2002).

5
¶ 13 First, the court may require the prosecution to elect the acts

or series of acts on which it relies for a conviction. Melina v. People,

161 P.3d 635, 639 (Colo. 2007). Or, if “the prosecution does not

elect to stand upon a specific incident, jurors should be instructed

that they must unanimously agree as to a specific act or agree that

the defendant committed all the acts alleged.” People v. Manier, 197

P.3d 254, 258 (Colo. App. 2008). “The requirement of an election or

a modified unanimity instruction assures that a conviction does not

result from some members of the jury finding the defendant guilty

of one act, while others convict based on a different act.” Rivera, 56

P.3d at 1160.

¶ 14 But “when a defendant is charged with crimes occurring in a

single transaction, the prosecutor need not elect among the acts,

and the trial court need not give a modified unanimity instruction.”

People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011).

¶ 15 We review de novo whether a court erred by failing to require

an election or give a unanimity instruction. People v. Wagner, 2018

COA 68, ¶ 38.

¶ 16 The parties agree that Ryan did not ask for an election or a

modified unanimity instruction, so we review for plain error. See

6
Manier, 197 P.3d at 258. “An error is plain if it is obvious and

substantial and so undermines the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the judgment of

conviction.” People v. Wester-Gravelle, 2020 CO 64, ¶ 28 (quoting

People v. Rediger, 2018 CO 32, ¶ 48). “Reversal under a plain error

standard requires a defendant to demonstrate not only that the

absence of an instruction affected a substantial right, but also that

the record reveals a reasonable possibility that the error contributed

to the conviction.” People v. Devine, 74 P.3d 440, 443 (Colo. App.

2003).

B. Analysis

¶ 17 Ryan identifies four separate acts that could have supported

the third degree assault conviction: (1) the March 9 strike on the

victim; (2) the March 10 slap in the victim’s bedroom before Ryan’s

mother called 911; (3) the March 10 kicking and pushing of the

victim while Ryan and the victim returned to the victim’s home after

the victim’s 911 call; and (4) the March 10 kicking, slapping, and

pulling of the victim’s hair after they entered the victim’s home. He

asserts that, because “[t]hese acts were not a single transaction of

criminal conduct,” the trial court reversibly erred by not requiring

7
the prosecution to elect which act would support the assault count

or by not instructing the jury that they must agree on which act

constituted the assault.

¶ 18 We are not persuaded because our supreme court recently

reiterated that “a jury need not unanimously decide ‘which of

several possible sets of underlying brute facts make up a particular

element’ or ‘which of several possible means the defendant used to

commit an element of the crime.’” Wester-Gravelle, ¶ 30 (quoting

People v. Archuleta, 2020 CO 63M, ¶ 20); see also Manier, 197 P.3d

at 258-59.

¶ 19 Furthermore, the trial record shows that the prosecutor

consistently relied on Ryan’s actions after the 911 call from the

neighbor’s house on March 10 as the basis for his third degree

assault conviction. During her opening statement, the prosecutor

described the assault as follows:

[Ryan] tells [the victim] . . . that he still wants
to get back a necklace, so they leave the
neighbor’s house, and they go back to her
house. This is when the physical assault takes
place. You will see surveillance from a
neighbor’s home, and [the victim] will describe
to you that as she’s walking back into her
house to try to comply with his request for
property, that he kicks her, he forces her to go

8
inside, and then on the stairs, assaults her,
knocking her glasses off . . . .

(Emphasis added.) Ryan’s opening statement also addressed this

conduct.

¶ 20 Consistent with her opening statement, the prosecutor’s

witness examinations focused on Ryan’s conduct after the victim’s

911 call at the neighbor’s house. The victim testified about the pain

she suffered when “Mr. Ryan[] was kicking and pushing [her] as

[they] were making [their] way back into the house,” and the police

officer testified that the victim reported suffering an ankle injury

“[w]hen Mr. Ryan had kicked her prior to entering the house.” See

§ 18-3-204(1)(a), C.R.S. 2022 (a person commits third degree

assault if the person knowingly or recklessly causes “bodily injury”

to another person); § 18-1-901(3)(c), C.R.S. 2022 (“‘Bodily injury’

means physical pain, illness, or any impairment of physical or

mental condition.”).

¶ 21 The prosecutor also introduced the following evidence to prove

Ryan’s conduct after leaving the neighbor’s house: (1) a recording of

the victim’s 911 call, during which the neighbor said “he’s hitting

her” while observing Ryan and the victim walk back to the victim’s

9
house; (2) the neighbor’s home surveillance video showing Ryan

kicking the victim while returning to the victim’s house after the

911 call; and (3) photographs of the victim’s broken eyeglasses and

pulled-out hair.

¶ 22 During closing argument, the prosecutor relied on the above

evidence to argue that she had proven third degree assault. She

also argued that, at the time the victim called 911, “she realized she

was in danger, and she was scared, and she was right because

that’s exactly when it turned physical.”

¶ 23 Finally, we note that the trial court provided the jury with the

model unanimity instruction, which stated that “[t]he verdict for

each charge must represent the considered judgment of each juror,

and it must be unanimous” and that “[i]n other words, all of [the

jurors] must agree to all parts of it.” See Wester-Gravelle, ¶ 38; see

also Carter, ¶ 59.

¶ 24 Although Ryan asserts that his conduct while outside after the

victim’s 911 call is separate from his conduct inside the victim’s

house, he does not explain why those multiple acts are not part of a

single criminal transaction. See People v. Collins, 730 P.2d 293,

296 (Colo. 1986) (an election was not required where the

10
defendant’s multiple physical acts against the victim constituted

one transaction); People v. Vigil, 2015 COA 88M, ¶ 42 (same), aff’d,

2019 CO 105; Greer, 262 P.3d at 925; see also Archuleta, ¶ 31; cf.

People v. Torres, 224 P.3d 268, 278 (Colo. App. 2009) (A unanimity

instruction was not required because “[the defendant’s] conduct

and acts supporting the offense occurred during a single criminal

episode — the twenty-seven-mile police chase.”). And while Ryan

asserts that some of his conduct was separated by intervening

events, he does not identify any intervening events that occurred

between his conduct inside and his conduct outside the victim’s

house after her 911 call. Accordingly, we conclude that any error in

not requiring an election or giving a modified unanimity instruction

was not obvious. See Wester-Gravelle, ¶¶ 36-38, 42.

¶ 25 Finally, based on our review of the record, we are not

convinced that the omission of an election or a modified unanimity

instruction so undermined the fundamental fairness of the trial as

to cast serious doubt on the reliability of the judgment of

conviction. See Devine, 74 P.3d at 443; Rivera, 56 P.3d at 1159; cf.

Roelker v. People, 804 P.2d 1336, 1340 (Colo. 1991) (The trial

court’s failure to require the prosecution to make an election or to

11
provide a unanimity instruction was harmless “because the

evidence of sexual abuse was restricted to a narrow time frame and

was limited to events surrounding a single transaction.”). As noted

above, the prosecutor consistently argued Ryan’s conduct following

the 911 call from the neighbor’s house as the basis for the third

degree assault charge. Therefore, we also affirm his conviction on

this basis.

III. HDVO Adjudication

¶ 26 Ryan next contends that the trial court reversibly erred when

it found that his prior convictions included an act of domestic

violence because (1) the HDVO statute required that this finding be

made by the jury that determined his guilt on the charged offenses;

(2) the alleged existence of three prior convictions that included an

act of domestic violence was an element of the charged offenses and

should have been submitted to the jury; and (3) the trial court’s

finding that his prior convictions included an act of domestic

violence violated the requirements of Blakely. Ryan also asserts

that, assuming the trial court properly made the domestic violence

findings related to his prior convictions, the evidence was

12
insufficient to prove beyond a reasonable doubt that he had three

prior convictions that included an act of domestic violence.

¶ 27 The People address only Ryan’s statutory argument and

concede that the HDVO statute required the jury to determine

whether some of Ryan’s prior convictions included an act of

domestic violence. The People claim, however, that the error does

not require reversal.

¶ 28 We agree with the parties that, under the circumstances, the

HDVO statute required the jury to determine whether Ryan’s prior

convictions included an act of domestic violence and that the trial

court erred by making that domestic violence finding for some of the

prior convictions. We also conclude that the error requires reversal

of Ryan’s felony convictions and HDVO adjudication.

Consequently, we need not address Ryan’s remaining claims.

A. Standard of Review and Applicable Law

¶ 29 Statutory interpretation is a question of law that we review de

novo. People v. Gallegos, 2013 CO 45, ¶ 7.

¶ 30 When interpreting a statute, our primary purpose is to

ascertain and give effect to the General Assembly’s intent. Cowen v.

People, 2018 CO 96, ¶ 12. “To do so, we look first to the language

13
of the statute, giving its words and phrases their plain and ordinary

meanings.” McCoy v. People, 2019 CO 44, ¶ 37. “We read statutory

words and phrases in context, and we construe them according to

the rules of grammar and common usage.” Id.

¶ 31 Our interpretation of a statute “must also endeavor to

effectuate the purpose of the legislative scheme.” Id. at ¶ 38. We

must “read that scheme as a whole, giving consistent, harmonious,

and sensible effect to all of its parts, and we must avoid

constructions that would render any words or phrases superfluous

or lead to illogical or absurd results.” Id.

¶ 32 “[I]f the language in a statute is clear and unambiguous, we

give effect to its plain meaning and look no further.” Cowen, ¶ 12.

“Only if the statutory language is susceptible to more than one

reasonable interpretation and is therefore ambiguous may we resort

to extrinsic aids of construction to address the ambiguity and

decide which reasonable interpretation to accept based on the

legislature’s intent.” Id.

B. Interpretation of the HDVO Statute

¶ 33 Under the HDVO statute, a misdemeanor conviction that

includes an act of domestic violence is enhanced to “a class 5 felony

14
if the defendant at the time of sentencing has been previously

convicted of three or more prior offenses that included an act of

domestic violence and that were separately brought and tried and

arising out of separate criminal episodes.” § 18-6-801(7)(a).

¶ 34 The HDVO statute provides the following procedure for

litigating and resolving an allegation that a defendant should be

adjudged an HDVO:

(c) Trials in cases alleging that the defendant is
an habitual domestic violence offender
pursuant to this subsection (7) must be
conducted in accordance with the rules of
criminal procedure for felonies. The trier of
fact shall determine whether an offense
charged includes an act of domestic violence.

(d) Following a conviction for an offense which
underlying factual basis includes an act of
domestic violence:

(I) If any prior conviction included a
determination by a jury or was admitted by the
defendant that the offense included an act of
domestic violence, the court shall proceed to
sentencing without further findings as to that
prior conviction by the jury or by the court, if
no jury trial is had;

(II) For any prior conviction in which the
factual basis was found by the court to include
an act of domestic violence, but did not
include a finding of domestic violence by a jury
or that was not admitted by the defendant, the

15
trial court shall proceed to a sentencing stage
of the proceedings. The prosecution shall
present evidence to the trier of fact that the prior
conviction included an act of domestic violence.
The prosecution has the burden of proof
beyond a reasonable doubt.

(III) At the sentencing stage, the following
applies:

(A) A finding of domestic violence made by a
court at the time of the prior conviction
constitutes prima facie evidence that the crime
involved domestic violence;

(B) Evidence of the prior conviction is
admissible through the use of certified
documents under seal, or the court may take
judicial notice of a prior conviction;

(C) Evidence admitted in the guilt stage of the
trial, including testimony of the defendant and
other acts admitted pursuant to section 18-6-
801.5, [C.R.S. 2022,] may be considered by the
finder of fact.

§ 18-6-801(7)(c)-(d) (emphasis added).

¶ 35 Reading the statute as a whole, we conclude that the General

Assembly intended that when a defendant is alleged to fall within

the definition of an HDVO, at the guilt phase of the misdemeanor

trial, the trier of fact must determine whether the triggering charge

included an act of domestic violence, see § 18-6-801(7)(c), and then,

if necessary, further determines whether a prior conviction included

16
an act of domestic violence, see § 18-6-801(7)(d)(II). See also

COLJI-Crim. 6-8:01.INT, 6-8:01.5.INT (2021).

¶ 36 Section 18-6-801(7)(d)(I) provides that, if a defendant’s prior

conviction included an act of domestic violence based on a jury

finding or the defendant’s admission, then no “further findings [are

required] as to that prior conviction by the jury or by the court, if no

jury trial is had.” (Emphasis added.) In such a case, the trial court

“shall proceed to sentencing.” Id.

¶ 37 However, when a defendant’s prior conviction does not include

a jury finding of or a defendant’s admission to an act of domestic

violence, then section 18-6-801(7)(d)(II) requires the trial court to

proceed to the sentencing phase of the proceedings where the

prosecution must then prove to the trier of fact, beyond a

reasonable doubt, that the prior conviction included an act of

domestic violence.

¶ 38 When read together, we conclude the General Assembly

intended that a domestic violence finding associated with a

defendant’s prior conviction must be (1) previously determined by a

jury; (2) previously admitted by the defendant; or (3) proved to the

trier of fact at sentencing in the current proceeding. See People v.

17
Weeks, 2021 CO 75, ¶ 26 (“We must take equal care to construe a

statute ‘as a whole,’ with an eye toward giving consistent,

harmonious, and sensible effect to all its parts.” (quoting Whitaker

v. People, 48 P.3d 555, 558 (Colo. 2002))); People v. Sheth, 2013

COA 33, ¶ 6 (“We read the statute as a whole and construe each

provision consistently and harmoniously with the overall statutory

design.”).

¶ 39 Additionally, we note that the General Assembly used the

phrase, “the trier of fact” when describing to whom the prosecution

would need to prove that the prior conviction included an act of

domestic violence. § 18-6-801(7)(d)(II) (emphasis added); see

Nielsen v. Preap, 586 U.S. ___, ___, 139 S. Ct. 954, 965 (2019)

(“[G]rammar and usage establish that ‘the’ is ‘a function word . . .

indicat[ing] that a following noun or noun equivalent is definite or

has been previously specified by context.’”) (emphasis added)

(quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th ed.

2005)); Brooks v. Zabka, 168 Colo. 265, 269, 450 P.2d 653, 655

(1969) (“It is a rule of law well established that the definite article

‘the’ particularizes the subject which it precedes. It is a word of

limitation as opposed to the indefinite or generalizing force of ‘a’ or

18
‘an.’”). And we must give full effect to the words chosen by the

General Assembly and presume that it meant what it clearly said.

State v. Nieto, 993 P.2d 493, 500 (Colo. 2000).

¶ 40 Accordingly, we hold that, when a defendant has a jury trial

on a triggering misdemeanor charge and the prosecution seeks to

adjudicate the defendant an HDVO based on prior convictions in

which a trial court made the domestic violence finding, the HDVO

statute requires the jury to also determine whether those prior

convictions included an act of domestic violence unless the

exceptions set forth in section 18-6-801(7)(d)(I) apply.

C. Application

¶ 41 Ryan contends, the People concede, and we agree that the trial

court erred by finding that Ryan had three or more prior convictions

that included an act of domestic violence because, under section

18-6-801(7)(d)(II), the jury should have made that determination on

at least two of Ryan’s four prior convictions. The other two

convictions were, arguably, exempt from additional jury findings

under section 18-6-801(7)(d)(I).

¶ 42 We turn next to whether this error was preserved and the

appropriate remedy.

19
¶ 43 Ryan claims that his pretrial motion requesting a bifurcated

proceeding and a jury trial on the HDVO counts, combined with the

court’s grant of his requests, sufficiently preserved this issue for

our review. He argues that his felony convictions should be

reversed and the case should be remanded for entry of

misdemeanor convictions.

¶ 44 The People respond that, despite Ryan’s pretrial motion and

the court’s grant of it, Ryan failed to preserve this issue for our

review when he did not lodge another objection at the sentencing

hearing to the court’s contrary decision to conduct a bench trial on

the HDVO counts. The People ask us to review this issue for plain

error and argue that the court’s failure to submit the HDVO counts

to the jury did not rise to the level of plain error because Ryan was

not prejudiced by the omission.

¶ 45 We need not resolve this dispute because we conclude that

reversal is required even under the plain error standard. See People

v. Kadell, 2017 COA 124, ¶¶ 6, 25.

¶ 46 Plain error is error that is obvious and substantial. Hagos v.

People, 2012 CO 63, ¶ 14. While the obviousness of the error here

is not in dispute, its substantiality is. See People v. Glover, 2015

20
COA 16, ¶ 48 (An error is substantial if it is “seriously prejudicial.”

(quoting People v. Ujaama, 2012 COA 36, ¶ 43)).

¶ 47 An error is substantial and requires reversal “only if [it] ‘so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.’”

Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)); see also People v. Maloy, 2020 COA 71, ¶ 11; Glover, ¶ 48;

Ujaama, ¶ 43.

¶ 48 At the HDVO trial, the prosecution presented only the certified

documents from Ryan’s four prior convictions. The trial court

reviewed the documents with the prosecutor and located the prior

courts’ domestic violence findings in each case. At the conclusion

of that review, and without seeking input from Ryan, the court

found that “the People ha[d] tendered certified copies showing

beyond a reasonable doubt that [Ryan] ha[d] been convicted of at

least four prior convictions pursuant to guilty pleas in cases that

included [a] domestic violence factual basis.”

¶ 49 We acknowledge that a prior court’s finding that a previous

conviction included an act of domestic violence constitutes prima

facie evidence that the crime involved domestic violence. See § 18-

21
6-801(7)(d)(III)(A). However, the record shows that Ryan was never

afforded the opportunity to rebut this prima facie evidence. See

Black’s Law Dictionary 701 (11th ed. 2019) (Prima facie evidence is

“[e]vidence that will establish a fact or sustain a judgment unless

contradictory evidence is produced.”); see also Williams v. People,

2019 CO 101, ¶¶ 42-43; People in Interest of Z.T.T., 2017 CO 48, ¶

11; People v. Porterfield, 772 P.2d 638, 639 (Colo. App. 1988).

¶ 50 For that reason, we conclude that the trial court’s erroneous

resolution of the domestic violence question so undermined the

fundamental fairness of the proceeding as to cast serious doubt on

the reliability of the HDVO adjudication.

¶ 51 Accordingly, we reverse Ryan’s HDVO adjudication and the

resulting felony convictions. However, contrary to Ryan’s

contention, we conclude that the case should be remanded for the

prosecution to decide whether it wishes to accept misdemeanor

convictions on the jury’s findings of guilt on the charged offenses or

retry Ryan on the HDVO counts. See People v. Porter, 2015 CO 34,

¶¶ 26-30; Kadell, ¶ 31; cf. People v. Viburg, 2021 CO 81M, ¶ 17 (A

conviction reversed for legal error “signals that the defendant was

convicted through a defective judicial process,” and, “[a]s such, the

22
‘accused has a strong interest in obtaining a fair readjudication of

[their] guilt free from error, just as society maintains a valid concern

for insuring that the guilty are punished’”; “[t]hus, where a legal

error occurs in the trial court, double jeopardy typically does not

bar retrial.” (quoting Burks v. United States, 437 U.S. 1, 15 (1978))).

IV. Restitution

¶ 52 Ryan last contends, the People concede, and we agree that the

trial court erred by failing to hold a hearing on Ryan’s objection to

the prosecution’s restitution request and that the case should be

remanded for such a hearing. See People v. Martinez-Chavez, 2020

COA 39, ¶¶ 15-31. Thus, we need not address Ryan’s alternative

argument that the court erred by imposing restitution in the

absence of sufficient evidence proving the amount of restitution

owed and proximate causation.

¶ 53 For the first time in his reply brief, though, Ryan challenges

the trial court’s restitution order on timeliness grounds, in light of

the recently announced opinion in Weeks. See Weeks, ¶ 5.

¶ 54 We decline to address this timeliness challenge because Ryan

did not raise it in either the proceedings below or in his opening

brief. See People v. Salazar, 964 P.2d 502, 507 (Colo. 1998); see

23
also People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).

Although Weeks was announced after Ryan filed his opening brief,

defendants in other cases published before Weeks raised the same

timeliness challenge addressed in Weeks in numerous opinions

from this court. See Weeks, ¶ 47 n.16. On remand, however, the

trial court may consider its authority to impose restitution in light

of Weeks.

V. Conclusion

¶ 55 The judgment of conviction is reversed, and the case is

remanded for the entry of misdemeanor convictions on the jury’s

verdicts or for the prosecution to retry Ryan on the HDVO counts in

accordance with section 18-6-801(7). The restitution order is also

reversed, and the case is remanded for the trial court to determine

restitution in accordance with section 18-1.3-603, C.R.S. 2022, and

Weeks.

JUDGE LIPINSKY and JUDGE CASEBOLT concur.

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