Peo v. Podoba

23CA1702 Peo v Podoba 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1702
Boulder County District Court No. 22CR143
Honorable J. Keith Collins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Podoba,

Defendant-Appellant.

JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE PAWAR
Sullivan and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jeremy Podoba, appeals his conviction of various

offenses, including assault and witness tampering. He also appeals

the restitution order. We affirm his convictions, reverse the

restitution order, and remand with directions.

I. Background

¶2 Podoba and his girlfriend, J.M., were involved in a series of

verbal and physical altercations over a period of several months

from January 2022 to May 2022. After the first altercation in

January, during which Podoba choked J.M., a protection order

issued that prohibited Podoba from having any contact with her.

¶3 Despite the protection order, J.M. and Podoba continued to

see each other. And during a May incident, Podoba threw J.M. to

the ground and broke her collarbone.

¶4 The prosecution filed various charges against Podoba based on

these altercations. Less than two weeks before the scheduled trial

(it was later continued), Podoba and J.M. had a direct message (DM)

exchange during which Podoba wrote, “As long as you don’t go to

court. Should be all good.”

¶5 Ultimately, Podoba was charged with five counts of second

degree assault, five counts of violating a protection order, one count

1
of witness tampering for the DM, and various other counts. J.M.

testified about the alleged assaults at trial and admitted to using

physical force against Podoba on various occasions. The jury found

Podoba guilty of two of the five assault counts (based on the

January choking incident and the May broken collarbone incident),

as well as all the non-assault counts. Podoba was convicted and

sentenced accordingly, and the sentence included a restitution

award.

¶6 Podoba appeals. He argues that (1) he was entitled to a self-

defense instruction for one of the assault counts; (2) the evidence

was insufficient to support the witness tampering conviction; (3) the

court erred by admitting various testimony; (4) the prosecutor

engaged in misconduct during closing argument; (5) there was

cumulative error; and (6) the court improperly ordered restitution.

We disagree with all his arguments except his challenge to the

restitution order.

II. Self-Defense Instruction

¶7 Podoba argues that the trial court erred by denying his request

for a self-defense instruction for the assault count based on the

collarbone incident. We disagree.

2
¶8 A defendant is entitled to an affirmative self-defense

instruction if he presents some credible evidence that he acted in

self-defense. See § 18-1-407(1), C.R.S. 2025; Galvan v. People,

2020 CO 82, ¶ 24. As relevant here, a defendant acts in self-

defense if he uses a reasonable degree of force to defend himself

from what he reasonably believes to be the use or imminent use of

unlawful physical force. § 18-1-407(1). Therefore, Podoba was

entitled to a self-defense instruction if there was any evidence that

he reasonably believed he had to throw J.M. to the ground with

enough force to break her collarbone to protect himself from her use

or imminent use of physical force against him.

¶9 We review de novo whether there was any such evidence.

People v. Garcia, 113 P.3d 775, 784 (Colo. 2005). Like the trial

court, we conclude there was not.

¶ 10 On the night of the collarbone incident, Podoba was at

someone else’s apartment in Denver. When J.M. finished work, she

noticed that Podoba’s phone indicated he was somewhere different

than where he said he was. Suspecting that he was cheating on

her, J.M. drove to the Denver apartment. After they had an

argument outside the apartment, Podoba and J.M. agreed to drive

3
their respective vehicles back to Podoba’s house. On the way, J.M.

bought a pint of tequila and drank a portion of it.

¶ 11 Once back at Podoba’s house, the two argued for about ten

minutes before Podoba threw J.M. to the ground, breaking her

collarbone. J.M. also testified that after she was thrown to the

ground, she threw a curling iron at Podoba.

¶ 12 The above description of the incident, which Podoba does not

challenge on appeal, includes no evidence that throwing J.M. to the

ground was an act of self-defense. Indeed, Podoba urges us to look

elsewhere for such evidence, primarily to J.M.’s testimony about

two physical altercations that occurred in the days leading up to the

collarbone incident.

¶ 13 The first preceding physical altercation occurred about two

weeks earlier. J.M. testified that a verbal argument turned physical

when Podoba put her in “a headlock from behind.” J.M. testified

that in response she “put her arm up” and struck him in the eye “in

self-defense.”

¶ 14 The second preceding physical altercation occurred three days

before the collarbone incident. Again, the two were arguing and

Podoba threw a butane torch at J.M. J.M. testified that Podoba

4
physically restrained her in various ways, pinned her up against the

wall, and choked her. While being choked, J.M. reached for a knife

block that held kitchen knives. J.M. testified that “[s]omehow we

ended up both falling on the floor and the knife block fell with us.”

Although both J.M. and Podoba sustained cuts from the fall with

the knives, there was no evidence that J.M. stabbed or threatened

Podoba with a knife.

¶ 15 We reject Podoba’s argument that these preceding physical

altercations supported any reasonable belief that J.M. was about to

use unlawful physical force when he threw her down with enough

force to break her collarbone. The evidence showed that in both

preceding altercations, Podoba initiated the physical part of the

altercation, not J.M. Consequently, they might have supported a

reasonable belief that J.M. would respond to physical force with her

own physical force. But it could not have supported a reasonable

belief that J.M. would initiate physical force. And in the collarbone

incident, the evidence was clear that Podoba, not J.M., was the first

to use physical force.

¶ 16 Podoba also contests this last proposition: that the evidence

was clear that he initiated the physical part of the collarbone

5
incident. He claims that the evidence was not clear on this point.

According to Podoba, the evidence could have been seen as

suggesting that J.M. used physical force first because although she

testified that she threw the curling iron at him after he threw her

down, there was general expert testimony that people sometimes

remember events out of order. Therefore, according to Podoba,

there was at least some evidence that J.M. threw the curling iron at

Podoba first.

¶ 17 Even if we accepted this view of the evidence, it would not be

enough to support a self-defense instruction. The degree of force

Podoba used (throwing J.M. down with enough force to break her

collarbone) was beyond what was reasonably necessary to defend

himself from J.M. throwing a curling iron at him, even when

considered in the context of J.M.’s past use of physical force against

him.

¶ 18 We therefore conclude that Podoba was not entitled to a self-

defense instruction for the assault count based on the collarbone

incident.

6
III. Witness Tampering

¶ 19 Podoba next argues that the evidence was insufficient to

support his witness tampering conviction. We review the

sufficiency of the evidence de novo, People v. Black, 2020 COA 136,

¶ 34, and disagree.

¶ 20 When assessing whether the evidence was sufficient, we view

it in the light most favorable to the prosecution, giving the

prosecution the benefit of all reasonable and fair inferences. Id.

The evidence is sufficient if, when viewed this way, it would support

a conclusion by a reasonable mind that the defendant is guilty

beyond a reasonable doubt. People v. Donald, 2020 CO 24, ¶ 18.

¶ 21 As relevant here, witness tampering requires that the

defendant intentionally attempted to induce a witness to testify

falsely or unlawfully withhold testimony. § 18-8-707(1)(a), C.R.S.

2025. This offense does not require that the witness be under

subpoena or legal summons at the time of the alleged inducement.

People v. Cunefare, 102 P.3d 302, 306-07 (Colo. 2004).

¶ 22 Here, less than two weeks before the scheduled trial, J.M. sent

Podoba a DM asking what he had been doing all day and Podoba

wrote, “I talked to the lawyer. Did some account budgeting and

7
cooked tacos. As long as you don’t go to court. Should be all good.”

J.M. testified about her understanding of that message, saying

Podoba “was trying to get me to either not come to court or to — or

to work with him and his lawyer on his side of the arguments to

make sure that the cases were dropped.” She further explained

that the messages meant that she “would be able to make sure that

[Podoba] didn’t end up in jail if I didn’t show up to court.”

¶ 23 Viewing this evidence in the light most favorable to the

prosecution, a reasonable juror could have fairly inferred that

Podoba was trying to get J.M. to unlawfully withhold trial testimony

that she might have been under subpoena to give. This is all that is

required for witness tampering. See id.

¶ 24 Podoba argues otherwise, relying primarily on People v.

Nozolino, 2014 COA 95. But that reliance is misplaced. In

Nozolino, the evidence was insufficient to support witness

tampering because the defendant merely advised witnesses to do

something legal: not cooperate with or speak to police when they

had no legal obligation to do so. Nozolino, ¶ 13. In contrast, here,

because Podoba had been charged and his trial was mere days

away, it was likely that J.M. either had been or would be

8
subpoenaed to testify against him. Thus, it was reasonable to infer

that Podoba urged J.M. to do something illegal: defy a subpoena to

testify at trial. Id. at ¶ 9 (a person commits witness tampering if he

intentionally attempts to induce a person he believes is to be called

to testify as a witness to unlawfully withhold any testimony (citing §

18-8-707(1)(a))). We therefore conclude that the evidence was

sufficient to support the witness tampering conviction.

IV. Alleged Evidentiary Error

¶ 25 Podoba next argues that the trial court erred by admitting

various testimony from the prosecution’s domestic violence expert

and an officer involved in the case. We review the court’s

evidentiary rulings for an abuse of discretion. People v. Russell,

2014 COA 21M, ¶ 22. The parties disagree about whether some of

these alleged errors were preserved, which would impact our

standard of reversal. See Hagos v. People, 2012 CO 63, ¶¶ 12, 14.

We need not resolve that disagreement because we conclude that

the court did not err in the first place.

A. Domestic Violence Expert’s Testimony

¶ 26 Barbara Lamanna was qualified as an expert in “domestic

violence, victim/offender dynamics, counterintuitive victim

9
behaviors and trauma memory.” She gave general testimony about

these topics, including general comments about strangulation in

domestic violence situations.

¶ 27 Podoba argues that the trial court erred by admitting

Lamanna’s testimony that (1) strangulation causes mostly internal

injuries; (2) these injuries can compound with successive

strangulations; and (3) strangulation is frightening to the victim.

According to Podoba, Lamanna’s testimony about internal injuries

and successive strangulations was inadmissible because it was

beyond the scope of her expertise and the testimony lacked

foundation and reliability. He argues that the strangulation-is-

frightening testimony was irrelevant. We disagree with all of these

arguments.

¶ 28 Expert testimony must be both relevant and reliable. See

People v. Cooper, 2021 CO 69, ¶ 46. Evidence is relevant if it makes

the existence of any material fact more or less probable. Id. at ¶ 45.

And expert testimony is reliable if the underlying scientific

principles are reasonably reliable and the expert is qualified to give

the testimony. Id. at ¶ 47.

10
¶ 29 We first address Lamanna’s testimony that strangulation

causes internal injuries that can compound with successive

strangulations. Lamanna was qualified as an expert in domestic

violence and testified that she had worked with approximately

1,500 domestic violence victims, including “lots” who had been

strangled, some repeatedly. Based on her personal experience and

expert qualification, Lamanna was qualified to opine about the

physical injuries from a domestic violence strangulation. Likewise,

we see no problem with the reliability of or foundation underlying

this testimony — Lamanna simply described phenomena that she

had seen repeatedly in her professional experience.

¶ 30 We also conclude that Lamanna’s testimony that strangulation

is frightening was relevant. As suggested by the scope of her expert

qualification, which included counterintuitive victim behaviors,

Lamanna described strangulation as frightening when explaining

the role it can play in the dynamic of an abusive relationship.

Although J.M. testified that Podoba choked her, the evidence also

showed that she subsequently maintained an intimate relationship

with him. Lamanna’s testimony provided an explanation for why

11
someone in J.M.’s position would do this, lending credibility to

J.M.’s choking allegation even considering her subsequent actions.

B. Officer’s Testimony

¶ 31 Podoba also challenges the admission of an investigating

police officer’s testimony about what kind of injuries different

mechanisms of strangulation cause. This testimony occurred on

redirect examination, and we conclude that defense counsel opened

the door to its admission during the immediately preceding cross-

examination.

¶ 32 In criminal trials, courts try to prevent one party from gaining

an unfair advantage through the selective presentation of evidence

that creates an incorrect or misleading impression. Golob v. People,

180 P.3d 1006, 1012 (Colo. 2008). Thus, when a party first elicits

otherwise inadmissible testimony, the opposing party can then elicit

additional testimony about the previously inadmissible topic to

correct any misleading impressions. Id.

¶ 33 The officer here was a lay witness. On cross-examination,

defense counsel asked her a series of questions about what kinds of

external or visible injuries strangulation can cause. This

questioning created the impression that because J.M. had no visible

12
injuries in the days after the alleged choking, J.M. might not have

been strangled.

Defense counsel: [Referencing a photo of J.M.’s
neck] And you didn’t see any marks in that
picture, correct?

Officer: I could not.

Defense counsel: And then we’ve heard — and
although you’ve only been an officer for a year
or so that it’s possible that someone did have
some sort of contact injury with their skin
such that a couple days later a bruise would
come out, correct?

Officer: There could have been.

Defense counsel: Are you familiar with that?

Officer: Yes.

Defense counsel: Okay. But we didn’t receive
anything like that in this case, correct?

Officer: I’m unaware.

¶ 34 Defense counsel then questioned the officer about a photo of

J.M.’s eyes, which counsel pointed out did not show burst blood

vessels in the eyes due to strangulation, a condition called

petechiae.

Defense counsel: And in this picture, we can
really see the whites of her eyes, correct?

Officer: Yes.

13
Defense counsel: And you asked her to send
that picture of her eyes, did you not, because
of this — I was going to say phenomenon or
medical condition called petechiae? Did I say
that right, pe-teach-ia?

Officer: Petechiae.

Defense counsel: Petechiae. And what is
petechiae?

Officer: It is when blood vessels of the eyes can
burst and make red dots in and around the
eye.

Defense counsel: And what causes that?

Officer: Lack of . . . oxygen.

....

Defense counsel: So what you were looking for
is red spots on the eyes because you’ve been
trained that that could be evidence that the
person had lost their air supply?

Officer: Yes, significant loss of air supply.

¶ 35 The testimony that Podoba challenges on appeal occurred on

redirect, immediately after this cross-examination. In it, the

prosecutor merely sought to correct the misleading impression that

the absence of visible signs of strangulation, including petechiae,

did not necessarily mean that J.M. was not strangled:

14
Prosecutor: [D]o you recognize whether the
type or mechanism of strangulation can affect
whether there are external marks?

Officer: Yes.

Prosecutor: And how so?

[Defense counsel objection that the court
overruled]

Officer: I — based on my training and
experience, I have seen if the hands are used
and placed around the neck, we usually see
bruising from the finger marks. When there’s
an arm placed around the neck, the force can
be applied in a much greater surface area, so
there’s much less bruising. Usually, we can’t
see bruising just to the naked eye, so there’s
usually more internal injury with that than
external injury.

¶ 36 Defense counsel was the first to ask the officer to explain,

based on her “training” and implicitly her experience, what types of

injuries strangulation can cause. This opened the door for the

prosecutor to ask the officer to clarify that not all strangulation

injuries are external or visible. Because defense counsel opened the

door to the testimony challenged on appeal, the trial court did not

abuse its discretion by admitting it.

15
V. Prosecutorial Misconduct

¶ 37 We review Podoba’s argument that some of the prosecutor’s

comments during closing argument constituted misconduct using a

two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we determine if the prosecutor’s comments were

improper based on the totality of the circumstances. Id. Second, if

there was any impropriety, we determine whether it warrants

reversal under the applicable standard of review. Id.

¶ 38 All of Podoba’s prosecutorial misconduct arguments are

unpreserved. Therefore, the applicable standard of review here is

plain error, which requires that the error be both obvious and

substantial. Hagos, ¶ 14. An error is substantial if it so

undermined the fundamental fairness of the trial that it casts doubt

on the reliability of the conviction. Id.

¶ 39 We conclude that none of the alleged prosecutorial misconduct

warrants relief.

¶ 40 Prosecutors have wide latitude in the language and style they

use during closing argument. People v. McMinn, 2013 COA 94,

¶ 60. Because closing arguments are not always perfectly scripted,

we give prosecutors the benefit of the doubt when their remarks are

16
ambiguous or inartful. Id. A prosecutor may not misstate the law

or refer to facts not in evidence. Id. at ¶ 62. But a prosecutor may

argue all reasonable inferences from the evidence. Id.

¶ 41 Podoba challenges three statements the prosecutor made

during closing argument. First, he points out that the prosecutor

incorrectly asserted that Lamanna had worked with over 4,500

domestic violence victims when the actual number was 1,500.

Podoba claims this must have been intentional because two days

earlier when Lamanna testified to having worked with 1,500

victims, a different prosecutor asked if it was 1,500 or 15,000, and

Lamanna clarified that it was 1,500.

¶ 42 We see no indication in the record that this was an intentional

misstatement. Instead, we conclude that it was simply an

unintentional and minor misstatement of Lamanna’s experience.

See People v. Peters, 2026 COA 24, ¶ 130 (“A prosecutor may not

intentionally misstate the evidence.” (emphasis added)). But even if

it was intentional, we conclude that it does not rise to the level of

plain error. Lamanna’s experience was unquestionably extensive

regardless of how many hundreds of victims she had worked with.

We therefore conclude that this misstatement, regardless of

17
whether it was intentional, did not undermine the fundamental

fairness of the trial.

¶ 43 Second, Podoba challenges the prosecutor’s following

comments about the evidence and, allegedly, the burden of proof:

Think back to what is not evidence and think
back to that burden where you’re not to
speculate.

You’re not to say, hey, what if hypothetically,
little green men came down and they’re the
ones that cause [J.M.] to break her collarbone?
That’s speculation. That’s a vague, imaginary
doubt. That’s not what reasonable doubt
means when you go back and look at the
evidence in this case.

The prosecutor added during rebuttal closing: “Please consider what

evidence is in evidence that you have received and what has not

been provided to you.”

¶ 44 Considered in the context of the argument as a whole, we

disagree with Podoba’s suggestion that these comments implied

that he bore a burden of proof. Instead, we conclude that these

statements were proper reminders to decide the case based only on

the evidence presented. And the prosecutor’s use of an example of

doubt that is not reasonable (potential involvement of little green

men) did not misstate the reasonable doubt standard. See People v.

18
Samson, 2012 COA 167, ¶ 36 (concluding that prosecutor’s use of

similar rhetorical flourish did not preclude the jury from finding a

reasonable doubt based on the lack of evidence).

¶ 45 Third, Podoba argues that the prosecutor committed

misconduct by referring to Podoba’s collective actions as a “reign of

terror over [J.M.].” We disagree. The evidence in the case

suggested that Podoba repeatedly physically assaulted J.M. over a

period of months. The characterization of Podoba’s actions as a

reign of terror was within the prosecutor’s wide latitude to use

rhetorical flourishes and comment on facts in evidence. See

McMinn, ¶ 61 (Prosecutors can “employ rhetorical devices and

engage in oratorical embellishment.”).

VI. Cumulative Error

¶ 46 Because we have determined that there were not multiple

errors at trial, we necessarily reject Podoba’s argument that the

cumulative effect of alleged errors warrants relief.

VII. Restitution

¶ 47 Finally, Podoba argues that the trial court erred by entering a

restitution award before Podoba received service of the

19
prosecution’s request for a specific amount of restitution. The

Attorney General agrees, and so do we.

¶ 48 A restitution order is invalid if the defendant is not given

notice of the amount of restitution requested and the opportunity to

challenge that amount. People in Interest of J.L.R., 895 P.2d 1151,

1153 (Colo. App. 1995). The parties agree that Podoba received

neither notice of the amount requested nor the opportunity to

challenge it. The record does not suggest otherwise.

¶ 49 The parties also agree that reversal and remand is

appropriate. We do too, regardless of whether this issue was or

even could have been preserved. Even if plain error review applied,

this error would suffice. We therefore reverse the restitution award.

VIII. Disposition

¶ 50 The restitution order is reversed, and the judgment of

conviction is otherwise affirmed. The case is remanded to the trial

court with directions to provide Podoba an opportunity to challenge

the amount of requested restitution.

JUDGE SULLIVAN and JUDGE MEIRINK concur.

20