Colorado’s second-highest court ordered a Denver judge on Thursday to reinstate a defendant’s felony charge, finding she improperly reduced the severity as a sanction for an officer’s deletion of his body-worn camera footage.

Prosecutors charged Russell K. Barnes with vehicular eluding, after police attempted to stop a Toyota 4Runner registered to Barnes but discontinued their pursuit once the vehicle recklessly fled through multiple red lights.

Days later, Officer Jeffrey Rickard found the 4Runner by an overpass where stolen vehicles were allegedly abandoned with regularity. The vehicle was unlocked and the windows were down. Rickard learned the 4Runner was connected to the eluding, and turned on his body cam as he searched the vehicle.

After looking for “guns, drugs, money and bodies” and finding none, Rickard had the 4Runner towed. The government eventually sold it. Meanwhile, Rickard designated his body cam footage to be deleted after 30 days because it related to a “non-event.”

Barnes’ public defender moved to dismiss the felony charge, reasoning the body-worn camera video could have revealed information from the interior about the identity of the eluding driver. Because the vehicle was gone, there was no other evidence that might exonerate Barnes as the driver.

District Court Judge Marie Avery Moses agreed that, under Colorado law, she would need to instruct jurors they could infer the missing footage “would have reflected misconduct by the officer.” The district attorney’s office called the instruction a “massive blow” to their case and asked her not to impose further sanctions.

Instead, in an April 30 order, Moses found the appropriate way to “level the playing field” was to reduce Barnes’ charge from a felony to a misdemeanor. Further, she would instruct jurors that Rickard deleted evidence that “may have reflected that the vehicle had been stolen” from Barnes.

“The identity of the driver of the vehicle on August 28, 2024 is a material element of the crime of eluding. To the extent that the condition of the vehicle on August 31, 2024 suggested that the vehicle had been stolen, that information is exculpatory,” she wrote. Although Rickard’s actions “reflected a lack of critical thinking, not bad faith,” Moses concluded the defense was denied access to evidence possibly showing Barnes was not the eluding driver.

The prosecution immediately appealed her ruling, arguing law enforcement was only obligated to preserve evidence with “apparent exculpatory value,” not evidence that might have existed to the defendant’s benefit.

“Granted, it’s easy to dream up any number of items beyond someone else’s ‘driver’s license’ or ‘receipt’ that could indicate a car had been stolen,” wrote Senior Deputy District Attorney Jeff M. Van der Veer. “But nothing in the record indicates that the video recorded any of those items.”

A three-judge Court of Appeals panel agreed with him.

“Accordingly, because the district court applied the wrong test for assessing a due process claim based on the destruction of exculpatory evidence, and because Barnes’s argument that the footage in question might have contained exculpatory evidence is wholly speculative, the district court’s sanctions order cannot stand,” wrote Judge Matthew D. Grove in the Nov. 13 opinion.

The panel ordered Moses to reinstate the felony charge, but did not address the jury instruction about misconduct because the prosecution had not appealed that issue.

The case is People v. Barnes.