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 August 23, 2018

No. 16CA2226, People v. Barbre — Criminal Law — Sentencing — Restitution

In this criminal restitution case, a division of the court of

appeals resolves the dispute between the parties about what

standard of review to apply. This appeal involves the issue of

whether the prosecution sufficiently proved at the restitution

hearing the amount of the victim’s loss proximately caused by the

defendant’s conduct. The division concludes that the appropriate

standard of review in this case is whether the evidence, both direct

and circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is sufficient to support the district

court’s ruling that the prosecution proved by a preponderance of

the evidence that the defendant caused $10,553.80 in loss to the victim. Applying that standard of review, the division concludes

that the evidence was sufficient to affirm the restitution order.

In resolving these issues, the division also analyzes the

historical use of the abuse of discretion standard in criminal

restitution appeals, and explains why that standard of review

should not be applied as broadly as it has in the past. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA2226 Arapahoe County District Court No. 15CR3360 Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kress Nicole Barbre,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE DAVIDSON* Loeb, C.J., and Vogt*, J., concur

Announced August 23, 2018

Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, David A. Kaplan, Deputy State Public Defender, Centennial, 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. 2017. ¶1 Defendant, Kress Nicole Barbre, appeals the district court’s

order awarding $10,553.80 in restitution to the victim pharmacy

(the pharmacy). She contends that the prosecution did not

sufficiently prove she caused that amount of loss. We disagree with

defendant and affirm the district court’s decision. In doing so, we

clarify that the appropriate de novo standard of review for the issue

presented here is whether the evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is sufficient to support the district

court’s ruling that the prosecution proved by a preponderance of

the evidence that defendant caused the amount of restitution

awarded.

I. Background

¶2 While working at the pharmacy, defendant stole several types

of prescription pain medication. She pleaded guilty to one count of

theft and one count of possession of a controlled substance

occurring over a nearly yearlong period. The district court

sentenced her to two years of probation.

¶3 At the restitution hearing, an asset protection manager for the

pharmacy testified regarding his investigation of the thefts. The

1 pharmacy’s automated system for tracking inventory was showing

“negative adjustments,” in other words, missing pills. Over a

seventeen-day period, the asset protection manager worked with the

pharmacy manager to conduct daily counts of pills to determine the

days on which pills were going missing.

¶4 The particular days that pills went missing during that

seventeen-day period were the same days that defendant worked in

the pharmacy. The asset protection manager reviewed surveillance

videos from those days and observed defendant stealing medication.

¶5 The asset protection manager then confronted defendant with

that evidence. Defendant admitted that she had been stealing

medications and identified the particular types of medications she

had been stealing. She also admitted that she had been stealing

the medications for “a little over a year,” and that the number of

pills she had stolen was “in the thousands.”

¶6 The asset protection manager then ran a report from the

automated system reflecting the negative adjustments over the

previous year for the types of medications that defendant had

admitted to stealing. The asset protection manager created a

spreadsheet listing each type of medication, the quantity of stolen

2 pills for each type, the wholesale price for each type of pill, and the

total wholesale price for the entire quantity of stolen pills. That

spreadsheet described by the asset protection manager during the

restitution hearing appears to be the same spreadsheet submitted

in the victim impact statement. According to the testimony at the

restitution hearing and the spreadsheet submitted in the victim

impact statement, the total wholesale price of those pills was

$10,553.80. The total number of stolen pills listed in the victim

impact statement spreadsheet was 5730.

¶7 During closing argument at the restitution hearing, defendant

argued that the court should not order restitution for the entire

one-year period, but instead should order restitution based only on

the pills stolen during the seventeen-day period.

¶8 The district court ultimately concluded that the prosecution

had met its burden of proving that defendant had caused

$10,553.80 in loss to the pharmacy. The court specifically relied on

defendant’s admission that she had stolen thousands of pills over a

one-year period, and on the reliability of the pharmacy’s automated

system for tracking inventory.

3 II. Waiver

¶9 As an initial matter, we disagree with the People’s contention

that defendant waived her current challenge to the restitution order

because of a provision in the plea agreement. The provision at

issue stated that restitution was “reserved, admit causation.” At

the providency hearing, the district court confirmed with defendant

that she was “admitt[ing] restitution as to causation, but an

amount would be reserved to a later date.”

¶ 10 We note that the provision in the plea agreement is

ambiguous, and could be read to mean defendant was admitting

she caused any amount of loss the prosecution might later seek at

the restitution hearing. Notably, defendant pleaded guilty to theft of

items valued at $750 or more but less than $2000. See

§ 18-4-401(1)(a), (2)(e), C.R.S. 2017. Later, the prosecution sought

$10,553.80 in restitution.

¶ 11 But defendant admitted that she caused certain losses but not

others, and, therefore, the issue of causation cannot be divorced

from the amount of loss awarded in restitution. Thus, on this

record, we disagree with the People’s suggestion that the provision

4 in the plea agreement meant that defendant was stipulating to

having caused $10,553.80 in loss to the pharmacy.

III. Preservation

¶ 12 We also disagree with the People’s argument that defendant

did not preserve her appellate contention in the district court. In so

arguing, the People cast defendant’s “causation argument” as

distinct from her “challenge to the amount of restitution.” Again, in

a case like this, the issue of causation is inextricably intertwined

with the issue of the proper amount of restitution. Thus, we

construe defendant’s contention on appeal as being the same

argument she made in the district court — namely, that the

prosecution did not sufficiently prove that she caused $10,553.80

in loss to the pharmacy.

IV. Standard of Review

¶ 13 In terms of the appropriate standard of review, defendant

argues that we should conduct a de novo sufficiency of the evidence

review. See People v. Ortiz,

(“[The] defendant

challenges the sufficiency of the evidence [supporting the restitution

order]. We review sufficiency challenges de novo, determining

5 whether the evidence is sufficient in both quality and quantity to

satisfy the applicable burden of proof.”).

¶ 14 The People disagree and contend that we should review for an

abuse of discretion. In doing so, they rely on two of the numerous

Colorado Court of Appeals cases stating that district courts have

broad discretion in determining the appropriate terms and

conditions of restitution. Indeed, many other Colorado Court of

Appeals cases, for decades and to date, state generically that

restitution orders are reviewed for an abuse of discretion. See, e.g.,

People v. Henry,

, ¶ 12; People v. Quinonez,

(Colo. App. 1984), aff’d in part and rev’d in part on other

grounds,

(Colo. 1987). However, the People do not

cite, nor could we find, a Colorado Supreme Court opinion making

that same general statement that criminal restitution orders are

reviewed for an abuse of discretion.

¶ 15 Based on our research, we conclude that the district court’s

determination in this case that defendant owed $10,553.80 in

restitution was not a discretionary ruling subject to an abuse of

discretion review. In reaching this conclusion, and because case

law supports both defendant’s and the People’s positions, it is

6 instructive to review the statutory evolution of criminal restitution

determinations in Colorado.

¶ 16 For decades before 1977, a district court’s decision whether to

order restitution as part of a probationary sentence was entirely

discretionary. See § 16-11-204(2)(e), C.R.S. 1973 (A court “may”

require that the defendant make restitution.); § 39-16-7, C.R.S.

1963 (same); § 39-16-7, C.R.S. 1953 (same).

¶ 17 In 1977, the General Assembly amended the restitution

statute to require restitution as part of a probationary sentence.

See Ch. 216, secs. 5-6, §§ 16-11-204(1), -204.5(1),

-64. In People v. Smith,

(Colo. 1988), the

supreme court discussed that statutory amendment and concluded

that the new statutory language “does not leave the question of

restitution in the discretion of the trial court, but instead

unequivocally requires that ‘restitution shall be ordered by the

court as a condition of probation.’”

at 1171 (quoting

§ 16-11-204.5(1)); see also Cumhuriyet v. People,

,

468-69 & n.2,

, 725-26 & n.2 (1980) (interpreting the

pre-1977 version of the statute, but explaining in a footnote that

7 under the new statute “[r]estitution is . . . a required condition of

probation”).

¶ 18 In practice, though, district courts retained significant

discretion after the 1977 amendment because of new statutory

provisions allowing courts to reduce restitution based on a

defendant’s ability to pay, and to waive restitution entirely if it

would impose an undue hardship on the defendant or his family.

See 1977 Colo. Sess. Laws at 863-64.

¶ 19 However, by 1996, the General Assembly had deleted those

provisions. See Ch. 288, sec. 4, § 16-11-204.5(1),

; Ch. 139, sec. 1, § 16-11-204.5(1),

.

¶ 20 Now, under the statutory scheme, every order of conviction of

a felony, misdemeanor, petty offense, or traffic misdemeanor offense

“shall” include an order imposing restitution based on the victim’s

pecuniary loss proximately caused by the defendant’s conduct.

§§ 18-1.3-602(3)(a), -603(1), C.R.S. 2017; see also

§ 18-1.3-601(1)(b), C.R.S. 2017 (Defendants have an “obligation to

make full restitution to those harmed by their misconduct.”).

Further, a statute applicable to probationary sentences provides:

8 “As a condition of every sentence to probation, the court shall order

that the defendant make full restitution . . . .” § 18-1.3-205, C.R.S.

2017 (emphasis added).

¶ 21 Consequently, informed by this legislative history, we conclude

that a general statement that restitution orders are reviewed for an

abuse of discretion does not comport with the current statutory

scheme. Indeed, in some cases, such a general statement could

detract from appropriate legal analysis.

¶ 22 Even the somewhat more specific rule cited by the People —

that a district court has discretion to determine the appropriate

“terms and conditions” of restitution — is too broad. For example,

in Roberts v. People,

(Colo. 2006), the

supreme court clarified that a district court has discretion to decide

an appropriate rate of prejudgment interest, but that the rate of

postjudgment interest is mandated by section 18-1.3-603(4)(b)(I).

¶ 23 And, although it can be said that a court abuses its discretion

if it misconstrues or misapplies the law, it seems inappropriate to

use the term “discretion” in describing the appropriate standard of

review, for example, in a case where the sole issue is the proper

interpretation of the restitution statute. See Dubois v. People, 211

(Colo. 2009) (in interpreting a provision in the

restitution statute, the supreme court did not use the term

“discretion” in describing the standard of review, but instead stated

that the proper interpretation of a statute is reviewed de novo).

¶ 24 Consequently, because in restitution cases, the statutory

scheme no longer allows for abuse of discretion as the default

standard of review, the appropriate standard of review necessarily

will depend on which of a wide variety of restitution issues district

courts decide and we are asked to review. Accordingly, the practice

of applying the same standard of review in all such cases should be

discarded and courts should proceed with caution and make sure

to apply the appropriate standard of review in any particular subset

of restitution cases.

¶ 25 As to the particular issue here, defendant challenges on

appeal the district court’s conclusion that the prosecution proved

by a preponderance of the evidence that she caused $10,553.80 in

loss to the pharmacy. That is a challenge to the sufficiency of the

evidence. Consequently, we conclude that the appropriate standard

is to review de novo whether the evidence, both direct and

circumstantial, when viewed as a whole and in the light most

10 favorable to the prosecution, establishes by a preponderance of the

evidence that the defendant caused that amount of loss. See Clark

v. People,

(Colo. 2010); Ortiz, ¶ 26.

¶ 26 In so concluding, we caution that we are not saying this

standard of review applies in every appeal where the proper amount

of restitution is at issue. The standard of review we apply in this

case may not apply, for example, in a case in which the central

issue is how to value a unique piece of stolen property. See

§ 18-1.3-602(3)(a) (A district court must decide whether the victim’s

pecuniary loss can be “reasonably” calculated.).

V. Analysis

¶ 27 The central issue presented regarding the merits is whether it

was appropriate to award restitution based on the evidence of

defendant’s thefts during the one-year period, or whether

restitution should have been limited to defendant’s thefts during

the seventeen-day period.

¶ 28 Many of defendant’s arguments on appeal relate to the

quantity and quality of evidence needed to support a restitution

order. To be sure, the evidence of defendant’s thefts during the

seventeen-day period was strong. That evidence included that pills

11 were stolen only on the particular days that defendant had worked

in the pharmacy, and that the asset protection manager witnessed

defendant stealing on the surveillance videos.

¶ 29 However, contrary to defendant’s suggestion on appeal, the

prosecution did not have to present that quantity and quality of

evidence to meet the preponderance of the evidence standard for the

entire one-year period. For example, we disagree with defendant’s

reliance on Ortiz for the proposition that “first-hand knowledge”

that the defendant caused the victim’s loss — such as seeing

defendant stealing on the surveillance videos — is necessary to

meet the preponderance of the evidence standard.

¶ 30 “A fact is established by a preponderance of the evidence

when, upon consideration of all the evidence, the existence of that

fact is more probable than its nonexistence.” People v. Garner,

(Colo. 1991).

¶ 31 Viewing the direct and circumstantial evidence in the light

most favorable to the prosecution, we conclude that the district

court did not err in determining that the prosecution had proven by

a preponderance of the evidence that defendant caused $10,553.80

in loss to the pharmacy during the entire one-year period.

12 ¶ 32 One of the most important pieces of evidence, of course, is

defendant’s own admission that she had been stealing medications

“for a little over a year.” She also admitted to the particular

medications she had been stealing. The asset protection manager

limited his inquiry and calculations to only those medications,

limited his inquiry to the previous one-year period although

defendant admitted that she had been stealing for “a little over a

year,” and used the wholesale prices of the medications rather than

their retail prices.

¶ 33 Defendant also admitted that the total number of pills she had

stolen was “in the thousands.” Notably, the spreadsheet detailed

the total number of pills of each medication that defendant had

admitted to stealing, and the sum of those numbers is 5730, a

number in the thousands.

¶ 34 The spreadsheet created by the asset protection manager was

based on the pharmacy’s automated system for tracking inventory

for each type of medication. Evidence at the restitution hearing

indicated that the automated system was reliable. The system

automatically tracked the inventory of pills for each medication —

when a pharmacy employee filled a prescription for a customer, that

13 number of pills was automatically deducted from the system. There

was also a regular process for excluding from the automated system

issues such as pills being broken, damaged, or dropped on the

floor. The pharmacy conducted manual counts of pills on a regular

basis as part of its normal course of business, to verify that the

information in the automated system was accurate. The asset

protection manager received automated reports whenever there was

a negative adjustment between the results of the hand counts and

the inventory reflected in the automated system. Because the pills

were located in a secure area of the pharmacy only accessible by

certain employees, the negative adjustments in the automated

system were likely the result of theft by one of those employees.

¶ 35 Defendant faults the pharmacy for being unable to prove — for

the entire one-year period — that the thousands of pills went

missing on the precise days that she had worked in the pharmacy.

Under the circumstances, such evidence was not necessary to meet

the preponderance of the evidence standard. Notably, though, the

asset protection manager testified that he believed defendant had

been a full-time employee in the pharmacy during that entire one-

year period. Further, there was no indication that anyone else in

14 that pharmacy had been stealing medications, and there were no

negative adjustments in the automated system for the period after

defendant was caught.

¶ 36 All of this evidence, viewed in the light most favorable to the

prosecution, is sufficient to affirm the restitution order.

¶ 37 In arguing the contrary, defendant attempts to analogize the

facts of this case to the facts of several other cases. For example, in

Cumhuriyet v. People,

,

(1980), the

defendant was caught attempting to make a purchase with a credit

card that did not belong to her. The issue presented was whether

she could be held liable for restitution for another purchase made

at a different store earlier the same day with the same credit card.

The supreme court held that the evidence was insufficient that she

had made the earlier purchase.

,

.

¶ 38 The facts in Cumhuriyet would be somewhat similar to this

case if it weren’t for defendant’s admissions that she had been

stealing medications for a little over a year and that she had stolen

thousands of pills. Given those admissions, defendant’s reliance on

Cumhuriyet is unpersuasive.

15 ¶ 39 Defendant also cites People v. Borquez,

(Colo.

1991), in which the supreme court noted that the defendant was

ordered to pay restitution based on “an extensive list of items” that

she herself had admitted stealing.

. However, the court in

Borquez was not addressing the quality or quantity of evidence

needed to meet the preponderance of the evidence standard, and a

defendant’s express admission regarding the precise items that she

had stolen is not necessary to meet the preponderance of the

evidence standard.

¶ 40 Defendant also relies on United States v. Ferdman, a case in

which the Tenth Circuit held that a victim’s letter estimating its

expenses incurred in investigating the defendant’s fraud was too

speculative to support a restitution award. See

(10th Cir. 2015). As an initial matter, we question

defendant’s reliance on a case applying a federal statute, given

Colorado case law holding that, under Colorado law, an award of

restitution may be based solely on a victim impact statement. See,

e.g., Ortiz, ¶ 28; People v. Hill,

(Colo. App. 2011);

see also § 18-1.3-603(2). Regardless, the evidence indicates that

the information in the asset protection manager’s spreadsheet was

16 not based on estimates, but instead reflected the precise number of

stolen pills for each type of medication that defendant had admitted

to stealing.

VI. Conclusion

¶ 41 The order is affirmed.

CHIEF JUDGE LOEB and JUDGE VOGT concur.

17