v. Barbre , 429 P.3d 95 ( 2018 )

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
2018COA123
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 2018COA123
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, 2016 COA 58, ¶ 26 (“[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, 2018 COA 48M, ¶ 12; People v. Quinonez, 701 P.2d
74, 75 (Colo. App. 1984), aff’d in part and rev’d in part on other
grounds, 735 P.2d 159 (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), 1977 Colo. Sess.
Laws 863-64. In People v. Smith, 754 P.2d 1168 (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.’” Id. at 1171 (quoting
§ 16-11-204.5(1)); see also Cumhuriyet v. People, 200 Colo. 466,
468-69 & n.2, 615 P.2d 724, 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), 1996 Colo. Sess.
Laws 1778; Ch. 139, sec. 1, § 16-11-204.5(1), 1985 Colo. Sess.
Laws 628.
¶ 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, 130 P.3d 1005, 1006-10 (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
9
P.3d 41, 43 (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, 232 P.3d 1287, 1291 (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, 806
P.2d 366, 370 (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, 200 Colo. 466, 615 P.2d 724 (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. Id. at 469, 615 P.2d at 726.
¶ 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, 814 P.2d 382 (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. Id. at 383. 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 779 F.3d 1129,
1134, 1140 (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, 296 P.3d 121, 126 (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