23CA1601 Peo in Interest of RO-S 04-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1601 Adams County District Court No. 23JD325 Honorable Ingrid S. Bakke, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of R.O-S.,
Juvenile-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant ¶1 R.O-S., a juvenile, appeals the district court’s restitution order
in his delinquency case. We affirm.
I. Background
¶2 According to the arrest affidavit, R.O-S. broke into a vape store
by smashing the front glass door with a chair when he was
seventeen years old. He took multiple products from the store,
including bongs, boxes of vape cartridges, and a butane lighter.
¶3 The prosecution filed a petition in delinquency, alleging that
R.O-S. committed acts that, if committed by an adult, would
constitute second degree burglary, misdemeanor criminal mischief,
and theft of between $300 and $1,000. See § 18-4-203(1), (2)(a),
C.R.S. 2024 (class 4 felony second degree burglary); § 18-4-501(1),
(4)(c), C.R.S. 2024 (class 1 misdemeanor criminal mischief);
§ 18-4-401(1), (2)(c), C.R.S. 2024 (class 2 misdemeanor theft).
¶4 The parties resolved the case through a plea agreement.1 In
exchange for the dismissal of his original charges, R.O-S. pleaded
guilty to an added count of theft of $1,000 or more but less than
$2,000, a class 1 misdemeanor. See § 18-4-401(2)(e). During the
1 No written or transcribed plea agreement appears in the record on
appeal.
1 providency hearing, R.O-S.’s counsel informed the district court
that R.O-S. had agreed to open sentencing “[a]nd then the amount
of restitution that was submitted by the [prosecutor].”2 The court
approved the plea agreement and later sentenced R.O-S. to six
months of probation and twenty-four hours of community service.
¶5 At sentencing, R.O-S. objected to the prosecutor’s restitution
request of $3,115.41. This figure consisted of the following losses
that the owner of the vape store claimed he suffered as a result of
the incident: $790.55 for a temporary board-up of the shattered
glass front door; $679.15 for replacing the door; $1,362.71 for
tinting the new glass door and retinting the adjacent windows in the
storefront, which weren’t damaged during the incident; and $283
for the wholesale value of the stolen goods.
¶6 Following an evidentiary hearing, the district court awarded
restitution for all the claimed losses with a $70 deduction for an
2 Because we don’t have the plea agreement in the record, we can’t
tell whether R.O-S.’s plea encompassed the restitution amount that the prosecutor had requested before the providency hearing. In any event, the People don’t contend that R.O-S. waived his challenge to the restitution award by agreeing to the restitution amount. Consequently, we need not address that issue here. See City of Aurora v. 1405 Hotel, LLC, 2016 COA 52, ¶ 16 n.3 (declining to address an issue that the parties didn’t present on appeal).
2 “upgrade to the tint and some reinforcement to the windows/glass.”
Accordingly, the court ordered R.O-S. to pay $3,045.41 in
restitution.
II. Analysis
¶7 On appeal, R.O-S. contends that the district court erred by
entering the restitution order because (1) the prosecutor failed to
present sufficient evidence that R.O-S. had proximately caused the
losses associated with installing new tint on the windows adjacent
to the broken door; and (2) the court didn’t have the authority to
impose restitution in excess of $1,999.99, the upper monetary
bound of the class 1 misdemeanor theft charge he pleaded to. We
disagree on both counts.
A. Applicable Law
¶8 Under section 19-2.5-1104(1), C.R.S. 2024, a court must enter
a sentencing order requiring a juvenile to pay restitution when the
juvenile has damaged a victim’s property. Restitution in a juvenile
delinquency proceeding must be imposed in the same manner as
that required by the restitution statute governing adult criminal
prosecutions. § 19-2.5-1104(2).
3 ¶9 As relevant here, restitution means “any pecuniary loss
suffered by a victim” that “includes but is not limited to all
out-of-pocket expenses . . . proximately caused by [the juvenile’s]
conduct and that can be reasonably calculated and recompensed in
money.” § 18-1.3-602(3)(a), C.R.S. 2024. Proximate cause in the
restitution context means a cause that, in natural and probable
sequence, produced the claimed loss and without which the loss
wouldn’t have been sustained. People v. Dyson, 2021 COA 57, ¶ 13.
The prosecution bears the burden of proving by a preponderance of
the evidence both the victim’s losses and that those losses were
proximately caused by the defendant’s unlawful conduct. Id. at
¶ 12.
¶ 10 “The purpose of the restitution statute is to make the victim
whole by placing the victim in the same financial position that he
was in before the defendant’s unlawful conduct.” People v. Ragsdal,
2025 COA 9, ¶ 29; see also § 18-1.3-601(1)(b), C.R.S. 2024 (stating
that convicted offenders must “make full restitution to those
harmed by their misconduct”). However, “a defendant may not be
ordered to pay restitution for losses unless they stem from the
conduct that was the basis of the conviction.” People v. Poot-Baca,
4 2023 COA 112, ¶ 45. Consequently, unless otherwise agreed, “a
district court may not award restitution for damages arising from
criminal conduct (1) of which the defendant was acquitted; (2) for
which the defendant was never criminally charged; or (3) which
underlies a dismissed charge.” Id. (quoting People v. Moss, 2022
COA 92, ¶ 13).
B. Standard of Review
¶ 11 Generally, we review a district court’s restitution order for an
abuse of discretion, meaning that we won’t disturb the order unless
it is manifestly arbitrary, unreasonable, or unfair or based on the
court’s misinterpretation or misapplication of the law. People v.
Sosa, 2019 COA 182, ¶ 10. But we review de novo a party’s
argument that the district court lacked authority to impose
restitution. See id. at ¶ 11 (reviewing de novo whether the trial
court had the authority to impose restitution for losses associated
with uncharged conduct); Cowen v. People, 2018 CO 96, ¶ 11 (“[W]e
agree with the parties that whether a trial court has authority to
impose restitution for losses suffered as a result of acquitted
conduct is a question of law.”); People v. Roddy, 2021 CO 74, ¶ 23
5 (reviewing de novo whether the district court had the authority to
impose restitution for dismissed charges).
¶ 12 The parties dispute the proper standard of review for assessing
R.O-S.’s argument that the prosecution failed to present sufficient
evidence that he had proximately caused the pecuniary losses
related to the adjacent storefront windows’ retinting. R.O-S. frames
this issue as a “true” challenge to the sufficiency of the evidence
and asserts that we should review it de novo. Under that standard
of review, we evaluate “whether the evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, establishes by a preponderance of the
evidence that the defendant caused [the particular] amount of loss.”
People v. Barbre, 2018 COA 123, ¶ 25; see also Martinez v. People,
2024 CO 6M, ¶¶ 19-20 (noting that we review sufficiency of the
evidence challenges de novo when asked to address whether the
prosecution presented a quantum of evidence that was substantial
and sufficient to support the district court’s restitution award).
¶ 13 The People agree that we review de novo sufficiency of the
evidence claims. But they also point out that we “will not disturb a
[district] court’s determination of proximate cause for restitution
6 purposes unless it is clearly erroneous” and go on to argue that we
should uphold the district court’s restitution order here because the
record supports the court’s determination that R.O-S. was
responsible for the tinting-related amounts. See Martinez, ¶¶ 3, 32
(holding that clear error is the appropriate standard of review for
evaluating a district court’s determination of proximate cause for
restitution). In other words, while R.O-S. posits that we should
review this issue de novo, the People assert that clear error review is
appropriate.
¶ 14 While we review R.O-S.’s sufficiency of the evidence claim de
novo as he framed it, we note that we would reach the same
conclusion under either standard.
C. The District Court Didn’t Err by Including the Tinting-Related Costs in the Restitution Award
¶ 15 R.O-S. contends that the district court erred by requiring him
to pay $1,292.71 in restitution for the tinting expenses because the
prosecution didn’t present sufficient evidence that he had
proximately caused all of those expenses. Specifically, R.O-S.
argues that the prosecution failed to show “beyond mere
speculation” that the owner of the store had retinted the adjacent
7 windows because of R.O-S.’s unlawful conduct. Consequently, he
asserts, the district court erred by awarding any amounts related to
the cost of the retinting work. We’re not persuaded.
¶ 16 As mentioned above, the district court subtracted from the
award $70 that the owner of the store had spent on the tinting film
that was equipped with shatter-resistant features.3 In determining
that R.O-S. was responsible for all the other retinting costs, the
court found that while the front door and the adjacent windows had
previously been tinted, “the tinting was quite old.” The court also
found that when the owner replaced the shattered glass front door
and tinted the new door, “there was a different look as a result of
the new tint on the door and the old tint on the adjacent windows.”
The court likened these circumstances to the following scenario:
The way [the court] look[s] at the tinting though as if this had been a business that was painted, and the paint’s been sitting for [ten to fifteen] years and faded. And then, you have to do the repair of the damage. . . . [Y]ou have brand new paint sitting next to old paint and
3 It is somewhat unclear from the record if this amount covered only
the cost of the “upgrade” for the front door or for the entire tinting project. However, because R.O-S. doesn’t argue in his briefing that this ambiguity itself affects the propriety of the restitution order, we also need not address that question here. See 1405 Hotel, LLC, ¶ 16 n.3.
8 they don’t match. And therefore, there is a degradation arguably of the building in terms of that difference between. So in a sense that’s damage. They don’t match [anymore]. And in order to make your building or your home or whatever . . . look the way it did before it was damaged, you have to paint it again or tint the windows.
Put differently, the court reasoned that the owner had to retint the
adjacent windows so that all the glass in the storefront would look
uniform. Under these circumstances, it found “that the decision to
tint the adjacent glass, even though it was not damaged, was
reasonable and needed to be done as a direct result of [R.O-S.’s]
actions.”
¶ 17 We conclude that the prosecution presented sufficient
evidence in support of the district court’s proximate cause
determination. The record shows that the front door and the
adjacent windows were already tinted at the time of the incident
and that the existing tint “could have been [twenty] years old.” The
owner of the store testified at the restitution hearing that after he
replaced the glass in the front door, he installed a new tint and
decided to pay an extra $70 “for like the better . . . security tint”
“that [would] prevent the glass from imploding even better than it
9 did before.” When defense counsel asked the owner whether he had
also “upgraded” the surrounding windows, the owner articulated
his reasons for getting a matching tint on the windows:
Well [the tinting company] had to retint . . . the whole store front. There’s three windows because they had to match the color, the shade of the -- like if you take two different brands of tint and put them side by side, [the windows] are always going to look different. So it would look like a patchwork. So [the tinting company] ended up -- they retinted the whole front while they were there. The other thing too was [that the tinting company] had a minimum [square footage requirement]. They were like, oh, well we . . . can’t just do your door. We have to do the -- for two reasons to . . . get [the tint on the windows] to match the door and also [for the tinting company] to do their service call because they said they needed, like, a certain square footage, so it was just a few more square feet to do the -- to get them to come out and actually do it . . . .
(Emphasis added.) The prosecution also presented an invoice
showing that the tinting company had billed $1,362.71 for
completing the work on the door and the windows. And the owner
testified that he had paid that amount.
¶ 18 This is sufficient evidence supporting the court’s findings of
fact underlying its proximate cause determination because it shows
that the owner had retinted the adjacent windows in part to avoid a
10 patchwork appearance that would have resulted had the owner
installed a new tint only on the front door’s glass that R.O-S. had
damaged during the incident.
¶ 19 In arguing otherwise, R.O-S. asserts that the owner only
decided to replace the window tint because he wanted the adjacent
windows equipped with the same security-enhanced film as the
glass in the front door. He asserts that the owner’s “testimony
showed that [the owner] chose to upgrade the tinting [on the front
door], which created the mismatch and in turn [the owner] had the
undamaged windows retinted to match.” R.O-S. therefore disputes
the district court’s interpretation of the owner’s testimony and
contends that the security upgrade, not his damage to the front
glass door, was what caused the owner to retint the adjacent
windows.
¶ 20 It is true that the owner testified that he did the retinting work
on the windows “for the aesthetic reasons to match the
type . . . because [he] did the security style [tint on the front door]
that helps with burglaries and break-ins, so they matched.” But
the owner also testified that the shade of the tint wouldn’t match
between any two brands and that he didn’t know the brand or
11 rating of the some-twenty-year-old original tint that was on the
windows. He testified that he had therefore retinted the windows
“to match the color, the shade” of the front door tint. So we don’t
agree with R.O-S.’s argument that it was solely the security upgrade
that created the mismatch.
¶ 21 On this point, R.O-S. is essentially challenging the weight of
the evidence and the district court’s resolution of any disputes and
ambiguities in the owner’s testimony. But as the fact finder, it was
for the district court to determine the credibility of the witnesses,
resolve conflicts in the evidence, and decide what weight to give
each piece of evidence. See People in Interest of A.V., 2018 COA
138M, ¶ 29; People v. Poe, 2012 COA 166, ¶ 14. Our sufficiency
review doesn’t entail making such determinations.
¶ 22 In sum, viewing the evidence in the light most favorable to the
prosecution, we conclude that the prosecution presented sufficient
evidence to prove by a preponderance of the evidence that R.O-S.’s
unlawful conduct proximately caused the tinting-related expenses.
See Barbre, ¶ 25. Under these circumstances, then, the district
court didn’t err by including in the restitution award the $1,292.71
that the store owner had incurred in connection with that work.
12 D. The District Court Had the Authority to Impose Restitution in Excess of the Statutory Maximum For the Charge
¶ 23 R.O-S. next contends that the district court lacked authority
to impose restitution in excess of the maximum amount of damages
supporting the theft offense to which he pleaded guilty.
Specifically, he argues that because he pleaded guilty to theft of
$1,000 or more but less than $2,000, his restitution obligation
must be capped at $1,999.99, and the court erred by imposing
restitution in excess of that amount.
¶ 24 In advancing this argument, R.O-S. analogizes his case with
People v. Knapp, 2020 COA 107. As R.O-S. points out, in Knapp
the prosecution charged the defendant with, among other things,
“criminal mischief as a class 6 felony (based on damage of at least
[$1,000] but less than [$5,000]), but the jury found, through its
interrogatories, that he committed only a class 1 misdemeanor
(based on damage of at least $750 but less than [$1,000]).” Id. at
¶ 77. On appeal, Knapp argued that the trial court erred by
requiring him to pay more than $13,000 in restitution because that
award exceeded the maximum amount of damages set out in the
13 misdemeanor criminal mischief statute under which he had been
convicted. Id. at ¶¶ 66-67.
¶ 25 A division of this court agreed with him, holding that “where a
defendant is charged with one level of offense but is convicted of
only a lower-level offense, an award of restitution for that offense is
limited to the amount consistent with the jury verdict.” Id. at ¶ 81.
The division reasoned that the jury’s finding that Knapp was guilty
only of misdemeanor criminal mischief operated “as an implied (if
not express) acquittal of the felony criminal mischief count charged
by the prosecution.” Id. at ¶ 77. And because a court doesn’t have
the authority to impose restitution “for pecuniary losses caused by
acquitted conduct,” Cowen, ¶ 24, the Knapp division concluded that
the trial court violated this principle by entering a restitution award
that exceeded the upper bound of “$999.99 set out for [the] class 1
misdemeanor” criminal mischief charge of which Knapp had been
convicted. Knapp, ¶ 81.
¶ 26 However, the case before us is distinguishable from Knapp.
Unlike the defendant in Knapp, who was charged with a higher-level
felony offense but was convicted of a lower-level misdemeanor
offense, R.O-S. wasn’t acquitted of any conduct in connection with
14 the incident. To the contrary, the prosecution originally charged
R.O-S. with class 2 misdemeanor theft of $300 or more but less
than $1,000 along with second degree burglary and criminal
mischief. But he pleaded guilty to a higher-level class 1
misdemeanor theft in exchange for the dismissal of the original
charges. Simply put, R.O-S. pleaded to the conduct in this case.
He wasn’t acquitted of any conduct, expressly or impliedly.
¶ 27 While it is true that the prosecution dismissed, among others,
the original lower-level theft charge to effectuate the parties’ plea
agreement, the conduct underlying the dismissed charge was also
the conduct underlying the offense to which R.O-S. pleaded and for
which he was ordered to pay restitution. Cf. Roddy, ¶ 33
(concluding that the district court’s restitution order was improper
to the extent the court granted restitution based on any conduct
that was exclusively related to dismissed charges). Accordingly,
this is not a case where the court ordered restitution for losses
caused by acquitted conduct, see Cowen, ¶ 24, or conduct
underlying a dismissed charge, see Roddy, ¶¶ 30-33.
¶ 28 Instead, R.O-S.’s circumstances are analogous to those that a
division of this court recently addressed in Ragsdal. In that case,
15 “Ragsdal was charged with and convicted of [second degree]
burglary and [misdemeanor] theft of $50 or more but less than
$300 based on allegations that he unlawfully entered the victim’s
home and stole the keys to two vehicles and a shed.” Ragsdal,
¶¶ 1, 8; see also § 18-4-203(1), (2)(a), C.R.S. 2020 (the version of
the second degree burglary statute in effect when Ragsdal
committed the offense); § 18-4-401(1), (2)(c), C.R.S. 2020 (the
version of the theft statute in effect at the time of Ragsdal’s offense).
The trial court ordered Ragsdal to pay $501.92 in restitution, which
was the total cost for the victim to replace the missing keys and to
change the locks on the shed. See Ragsdal, ¶¶ 11, 28. Like R.O-S.
here, Ragsdal argued on appeal that the trial court erred in entering
the restitution award because its amount exceeded “the [$300]
upper monetary limit of the theft statute he was charged under and
convicted of violating.” Id. at ¶¶ 2, 35.
¶ 29 The division rejected this argument and upheld the restitution
order, in part, because Ragsdal “wasn’t ordered to pay restitution
for acquitted conduct” since the prosecution hadn’t charged him
with theft in excess of $300, and the jury only found him guilty of
theft of less than $300. Id. at ¶ 35. Rather, he was charged with
16 and convicted of the lower-level theft count, and “[t]he pecuniary
losses included in the restitution order [were] directly related to the
unlawful conduct underlying Ragsdal’s charges and convictions.”
Id. at ¶¶ 35, 39.
¶ 30 We agree with the Ragsdal division’s reasoning. “The
[restitution] statute focuses on a defendant’s criminal conduct” and
pecuniary losses proximately caused by that conduct, not the
charged offense itself. Id. at ¶ 41 (emphasis added); see also
18-1.3-602(3)(a) (defining restitution as any pecuniary loss
proximately caused by an offender’s conduct). Indeed, cases like
Knapp, Cowen, Sosa, and Roddy limit a district court’s authority in
imposing restitution based on conduct underlying the particular
restitution damages. They hold that the court may not award
restitution based on conduct for which the defendant was acquitted
or not charged or for which the charges were dismissed. See
Knapp, ¶ 81; Cowen, ¶ 24; Sosa, ¶ 26; Roddy, ¶¶ 30-33. But when
the victim’s pecuniary losses were proximately caused by the
criminal conduct that constitutes the basis for the defendant’s
conviction, the restitution statute requires the district court to order
the defendant to make full restitution to the victim by paying an
17 amount that is sufficient to place the victim in the same financial
position the victim was in before that conduct. § 18-1.3-601(1)(b).
As the Ragsdal division put it, “charging a defendant with a
lower-level theft count than the evidence ultimately supports isn’t a
basis for capping a restitution award if the record establishes that
the same criminal conduct that supports the defendant’s charge
and conviction proximately caused losses in excess of th[e] amount
[set out in the theft statute].” Ragsdal, ¶ 41.
¶ 31 Here, R.O-S. pleaded guilty to misdemeanor theft of up to
$1,999.99. However, the evidence presented at the restitution
hearing supports the district court’s determination that R.O-S.’s
break-in and ensuing conduct proximately caused the victim
pecuniary losses exceeding that amount. Under these
circumstances, we conclude that the district court didn’t lack
authority to order R.O-S. to pay $3,045.41 in restitution.
III. Disposition
¶ 32 The order is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.