People v. Henson

2013 COA 36, 307 P.3d 1135, 2013 WL 1235859, 2013 Colo. App. LEXIS 440
CourtColorado Court of Appeals
DecidedMarch 28, 2013
DocketCourt of Appeals No. 10CA0789
StatusPublished
Cited by25 cases

This text of 2013 COA 36 (People v. Henson) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Henson, 2013 COA 36, 307 P.3d 1135, 2013 WL 1235859, 2013 Colo. App. LEXIS 440 (Colo. Ct. App. 2013).

Opinion

Opinion by

Judge GABRIEL

T 1 Defendant, Cassandra Henson, appeals the district court's order imposing restitution in the amount of $8628.31. We affirm the award of restitution for the victim's lost wages but reverse the award of restitution for the victim's diamond ring. As to the ring, we note that no published Colorado appellate decision appears to have addressed how restitution should be calculated in factual cireumstances like those present here. Decisions from courts in other jurisdictions, however, have addressed valuation issues in analogous circumstances. We are persuaded by the reasoning of those decisions, and applying that reasoning here, we conclude that [1137]*1137the district court erred in determining the value of the ring in its current condition, as part of its restitution calculation. We thus remand this case to the district court to allow that court to recalculate the restitution to be awarded with regard to the ring.

I. Background

{2 Henson stole the victim's purse, which contained, among other personal property, a 1.5 carat European cut diamond ring that had belonged to the victim's grandmother. The victim reported the theft to the police but then investigated the matter herself, after the police told her that her case "wasn't a priority."

T3 Based on her own efforts, the victim tracked down Henson. Henson, however, had already sold the ring to a jeweler (the jeweler), and the jeweler had sent the ring to a stone cutter to remove a chip in the diamond and to change the cut of the diamond from a European cut to a different kind of cut called a "modern brilliant" cut.

14 Ultimately, the victim recovered the ring, but it was returned to her with the diamond in an unfinished state and approximately .2 carats smaller than it had been when it was stolen.

T 5 Henson pleaded guilty to theft, and the district court imposed a three-year deferred judgment and sentence. After a hearing, the court ordered Henson to pay a total of $8628.31 in restitution, including $2925 in lost wages and $4425.45 for the diamond ring.

16 Henson now appeals the restitution order.

II. Documents Attached to the Opening Brief

T7 As an initial matter, we note that because our review is limited to the record on appeal, we will not consider the documents attached to Henson's opening brief, See Fendley v. People, 107 P.3d 1122, 1125 (Colo.App.2004) ("We are limited to the record presented and may consider only arguments and assertions supported by the evidence in the record.").

III. Restitution

T8 On appeal, Henson argues that the court erred in imposing restitution for the victim's lost wages in the amount of $2025 and for the diamond ring in the amount of $4425.45. We are not persuaded as to the lost wages but agree as to the ring.

A. - Standard of Review and Applicable Law

19 We review the district court's restitution order for an abuse of discretion. See People v. Rivera, 250 P.3d 1272, 1274 (Colo.App.2010). A district court abuses its discretion when it misconstrues or misapplies the law. People v. Reyes, 166 P.3d 301, 302 (Colo.App.2007). We will not disturb the district court's determination as to the amount of restitution if it is supported by the record. People v. Montanez, 2012 WL 2353799, 2012 COA 101, ¶ 8, 300 P.3d 940.

{ 10 "Restitution" is defined as "any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses ... and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." § 18-1.3-602(8)(a), C.R.S. 2012.

111 The prosecution bears the burden of proving, by a preponderance of the evidence, both the amount of restitution owed and that the victim's losses were proximately caused by the defendant. See People in Interest of K.M., 232 P.3d 310, 312 (Colo.App.2010) (noting that the prosecution's burden is by a preponderance of the evidence); People v. Martinez, 166 P.3d 2283, 224 (Colo.App.2007) (noting that in a restitution proceeding, the prosecution bears the burden of proving not only the victim's losses but also that those losses were attributable to the acts of the defendant).

112 "Proximate ecause in the context of restitution is defined as a cause which in natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained." Rivera, 250 P.3d at 1274, A defendant may not be ordered to pay restitution for losses that [1138]*1138did not stem from the conduct that was the basis of the defendant's conviction. Id.

B. Lost Wages

T13 Henson argues that the district court abused its discretion in awarding restitution for the victim's lost wages based on the days that she investigated the theft of her purse, because there was no evidence that the victim had actually lost wages on those days (Henson does not otherwise challenge the award of lost wages). We disagree.

114 "'[Llost wages' are wages not received by the victim from the date the crime was committed to the date restitution is imposed, or sooner if the victim is comparably employed prior to that date." People v. Bryant, 122 P.3d 1026, 1029 (Colo.App.2005).

T 15 Here, the court awarded restitution in the amount of $2925 for the victim's lost wages (six and one-half days at $450 per day), finding, as pertinent here, that:

® The victim did "extensive investigative work," and there was a reasonable need for the work, as confirmed by the testimony of a police detective (the detective) that the case was assigned to him because the victim had developed suspect information from which the detective could follow up.
*e The victim spent six and one-half days investigating the theft, and these days represented lost time at work.
® Each day of lost work resulted in lost income of $450.
*e The victim worked in an industry that provided sporadic work, so that when work was available, people in that industry worked seven days a week "at full tilt."
e The victim was paid by the days that she worked, so if she lost a day of working, she genuinely lost those wages.

{16 The record supports each of these findings. Specifically, the victim testified that at the time of the theft, she did oil and gas title research and lease spire work as an independent contractor for Timberlake Management Corporation (TMC). The victim submitted a sample billing invoice that showed she billed TMC $56.25 per hour for her work, which amounted to $450 for an eight-hour day. Additionally, the victim testified that her work schedule was "seven days a week" and that when she was working on a project, she tried to work as much as she could, in case she subsequently found herself out of work for a period of time. Her schedule was flexible and her workday could range from six to fifteen hours per day.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 36, 307 P.3d 1135, 2013 WL 1235859, 2013 Colo. App. LEXIS 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-henson-coloctapp-2013.