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 January 30, 2025
2025COA9
No. 22CA0606, People v. Ragsdal — Crimes — Second Degree
Burglary — Theft; Criminal Law — Sentencing — Restitution
In this criminal case, the defendant appeals his convictions for
burglary and theft and the associated restitution order. The
defendant was charged with and convicted of burglary and theft of
$50 or more but less than $300 based on allegations that he
unlawfully entered the victim’s home and stole multiple sets of
keys. Although the level of theft the defendant was charged with
and convicted of had an upper bound of $300, the evidence
presented at trial and the restitution hearing established that the
victim’s losses resulting from the theft exceeded $500. Based on
that evidence, the trial court imposed the full amount of the
restitution that the People sought. On appeal, the defendant contends the court erred by
imposing restitution in excess of the upper monetary limit of the
theft statute he was charged under and convicted of violating.
Citing Cowen v. People, 2018 CO 96, and People v. Sosa, 2019 COA
182, the defendant contends that by imposing restitution for theft
in excess of the upper bound of the theft statute of conviction, the
court abused its discretion. Recognizing that a court can’t impose
restitution based on acquitted conduct, Cowen, ¶ 24, or uncharged
conduct, Sosa, ¶ 26, a division of the court of appeals rejects the
contention that imposing restitution for theft in excess of the upper
monetary bound of the charged and convicted level of offense
violates either principle. Instead, the division concludes that
restitution for theft is governed by the same principles that apply to
any other request for restitution; that is, restitution is imposed in
favor of a crime victim for all out-of-pocket expenses proximately
caused by the criminal conduct for which the offender was
convicted, even if that conduct would have supported charging a
higher-level offense.
Because the division concludes that the record supports the
trial court’s restitution award and because it also rejects the defendant’s challenge to the trial court’s denial of his counsel’s
request for a mistrial, the division affirms the trial court’s judgment
of conviction and restitution order. COLORADO COURT OF APPEALS 2025COA9
Court of Appeals No. 22CA0606 Mesa County District Court No. 21CR496 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Casey B. Ragsdal,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division I Opinion by JUDGE WELLING J. Jones and Schock, JJ., concur
Announced January 30, 2025
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for Defendant-Appellant ¶1 Defendant, Casey B. Ragsdal, appeals his convictions for
burglary and theft and the associated restitution order. Ragsdal
was charged with and convicted of burglary and 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. Although the level of theft he was charged with and convicted
of had an upper bound of $300, the evidence presented at trial and
the restitution hearing established that the victim’s losses resulting
from the theft exceeded $500. Based on that evidence, the trial
court imposed the full amount of the restitution that the People
sought.
¶2 On appeal, Ragsdal contends that the court erred by imposing
restitution in excess of the upper monetary limit of the theft statute
he was charged under and convicted of violating. Citing Cowen v.
People, 2018 CO 96, and People v. Sosa, 2019 COA 182, he argues
that, by imposing restitution for theft in excess of the upper bound
of the theft statute of conviction, the court abused its discretion.
While it’s true that a court can’t impose restitution based on
acquitted conduct, Cowen, ¶ 24, or uncharged conduct, Sosa, ¶ 26,
we reject Ragsdal’s contention that imposing restitution for theft in
1 excess of the upper monetary bound of the charged and convicted
level of offense violates either principle. Instead, restitution for theft
is governed by the same principles that apply to any other request
for restitution; that is, restitution is imposed in favor of a crime
victim for “all out-of-pocket expenses . . . proximately caused by an
offender’s conduct,” § 18-1.3-602(3)(a), C.R.S. 2024 (emphases
added), even if that conduct would have supported charging a
higher-level offense. Because we conclude the record supports the
conclusion that the theft Ragsdal was charged with and convicted of
proximately caused losses commensurate with the restitution
imposed by the court, we won’t disturb the court’s restitution order.
¶3 And because we also reject Ragsdal’s challenge to the trial
court’s denial of his request for a mistrial, we affirm the trial court’s
judgment of conviction.
I. Background
¶4 Early in the morning on April 1, 2021, R.K. woke up to his
alarm clock and heard creaking from the floorboards above his
basement bedroom. R.K. didn’t think it was his roommate because
the sound was too quiet. Before heading upstairs to investigate the
sound, R.K. grabbed his handgun.
2 ¶5 Once he got upstairs, R.K. saw Ragsdal — a stranger — sitting
in his living room. R.K. asked Ragsdal who he was, and Ragsdal
replied, “I’m Casey.” When R.K. asked Ragsdal why he was in his
house, Ragsdal answered that it was cold outside. R.K. pointed the
gun at Ragsdal and told him to leave. Ragsdal complied, and R.K.
immediately called the police.
¶6 Shortly after calling the police, R.K. heard the alarm on his
truck go off. When R.K. went to look for his truck keys on the key
ring by his front door, he noticed that the key fobs for both his
Lexus and Ford F-150 were missing, as were four keys to a shed on
his property. Police arrived shortly thereafter.
¶7 A few hours later when R.K. left for work, he saw Ragsdal in
the alley behind his house near his two sheds. R.K. again called
the police and followed Ragsdal to a nearby bus stop. At the bus
stop, police contacted Ragsdal, R.K. identified him as the man who
had broken into his home, and the police arrested Ragsdal. When
the police searched Ragsdal, they didn’t find any keys on his
person.
¶8 The People charged Ragsdal with second degree burglary in
violation of section 18-4-203(1) and (2)(a), C.R.S. 2020, a class 3
3 felony,1 and theft of $50 or more but less than $300 in violation of
section 18-4-401(1), (2)(c), and (6), C.R.S. 2020, a class 3
misdemeanor,2 predicated on the missing car, truck, and shed keys.
¶9 Before trial, Ragsdal’s counsel endorsed choice-of-evils as an
affirmative defense, and during voir dire, the court indicated that
Ragsdal would be pursuing a choice-of-evils defense. Shortly before
opening statements, however, the prosecutor challenged whether
Ragsdal had a sufficient evidentiary basis to pursue such a defense.
The court asked defense counsel to make an offer of proof in
support of pursuing choice-of-evils. After providing defense counsel
with multiple opportunities to present an offer of proof, the trial
court ruled that the defense hadn’t presented an adequate basis for
pursuing the choice-of-evils defense at trial. Following the court’s
ruling prohibiting Ragsdal from asserting a choice-of-evils defense,
defense counsel moved for a mistrial based on “ineffective
1 At the time that Ragsdal entered R.K.’s home, the 2020 version of
the burglary statute was in effect, and because the statute has since been amended, this opinion applies the 2020 version. See Ch. 298, sec. 10, § 18-4-203(2)(a), 2023 Colo. Sess. Laws 1784-85. 2 At the time Ragsdal removed the keys from R.K.’s home, the 2020
version of the theft statute was in effect. Because the statute has since been amended, we apply the 2020 version. See Ch. 462, sec. 205, § 18-4-401(2)(b)-(c), 2021 Colo. Sess. Laws 3176-77.
4 assistance of counsel,” arguing that he wasn’t adequately prepared
to present the requisite offer of proof and needed more time to
investigate the factual basis for asserting a choice-of-evils defense.
The court denied counsel’s motion for a mistrial.
¶ 10 The jury convicted Ragsdal of both charges. Following the jury
trial, the People filed a request for restitution, to which Ragsdal
objected and requested a hearing. The court conducted a
restitution hearing and based on the evidence presented at that
hearing ordered Ragsdal to pay $501.92 in restitution.
II. Analysis
¶ 11 On appeal, Ragsdal contends that the trial court erred by
(1) denying his motion for a mistrial due to his counsel’s
unpreparedness and (2) ordering restitution in excess of the upper
bound of the theft statute he was charged under and convicted of
violating. We aren’t persuaded that the court erred in either regard.
A. The Trial Court Didn’t Err by Denying Ragsdal’s Motion for a Mistrial
¶ 12 Ragsdal first contends that the trial court erred by denying his
motion for a mistrial after defense counsel alerted the court that he
wasn’t prepared to present the requisite offer of proof to proceed
5 with a choice-of-evils affirmative defense. We disagree that the trial
court erred.
1. Additional Facts
¶ 13 Before trial, Ragsdal’s counsel endorsed a choice-of-evils
affirmative defense, contending that the cold weather justified
Ragsdal’s unlawful entry into R.K.’s home. On the first day of trial,
during voir dire, the court told the prospective jurors that Ragsdal
“has pleaded not guilty, asserting the defense of choice of evils.”
¶ 14 Later that day, outside the jury’s presence and before the
jurors had been sworn, the prosecutor requested an offer of proof
from Ragsdal’s counsel to support pursuing the choice-of-evils
affirmative defense at trial. The prosecutor said she believed that
Ragsdal predicated his theory of defense solely on the fact that it
was cold on the day in question and that, under Andrews v. People,
800 P.2d 607, 610 (Colo. 1990), Ragsdal needed to also proffer that
“all other potentially viable and reasonable alternative actions were
pursued, or shown to be futile” before the jury could be instructed
on the choice-of-evils defense. Ragsdal’s counsel responded that
the statute didn’t require this proffer and that he had “missed the
6 first prong” of what Andrews requires for a sufficient choice-of-evils
offer of proof.
¶ 15 The trial court gave defense counsel two opportunities to
confer with Ragsdal to see whether he could gather the information
necessary to provide an adequate offer of proof to support a choice-
of-evils defense. In the first instance, counsel briefly went off the
record and then argued to the court that Ragsdal was new to the
area, he was unaware of the resources available to him, and it was
too early in the morning for him to seek refuge at a public library
when he entered R.K.’s home. Counsel offered that, if given more
time, the defense would call Ragsdal’s mother to corroborate this
account of events. In reply, the court said it didn’t completely
understand counsel’s offer of proof and asked Ragsdal to talk to his
counsel, so he could provide the court with more information.
Counsel then asked the court for additional time to confer with
Ragsdal and spoke with Ragsdal off the record for twelve minutes.
When counsel came back on the record after conferring with
Ragsdal, he didn’t offer any additional information to the court and,
instead, moved for a mistrial.
7 ¶ 16 During argument on defense counsel’s motion for a mistrial,
the court asked defense counsel whether he was prepared to go to
trial without the choice-of-evils defense. Counsel responded, “If I
don’t have access to that defense, I can still run the trial . . . on Mr.
Ragsdal’s behalf[] and present a fairly strong defense to the two
main charges.”3
¶ 17 The trial court denied Ragsdal’s motion for a mistrial,
reasoning that defense counsel (1) would be effective in this case
because counsel had said that he was “prepared to go to trial and
argue things in the absence of that choice of evils defense”;
(2) hadn’t provided the court with a “reason to believe anything
would change in terms of [his] trial preparation or arguments [he]
would make” if given more time; and (3) hadn’t indicated or given
3 The People also charged Ragsdal with the lesser included offense
of first degree criminal trespass. In his colloquy with the court, defense counsel maintained that the lack of a choice-of-evils defense would leave him without “much of anything” to defend against the criminal trespass charge. In other words, counsel’s primary concern regarding the lack of a choice-of-evils defense related to his ability to defend against trespass, not burglary or theft. And because the jury returned a guilty verdict for burglary in the second degree, the jury didn’t reach a verdict on the lesser included trespass charge.
8 the court a reason to believe “that any of the offer of proof would be
different in the future.”
¶ 18 The trial court, however, also told Ragsdal’s counsel that, “if
you talk to [Ragsdal] this evening . . . and he gives you all sorts of
new information that you didn’t previously explore, that you think I
need to know in order to revisit this decision, you’re welcome to
bring it up to me.” Defense counsel never brought anything further
on the choice-of-evils defense to the court’s attention.
2. Applicable Legal Principles and Standard of Review
¶ 19 The choice-of-evils defense is a statutory affirmative defense
under which a defendant’s otherwise criminal conduct
is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
§ 18-1-702(1), C.R.S. 2024. In short, “[t]he choice of evils statute
requires that the defendant establish that the crime committed was
9 necessary to prevent an imminent injury.” Andrews, 800 P.2d at
610. Before a defendant may present a choice-of-evils defense, “the
court shall first rule as a matter of law whether the claimed facts
and circumstances would, if established, constitute a justification.”
§ 18-1-702(2). For the choice-of-evils affirmative defense to move
forward, a defendant must establish in an offer of proof that
(1) all other potentially viable and reasonable alternative actions were pursued [by the defendant], or shown to be futile, (2) the action taken had a direct causal connection with the harm sought to be prevented, and that the action taken would bring about the abatement of the harm, and, (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.
Andrews, 800 P.2d at 610 (footnotes omitted).
¶ 20 “A mistrial is a drastic remedy and is warranted only when
prejudice to the accused is so substantial that its effect on the jury
cannot be remedied by other means.” People v. Johnson, 2017 COA
11, ¶ 40. The decision whether to grant a mistrial is within the
sound discretion of the trial court. People v. Ned, 923 P.2d 271,
274 (Colo. App. 1996). Accordingly, we review a trial court’s denial
of a motion for a mistrial for an abuse of discretion. Johnson, ¶ 39.
10 A court abuses its discretion if the court’s decision is “manifestly
arbitrary, unreasonable, or unfair, or based on an erroneous
understanding or application of the law.” People v. Houser, 2013
COA 11, ¶ 57 (quoting People v. Orozco, 210 P.3d 472, 475 (Colo.
App. 2009)). “[A]bsent an abuse of discretion, the trial court’s
denial of a motion for mistrial will not be disturbed on review.”
Ned, 923 P.2d at 274.4
3. Application
¶ 21 We disagree with Ragsdal that the trial court abused its
discretion by denying his counsel’s motion for a mistrial.
¶ 22 To move forward with the choice-of-evils defense, defense
counsel needed to offer the court facts sufficient to support a
finding by reasonable jurors that Ragsdal had a justification for
unlawfully entering R.K.’s home, including the fact that Ragsdal
had pursued “all other potentially viable and reasonable alternative
4 The parties dispute what standard of reversal applies in the event
we conclude that the trial court erred by denying Ragsdal’s motion for a mistrial. Ragsdal argues that the error is one of constitutional dimension and thus constitutional harmless error applies. The People contend that the nonconstitutional harmless error standard applies. Because we discern no error, we don’t need to resolve this dispute. See People v. Douglas, 2015 COA 155, ¶ 59.
11 actions.” Andrews, 800 P.2d at 610. After defense counsel
conferred with Ragsdal — the person who presumably would be in
the best position to know what alternatives he pursued in advance
of unlawfully entering R.K.’s home — defense counsel couldn’t
identify any additional alternative actions Ragsdal took before
entering R.K.’s home or, besides Ragsdal’s mother, any additional
witnesses he would call, much less what these additional witnesses
would say, if the court provided additional time for investigation.
Based on the information counsel provided, the court didn’t have
any reason to believe that additional time would yield the
information needed to pursue the defense. Thus, the court didn’t
abuse its discretion by denying the motion for a mistrial.
¶ 23 Furthermore, when the court asked defense counsel whether
he was prepared to go to trial without the choice-of-evils defense,
counsel conceded that he was, at least with respect to the burglary
and theft charges. Based on this representation, the trial court
found that Ragsdal’s counsel “can be effective in this case.” Such a
finding was reasonable.
¶ 24 Finally, the court encouraged defense counsel to bring to the
court’s attention any additional information that came to light to
12 support the choice-of-evils defense. From the record before us, it
doesn’t appear that defense counsel brought any additional
information to the court’s attention on this point.
¶ 25 Accordingly, the trial court didn’t abuse its discretion by
denying Ragsdal’s counsel’s motion for a mistrial.
B. The Trial Court’s Restitution Order Doesn’t Include Amounts for “Uncharged Conduct”
¶ 26 Ragsdal next contends that the trial court erred by imposing
restitution “for uncharged conduct.” Invoking the reasoning of
Cowen and Sosa, Ragsdal argues that the trial court’s restitution
order for $501.92 includes amounts for “uncharged conduct”
because he was only charged with and found guilty of theft of $50
or more but less than $300 under section 18-4-401(2)(c). The trial
court didn’t err.
¶ 27 R.K. was the only witness who testified at the restitution
hearing. R.K. testified that he couldn’t replace the missing shed
keys without also replacing the locks and that he had spent $51.92
on the four new sets of locks and keys for his sheds. R.K. also
testified that he received an estimate that it would cost $150 to
13 replace the ignition key for the Ford F-150 and another estimate
that the Lexus remote wireless start key would cost closer to $300
to replace. And R.K. testified that when Ragsdal unlawfully entered
his home and the keys subsequently went missing, he wasn’t aware
how expensive the Lexus key was to replace and, at the time he
reported the crime, he had only provided police with his best
estimate of the cost.
¶ 28 At the conclusion of the hearing, the People requested
restitution in the amount of $501.92, the total cost for R.K. to
replace all his missing keys and change the locks on his two sheds.
Ragsdal’s counsel objected to this amount, resting on the record
before the court. After considering the evidence presented during
the hearing and the purpose of the restitution statute, the court
ordered restitution in the amount of $501.92.
¶ 29 As mentioned, restitution is “any pecuniary loss suffered by a
victim” that “includes but is not limited to all out-of-pocket
expenses . . . proximately caused by an offender’s conduct and that
can be reasonably calculated and recompensed in money.” § 18-
1.3-602(3)(a) (emphasis added). The purpose of the restitution
14 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. Perez, 2017 COA 52M, ¶ 19.
“[R]estitution is not limited by the jury’s findings but includes the
pecuniary loss suffered by the victim including, but not limited to,
all out-of-pocket expenses and other losses or injuries proximately
caused by an offender’s conduct.” People v. Smith, 181 P.3d 324,
327 (Colo. App. 2007) (emphasis added).
¶ 30 Restitution may not, however, be awarded for uncharged
conduct, Sosa, ¶ 26, or “for pecuniary losses caused by acquitted
conduct,” Cowen, ¶ 24.
¶ 31 We review a trial court’s restitution order for an abuse of
discretion. Sosa, ¶ 10.
¶ 32 Citing Cowen and Sosa, Ragsdal contends that a restitution
order in an amount in excess of $300 — the maximum value of the
stolen property under the provision of the theft statute that he was
charged with and found guilty of — penalizes him for uncharged
conduct. But neither Cowen nor Sosa supports Ragsdal’s
contention that the trial court erred or that his restitution exposure
15 must be commensurate with, or is capped by, the provision of the
theft statute he was charged and convicted under.
¶ 33 In Cowen, the defendant wrote two checks drawn on his
business checking account; one check was for $9,327.65 (the first
check), and the other check was for $13,158.00 (the second check).
Id. at ¶ 3. He wrote these checks knowing that the funds in his
business checking account were insufficient to cover either one. Id.
After both checks bounced, the People charged Cowen with two
counts of fraud by check — one count for each check. Id. at ¶ 5. A
jury convicted Cowen of the charge related to the first check but
acquitted him of the charge related to the second check. Id. At
sentencing, the People requested restitution in the amount of
$22,485.65 — the total amount of both checks. Id. at ¶ 6. Cowen
objected to any restitution for loss resulting from the second check
because he had been acquitted of the charge related to that check.
Id. After a hearing, the trial court granted the People’s requested
restitution. Id.
¶ 34 Cowen appealed, and a division of this court affirmed the trial
court’s restitution order, reasoning that, under the restitution
statute, a defendant could be liable for any underlying conduct that
16 proximately caused a victim’s loss, regardless of whether the
defendant had been convicted of a crime as it related to that
conduct. Id. at ¶ 7. The supreme court, however, reversed, holding
that the restitution statute doesn’t allow a court to impose
restitution for acquitted conduct. Id. at ¶ 41.
¶ 35 Unlike the defendant in Cowen, Ragsdal wasn’t ordered to pay
restitution for acquitted conduct. The People only charged Ragsdal
with theft of $50 or more but less than $300, see § 18-4-401(2)(c),
and the jury convicted Ragsdal on this charge. The People didn’t
charge Ragsdal with theft of a greater amount (though, based on
the evidence presented at the restitution hearing, it appears they
could have). Had Ragsdal been charged with and acquitted of a
theft charge for an amount greater than $300, Cowen could support
Ragsdal’s argument that the restitution order in excess of $300 was
an abuse of discretion. But Ragsdal wasn’t acquitted of a charge for
theft of an amount greater than $300 because the People never
pursued other higher-level theft charges. And Ragsdal points to
nothing in the record suggesting that the jury rejected the evidence
that Ragsdale stole the items that form the basis for the court’s
17 restitution order. Simply put, Cowen doesn’t support Ragsdal’s
contention.
¶ 36 Ragsdal’s reliance on Sosa doesn’t fare any better. In Sosa,
the defendant’s boyfriend and his friend shot and killed a man and
injured two others in a drive-by shooting. Sosa, ¶ 2. During an
investigation into the incident, Sosa admitted that she had helped
her boyfriend and his friend evade arrest after the shooting. Id. at
¶ 4. The People charged Sosa with one count of accessory after-the-
fact to the crime of first or second degree murder. Id. at ¶ 5.
Pursuant to a plea agreement, Sosa pleaded guilty to an added
count of accessory after-the-fact to second degree murder – heat of
passion, and the People dismissed the original count. Id. As part of
her plea agreement, Sosa acknowledged that the dismissed
accessory count would be considered for sentencing and restitution
purposes, but, in her plea agreement, Sosa never stipulated to
restitution liability as a principal actor. See id. at ¶ 42.
¶ 37 At sentencing, the People requested that Sosa pay nearly
$30,000 in restitution and that she be held jointly and severally
liable for the restitution with her codefendants. Id. at ¶ 6. The
restitution order included expenses associated with the homicide
18 victim’s death and assault victims’ injuries, all of which resulted
from the drive-by shooting. Id. at ¶ 37. Those expenses included
an assault victim’s medical bills and lost wages, the deceased’s
funeral costs and outstanding rent and utility bills, and travel
expenses incurred by the deceased victim’s family to attend his
funeral. Id.
¶ 38 Sosa appealed the restitution order and a division of this
court, relying on Cowen, reversed. Sosa, ¶ 43. The Sosa division
reasoned that Sosa wasn’t ever charged as a principal to the crime,
or with assisting her codefendants before or during the crime, and,
therefore, Sosa couldn’t be liable for any pecuniary losses the
victims had suffered as a result of the shooting itself because
“[t]hese losses would have been sustained regardless of Sosa’s
involvement after the shooting.” Id. at ¶ 37. The division, relying
on the reasoning of Cowen as noted, concluded that it was therefore
an abuse of discretion for the trial court to order restitution for
19 uncharged conduct5 and that such a practice runs afoul of
procedural due process principles. Sosa, ¶¶ 26, 36-37.
¶ 39 Sosa doesn’t support Ragsdal’s contention that the trial court
here imposed restitution for uncharged conduct. The pecuniary
losses included in the restitution order are directly related to the
unlawful conduct underlying Ragsdal’s charges and convictions —
namely, the theft of the keys from R.K.’s home. In Sosa, the death
and injuries that were the basis for the court’s restitution order
weren’t caused by any conduct that Sosa was charged with
committing. Here, though, had Ragsdal not stolen the keys, R.K.
wouldn’t have needed to replace them or his shed locks. Put
another way, that Ragsdal may have been, in retrospect,
undercharged, doesn’t make any of the conduct that underlies the
court’s restitution order uncharged.
5 Nothing in People v. Sosa, 2019 COA 182, contravenes or
abrogates the principle that a defendant can enter into a plea agreement stipulating that dismissed or uncharged counts will be considered in determining restitution. See id. at ¶ 29 (“To be clear, this holding does not prevent the prosecution and the defense from entering into a plea agreement pursuant to which dismissed or uncharged counts will be considered for purposes of restitution.”).
20 ¶ 40 Cutting to the chase, Ragsdal invites us to adopt a bright line
rule when it comes to restitution for theft (or any other crime where
the level of offense is defined in terms of monetary value) under
which the upper bound of the monetary range for the charged level
of the offense caps the restitution amount. We decline Ragsdal’s
invitation, as such a rule finds no grounding in the restitution
statute or our case law.
¶ 41 Restitution for theft is subject to the same principles as any
other restitution order. As mentioned, the restitution statute
provides that restitution means “any pecuniary loss suffered by a
victim and includes but is not limited to all out-of-pocket expenses
. . . proximately caused by an offender’s conduct and that can be
reasonably calculated and recompensed in money.” § 18-1.3-
602(3)(a) (emphasis added); see also Smith, 181 P.3d at 327
(“Section 18-1.3-205 states that ‘the court shall order that the
defendant make full restitution,’ and this includes the victim’s
pecuniary losses and all out-of-pocket expenses.”). The statute
focuses on a defendant’s criminal conduct — which here is the
theft. And Cowen and Sosa limit the reach of the restitution statute
to ensure that restitution isn’t imposed for acquitted conduct or
21 uncharged conduct. But 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 that amount.
¶ 42 The evidence presented at Ragsdal’s restitution hearing
supports that, to make R.K. whole, an appropriate restitution order
needed to exceed $300, and the trial court acted well within its
discretion by ordering restitution that fully recompensed R.K. for
the pecuniary losses he suffered as a result of the criminal conduct
for which Ragsdal was charged and convicted. The trial court
neither imposed restitution for uncharged conduct nor acquitted
conduct in this case. Accordingly, we affirm the trial court’s
restitution order.
III. Disposition
¶ 43 For the reasons set forth above, the trial court’s judgment of
conviction and order of restitution are affirmed.
JUDGE J. JONES and JUDGE SCHOCK concur.