People v. Barbre, Court of Appeals No. 16CA2226

• Decision Date: 23 August 2018
• Docket Number: Court of Appeals No. 16CA2226
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kress Nicole BARBRE, Defendant-Appellant.
• Court: Colorado Court of Appeals

429 P.3d 95

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Kress Nicole BARBRE, Defendant-Appellant.

Court of Appeals No. 16CA2226

Colorado Court of Appeals, Division III.

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

Opinion by JUDGE DAVIDSON^*

¶ 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 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 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.

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 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, 381 P.3d 410 ("[The] defendant challenges the sufficiency of the evidence [supporting the restitution order]. We review sufficiency challenges de novo, determining 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, ––– P.3d –––– ; 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 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 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: "As a condition of every sentence to probation, the court shall order that the defendant make full restitution...." § 18-1.3-205,...