Peo in Interest of RO-S

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.

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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).

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“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).

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¶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,

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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

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(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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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,

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“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

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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

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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.

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