People v. Ragsdal

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

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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

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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

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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.

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¶ 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.

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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

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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.

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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.

1. Additional Facts

¶ 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.

2. Applicable Legal Principles and Standard of Review

¶ 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.

3. Application

¶ 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.

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