People v. Miranda Christine Moss

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
August 11, 2022

2022COA92

No. 20CA1912, People v. Moss — Criminal Law — Sentencing —
Restitution — Pecuniary Loss — Proximate Cause

A division of the court of appeals clarifies that for restitution to

be considered related to charged conduct, the pecuniary loss must

be tied to conduct committed on the date or dates the defendant is

charged with having committed the offense.
COLORADO COURT OF APPEALS 2022COA92

Court of Appeals No. 20CA1912
Mesa County District Court No. 19CR2233
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Miranda Christine Moss,

Defendant-Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur

Announced August 11, 2022

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Miranda Christine Moss, appeals the district

court’s order requiring her to pay restitution in the amount of

$461.13. In resolving her appeal, we clarify that the rule that a

defendant cannot be ordered to pay restitution for uncharged

conduct necessarily means that any pecuniary loss must be tied to

conduct of the defendant occurring on the dates of the offenses of

which the defendant is convicted. Because the prosecution did not

connect the date of some of the losses Moss allegedly caused to the

date of the conduct for which she was criminally charged, we

reverse the order in part and remand for further proceedings.

I. Background

¶2 In early 2019, Moss was in possession of the victim’s 2004

Ford Mustang. Moss and the victim disagree about whether, and

when, she had permission to use the car. But on November 9,

2019, the victim sent Moss a text message demanding that she

return it. When Moss did not immediately do so, the victim called

the police and reported the car stolen. On November 19, 2019,

officers observed the Mustang and contacted Moss near the vehicle.

After Moss acknowledged she was driving the vehicle, the officers

arrested her.

1
¶3 Moss was charged with numerous offenses relating to her

unlawful possession of the Mustang. She pleaded guilty to

aggravated motor vehicle theft1 and first degree criminal trespass (of

the victim’s apartment), and the remaining charges were dismissed.

Both the dismissed charges and the charges to which Moss pleaded

guilty alleged that the offenses occurred “on or about November 19,

2019.” Moss agreed that the dismissed charges “may be considered

for sentencing and restitution.”

¶4 The prosecution requested $4,187.19 in restitution. The

request was based on a repair estimate completed eight months

after the police recovered the vehicle. Moss objected to the

restitution amount and asserted that she did not proximately cause

the damages to the vehicle.

¶5 The district court set the matter for a hearing. After two days

of testimony, the court found that the prosecution had not met its

burden of establishing that Moss proximately caused all of the

1 The aggravators she admitted in her motor vehicle theft plea
included retaining possession of the vehicle for more than
twenty-four hours and/or putting the wrong license plate on the
car. See § 18-4-409(2)(a), (h), C.R.S. 2021. She was neither
charged with nor convicted of the aggravator involving causing
damage to the vehicle. See § 18-4-409(2)(e).

2
claimed damages. However, the district court found that the

damages Moss proximately caused required replacement of the

transmission fluid and the battery and “cause[d] [the victim] to have

to pay a tow bill to have the vehicle returned to him.” The court

imposed restitution in the amount of $461.13.

II. Discussion

¶6 Moss contends that the district court erred by ordering

restitution for the battery and transmission fluid because (1) she

was not the proximate cause of the alleged loss and (2) she was not

charged with or convicted of an offense pertaining to property

damage and did not agree to pay restitution for such property

damage under the plea agreement.2

A. Standard of Review

¶7 Moss challenges the restitution award on two interrelated

grounds. She argues that the need to replace the transmission

fluid and the battery were not related to any charged crime and,

2Moss does not contest the restitution order as it relates to the
$275.00 cost of towing so we leave that portion of the order
undisturbed.

3
alternatively, that insufficient evidence established her liability for

these amounts.

¶8 To the extent Moss challenges the court’s authority to order

restitution for uncharged conduct, we review that claim de novo.

People v. Roddy, 2021 CO 74, ¶ 23.

¶9 As to Moss’s sufficiency of the evidence challenge, both parties

assert that our review is de novo, relying on People v. Barbre, 2018

COA 123, ¶ 25. (Moss actually cites People v. Rice, 2020 COA 143,

¶ 22, overruled on other grounds by People v. Weeks, 2021 CO 75;

Rice, ¶ 22, in turn, cites Barbre.) We agree but add some

clarification.

¶ 10 In the context of reviewing the sufficiency of the evidence for

conviction, what we review de novo is not the ultimate conclusion of

guilt by the fact finder but, rather, “whether the prosecution put

forward sufficient evidence to ‘[meet] its burden of proof with

respect to each element of the crime charged.’” People v. Garcia,

2022 COA 83, ¶ 16 (quoting Martinez v. People, 2015 CO 16, ¶ 22).

¶ 11 Our supreme court has not addressed whether a sufficiency

challenge to a restitution order falls under the same rubric as a

challenge to the sufficiency of the evidence supporting a conviction.

4
In Barbre, however, a division of this court concluded that “the

appropriate standard is to review de novo 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 that

amount of loss.” Barbre, ¶ 25. As with a sufficiency challenge to a

conviction, however, “[w]e will not disturb a district court’s findings

and conclusions if the record supports them, even though

reasonable people might arrive at different conclusions based on the

same facts.” People v. Dyson, 2021 COA 57, ¶ 15 (quoting People in

Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009)); cf. People v.

Martinez, 2022 COA 28, ¶ 60 (J. Jones, J., specially concurring)

(pointing out that proximate cause for restitution purposes is a

question of fact and as such should be reviewed for clear error).3

Thus, our de novo determination is whether the prosecution

presented sufficient evidence to convince a reasonable fact finder by

3 In People v. Martinez, 2022 COA 28, ¶ 14, the majority held that a
trial court’s proximate cause determination for restitution purposes
is reviewed for abuse of discretion. We disagree and, thus, decline
to follow that opinion. See Chavez v. Chavez, 2020 COA 70, ¶ 13
(noting that a division of this court is not bound by decisions of
other divisions).

5
a preponderance of the evidence of the amount of restitution owed.

(Because the parties do not raise the issue, and because it does not

impact our analysis, we do not explore any differences that may

exist between the clear error standard invoked by Judge Jones in

Martinez and the standard announced in Barbre.)

B. Analysis

¶ 12 When a district court sentences a defendant, it must address

restitution. § 18-1.3-603(1), C.R.S. 2021. Restitution means any

pecuniary loss suffered by a victim that was proximately caused by

the defendant’s conduct and that can be reasonably calculated and

recompensed in money. See § 18-1.3-602(3)(a), C.R.S. 2021. In the

context of restitution, proximate cause is a cause which in natural

and probable sequence produced the claimed loss and without

which the claimed loss would not have been sustained. People v.

Rivera, 250 P.3d 1272, 1274 (Colo. App. 2010).

¶ 13 A defendant may not be ordered to pay restitution, however,

for losses that did not stem from the conduct that was the basis of

their conviction. Roddy, ¶ 32. Consequently, a district court may

not award restitution for damages arising from criminal conduct (1)

of which the defendant was acquitted, Cowen v. People, 2018 CO

6
96, ¶ 24; (2) for which the defendant was never criminally charged,

People v. Sosa, 2019 COA 182, ¶ 26; or (3) which underlies a

dismissed charge, id. at ¶ 28; Roddy, ¶ 32. (Of course, a defendant

may agree to be held responsible for restitution arising out of

charges that are dismissed as part of a plea bargain. See Roddy,

¶ 28 (citing Sosa, ¶ 30)).

¶ 14 Consistent with these cases, we further conclude that the

conduct giving rise to a defendant’s convictions necessarily includes

only conduct occurring on the dates of the offenses of which the

defendant is convicted, unless otherwise explicitly agreed to by the

parties as part of a plea agreement. After all, this is the only period

during which a defendant is established, either by their plea or

conviction, to be an “offender” under section 18-1.3-602(3)(a). See

Cowen, ¶ 21; Roddy, ¶ 26; Sosa, ¶ 26.4

¶ 15 Both charges to which Moss pleaded guilty alleged that her

criminal conduct occurred on or about November 19, 2019. Thus,

the only conduct for which Moss may be deemed an “offender”

4Of course, the damage (or pecuniary loss) does not necessarily
need to occur on the date(s) of the offense, provided that it was
proximately caused by unlawful conduct engaged in by the
defendant on the charged date(s).

7
occurred on or about that date. But the prosecution presented no

evidence that the need to replace the transmission fluid or the

battery stemmed from Moss’s conduct on or about November 19.

While Moss testified that she had added transmission fluid to the

car in February 2019 (testimony which the district court found not

credible based on contrary testimony of a defense witness), there

was no evidence that the need to further replace the transmission

fluid occurred on or about November 19 or was caused by Moss’s

conduct on or about that date. Similarly, there was no evidence

that Moss’s unlawful possession damaged the car battery. And

although there was some indication that Moss had possession of

the victim’s car without his permission for several days — and

perhaps even weeks or months — she was only charged with

engaging in unlawful conduct on or about that one day.

¶ 16 We note that the extent of acceptable date variation indicated

by “on or about” language is somewhat unclear. See Deeds v.

People, 747 P.2d 1266, 1273-74 (Colo. 1987) (two days); Lomax v.

Cronin, 194 Colo. 523, 525, 575 P.2d 1285, 1286 (1978) (one day).

Nevertheless, even with some inherent flexibility in the charged

date, the evidence presented at the hearing does not establish that

8
Moss caused the claimed damage to the vehicle during her unlawful

possession. Thus, without a charge or conviction establishing that

Moss’s possession of the vehicle was unlawful at any other time,

Moss cannot be responsible for restitution in a criminal case for

damage caused by her conduct on any other day.5 Therefore, the

district court erred by ordering restitution for the transmission fluid

and battery.6

¶ 17 The People contend that Moss was an “offender” for the

conduct that formed the basis of both charges, namely, unlawfully

entering the victim’s home to take the keys to the vehicle and then

absconding with the vehicle for over eight months. While this may

have been the intended theory of prosecution, it was not what the

People charged. Even the dismissed charges identified on or about

November 19 as the sole date of offense. Because Moss was not

5 Though Moss admitted to retaining possession of the vehicle for
more than twenty-four hours and/or putting the wrong license
plate on the car, there was still no evidence adduced at the
restitution hearing that the claimed damage was caused by her
conduct during the period she unlawfully possessed the car.
6 Our resolution is the same whether we focus on the fact that the

purported damages were not related to charged conduct or on the
fact that there was insufficient evidence presented to establish
proximate cause.

9
convicted for (or even charged with) any conduct during this

eight-month timeframe, she cannot be required to pay restitution

for damage that occurred to the vehicle before her unlawful

possession began.7 See People in Interest of D.I., 2015 COA 136,

¶ 18 (concluding that the evidence did not establish proximate

cause where the damage to the vehicle occurred two days before the

defendant exercised control over the vehicle).

¶ 18 To be clear, we do not agree with Moss to the extent she

argues that restitution must be directly related to an element of the

crimes for which she was convicted. (She argues, in part, that

because she did not specifically plead guilty to — and was not

charged with — damaging the vehicle, she cannot be held

responsible for that damage.) A defendant is responsible for making

“full restitution to those harmed by their misconduct.”

§ 18-1.3-601(1)(b), C.R.S. 2021 (emphasis added). But while

restitution need not be tied to a specific element of the crime, it

must be tied to unlawful conduct for which a defendant was

7Of course, because none of the dismissed charges related to
conduct occurring before the date of offense alleged in the
complaint, her agreement that the dismissed charges “may be
considered for . . . restitution” is of no import.

10
convicted — including the date(s) on which that conduct was

alleged to have occurred.

¶ 19 Accordingly, as to the transmission fluid and the battery, the

restitution order cannot stand because it is not supported by an

evidentiary link between the conduct for which Moss was convicted

(or even charged) and the victim’s damages.

III. Disposition

¶ 20 We reverse the district court’s restitution order as to the

transmission fluid and battery and remand with directions to

impose restitution for the towing costs only.

JUDGE DAILEY and JUDGE BERGER concur.

11