People v. Miranda Christine Moss ( 2022 )

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
2022COA92No. 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 2022COA92Court 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).
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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).
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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
696, ¶ 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).
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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
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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.
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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.
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