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People v. Barbre

Court of Appeals of Colorado, Third Division

August 23, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kress Nicole Barbre, Defendant-Appellant.

          Arapahoe County District Court No. 15CR3360 Honorable Patricia D. Herron, Judge

          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

          DAVIDSON JUDGE [*]

          ¶ 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 ยง ...


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