People v. Christopher F. Poot-Baca

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
November 30, 2023

2023COA112

No. 20CA1153, People v. Poot-Baca — Crimes — Identity Theft
— Criminal Possession of a Financial Device; Criminal Law —
Prosecution of Multiple Counts for Same Act — Lesser Included
Offenses

A division of the court of appeals concludes that criminal

possession of a financial device, § 18-5-903(1), C.R.S. 2023, is not a

lesser included offense of identity theft, § 18-5-902(1)(a), C.R.S.

2023, under either section 18-1-408(5)(a), C.R.S. 2023, or section

18-1-408(5)(c). Because the division also rejects the defendant’s

other claims, the division affirms the judgment and restitution

order.
COLORADO COURT OF APPEALS 2023COA112

Court of Appeals No. 20CA1153
City and County of Denver District Court No. 19CR1327
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher F. Poot-Baca,

Defendant-Appellant.

JUDGMENT AND ORDER AFFIRMED

Division IV
Opinion by JUDGE NAVARRO
Grove and Lum, JJ., concur

Announced November 30, 2023

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse Marie Maranjian, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Christopher F. Poot-Baca, appeals the judgment of

conviction imposed on jury verdicts finding him guilty of robbery of

an at-risk person, identity theft, and criminal possession of a

financial device. He also appeals the district court’s restitution

order. We affirm the judgment and order. In doing so, we hold that

criminal possession of a financial device is not a lesser included

offense of identity theft.

I. Factual and Procedural History

¶2 On the night of January 14, 2019, eighty-one-year-old Minnie

Sheppard was waiting at a bus stop when a man pushed her to the

ground, took her purse and bag, and ran away. Police and

paramedics arrived at the scene and transported Sheppard to the

hospital, where she was diagnosed with a knee fracture.

¶3 While at the crime scene, Sheppard described her assailant’s

physical appearance to the officers and said he had been drinking

out of a Coca-Cola (Coke) bottle, which he dropped before attacking

her. At the hospital, she clarified that it was actually a Coke can.

An officer collected a Coke can from the crime scene, and a DNA

sample taken from it matched that of Poot-Baca.

1
¶4 Sheppard’s credit card, a Discover Card, was in her purse

when it was stolen. The following day, three unauthorized charges

were made online with the credit card. A few hours later, two men

shopped at a Foot Locker store, and one tried to use her card. The

transactions were declined, and the interaction was recorded on

surveillance video. Poot-Baca was later arrested wearing a

sweatshirt very similar to the one worn by the man in the

surveillance video — a purple sweatshirt bearing an image of

Marilyn Monroe.

¶5 The prosecution charged Poot-Baca with robbery of an at-risk

adult, a crime of violence, identity theft, and criminal possession of

a financial device. A jury convicted him as charged.

¶6 On appeal, Poot-Baca contends that the district court erred by

(1) admitting evidence of Sheppard’s pretrial identification of him

and her identification of him during trial; (2) failing to merge the

possession of a financial device conviction with the identity theft

conviction because the former is a lesser included offense of the

latter; and (3) ordering restitution for uncharged conduct.

2
II. Identification Evidence

¶7 Poot-Baca contends that the district court erroneously

admitted into evidence Sheppard’s identifications of him as the

robber because they were the unreliable products of an

impermissibly suggestive pretrial identification procedure. We

conclude, however, that any error was harmless beyond a

reasonable doubt.

A. Standard of Review and Preservation

¶8 Because the admission of an unreliable identification of the

defendant violates due process, People v. Martinez, 2015 COA 37,

¶ 11, and because Poot-Baca preserved the issue, we apply the

constitutional harmless error standard to determine whether any

error requires reversal. See id. at ¶ 10. “Under this standard, the

prosecution must show the error was harmless beyond a reasonable

doubt.” Id. “If there is a reasonable possibility the error

contributed to the conviction, we will reverse.” Id.

B. Relevant Facts

¶9 Sheppard provided a description of the robber shortly after the

incident, but she did not identify anyone as the robber when

3
presented with two photographic arrays of potential suspects, one

of which included a photograph of Poot-Baca.

¶ 10 Before trial, the parties appeared in court for a deposition of

Sheppard under section 18-6.5-103.5, C.R.S. 2023, premised on

her at-risk status. The prosecution wished to preserve her

testimony for presentation at trial if she was not available at the

time of trial. See § 18-6.5-103.5(4). Defense counsel sought to

waive Poot-Baca’s appearance at the deposition, but the prosecutor

objected. The district court ruled that Poot-Baca had to attend the

deposition because Sheppard’s deposition testimony might become

a substitute for her trial testimony.

¶ 11 The prosecutor did not ask Sheppard to identify her assailant

during the deposition. Immediately afterward, however, Sheppard

spontaneously told the prosecution’s investigator that she

recognized Poot-Baca as her assailant. Defense counsel moved to

suppress this identification and any subsequent in-court

identification. The court denied the motion, finding there was no

“impermissibly suggestive pretrial identification procedure arranged

by law enforcement” and “[t]he inherent suggestiveness of the

courtroom setting [did] not rise to the level that requires the Court

4
to assess the identification for reliability under [Neil v.] Biggers[, 409

U.S. 188 (1972)].”

¶ 12 Sheppard testified during the trial. The prosecutor asked her

about recognizing Poot-Baca as the robber during the deposition.

Sheppard confirmed that she had recognized him then, and she

again identified him during trial as the man who had robbed her.

Defense counsel extensively cross-examined Sheppard about the

circumstances surrounding her identification of Poot-Baca, calling

its reliability into question in light of those circumstances.

C. Analysis

¶ 13 Poot-Baca contends that the district court erred by (1) denying

his request to waive his presence at the deposition; (2) admitting

Sheppard’s pretrial identification of him following the deposition

because it was unreliable under the circumstances; and

(3) admitting her subsequent in-court identification. We need not

decide whether the court erred because any error was harmless in

light of the other identification evidence admitted at trial and not

challenged on appeal.

¶ 14 Most significantly, the prosecution admitted DNA evidence

that identified Poot-Baca as the robber. Sheppard told officers

5
immediately after the robbery that the robber had been drinking a

Coke product and had thrown the can on the ground at the bus

stop. Officers retrieved the Coke can approximately twenty minutes

later and found no other Coke cans at the bus stop. According to

other trial evidence, a match for the DNA profile obtained from the

can was “estimated to be at least 2 octillion times more likely if the

sample originated from Christopher Poot-Baca than if it originated

from one unknown unrelated person.” Based on this data, and in

the absence of a showing that Poot-Baca had an identical twin, the

evidence showed that the probability was greater than 99.9 percent

that Poot-Baca was the source of the DNA on the Coke can.

¶ 15 At trial, Poot-Baca argued that the DNA evidence established

only that he was in the area some time before the robbery. He

presented somewhat vague evidence that he had attended

appointments in the area near the bus stop and that he did not

show up at an appointment on the day of the robbery. But that

evidence did not actually place him at the bus stop previously or

show that he took the bus on prior occasions. In any event, the fact

that Sheppard saw the robber drinking out of the Coke can

6
immediately before the robbery firmly connected Poot-Baca to the

robbery given the DNA evidence.1

¶ 16 Moreover, a still photo from an officer’s body camera footage

recorded when the officer first responded to the scene supported

Sheppard’s account. That photo shows a Coke can on a sidewalk.

Photos taken by officers when they returned to the scene twenty

minutes later also show a Coke can on the sidewalk. None of the

photos depicts any other Coke cans. If Poot-Baca’s theory that he

might have left the Coke can at the bus stop before the robbery

were true, however, there should have been two Coke cans left at

the bus stop: the can with his DNA as well as the one the robber

left. But the police discovered only the Coke can with Poot-Baca’s

DNA. Hence, to believe the defense theory, the jury would have had

to find that, in the twenty minutes between the police’s first

response to the scene and their second, someone removed the Coke

can the robber threw on the ground and replaced it with a Coke can

bearing Poot-Baca’s DNA. We do not discern a reasonable

1 As noted, Sheppard first said it was a Coke bottle but clarified

shortly thereafter that it was actually a Coke can. She consistently
maintained that the robber drank from a Coke container, and no
other Coke container was found at the crime scene.

7
possibility that the jury would have made this finding if only

Sheppard’s identifications of Poot-Baca had not been admitted at

trial.

¶ 17 Furthermore, the prosecution presented evidence that the

person who tried to use Sheppard’s credit card at Foot Locker

shortly after the robbery wore the same distinctive sweatshirt as

Poot-Baca wore when he was arrested a month later. That is, the

evidence showed that Poot-Baca possessed Sheppard’s credit card

taken during the robbery and attempted to use it the next day.

¶ 18 As a result, the prosecution presented overwhelming evidence

that Poot-Baca was the robber, independent of Sheppard’s

identifications of him. Given this other evidence identifying him as

the culprit, we conclude that the guilty verdicts were surely

unattributable to the alleged error in admitting Sheppard’s

identifications. Therefore, the alleged error was harmless beyond a

reasonable doubt. See Martinez, ¶ 15 (holding that, given the

substantial evidence that the defendant was the person whom the

victim saw trying to break into her home, which was independent of

the victim’s identification of him during a show-up procedure, any

error in admitting the identification evidence was harmless beyond

8
a reasonable doubt); see also People v. Singley, 2015 COA 78M,

¶ 34 (“[C]onsidering the extensive evidence of Singley’s guilt, we

conclude that any error by the trial court in implicitly concluding

that J.A.C.’s out-of-court identification was reliable under the

totality of the circumstances was harmless beyond a reasonable

doubt.”); People v. Houser, 2013 COA 11, ¶ 56 (“[W]e further

conclude that overwhelming evidence of defendant’s guilt rendered

this error harmless beyond a reasonable doubt.”).

III. Double Jeopardy

¶ 19 Poot-Baca next contends that criminal possession of a

financial device is a lesser included offense of identity theft. As a

result, he says, the district court erred by not merging his

conviction for criminal possession of a financial device with his

conviction for identity theft. We disagree.

A. General Principles

¶ 20 To the extent Poot-Baca’s claim presents a question of

statutory construction, we review it de novo. People v. Kern, 2020

COA 96, ¶ 31. In interpreting a statute, our task is “to ascertain

and give effect to the General Assembly’s intent.” Id. We begin with

the statute’s plain language, examining “the statutory design as a

9
whole” and “giving effect to the language of each provision and

harmonizing apparent conflicts where possible.” Id. We read the

statute’s language in context and construe the words and phrases

according to their common usage. Id.

¶ 21 We also review de novo whether a conviction violates the

constitutional prohibition against double jeopardy. Id. at ¶ 26.

Because Poot-Baca did not preserve this claim, we may reverse only

if plain error occurred. Id.

¶ 22 The United States and Colorado Constitutions forbid imposing

multiple punishments for the same offense if the legislature has not

authorized multiple punishments. Id. at ¶ 27. When a defendant’s

conduct establishes the commission of more than one offense, the

defendant may be prosecuted for each such offense. Id.; see § 18-1-

408(1), C.R.S. 2023. “If one offense is included in the other,

however, the defendant may not be convicted of both.” Kern, ¶ 27;

see § 18-1-408(1)(a).

B. The Offenses at Issue

¶ 23 As relevant here, a person commits identity theft if the person

“[k]nowingly uses the personal identifying information, financial

identifying information, or financial device of another without

10
permission or lawful authority with the intent to obtain cash, credit,

property, services, or any other thing of value or to make a financial

payment.” § 18-5-902(1)(a), C.R.S. 2023. As charged in this case,

identity theft is a class 4 felony. § 18-5-902(2).

¶ 24 “A person commits criminal possession of a financial device if

the person has in his or her possession or under his or her control

any financial device that the person knows, or reasonably should

know, to be lost, stolen, or delivered under mistake as to the

identity or address of the account holder.” § 18-5-903(1), C.R.S.

2023. As charged here, this offense is a class 2 misdemeanor.

§ 18-5-903(2)(a).

¶ 25 A “financial device” includes a credit card. § 18-5-901(6)(a),

C.R.S. 2023.

C. Section 18-1-408(5)(a)

¶ 26 Poot-Baca argues that criminal possession of a financial device

is a lesser included offense of identity theft under section 18-1-

408(5)(a) (subsection 408(5)(a)). Pursuant to that provision, one

offense is included in another charged offense when “[i]t is

established by proof of the same or less than all the facts required

to establish the commission of the offense charged.” § 18-1-

11
408(5)(a); see also Reyna-Abarca v. People, 2017 CO 15, ¶ 51. This

test requires a court to “compare the elements of the statutes rather

than the specific evidence used to sustain the charges in a

particular case.” People v. Welborne, 2018 COA 127, ¶ 8.

¶ 27 Under our supreme court’s interpretation of subsection

408(5)(a), “an offense is a lesser included offense of another offense

if the elements of the lesser offense are a subset of the elements of

the greater offense, such that the lesser offense contains only

elements that are also included in the elements of the greater

offense.” Reyna-Abarca, ¶ 64. Our supreme court has since refined

this “subset” test to clarify that there are two ways for an offense to

be included in another for purposes of subsection 408(5)(a). See

People v. Rock, 2017 CO 84, ¶ 16; Page v. People, 2017 CO 88,

¶¶ 10-11; see also Kern, ¶ 28; Welborne, ¶¶ 11-12.

¶ 28 First, a lesser offense is included in the greater offense when

there are multiple ways to commit the greater and proof of the

commission of at least one of those ways necessarily proves

commission of the lesser. Kern, ¶ 28; Page, ¶ 10. Second, an

offense may be included in another under the statutory elements

test when there are multiple ways to commit the lesser, not all of

12
which are included within the greater. Kern, ¶ 28; Page, ¶ 11.

Under those circumstances, “[a]ny set of elements sufficient for

commission of that lesser offense that is necessarily established by

establishing the statutory elements of a greater offense constitutes

an included offense.” Welborne, ¶ 12 (quoting Rock, ¶ 16).

¶ 29 Criminal possession of a financial device does not qualify as a

lesser included offense of identity theft under either test because

criminal possession of a financial device has at least one element

not included in identity theft. Specifically, the offense of criminal

possession of a financial device requires proof that the defendant

knew, or reasonably should have known, that the financial device

was “lost, stolen, or delivered under mistake as to the identity or

address of the account holder.” § 18-5-903(1). The offense of

identity theft premised on use of a financial device does not include

this element. See § 18-5-902(1). Hence, proving the elements of

identity theft does not necessarily establish the elements of criminal

possession of a financial device.

¶ 30 To elaborate, the offense of identity theft premised on the use

of another person’s financial device requires proof that the

defendant knowingly used the device “without permission or lawful

13
authority.” Id. Proof that the defendant knowingly used the

financial device without permission or lawful authority does not

necessarily prove that the defendant knew, or should have known,

that the device was lost, stolen, or delivered under mistake. For

instance, consider the following hypothetical: Person A asks

Person B to hold onto their credit card but instructs them not to

use it. Person B then uses the card to purchase something without

receiving permission from Person A. Person B would know that the

card was not lost, stolen, or misdelivered; so Person B could not be

convicted of criminal possession of a financial device. See § 18-5-

903(1)(a). But Person B could be guilty of identity theft because

they used the credit card without permission or lawful authority.

See § 18-5-902(1).

¶ 31 In sum, because proof of identity theft does not necessarily

establish criminal possession of a financial device, criminal

possession is not a lesser included offense under subsection

408(5)(a). Cf. Kern, ¶ 35 (holding that, because a person could

commit the offense of throwing a missile without also committing

the offense of littering, littering was not a lesser included offense);

Page, ¶ 19 (concluding that establishing the elements of sexual

14
assault by means of penetration necessarily established the

elements of unlawful sexual contact because there was no way to

commit sexual assault without also committing unlawful sexual

contact).

D. Section 18-1-408(5)(c)

¶ 32 Alternatively, Poot-Baca says the lesser offense was included

in the greater under section 18-1-408(5)(c) (subsection 408(5)(c)).

Under that provision, an offense is included in another if “[i]t differs

from the offense charged only in the respect that a less serious

injury or risk of injury to the same person, property, or public

interest or a lesser kind of culpability suffices to establish its

commission.” § 18-1-408(5)(c). Our supreme court has recently

explained that an offense is included in another under this

provision if it differs from the offense charged only in the respect

that “(1) a less serious injury or risk of injury, a lesser kind of

culpability, or both a less serious injury or risk of injury and a

lesser kind of culpability suffice to establish its commission; and

(2) no other distinctions exist.” Pellegrin v. People, 2023 CO 37,

¶ 34. If any other distinctions exist, subsection 408(5)(c) does not

apply. Id.

15
¶ 33 Poot-Baca contends that subsection 408(5)(c) applies because

the only distinction between the two offenses is that there is a “less

serious injury/risk of injury to the same cardholder” in criminal

possession of a financial device. We disagree because other

distinctions between the offenses exist.

¶ 34 First, the two offenses punish different conduct. Criminal

possession of a financial device prohibits the possession itself, while

identity theft prohibits the use of the financial device. See §§ 18-5-

903(1), 18-5-902(1)(a). Although use necessarily includes

possession, that does not mean the prohibited conduct is the same.

To illustrate, we note that the supreme court in Pellegrin compared

a stalking statute that prohibited repeatedly “following,

approaching, contacting, surveilling, or communicating” to a

harassment statute that prohibited only a single improper

communication. Pellegrin, ¶ 40. The supreme court concluded that

the statutes “punish different conduct.” Id. In doing so, the

supreme court rejected application of the “subset test” to

subsection 408(5)(c). See id. at ¶¶ 42-45.

¶ 35 Second, the statutes protect different things. Criminal

possession of a financial device protects only financial devices, see

16
§ 18-5-903(1), while identity theft is broader because it also

protects personal identifying information and financial identifying

information, see § 18-5-902(1)(a). Although a financial device is

included in both statutes, the difference between the statutes

matters for purposes of subsection 408(5)(c). See Pellegrin, ¶ 39

(concluding that subsection 408(5)(c) did not apply because the

stalking statute protected both a specific person and a member of

that person’s immediate family, or someone with whom that person

has or has had a continuing relationship, while the harassment

statute protected only a single specific person).

¶ 36 Accordingly, we conclude that criminal possession of a

financial device is not a lesser included offense of identity theft

under subsection 408(5)(c). For all the reasons we have discussed,

therefore, the district court did not err by failing to merge Poot-

Baca’s convictions for those two offenses.

IV. Restitution

¶ 37 Poot-Baca contends the district court erred by ordering him to

pay restitution to Discover Card for losses resulting from

transactions that he was not convicted of executing. Because

17
sufficient evidence supports the court’s finding that he was the

proximate cause of those losses, we disagree.

A. Standard of Review

¶ 38 We review de novo whether a court has the authority to

impose restitution. People v. Roddy, 2021 CO 74, ¶ 23; see also

People v. Moss, 2022 COA 92, ¶ 8. Some disagreement exists,

however, as to the appropriate standard of review for assessing

whether sufficient evidence supports a restitution order. See People

v. Babcock, 2023 COA 49, ¶ 17 (“We note, however, that the

appropriate standard of review is far from clear.”). Some divisions

of this court have applied de novo review, while others have

reviewed for an abuse of discretion. See Moss, ¶ 9 (applying de

novo review); People v. Barbre, 2018 COA 123, ¶ 15 (applying de

novo review); People v. Martinez, 2022 COA 28, ¶ 14 (applying abuse

of discretion review) (cert. granted Oct. 24, 2022).

¶ 39 Even when reviewing de novo, however, our review is

deferential to the district court’s finding that the defendant was the

proximate cause of the claimed loss. Under that standard, an

appellate court “review[s] the record de novo to determine whether

the evidence was sufficient in both quantity and quality to support

18
a restitution award.” Babcock, ¶ 18. 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 loss.

Id.; see also Barbre, ¶ 25. “[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.” Babcock, ¶ 18 (citation omitted). That is, our review is

limited to “whether the prosecution presented sufficient evidence to

convince a reasonable fact finder by a preponderance of the

evidence of the amount of restitution owed.” Id. (citation omitted).

Given the deferential nature of de novo review in this context and

because the outcome here would be the same under any standard

of review, we apply de novo review as Poot-Baca requests.2

B. Relevant Facts

¶ 40 Poot-Baca was convicted of robbery for taking Sheppard’s

purse and bag by force on January 14, 2019. He was convicted of

committing identity theft and possession of a financial device based

2 The People decline to take a position on the proper standard of

review.

19
on actions on January 15 involving the Discover Card that had

been in her purse. The prosecution sought restitution in the

amount of $2,651.90 to reimburse the Crime Victims’

Compensation Board and Discover Card. Poot-Baca objected to the

$102.40 requested for Discover Card’s losses, which represented

purchases from various vendors (none of which was Foot Locker).

¶ 41 At the restitution hearing, Poot-Baca argued that the losses

incurred by Discover Card were not proximately caused by his

conduct because the identity theft and criminal possession of a

financial device convictions were based only on evidence that he

used the credit card to attempt a purchase at Foot Locker, which

was declined. His argument was rooted in defense counsel’s

request during trial that the prosecutor elect which transaction

formed the basis for the identity theft charge, given that the same

credit card was affiliated with multiple transactions on the same

day. The prosecutor elected to rely on the evidence related to Foot

Locker to support the identity theft count. Although neither the

jury instructions nor the verdict forms limited any count to the Foot

Locker evidence, the prosecutor in closing argument relied on that

20
evidence to support both the identity theft and the criminal

possession of a financial device counts.

¶ 42 The court rejected Poot-Baca’s argument and awarded the

restitution amount requested by the prosecution. The court found

as follows:

[B]ut for [Poot-Baca] setting these wheels in
motion there wouldn’t have been a loss, and
there isn’t any real significant proof of any
intervening cause that would offset that, and
so I find that the People have met their burden
of proving the restitution that is — is against
Mr. Poot-Baca in the amount of two thousand
six hundred and fifty-one dollars and ninety
cents. That includes the Victims Comp Fund
and the — the amount owed to Discover Card
in this case . . . .

C. Relevant Law

¶ 43 A person found guilty of criminal conduct must “make full

restitution to those harmed by their misconduct.” § 18-1.3-

601(1)(b), C.R.S. 2023. Restitution “means any pecuniary loss

suffered by a victim . . . proximately caused by an offender’s

conduct . . . that can be reasonably calculated and recompensed in

money.” § 18-1.3-602(3)(a), C.R.S. 2023.

¶ 44 Proximate cause in the context of restitution is “a cause which

in natural and probable sequence produced the claimed loss and

21
without which the claimed loss would not have been sustained.”

Moss, ¶ 12. “The prosecution must prove by a preponderance of the

evidence that the defendant’s conduct proximately caused the

victim’s loss and the amount of that loss.” Babcock, ¶ 19.

¶ 45 Generally, a defendant may not be ordered to pay restitution

for losses unless they stem from the conduct that was the basis of

the conviction. Moss, ¶ 13. “Consequently, 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. (citations omitted).

D. Application

¶ 46 Poot-Baca argues that he cannot be ordered to pay restitution

to Discover Card because Discover Card’s losses did not result from

his conduct underlying his convictions for identity theft or criminal

possession of a financial device. Even if we accept the premise that

Discover Card’s losses cannot be tied to those convictions, however,

we reject Poot-Baca’s claim because those losses can be tied to his

robbery conviction. Viewing the evidence in the light most favorable

to the prosecution, we conclude that it adequately supports the

22
district court’s finding that Poot-Baca’s robbery proximately caused

$102.40 in losses to Discover Card.

¶ 47 As noted, the jury found that Poot-Baca robbed Sheppard by

forcibly taking her purse, which contained her Discover card. The

evidence of this robbery permitted the district court to reasonably

find that his taking the credit card produced, in a natural and

probable sequence, the unauthorized use of the card. This

consequence was foreseeable even though the robbery offense itself

did not require proof that Poot-Baca used the taken property to

another’s financial detriment. See id. at ¶ 18 (rejecting the

defendant’s claim that “restitution must be directly related to an

element of the crimes for which she was convicted,” concluding

instead that restitution “must be tied to unlawful conduct for which

a defendant was convicted”).

¶ 48 Moreover, the evidence did not compel the court to find an

intervening cause that interfered with the natural and probable

sequence of events. See People v. Clay, 74 P.3d 473, 475 (Colo.

App. 2003) (defining an intervening cause). The evidence permitted

a finding that Poot-Baca took the card from Sheppard on

January 14, and he possessed the card after the January 15 credit

23
card transactions at issue. His attempted purchase with the card

at Foot Locker occurred around 2 p.m. on January 15. All three

Discover transactions at issue were made on January 15 before

2:00 p.m. The fact that Poot-Baca possessed the card shortly after

those three transactions supported the court’s finding that there

was not an intervening cause of the losses. That is, the evidence

supported the finding that Poot-Baca took the credit card the night

of January 14 and still had it around 2:00 p.m. on January 15.

Therefore, the evidence was sufficient to show that Poot-Baca’s

conduct in robbing Sheppard of the credit card was the proximate

cause of the unauthorized credit card purchases made within that

timeframe. See People v. Jaeb, 2018 COA 179, ¶ 50 (“[E]ven if we

assume that the trailer was damaged by the police, the damage was

the natural and probable consequence of defendant’s theft and

would not have occurred but for his actions.”).

¶ 49 Therefore, we affirm the district court’s finding that Poot-Baca

was the proximate cause of Discover Card’s losses.

V. Conclusion

¶ 50 The judgment and order are affirmed.

JUDGE GROVE and JUDGE LUM concur.

24