Peo v. Burgess

24CA0123 Peo v Burgess 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0123
Weld County District Court No. 23CR652
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Zackary Samuel Burgess,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Jones, Deputy State
Public Defender, Greeley, Colorado, for Defendant-Appellant
¶1 Defendant, Zackary Samuel Burgess, appeals the district

court’s restitution order. We affirm.

I. Background

¶2 Burgess stole a pickup truck owned by his mother’s employer.

The truck was returned to the owner the next day “severely”

damaged. The entire driver’s side was “annihilated,” scratched

“from the headlight to the back taillight”; the passenger’s side was

dented; the bug shield was broken; the windshield was cracked; the

truck would not start; all fuses were removed; the rear bumper was

damaged; the brakes and rotors were damaged; the rear taillight

cover was broken; and there were cuts in the sidewalls of the tires.

¶3 Burgess was charged with felony first degree aggravated motor

vehicle theft and felony criminal mischief. He pleaded guilty to

misdemeanor second degree aggravated motor vehicle theft and

misdemeanor criminal mischief, in exchange for dismissal of the

original counts. As part of the plea agreement, Burgess

“stipulate[d] to a factual basis and proximate cause as to all

charged, pled and/or dismissed counts for restitution purposes.”

1
¶4 The prosecution requested $5,789 in restitution, based on the

top end of the Kelley Blue Book estimated range of the truck’s fair

market value. Burgess objected and requested a hearing.

¶5 At the hearing, the victim testified that she used the Kelley

Blue Book estimate to determine the truck’s value. Without

objection, the district court admitted a copy of the Kelley Blue Book

estimate, which showed a value in the range of $3,952 to $5,789.

The victim testified that she believed the value of her truck before

the theft equaled the high end of the estimate because she had

purchased the truck new and had “taken really good care of” it.

¶6 She testified that the estimates she had gotten to repair the

truck were double its estimated value, which she “could not afford

to do at all.” But she had sufficiently repaired the truck to “g[e]t it

running enough that [she] can go pick up feed and hay” locally.

¶7 Defense counsel argued that the Kelley Blue Book estimate

was “insufficient to show the actual pecuniary loss that [the victim]

suffered here.” Counsel further argued that “[t]here was no

testimony offered about what the value of the truck was on [the day

before it was stolen], versus the value of the truck when it was

2
returned to the [victim’s] family a couple days later.” But there was

no evidence presented at the hearing of the truck’s salvage value.

¶8 At the close of the hearing, the district court deferred ruling on

restitution so it could “examine the record and give some

consideration as to what’s set off . . . based on the value of the

vehicle and the condition that it was returned” to the victim. The

court found that the victim’s testimony and the Kelley Blue Book

estimate were competent evidence of the vehicle’s value. It further

found that the truck was likely totaled. But it determined that

“even in that totaled state[,] that totaled vehicle has some value.”

¶9 In a subsequent written order, the district court awarded

restitution for the full requested amount of $5,789. The court

accepted the victim’s testimony as to the value of the truck and

found that the truck had been totaled. But it found that “the

vehicle was not a complete loss” because the victim retained

possession “and a totaled vehicle still retains some salvage value.”

¶ 10 Nevertheless, because there was no evidence of what the

salvage value was, the court ordered restitution for the full value of

the truck. Characterizing the issue as one of “setoff” and citing

People v. Lassek, 122 P.3d 1029 (Colo. App. 2005), overruled on

3
other grounds by Sullivan v. People, 2020 CO 58, the court

concluded that “it was appropriate to assign the burden of proving

the value of any setoff to the parties asserting the setoff.”

II. Analysis

¶ 11 Burgess contends that the district court erred by awarding the

full requested restitution amount because (1) the prosecution did

not present evidence of the victim’s actual pecuniary loss, and

(2) the court improperly shifted the burden to Burgess to present

evidence of the salvage value. We discern no reversible error.

A. Standard of Review

¶ 12 The parties both assert that the applicable standard of review

is clear error. See Martinez v. People, 2024 CO 6M, ¶ 32. But

Burgess does not challenge the district court’s interpretation of the

evidence before it. Id. at ¶ 20. Instead, he challenges whether the

quantum of evidence presented by the prosecution was sufficient to

establish the amount of restitution. Id. That is a challenge to the

sufficiency of the evidence. Id.; see also People v. Barbre, 2018 COA

123, ¶ 25. Thus, we review the record de novo to determine

whether the evidence, “when viewed as a whole and in the light

4
most favorable to the prosecution, is sufficient to support the

district court’s ruling” as to the amount of restitution.1 Barbre, ¶ 1.

B. Applicable Law

¶ 13 The district court must award restitution for “any pecuniary

loss suffered by a victim . . . [that was] proximately caused by an

offender’s conduct.” § 18-1.3-602(3)(a), C.R.S. 2024. The

prosecution bears the burden of proving by a preponderance of the

evidence both the amount of the victim’s losses and that those

losses were proximately caused by the defendant’s criminal

conduct. People v. Dyson, 2021 COA 57, ¶ 12. It may meet this

burden through documentary or testimonial evidence. People in

Interest of A.V., 2018 COA 138M, ¶ 35; People v. Courtney, 868 P.2d

1126, 1128 (Colo. App. 1993) (concluding that victim’s testimony

regarding value of stolen tools was competent evidence of value).

¶ 14 In determining the restitution amount, the district court may

rely on the evidence presented by the prosecution, absent a defense

showing that the evidence is inaccurate. A.V., ¶¶ 30, 35; see also

1 We would reach the same conclusion if we reviewed the restitution

award for clear error. For the same reasons that the evidence is
sufficient to support the district court’s finding, that finding has
record support. See Martinez v. People, 2024 CO 6M, ¶ 34.

5
People v. Miller, 830 P.2d 1092, 1094 (Colo. App. 1991) (holding

that “if the defendant fails to show that the information [submitted

by the prosecution] is inaccurate or untrue, the trial court is

entitled to rely upon the report or statement as submitted”). As the

fact finder, the district court “has the authority to determine the

weight of the evidence, the witnesses’ credibility, and ultimately the

accuracy of the estimate” of the total pecuniary loss. A.V., ¶ 29.

C. Restitution Amount

¶ 15 At the restitution hearing, the prosecution presented

(1) evidence of the value of the truck before the theft, consisting of

the Kelley Blue Book estimate and the victim’s testimony; and

(2) the victim’s testimony that the cost to repair the truck exceeded

its value, meaning the truck was totaled. This evidence, viewed in

the light most favorable to the prosecution, is sufficient to support

the district court’s finding that the victim’s total pecuniary loss was

$5,789 — the estimated value of the truck. See People v. Thornton,

251 P.3d 1147, 1150 (Colo. App. 2010) (holding that Kelley Blue

Book estimate is admissible to prove vehicle’s value); People v.

Moore, 226 P.3d 1076, 1084 (Colo. App. 2009) (“An owner is always

competent to testify as to the value of his or her property.”).

6
¶ 16 Burgess presented no evidence that this estimate of the loss

was inaccurate. See A.V., ¶¶ 30, 35; Miller, 830 P.2d at 1094. On

appeal, he points to the district court’s statements that “the vehicle

was not a complete loss” and “a totaled vehicle still retains some

salvage value.” But to the extent these constitute findings by the

district court, there is nothing in the record to support them. There

was no evidence at the hearing that the truck had any salvage value

after the theft, much less what that supposed salvage value was.

¶ 17 Although the victim testified that she was eventually able to

get the truck “running enough [to] go pick up feed and hay,” that

was only after completing $700 in repairs. Before those repairs, the

truck “would not start,” the brakes “were almost non-existent,” and

“every single fuse” had been removed. There was no evidence of the

truck’s value, if any, in that condition. Thus, the evidence provided

no basis for the district court to find that the vehicle had any value

when it was returned to the victim — particularly when it would

have cost more to repair the vehicle than the vehicle was worth.

¶ 18 We agree with Burgess that the district court erred by

characterizing the potential salvage value of the truck as a “setoff.”

A defendant is entitled to a setoff against a restitution order for “any

7
money actually paid to the victim for the same damages.” People v.

Gregory, 2019 COA 184, ¶ 24; see also Lassek, 122 P.3d at 1034-

35; § 18-1.3-603(6), C.R.S. 2024. Burgess did not argue that the

victim in this case had recovered some portion of the loss from

another source. His argument was that the prosecution did not

meet its burden of proving the amount of the loss in the first place.

¶ 19 But terminology aside, the result is the same. The prosecution

presented evidence sufficient to show the estimated amount of the

loss, including that the truck was totaled and could not be repaired.

There was no evidence presented to show otherwise — namely, that

the truck in fact retained some value and how much. The district

court therefore properly relied on the evidence presented to impose

restitution for the total estimated value of the truck. A.V., ¶ 30.

III. Disposition

¶ 20 The order is affirmed.

JUDGE FOX and JUDGE JOHNSON concur.

8