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Court of appeals allows restitution for security system installed prior to burglary

State v. Thomas J. Queever, 2016 WI App 87; case activity (including briefs)

Thomas Queever tried to break into a house. We know this because the home’s security system captured video of him doing so. The circuit court and the court of appeals ordered him to pay the cost of said security system, concluding that the expense of installing it was the “result of a crime considered at sentencing,” even though it was installed prior to the burglary of which Queever was convicted. Does the court of appeals’ authority extend to reversing the arrow of time?

Not exactly, but this decision does involve some contortions of prior case law. You see, Queever successfully broke into this particular victim’s house on multiple occasions before the attempt for which he was charged and convicted. After a few break-ins, the victim installed hidden cameras inside and outside her house. These captured images of the burglar that were not good enough to identify him. So, the victim installed a more comprehensive security system. This system got a good enough look a Queever that the police recognized him. And similarities between all the images and the burglaries’ modi operandi (including, as the court notes, the burglar’s “mullet” haircut, a first for that term in our state’s law) allowed the sentencing court to conclude, by a preponderance of the evidence, that Queever had done those earlier burglaries too. (¶¶14-15). Because those burglaries had inspired the purchase of the security system, the court held the expense the result of Queever’s actions and ordered restitution.

But here’s the problem. The statute does not permit restitution on the simple basis that a defendant’s actions caused the victim’s loss. Rather, the business in front of a restitution court is to determine whether the victim’s damages “resulted” from “a crime considered at sentencing.” “Crime considered at sentencing” is defined as “any crime for which the defendant was convicted and any read-in crime.” Wis. Stat. § 973.20(2) & (1g)(a). Even conceding, as Queever effectively does, that he was the party in back of the victim’s house in those prior images, he was not charged with those burglaries, so by definition they were not “crimes considered at sentencing.”

The court of appeals deals with this difficulty by relying on several cases, but they are distinct in crucial ways. For example,  the court notes that State v. Madlock, 230 Wis. 2d 324, 602 N.W.2d 104 (Ct. App. 1999), requires a court “determining whether there is a causal nexus between the victim’s claimed damage and the crime considered at sentencing [to] ‘take a defendant’s entire course of conduct into consideration.'” Madlock does say that, quoting State v. Rodriguez, 205 Wis. 2d 620, 627, 556 N.W.2d 140 (Ct. App. 1996). But the issue in Rodriguez was whether a hit-and-run driver could be made to pay for expenses resulting from the death of the bicyclist he struck. Rodriguez argued that his only offense was “leaving the scene” of the accident, which did not cause the death; the court responded that two of the elements of the crime to which he pled were that he had operated a vehicle involved in an accident and that the accident had resulted in injury. Id. at 627.  The point of the above-quoted language, as well as another Rodriguez quote the court relies on–“The restitution statute does not empower the court to break down the defendant’s conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim’s damages,” id.–is that the damages may be the result of any part of the “crime considered at sentencing,” not that restitution is owed for any conduct (even if criminal) that is somehow akin to the crime pled to or read in.

And indeed, “akin to” is the substance of the court’s conclusion here that the previous burglaries, which had occurred months earlier, were one “course of conduct” with the charged burglary. To wit:

Those prior burglaries were “related to” the attempted burglary that was considered at Queever’s sentencing, see Canady, 234 Wis. 2d 261, ¶10, in that the prior burglaries and the attempted burglary involved the same home, the same victim, and the same time of night, and each involved the perpetrator entering or attempting to enter the victim’s home through the same sliding glass door. On these facts, we conclude the prior burglaries and the attempted burglary were part of a single course of criminal conduct.

(¶22). The cited precedent once again fails to support the court’s conclusion: the defendant in Canady was convicted, inter alia, of resisting an officer; during the struggle to subdue him the arresting officer grabbed a pry bar he thought Canady was trying to use as a weapon and tossed it away, damaging a door. It was in this context that the court observed that for restitution a “crime”  encompasses “all facts and reasonable inferences concerning the defendant’s activity related to the crime for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge….” Id. at 267. Thus the court determined that Canady’s actions during his crime of resistance–that is, the actions that constituted that crime–were a “precipitating cause” of the damage. Id. Canady′s single phrase “related to” provides no support for making Queever liable for uncharged crimes simply because they they were similar to his crime of conviction. Of what earthly significance, for restitution, is the fact that Queever used the same door months before his charged crime? (Curiously, here the court does not mention the mullet, though it, too, connected the offenses.)

The court finally relies on State v. Lumpkins, No. 2012AP1670, unpublished slip op. (WI App Apr. 2, 2013), an unpublished but citable case. There, the court upheld a restitution award for damage to a stolen van that the defendant had used to carry out armed robberies. As the court there noted

Lumpkin’s actions were [a] precipitating cause of the damages to the van because, had the van not been stolen and used to commit robberies, it would have been in the care of its owner, and not damaged. Additionally, we conclude that the damage is a “natural consequence” of the van’s being stolen. While it certainly does not automatically follow that property damage is a consequence of an item’s being stolen, we need not determine that it is the only conceivable consequence; we instead determine whether it is a “natural” consequence. We conclude that the property damage to the van was in fact a natural consequence of its being stolen.

(¶13). The obvious problem: unlike in Lumpkin, here one plainly cannot say that the victim’s installation of a security system was a “natural consequence” of the only “crime considered at sentencing” (again, a statutorily defined term)–because that crime happened months after the installation.

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