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Guesswork is good enough to support restitution order

State v. Angela C. Nellen, 2017AP257-CR, District 4, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Completely overlooking the victim’s own restitution hearing testimony that she was guessing about the number and value of the coins they believe were stolen by Nellen, the court of appeals blames Nellen for “fail[ing] to support [her] argument” that the record was insufficient to support the circuit court’s $90,000 restitution order for 30 coins at $3,000 each.

Nellen pled guilty to theft of coins from K.K. and G.K., who had hired Nellen and her boyfriend to help them reorganize and remodel their home. At the restitution hearing M.C., the daughter of K.K. and G.K., testified about the estimated value of the coins because G.K., who had apparently collected the coins, was suffering from dementia. The court characterizes M.C.’s testimony as being based on based on her memory of seeing the coins once in the previous 10 years and what she could recall her father told her about them, and that while she couldn’t recall the specifics of each coin she did some Internet research and did some internet research suggesting the coins were worth between $3,000 to $15,000 each, and that there were 30 to 50 coins in the collection. (¶¶4, 9).

At a restitution hearing the victim has the burden to prove the amount of loss by a preponderance of the evidence, § 973.20(14)(a). As Nellen points out, a preponderance of the evidence finding cannot be based on guesswork, which, however well-intentioned, is not evidence that has a “convincing power” or may be believed “in light of reason and common sense.” Wis. J.I.-Civil 200 at 4. But impressed by the fact the circuit court took the low end of one aspect of M.C.’s testimony (30 coins x $3,000), the court dismisses Nellen’s complaints about the sufficiency of that testimony to support the award:

¶10     Nellen argues that this testimony amounted to mere “guesswork” and did not establish “to a reasonable certainty that there were 30 missing silver coins valued at $3,000 each.” However, Nellen fails to support this argument. On cross-examination of M.C., Nellen’s attorney did not present a compelling challenge to the extent or quality of M.C.’s research into the value of the coins. For example, Nellen’s attorney did not ask M.C. what websites, if any, aside from Google and eBay she might have consulted, nor why she believed that any particular website she visited could have been reliable or unreliable. In short, Nellen fails to persuade me that the record demonstrates that M.C. did not provide the circuit court with adequate foundational testimony to establish that she could give reasonable estimates of both the number and the values of the coins.

What a reader will never learn from the court’s opinion (but can read about in Nellen’s brief-in-chief) is that M.C. herself was well aware of the guesswork she was engaged in, and that it led her to temper the request for restitution. M.C. explained there was no itemized inventory of the coins because her father was a hoarder. She candidly acknowledged she did not know how many coins were in the safe and so guessed there were around 30 to 50 coins. She explained the value of the coins depends on their condition and year of origination and that she did not know the condition or year of origination of any of the coins. In the absence of this crucial information, the Internet research to find “the going rates” for some of the types of coins they knew were stolen still meant it was:

difficult to put an actual number on it, so we really just kind of low-balled everything and just made a guess for everything that was missing and that was how we came to that. …. Just from the guesses we were making and just from the notation I was kind of doing as we were going along, it was somewhere—depending on how much the value of the silver coins themselves were ranging anywhere between $3,000 and $15,000 each, so we kind of went with . . . $500 for each of those and that was where we came up with the lowest number [of $25,000, for 50 coins].

The circuit court even asked M.C. to clarify whether a coin in the worst condition, in the least valuable year, would be worth $3,000, and M.C. responded she could not say what a coin in a lesser condition would be worth, and that it might essentially be worthless.

Yet in the face of M.C.’s testimony—testimony it fails to discuss—the court of appeals concludes it is Nellen who doesn’t support her argument? And that Nellen didn’t adequately question M.C. about her research, when M.C. herself explained why—without knowing condition and year of origin and number of coins—that research could do little more than give pie-in-the-sky numbers? Astounding. Compensating a victim for his or her losses is laudable; ignoring the evidence isn’t.

Nellen also challenges restitution for one of three changes in locks on K.K. and G.K.’s residence. She argues the third change, which included a change to the garage lock, wasn’t casually related to her criminal conduct but only to her boyfriend’s, who continued to have contact with and steal from K.K. and G.K. after Nellen was charged. (¶¶5-6, 12, 15). This argument fails because it is undisputed that Nellen also stole items from the garage, and that necessitated a change to that lock, too. (¶16).

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