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Restitution appropriate where victim’s injuries could have been caused by conduct for which defendant was convicted or by conduct for which he was acquitted

State v. Richard J. Nelson, 2014AP1794-CR, District 3, 2/24/15 (one-judge decision; ineligible for publication); case activity (including briefs)

While the victim’s injuries could have been caused by the alleged conduct for which Nelson was acquitted, they could also have been the result of the conduct for which Nelson was convicted. Thus, there was a basis for finding a causal connection between Nelson’s conduct and the injuries and the circuit court properly ordered restitution.

Nelson was charged with disorderly conduct and battery after an incident with his girlfriend, Cynthia. The jury acquitted him of battery but convicted him of disorderly conduct, and the circuit court ordered restitution for Cynthia’s medical expenses. Nelson argued the battery acquittal means the jury rejected Cynthia’s testimony that Nelson punched and pushed her and therefore there’s no causal nexus between the only crime considered at sentencing (disorderly conduct) and Cynthia’s injuries, State v. Hoseman, 2011 WI App 88, ¶16, 334 Wis. 2d 415, 799 N.W.2d 479 (to order restitution, there must be a “causal connection between the defendant’s conduct and harm suffered by the claimant”). (¶¶3-14, 18).

There are at least two versions of the facts on which the jury could have acquitted on the battery counts but nevertheless found Nelson committed disorderly conduct in a manner that resulted in injuries to Cynthia:

  • The jury could have concluded Nelson hit or pushed Cynthia during the course of their argument, but that the physical contact was unintentional or not intended to harm her. That would lead to acquittal on the battery but conviction on disorderly conduct, because hitting or pushing Cynthia was violent or abusive conduct that tended to cause or provoke a disturbance. “On this version of the facts, a causal connection would still exist between Nelson’s disorderly conduct and Cynthia’s medical expenses, despite his acquittal on the battery charges.” (¶21).
  • Alternatively, the jury could have found that Nelson caused Cynthia to fall down by moving away from her after she grabbed him during the course of the argument. Any injuries Cynthia sustained in the fall would have been a natural consequence of Nelson’s conduct even if he didn’t intend to injure her: “[U]nder these circumstances, Nelson’s conduct would have set into motion events that resulted in Cynthia’s injuries. See [State v.] Longmire, [2004 WI App 90,] 272 Wis. 2d 759, ¶13[, 681 N.W.2d 534] (causal link for restitution purposes exists when the defendant’s criminal act set into motion events that resulted in the damage or injury).” (¶22).

The court also rejects Nelson’s claim there was no showing that the medical expenses incurred were necessary, § 973.20(3)(a), because based on the facts it was reasonable for Cynthia to go to the ER, which then decided which diagnostic tests to run. (¶¶24-26).

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