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Restitution for damage to stolen van that is later used to commit robberies

State v. Devante J. Lumpkins, 2012AP1670-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity

Lumpkins is liable for restitution for damage to a stolen van he and two co-defendants (“The Jack Boys”) used to commit two armed robberies, even though Lumpkins was not charged with or convicted of the theft of the van. Restitution requires that there be a “direct victim” of the crime and a causal connection between the defendant’s conduct and the claimed damages (¶7), and both of those requirements were present here.

First, the van owner was a “direct victim” of the armed robberies, as the owner is analogous to the homeowners in State v. Hoseman, 2011 WI App 88, ¶¶16-23, 334 Wis. 2d 415, 799 N.W.2d 479, who unwittingly rented a home to someone running a hydroponic marijuana growing operation, which caused significant damage to the home :

¶12      We think that the difference between using a house to procure an illegal substance and using a car to rob people is insignificant, and that Hoseman is directly on point. During the robberies considered at sentencing, Lumpkins and The Jack Boys used the van to find victims, take them by surprise, rob them at gunpoint, and make a quick getaway. While Lumpkins attempts to distinguish Hoseman by pointing out that he could have robbed these individuals without the van, the fact of the matter is that the van was integral to the commission of the crimes. Nor are we persuaded that the fact that the van in this case was stolen two weeks prior to the robberies, and was used for other purposes—such as obtaining fast food—should affect our analysis. Lumpkins and The Jack Boys used the van to rob people at gunpoint, and we therefore conclude that the van owner was in fact a “direct victim” for restitution purposes. See id., ¶16.

Our post on Hoseman described that court’s reliance on a Washington case interpreting a Washington statute that requires restitution “whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.” That differs from our statute, which mandates restitution to a “victim,” defined as “[a] person against whom a crime has been committed,” § 950.02(4)(a)1., of “a crime considered at sentencing,” § 973.20(1r). One statute merely requires the person suffer injury resulting from the crime, the other that the crime considered at sentencing be committed against the person. To the extent the first is broader than the second, Hoseman provides a fulcrum for expanding the reach of § 973.20–and if this case is any indication, that reach is expansive indeed.

Even if Hoseman makes sense on its facts–and State v. Madlock, 230 Wis. 2d 324, 334, 602 N.W.2d 104 (Ct. App. 1999), reminds us each restitution case “must turn on its own facts”–its analysis is grounded on the homeowners being “direct targets” of the crime considered at sentencing because Hoseman rented the house using a ruse, intending to set up the operation that would cause the damage. Id., ¶23. The “direct target” concept was culled from, and then used to distinguish, the caselaw that rejects restitution for various law enforcement expenses because the police entities were not the “direct targets” of the crime. Id., ¶¶17-22. Here, the van owner clearly was not the “direct target” of the armed robberies, which were the crimes considered at sentencing; on the other hand, the van owner was the direct target of the earlier theft of the van and of any intentionally caused damage to the van, but neither theft nor criminal damage to property were crimes considered at sentencing.  (Lumpkins wasn’t charged with criminal damage, though of course a conviction or a read in for that crime would have indisputably established the van owner as a direct victim under § 973.20.) While the opinion in this case quotes Hoseman‘s “direct target” language (¶11), it doesn’t remark on how that concept applies (or, really, doesn’t apply) here. Nor does it acknowledge the disconnect between the crimes considered at sentencing and the crimes committed against the “victim” van owner.

Causation–whether the defendant’s criminal activity was a substantial factor in causing the damage, Madlock, 230 Wis. 2d at 333–is also established:

¶13      …. In this case, Lumpkins’ 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. Therefore, construing the restitution statute “‘broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct,’” see [Madlock, 230 Wis. 2d] at 332 (citation omitted), we determine that there was a causal connection between Lumpkins’ use of the van and the damages suffered by the victim.

“Broadly and liberally” are the operative words when it comes to causation, making this another illustration of the phenomenon we’ve noted before (e.g., here and here): Causation requires precious little for purposes of restitution under § 973.20. Even so, the court seems to misstep here by referring to the natural consequences of the van being stolen;  Lumpkins wasn’t charged with stealing the van, so shouldn’t the question be whether the damage to the van was a natural consequence of the robberies, as that was the criminal activity Lumpkins engaged in? Of course, a trial court may take the defendant’s “entire course of conduct into consideration” including “‘all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which [he] was convicted, not just those facts necessary to support the elements of the specific charge.’” Madlock, 230 Wis. 2d at 333. So no doubt the answer to the correct question will yield the same result.

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