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COA upholds $500 restitution award based solely on victim’s unsupported testimony

State v. Jeffrey W. Butler, 2021AP2212-CR, 1/11/23, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

At Butler’s restitution hearing, the circuit court expressed frustration and disappointment that neither party presented any documentation regarding a disputed restitution claim. The court stated, “I have nothing other than testimony saying [the victim’s] done all this stuff and Googled it and she doesn’t bring in any receipts.” The court continued: “Nothing, I have nothing…[s]o the court is left with, based on testimony, what’s a reasonable amount of restitution…” The court then concluded, “I’ll put $500 toward clothing.” Butler appealed and the court of appeals affirms, holding that the victim’s testimony alone is sufficient to support the restitution award.

This restitution case demonstrates that a victim’s burden to prove their losses by a preponderance of the evidence is almost no burden at all. Butler was convicted of criminal damage to property. The victim sought $1,940 in restitution for damage to her “lotion, perfume, clothes, [and] shoes.” At the restitution hearing, however, the victim failed to provide any receipts related to the value of her damaged property or the amount she spent replacing it. Instead, the victim testified that she “probably spent at least $500 on new clothes so far.” (Opinion, ¶4).

Butler challenged the victim’s testimony as vague and lacking “even minimal specificity about the damages she had the burden to prove.” Prior to addressing Butler’s argument, the court notes that a “primary purpose” of restitution is to compensate the victim, that Wis. Stat. § 973.20 creates a presumption that restitution will be ordered, and that “the court shall order the defendant to make full or partial restitution…unless the court finds substantial reason not to do so.” (¶9) (citing State v. Gibson, 2012 WI App 103, ¶10, 344 Wis. 2d 220, 822 N.W.2d 500).

The court then dismisses Butler’s asserted lack of evidence or “proof” by pointing to the victim’s testimony and deferred to the circuit court’s “credibility determinations,” concluding that the circuit court “obviously found [the victim’s] testimony credible.” (¶11). The court also rejects Butler’s reliance on State v. Stowers, 177 Wis. 2d 798, 503 N.W.2d 8 (Ct. App. 1993), in which the court of appeals reversed a restitution award based on a victim’s lack of testimony regarding damages. The court explains that the victim in this case provided the “sort of testimony that was missing in Stowers.” (¶12). In Stowers, the only support in the record for the $5,000 awarded to the victim was the prosecutor’s request for $5,000 because “counseling is quite expensive.”

So, unless the state or victim literally presents no evidence of damages, good luck challenging the sufficiency of the evidence necessary to support a circuit court’s restitution order.

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