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Restitution for theft may include items defendant denies stealing

State v. Deborah A. Schicker, 2013AP651-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity

Schicker pleaded guilty to a single count of theft. Of the multiple items listed as stolen in the complaint, she admitted to taking only the two items recovered before she was charged. (¶¶2-3). After a restitution hearing she was ordered to pay for the loss of the unrecovered items as well as for another item (a bracelet) not even listed in the complaint. (¶4). The court rejects Schicker’s argument that ordering restitution for the  unrecovered items was improper because those items were related to alleged crimes that were not part of a “crime considered at sentencing”:

¶8        …[P]roof at a restitution hearing of the amount of the victim’s loss is not limited to what a defendant admits, either at the plea hearing or restitution hearing, to having stolen. See State v. Longmire, 2004 WI App 90, ¶¶13-14, 272 Wis. 2d 759, 681 N.W.2d 534; cf. State v. Huntington, 132 Wis. 2d 25, 28, 390 N.W.2d 74 (Ct. App. 1986). Rather, a victim seeking restitution must show ‘“that the defendant’s criminal activity was a substantial factor in causing’ pecuniary injury to the victim.” [State v.Gibson, [2012 WI App 103,] 344 Wis. 2d 220, ¶11[, 822 N.W.2d 500]. The victim bears the burden of proving by a preponderance of the evidence the amount of the loss sustained as a result of “a crime considered at sentencing,” meaning “any crime for which the defendant was convicted and any read-in crime.” Wis. Stat. § 973.20(1g)(a), (14)(a). In making its restitution determination, a circuit court may “take[] a 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 [she] was convicted, not just those facts necessary to support the elements of the specific charge.” Longmire, 272 Wis. 2d 759, ¶13 (emphasis and citation omitted).

¶9        As the finder of fact at a restitution hearing, “the court is free to accept and reject evidence and to give accepted evidence such weight as it desires.” State v. Boffer, 158 Wis. 2d 655, 663, 462 N.W.2d 906 (Ct. App. 1990). Here, the circuit court accepted the victim’s evidence that Schicker stole all of the claimed items and rejected Schicker’s testimony to the contrary. We find no reason to conclude that the court erred in this regard. The court concluded that the victim’s loss, including all items of jewelry, was caused by Schicker’s theft from the victim, and we find no error in that conclusion.

Nor was Schicker deprived of notice she might be held responsible for the bracelet just because that item wasn’t listed in the complaint. Schicker was aware the victim was alleging she stole more than just the two items she admitted stealing, and she identifies no authority limiting a victim’s right to restitution to items the prosecutor may have included in the complaint. “The fact that the probable cause portion of the complaint did not specifically identify the bracelet does not limit the victim’s right to recover restitution for that item when, as the circuit court found, it was clearly related to Schicker’s theft from the victim.” (¶15).

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