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Restitution: Damages from Marijuana Grow Operation

State v. Michael S. Hoseman, 2011 WI App 88 (recommended for publication); for Hoseman: Timothy M. Johnson; case activity

Hoseman is liable in restitution for damages to a rented house caused by his marijuana manufacturing operation. Restitution requires that there be a “direct victim” of the crime and a causal connection between the defendant’s conduct and the claimed damages, ¶16. Both requirements are satisfied.

Direct victim:

¶23      The cases Hoseman relies upon are inapposite under the facts of this case; they stand for the proposition that governmental entities are not entitled to restitution for collateral expenses incurred in the normal course of law enforcement.  See State v. Haase, 2006 WI App 86, ¶10, 293 Wis. 2d 322, 716 N.W.2d 526.  Hoseman is convicted of conspiracy to manufacture marijuana; in furtherance of that conspiracy, Hoseman rented the Burbeys’ residence using a ruse, he converted two upstairs rooms into grow rooms for hydroponic growing equipment, he allowed exhaust gases to vent directly into the residence, he ran hoses and electrical wiring up the stairs, and he drained chemicals into the toilets and sinks of the residence.  This is not similar to the situation in Ortiz where the city tried to ride on the coattails of the police officers who were the targets of Ortiz’s criminal conduct.  Likewise, this is not similar to Lee where the police officer’s injury as collateral damage arising after the crime of conviction was committed.  And Schmaling is inapposite because, in that, the cleanup after the fire was collateral to the accident.  What distinguishes this case from those relied upon by Hoseman is the Burbeys, as owners of the residence, were the direct targets of the conspiracy to manufacture marijuana; it was their residence that was altered and made uninhabitable to further the goal of the conspiracy.  If the alterations to the Burbeys’ residence had not been made, Hoseman and his co-conspirators could not have manufactured marijuana.  The alterations are not collateral to the manufacture of marijuana, they are integral.  As the Burbeys’ attorney so eloquently argued, the house “was not rented to operate a marijuana greenhouse.  It was operated as a residential rental.  It was a home.  They used my clients’ house, water, electricity, heat, all of the equipment, the fixtures, everything in my clients’ house for that enterprise.  That makes my client[s] [] victim[s].”

State v. Coe, 939 P.2d 715 (Wash. Ct. App. 1997), followed, ¶23, without, interestingly, any attempt to analyze the Washington scheme. As to which, the relevant statutory text required restitution “whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property” (RCW 9.94A.142(2), quoted in the opinion). Wisconsin, by contrast, mandates restitution to a “victim,” defined as “[a] person against whom a crime has been committed,” § 950.02(4)(a)1. One merely requires the person suffer injury resulting from the crime, the other that the crime be committed against the person. Isn’t the one broader than the other? Does this mean that we can look to other jurisdictions for restitution guidance, Washington in particular? In any event, the very first sentence of the opinion efficiently telegraphs where the court is going: “Seeking to escape responsibility for damages that rendered an 1885 Victorian home uninhabitable, Michael S. Hoseman appeals,” ¶1.

Causation (further quoting Coe, with approval), ¶25:

Because the damage to [the victim’s] house would not have occurred but for Coe’s marijuana growing operation, we hold that there was a sufficient causal connection between the crime charged and the victim’s damage.  Further, because dry-rot, mold, and mildew damage were foreseeable consequences of venting warm moist air into the unheated apartment, we hold that restitution was appropriate here.

(Causation wasn’t really disputed, ¶27, the key issue being eligibility for restitution as a “victim” within the restitution scheme.)

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