DocketNumber: No. 2011AP1760-CR
Citation Numbers: 344 Wis. 2d 220, 2012 WI App 103
Judges: Brown, Neubauer, Reilly
Filed Date: 8/1/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. Cody A. Gibson appeals from a judgment of conviction entered upon his no contest plea to robbery with threat of force. Gibson challenges the restitution award related to the read-in crime of operating a motor vehicle without consent of the owner. The circuit court ordered Gibson to reim
BACKGROUND
¶ 2. The facts underlying the restitution order on the read-in crime of operating a motor vehicle without consent of the owner
¶ 3. The recovered vehicle was ready for pick up on April 26 and Lemerond's note dated that same day indicates that there was very little damage to the vehicle and she expected to get "a good salvage." Acuity obtained an Autosource Valuation which valued the vehicle at $10,379. In the end, Acuity recovered $4820.60 from the sale of the vehicle at auction. Its restitution request was for $6292.86, the difference between its $11,113.46 pay out to the vehicle lien holder and the $4820.60 in proceeds from the sale of the vehicle.
¶ 4. Gibson challenged Acuity's restitution request. Gibson argued that his actions did not cause Acuity's $11,000 loss, but rather Acuity's decision to reimburse the Poolers for the entire loan payout amount on the vehicle caused its loss. Gibson argued that Acuity's loss could also be attributed to its decision to sell the vehicle at auction for $4820.60 rather than attempting to obtain its fair market value of $10,379. Gibson also challenged the restitution order requiring him to reimburse the Poolers for their $250 deductible paid to Acuity.
¶ 5. As to Acuity's handling of the Poolers' insurance claim and sale of the vehicle at auction through a salvage company, the circuit court found that once the victims exercised their option for recovering the total loss of the vehicle within "the confines and spirit and
¶ 6. Gibson appeals.
DISCUSSION
¶ 7. Gibson contends that the circuit court did not have the authority under Wis. Stat. § 973.20 to order him to pay restitution when the only item at issue, the stolen vehicle, was recovered. Gibson further contends that, contrary to its standard practice, Acuity should have required the victims to take the car back. Gibson reasons that because Acuity did not do so, it did not suffer a compensable loss. Finally, Gibson argues that because Acuity was not a victim, the circuit court erred in failing to address whether justice required Acuity to be compensated. We reject each of Gibson's arguments in turn.
¶ 8. A request for restitution, including the calculation as to the appropriate amount of restitution, is addressed to the circuit court's discretion and its decision will only be disturbed when there has been an erroneous exercise of that discretion. State v. Madlock, 230 Wis. 2d 324, 329, 602 N.W.2d 104 (Ct. App. 1999);
Statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. We interpret statutory language in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Where this process yields a plain meaning, the statute is not ambiguous and is applied according to this ascertainment of its meaning. If the language is ambiguous, however, we look beyond the language and examine the scope, history, context, and purpose of the statute.
Id. (citation omitted).
¶ 9. We look first to Wis. Stat. § 973.20 which governs restitution. It provides that the circuit court "shall order the defendant to make full or partial restitution ... to any victim of a crime considered at sentencing . . . unless the court finds substantial reason not to do so." Sec. 973.20 (lr). In ordering restitution for the loss or destruction of property, § 973.20 instructs:
(2) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
*227 (a) Return the property to the owner or owner's designee; or
(b) If return of the property under par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost or the greater of:
1. The value of the property on the date of its damage, loss or destruction; or
2. The value of the property on the date of sentencing, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall he its retail value.
Under § 973.20(5)(d), if justice so requires, a court may order a defendant to reimburse any insurer "who has compensated a victim for a loss otherwise compensable under [§ 973.20]." Gibson contends the insurer did not compensate the Poolers for a compensable loss under § 973.20(2)(a) and (b) because the stolen vehicle was recovered. Had Acuity required the victims to take the vehicle back, Gibson contends, neither Acuity nor the Poolers would have suffered a loss.
¶ 10. A primary purpose of restitution is to compensate the victim. See State v. Sweat, 208 Wis. 2d 409, 422, 561 N.W.2d 695 (1997). To that end, this court has consistently recognized that Wis. Stat. § 973.20 creates a presumption that restitution will be ordered in criminal cases and that the restitution statute should be interpreted broadly and liberally in order to allow victims to recover their losses as a result of a defendant's criminal conduct. State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). Section 973.20 "reflects a strong equitable public policy that victims should not have to bear the burden of
¶ 11. Before a circuit court may order restitution "there must be a showing that the defendant's criminal activity was a substantial factor in causing" pecuniary injury to the victim. State v. Johnson, 2002 WI App 166, ¶ 16, 256 Wis. 2d 871, 649 N.W.2d 284. Put another way, we have said that a causal link for restitution purposes is established when "the defendant's criminal act set into motion events that resulted in the damage or injury." State v. Rash, 2003 WI App 32, ¶ 7, 260 Wis. 2d 369, 659 N.W.2d 189. A defendant "cannot escape responsibility for restitution simply because his or her conduct did not directly cause the damage." Madlock, 230 Wis. 2d at 336.
¶ 12. Gibson acknowledges that the Poolers were victims of the crime of operating a motor vehicle without the owner's consent for purposes of Wis. Stat. § 973.20. Pursuant to § 973.20(2), the Poolers suffered a loss of property due to Gibson's actions. The Poolers reported their loss to Acuity and, pursuant to its usual practice, Acuity promptly satisfied the Poolers' loan obligation on the stolen vehicle so that the Poolers could purchase a replacement. While the vehicle was later recovered, the Poolers had already accepted full payment for the vehicle from Acuity. Acuity did not subsequently impose a "return" requirement, which would have been inconsistent with its usual and customary practice.
¶ 13. Wisconsin Stat. § 973.20(2)(a) permits a circuit court at sentencing to order return of property to the owner; however, if such return is impossible, im
¶ 14. Here, the undisputed fact remains that Gibson stole the Poolers' vehicle. The losses suffered by the Poolers — both in the loss of the vehicle and in the payment of the $250 deductible — were the result of Gibson's actions. The circuit court found Lemerond's testimony as to the facts and circumstance surrounding the insurance payment, the sale of the vehicle, and its ultimate loss to be credible. See id. at 663 (the finder of fact at the restitution hearing is free to accept, reject and give weight to the evidence as it deems appropriate). The defendant's actions were the "precipitating cause of the injury" and the harm that resulted was the "natural consequence" of Gibson's actions. See State v. Canady, 2000 WI App 87, ¶ 9, 234 Wis. 2d 261, 610
¶ 15. This brings us to Gibson's second argument. Gibson contends that the restitution order requiring payment to Acuity is not valid because the circuit court did not explicitly address whether justice required it under Wis. Stat. § 973.20(5)(d). We reject Gibson's argument. Gibson does not dispute that it is within the court's discretion to award restitution to insurers. See Fernandez, 316 Wis. 2d 598, ¶ 62. Here, evidence was submitted as to the cost incurred by Acuity in compensating the Poolers for their insured loss in a manner consistent with its business practice. As in Fernandez, the circuit court's determination that justice required Gibson to pay restitution to Acuity is implicit in its finding that Acuity was entitled to restitution. Id., ¶ 62 n.32. Based on the record before us, we uphold the circuit court's determination.
CONCLUSION
¶ 16. We conclude that the circuit court did not erroneously exercise its discretion in ordering restitution to Acuity and the Poolers. The sequence of events in the case made it impractical under Wis. Stat. § 973.20(2)(b) for the stolen vehicle to be returned to its owners. As such, the circuit court's determination that the insurer, Acuity, was entitled to compensation for the losses it incurred in fulfilling its obligation to its insureds in a manner consistent with its business practice was reasonable. The circuit court's order of restitution to Acuity is tantamount to a finding that justice so
By the Court. — Judgment affirmed.
Under the restitution statute, read-in crimes are considered at sentencing. See Wis. Stat. § 973.20(lg)(a)-(b) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The record reflects that after stealing the Poolers' vehicle, Gibson drove it to the gas station where he committed the robbery. Gibson then abandoned the vehicle a couple of blocks away from where it was stolen.