State v. Johnathan Francis Miller

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 25, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1548-CR Cir. Ct. No. 2021CF1226
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHNATHAN FRANCIS MILLER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Rock County:
BARBARA W. MCCRORY, Judge. Affirmed.
Before Fitzpatrick, Graham, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1548-CR
¶1 PER CURIAM. Johnathan Miller was convicted of false
imprisonment as an act of domestic abuse and as a repeater. He and the victim,
A.B.,1 were married at the time of the incident. In this appeal, he challenges the
restitution awarded to A.B. His primary contention is that the circuit court erred
by including the cost of a security system in the award. Additionally, he argues
that the court erred by declining to consider marital property law in determining
the amount of the award. We affirm.
¶2 According to the criminal complaint, the police were dispatched to
what was at the time Miller and A.B.’s shared residence, after A.B. texted a friend
to call 911. A.B. reported to the police that Miller had pushed her down and
refused to let her up, that he had pushed her into a wall, and that he had hit her in
the face. She also reported that he told her that he would kill her and her entire
family if he was sent back to jail.
¶3 Miller was charged with misdemeanor battery, false imprisonment,
and disorderly conduct, all as acts of domestic abuse and as a repeater. He pled
guilty to the false imprisonment charge, and the remaining charges were dismissed
and read in. The circuit court withheld sentence and imposed three years of
probation.
¶4 The circuit court held a separate restitution hearing at a later date.
At the time, Miller and A.B.’s divorce was pending. A.B. requested restitution for
the installation of a security system at the residence that the parties had been
1
To protect the identity of the victim, we refer to her using the letters “A.B.” See WIS.
STAT. RULES 809.19(1)(g) and 809.86.
All references to the Wisconsin Statutes are to the 2021-22 version.
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No. 2022AP1548-CR
sharing at the time of the incident. We refer to this residence as the “marital
residence.” A.B. also requested restitution for wages she lost as a result of the
incident. Miller contested these requests. The court awarded A.B. restitution that
included the cost of the security system ($1,716.15) and her requested lost wages
($864).2 Miller’s appeal now follows.
¶5 “A request for restitution, including the calculation as to the
appropriate amount of restitution, is addressed to the circuit court’s discretion.”
State v. Gibson, 2012 WI App 103, ¶8, 344 Wis. 2d 220, 822 N.W.2d 500.
“When we review a circuit court’s exercise of discretion, we examine the record to
determine whether the circuit court logically interpreted the facts, applied the
proper legal standard and used a demonstrated, rational process to reach a
conclusion that a reasonable judge could reach.” State v. Johnson, 2002 WI App
166, ¶7, 256 Wis. 2d 871, 649 N.W.2d 284.
¶6 Miller argues that the circuit court erroneously exercised its
discretion in awarding restitution for the security system. This argument has two
main parts. We address each in turn.
¶7 The first part of Miller’s argument is that the record lacks evidence
to support a finding that A.B. paid for the security system. He contends that A.B.
failed to provide evidence of payment, such as an invoice or a cashed check. He
argues that the record supports an inference that A.B. rented the marital residence,
and he seemingly further argues that the landlord, not A.B., likely paid for the
security system. He asserts that A.B. “never stated that she paid for the security
2
A.B. also made other restitution requests that we do not detail because the particulars of
those requests are not relevant to our analysis.
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No. 2022AP1548-CR
system” and that “[i]t was unjust to require Miller to pay [A.B.] for an expenditure
she did not make or to enrich the landlord.”
¶8 In addressing this part of Miller’s argument, we begin by noting that
the argument he makes on appeal has shifted in a subtle but significant way from
the argument he made before the circuit court. In both the circuit court and on
appeal, Miller has argued that there was insufficient proof that A.B. paid for a
security system. However, at the restitution hearing, there was no mention of a
landlord, and Miller appeared to be challenging whether a security system had
actually been installed. He asserted that there was “no proof that there was any
security system installed in the first place” and that “if it was paid, I have no
record of that.” Now, on appeal, Miller appears to concede, at least implicitly, that
a security system was installed and paid for. He argues instead that there is a lack
of evidence that A.B., rather than her landlord, paid for the security system.
¶9 We will assume, without deciding, that Miller has not forfeited this
argument. Regardless, we conclude that the record contains sufficient evidence to
support a finding that A.B. paid for the security system.
¶10 A.B. presented a written estimate for a security system and, at the
restitution hearing, she stated that the estimate was “actually the invoice that was
paid.” She further stated, “I know it says ‘estimate’ on it, but that is the amount
that was paid to the company.”3 Additionally, A.B.’s statements at the restitution
hearing demonstrated her familiarity with details of the security system, including
the brand and number of cameras. Her statements also showed that she had access
3
The transcript of the restitution hearing attributes these statements to Miller, but
context makes clear that A.B. made the statements.
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No. 2022AP1548-CR
to the video footage from the security system. Miller points to no evidence to
support a finding that A.B.’s landlord (assuming she had one) paid for the security
system. In these circumstances, the circuit court could reasonably infer and find
that A.B. paid for the security system. See State v. Wiskerchen, 2019 WI 1, ¶30,
385 Wis. 2d 120, 921 N.W.2d 730 (“Findings of fact will be affirmed on appeal as
long as the evidence would permit a reasonable person to make the same
finding.”).
¶11 As stated above, we have assumed, without deciding, that Miller has
not forfeited his argument that there was insufficient proof that A.B., rather than
her landlord, paid for the security system. We note, however, that this argument
presents a good example of why appellate courts employ the forfeiture rule. If
Miller had clearly raised the argument below, the circuit court and the parties
could have directly addressed it, and there may have been no need for the parties
or this court to spend time on appellate arguments about whether someone other
than A.B. paid for the security system. See State v. Huebner, 2000 WI 59, ¶12,
235 Wis. 2d 486, 611 N.W.2d 727 (“Raising issues at the trial court level allows
the trial court to correct or avoid the alleged error in the first place, eliminating the
need for appeal. It also gives both parties and the trial judge notice of the issue
and a fair opportunity to address the objection.” (citation omitted)).
¶12 We turn to the second part of Miller’s argument, that the circuit
court erroneously exercised its discretion in awarding restitution for the security
system. This part of Miller’s argument is based on the “causal nexus” standard.
¶13 Establishing a “causal nexus” is synonymous with establishing that
“the defendant’s criminal activity was a ‘substantial factor’ in causing damage.”
See State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 1475
No. 2022AP1548-CR
(quoted source omitted). For the defendant’s conduct to be a substantial factor,
“the defendant’s actions must be the ‘precipitating cause of the injury’ and the
harm must have resulted from ‘the natural consequence[s] of the actions.’” Id.(quoted sources omitted).
¶14 According to Miller, there was no causal nexus between his criminal
conduct and the security system. He argues that he was not an ongoing threat to
A.B. because at all relevant times he was either in jail or subject to a court order
prohibiting contact with her. He also argues that the security system was
unnecessary because A.B. repeatedly stated, prior to the restitution hearing, that
her intent was to move out of the marital residence soon.
¶15 The determination of whether there is a causal nexus, like the
determination of restitution more generally, is a discretionary call for the circuit
court. See State v. Queever, 2016 WI App 87, ¶12, 372 Wis. 2d 388, 887 N.W.2d
912; Johnson, 256 Wis. 2d 871, ¶7. Here, the record establishes that the court
reasonably exercised its discretion to determine that there was a causal nexus
between Miller’s criminal conduct and A.B.’s installation of a security system at
the marital residence.
¶16 At the restitution hearing, A.B. stated that the security system was
installed within days after the incident for which Miller was charged and that it
was installed “only” because of Miller. She stated that she was concerned that he
might be released pending trial. Consistent with her initial report to police that he
had threatened to kill her if he went back to jail, A.B. stated at the restitution
hearing that she was “in fear for my life from this man.” She further stated that
she “firmly believe[d]” that video footage from the security system showed Miller
in her backyard two weeks before the restitution hearing, thus supporting a
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No. 2022AP1548-CR
reasonable inference that he violated the no contact order imposed as a condition
of his probation.
¶17 A.B. also stated at the restitution hearing that she was “probably
moving” out of the marital residence but was still living there at the time. She
acknowledged that her living situation was “confusing.” She also acknowledged
that she lived somewhere else for a period of time after Miller was released from
jail, while other security measures were put in place at the marital residence. The
circuit court credited A.B.’s statement that she was still living at the marital
residence.
¶18 Miller argues that A.B. made inconsistent statements relating to her
living situation that cast doubt on her credibility. However, we accept the circuit
court’s credibility determination. See Noble v. Noble, 2005 WI App 227, ¶27, 287
Wis. 2d 699, 706 N.W.2d 166. Moreover, Miller does not seriously dispute that
the record shows that A.B. was living at the marital residence for at least some
period of time after the security system was installed.
¶19 Miller next argues that there is no published precedent to support
awarding restitution for a security system to a victim of domestic abuse. He
argues that the case law addressing restitution for security systems pertains to
burglary or theft by an outsider, not to domestic violence incidents.
¶20 Miller’s argument that there is a lack of on-point precedent lacks
merit. The circuit court did not need a case directly on point to reasonably
conclude that there was a causal nexus between Miller’s criminal conduct and the
security system.
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No. 2022AP1548-CR
¶21 Further, Johnson, 256 Wis. 2d 871, supports the circuit court’s
conclusion. There, the minor victim of false imprisonment testified that she was
afraid that the defendant might harm her in the future, that he threatened to “get
even” if she informed anyone about the incident, and that he was still coming
around her neighborhood. Id., ¶¶2, 21. The victim’s father testified that a security
system was installed to make the victim feel more secure. Id., ¶21. We concluded
that this testimony was sufficient “to establish a causal connection between [the
defendant]’s criminal conduct and the need for the security system.” Id. Here, the
record similarly establishes a causal connection between Miller’s criminal conduct
and A.B.’s need for a security system at the marital residence.
¶22 Finally, we turn to Miller’s argument that the circuit court erred by
declining to consider the impact of marital property law on the amount of the
restitution award. Miller contends that the court should have required him to pay
only half of A.B.’s lost wages because of the nature of marital property. He also
contends that the court should have offset the restitution award by half the amount
of paychecks to Miller that were deposited into a joint account and that A.B.
allegedly used. When Miller made this same argument in the circuit court, the
circuit court concluded that the issue of an offset was more appropriately
addressed in the divorce proceedings.
¶23 Apart from general citations to marital property law and restitution
law, Miller does not provide authority to support his marital property argument.
Accordingly, we conclude that Miller has not established that the circuit court
erroneously exercised its discretion by awarding A.B. the full restitution amount
or by determining that the issue of an offset was more appropriately addressed in
the divorce proceedings. See Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571
N.W.2d 686 (Ct. App. 1997) (“[I]t is the burden of the appellant to demonstrate
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No. 2022AP1548-CR
that the trial court erred.”); see also Wal-Mart Real Est. Bus. Tr. v. City of
Merrill, 2023 WI App 14, ¶32, 406 Wis. 2d 663, 987 N.W.2d 764 (“We need not
consider arguments that are undeveloped and unsupported by citations to legal
authority.”).
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
9