COURT OF APPEALS

DECISION

DATED AND FILED

 

January 17, 2007

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2006AP2271-CR

Cir. Ct. No.  2005CF51

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

State of Wisconsin,

 

          Plaintiff-Respondent,

 

     v.

 

Donald Wayne Poach, Jr.,

 

          Defendant-Appellant.

 

 

 

            APPEAL from an order of the circuit court for Dunn County:  WILLIAM C. STEWART, JR., Judge.  Affirmed. 

1        HOOVER, P.J.[1]   Donald Poach appeals an order for restitution in the amount of $7,500 for causing the death of Larry Polonec’s hunting dog, Harold.  Poach argues Polonec did not prove Harold’s value by a preponderance of the evidence.  Poach also argues the court incorrectly treated restitution as a form of punishment.  We disagree and affirm the order.

BACKGROUND

2        On February 11, 2005, the State filed a criminal complaint against Poach for felony mistreatment of animals based on evidence that Poach shot and killed Harold.  On October 20, 2005, Poach pled no contest to misdemeanor mistreatment of animals and was ordered as a condition of probation to pay restitution.

3        At the restitution hearing, Polonec testified he purchased Harold for $2,000 but believed an adequate restitution amount would be $7,500.  Polonec testified he had been offered $7,000 for Harold.  Polonec also testified he would have made a significant amount of money breeding Harold due to the dog’s reputation. 

4        Merold Mohni, who raised and trained hunting dogs, testified Harold had a reputation as being “the Secretariat of the dog world ….”  Mohni further testified that due to Harold’s reputation as an exceptional hunting dog many people wanted to pay Polonec to breed Harold.  Mohni stated Harold could bring $300 per breeding and could be bred ten times a year for several years.  Kenneth Johnson, another individual who raised and trained hunting dogs, testified regarding Harold’s excellent reputation.  Johnson testified Harold’s value was five to ten thousand dollars.  Doug Enloe, yet another individual who raised and trained hunting dogs, testified he had offered Polonec $7,000 for Harold because Harold was worth $7,000 or more.

 

DISCUSSION

5        We review an order of restitution under the erroneous exercise of discretion standard of review.  State v. Ross, 2003 WI App 27, ¶53, 260 Wis. 2d 291, 659 N.W.2d 122.  We may only reverse a discretionary decision if the circuit court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts.  State v. Canady, 2000 WI App 87, ¶6, 234 Wis. 2d 261, 610 N.W.2d 147 (citations omitted).  Wisconsin Stat. § 973.20(14)(d) requires the victim to prove the amount of the loss by a preponderance of the evidence.  In determining the amount of restitution for property crimes, the court has the discretion to require the defendant to pay the reasonable replacement cost or the value of the property on the date of its loss.  Wis. Stat. § 973.20(2). 

6        Poach argues “[t]he circuit court erred in determining the value of the dog to be $7,500, when the evidence demonstrated that the value of the dog was $2,000.”  While $2,000 may have covered the cost of a hunting dog, the court had the discretion to require Poach to pay the value of Harold on the date of Harold’s death.  There was substantial evidence that Harold had acquired a reputation as an exceptional hunting dog and could bring in a significant amount of money in breeding fees.  We give deference to the trial court to judge the credibility of the witnesses.  See Wis. Stat. § 805.17(2).  Polonec testified he planned to breed Harold and another witness testified that, due to Harold’s reputation as an exceptional hunting dog, many people wanted to pay Polonec to breed Harold.  Testimony placed Harold’s value as high as $10,000.  Therefore, the court applied the proper legal standard and logically interpreted the facts in setting the restitution amount. 

7        Poach also argues the court erred by treating restitution as a form of punishment.  While restitution may have a punitive effect, the primary goal of restitution is the rehabilitation of the defendant.  State v. Dugan, 193 Wis. 2d 610, 620-21, 534 N.W.2d 897 (Ct. App. 1995).  “Restitution is an important element of the offender’s rehabilitation because it may serve to strengthen his or her sense of responsibility and teach the offender to consider more carefully the consequences of his or her actions.”  State v. Kennedy, 190 Wis. 2d 252, 257-58, 528 N.W.2d 9 (Ct. App. 1994).  In making its determination the court stated:

[I]f I were to set a low restitution amount then I would be sending the message that … you can go out and shoot people’s animals, and that’s okay, because if you don’t have a lot of money you won’t be required to try and pay some reasonable compensation for that animal ….

That I won’t tolerate.  The community won’t tolerate it.  It is indeed difficult for me to try and figure out a value.  But I certainly understand the range.  It depends upon a lot of different variables.  … [T]he price is going to go up, especially when you have a dog of this caliber. 

Poach interprets these statements as evidence that the court set a high restitution amount as punishment.  However, nothing in these statements shows an improper motive for punishment.  Rather, the statements show the court properly considered Harold’s unique value as a hunting dog with an exceptional reputation.  The court’s statements show that it intended to set the restitution amount at a level of “reasonable compensation.”  In requiring Poach to properly compensate Polonec for his loss, the court’s order properly served the rehabilitative aspect of restitution by teaching Poach to more carefully consider the consequences of his actions.  See id. 

 

 

                        By the Court.—Order affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.  

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. 752.31(2).  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.