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COURT OF APPEALS DECISION DATED AND RELEASED November
22, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3135-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RODNEY
E. HILL,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Racine County: NANCY E. WHEELER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Rodney E.
Hill appeals from a postjudgment order extending his probation by one year and
ordering him to pay restitution in the amount of $2571.79 to his victim's
insurance company. Because we conclude
that the trial court properly exercised its discretion in ordering restitution
in this amount, we affirm.
Hill
was charged with being party to the crime of strong-armed robbery of Peter
Barth contrary to §§ 943.32(1)(a) and 939.05, Stats. Hill entered a
no contest plea to the reduced charge of theft of movable property as a
habitual offender and party to the crime, a misdemeanor contrary to
§§ 943.20(1)(a) and 939.05, Stats. His one-year sentence was stayed and he was
placed on probation for one year and ordered to pay restitution. A restitution hearing was held in July 1994.
Hill
and Barth testified at the restitution hearing. It was undisputed that Barth suffered miscellaneous losses as a
result of the robbery in the amount of $571.79.[1] Barth was reimbursed by his insurance
company in this amount. The dispute in
the trial court and on appeal has to do with an additional $2000 ordered as
restitution for a gold rope chain and gold nugget pendant.
Barth
testified that he always wore the necklace, which he believed he had purchased
fourteen or fifteen years before in Philadelphia. He was wearing it at the time of the robbery but did not realize
it was missing until he undressed for bed later that night after talking to
police. Barth first claimed the
necklace was lost a couple of weeks after the robbery when he submitted an
itemized list of his losses, along with copies of available receipts, to Racine
County's victim/witness assistance program.
Barth
could not recall what he paid for the necklace when he purchased it. However, he presented a jeweler's estimate
reflecting a replacement value of $3400 for the chain and the nugget. Barth had not separately insured this item
of jewelry under his homeowner's insurance policy and the insurance company
refused to reimburse him for the full estimated replacement value. Under cross-examination, Barth declined to
deviate from his claim that he was wearing the necklace on the night of the
robbery and that it must have fallen off during the struggle with Hill. The trial court ordered $2000 restitution to
Barth's insurer for the necklace.
On
appeal, Hill argues that there is no factual basis in the record to support
restitution for the necklace in the amount of $2000. Specifically, Hill questions whether the necklace disappeared as
a result of the robbery and whether it was properly valued. Hill also argues that the trial court did
not specifically find that justice required restitution for Barth's insurer.
Restitution
is governed by § 973.20, Stats. A trial court may order restitution to
reimburse an insurer who has compensated a victim for a loss otherwise
compensable under § 973.20 "[i]f justice so requires ...." Section 973.20(5)(d).[2] The victim must demonstrate his or her loss
by a preponderance of the evidence.
Section 973.20(14)(a).
The
amount of restitution is discretionary with the trial court. See State v. Kennedy,
190 Wis.2d 253, 262-63, 528 N.W.2d 9, 13 (Ct. App. 1994). The exercise of discretion requires
examining the relevant facts, applying the proper legal standard and reaching a
conclusion that a reasonable judge could reach. Id. at 263, 528 N.W.2d at 13.
We
reject Hill's contention that the restitution order is flawed because the trial
court did not explicitly state that justice required Hill to reimburse Barth's
insurer. A trial court's failure to use
"magic words" is not reversible error. Michael A.P. v. Solsrud, 178 Wis.2d 137, 151, 502
N.W.2d 918, 924 (Ct. App. 1993). It is
implicit in the trial court's statement that it would be
"appropriate" and not "unfair" for Hill and his
co-defendant to reimburse Barth's insurer that justice so required. In this case, remanding to permit the trial
court to make this implicit finding explicit "would be both superfluous and
a waste of judicial resources." Englewood
Apartments Partnership v. Grant & Co., 119 Wis.2d 34, 39 n.3, 349
N.W.2d 716, 719 (Ct. App. 1984).
We
also reject Hill's challenge to the sufficiency of the record to support the
restitution order. While the trial
court initially had some concern that the necklace may not have been lost
in the robbery, the record indicates that the trial court resolved that
concern: (1) it accepted evidence that
the insurance company reimbursed Barth for part of the value of the necklace,
and (2) it found that restitution would be "appropriate" and not
"unfair." It is apparent from
the record that the trial court was reasonably satisfied that the necklace was
lost in the robbery, notwithstanding its initial indication to the
contrary.
Hill
claims the $2000 value assigned to the necklace is not supported in the
record. In clarifying the value of the
necklace for restitution purposes, the trial court noted that its file
contained documents from February 1994 indicating that the insurance company
paid Barth $2571.79. Apparently this
information was contained in a computerized statement from the insurance
company and was appended to a memorandum from the probation agent. However, this document is not in the record
on appeal. When an appeal is brought
upon an incomplete record, this court assumes that every fact essential to
sustain the trial court's decision is supported by the record. Suburban
State Bank v. Squires, 145 Wis.2d 445, 451, 427 N.W.2d 393, 395 (Ct.
App. 1988). Here, we assume that this
document indicates that Barth's insurer paid him $2571.79 for losses arising
out of the robbery, $2000 of which was attributable to the necklace.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.