2010AP1362-CR State v. Hoseman

Sentencing
Restitution

Where a defendant convicted of conspiracy to manufacture marijuana made unauthorized alterations to a rented home to operate a hydroponic growing operation, he can be ordered to pay restitution for damages to the home.

“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].’”

Affirmed.

Recommended for publication in the official reports.

2010AP1362-CR State v. Hoseman

Dist. II, Walworth County, Carlson, J., Anderson, J.

Attorneys: For Appellant: Johnson, Timothy M., Milwaukee; For Respondent: Koss, Phillip A., Elkhorn; Freimuth, James M., Madison

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