from a judgment of the circuit court for Walworth County:
DAVID M. REDDY, Judge.
Reilly, P.J., Gundrum and Hagedorn, JJ.
David Tarlo challenges the circuit court's award of
restitution to the mother of a victim of child pornography.
He argues the court erred in concluding the mother met her
burden of proving that the claimed loss was the result of his
criminal conduct. We agree and reverse the portion of the
judgment requiring restitution.
Tarlo was charged with five counts of possession of child
pornography in relation to five images found on his computer.
According to the criminal complaint, a Wisconsin Department
of Justice analyst concluded most of the images were viewed
in November and December 2009 and March 2011. Tarlo pled
guilty to one of the counts with the other counts being
dismissed but read in at sentencing.
The mother of a child alleged to be in one of the images on
Tarlo's computer sought $60, 000 in restitution from Tarlo
for lost income. She claimed at the restitution hearing
before a court commissioner in this case that she was
deprived of that amount in income support due to her
husband's earlier arrest and ultimate incarceration for
producing child pornography, including pornographic images of
her daughter. The mother provided testimony from which the
court commissioner concluded that one of the images possessed
by Tarlo was an image of the daughter that was produced by
her husband. The State argued that the restitution request
was appropriate because Tarlo had viewed and possessed the
The court commissioner ultimately recommended Tarlo pay
restitution of $10, 000. It reached this amount by dividing
the $60, 000 requested by six, which is the total number of
people that the mother testified had been caught possessing a
pornographic image of the daughter. The circuit court
subsequently adopted this recommendation as its own. Tarlo
moved for reconsideration, which was denied. He appeals.
Tarlo argues the circuit court erroneously exercised its
discretion in ordering him to pay $10, 000 because "the
family's lost income is not related to [his]
possession" of the daughter's image. He asserts the
mother failed to meet her burden of demonstrating that the
lost income support she sustained was a result of Tarlo's
crime of viewing and possessing her daughter's
image. Based upon the evidence presented at the
restitution hearing, we must agree.
At a restitution hearing, "[t]he burden of demonstrating
by the preponderance of the evidence the amount of loss
sustained by a victim as a result of a crime considered
at sentencing is on the victim." Wis.Stat. §
973.20(14)(a) (2013-14) (emphasis added). As Tarlo points out,
'"[b]efore restitution can be ordered' …
there must be 'a causal nexus' between the 'crime
considered at sentencing' and the damage." State
v. Rash, 2003 WI.App. 32, ¶6, 260 Wis.2d 369, 659
N.W.2d 189 (citation omitted). "In proving causation, a
victim must show that the defendant's criminal activity
was a 'substantial factor' in causing damage. 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. (alteration in original; citation omitted).
"Circuit courts have discretion … in determining
whether the defendant's criminal activity was a
substantial factor in causing any expenses for which
restitution is claimed." State v. Johnson, 2002
WI.App. 166, ¶7, 256 Wis.2d 871, 649 N.W.2d 284 (citing
State v. Canady, 2000 WI.App. 87, ¶¶6, 12,
234 Wis.2d 261, 610 N.W.2d 147). A discretionary decision
"should 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). A court erroneously exercises its discretion if it
exercises its discretion "under an erroneous view of the
law, " id., or fails to "logically
interpret the facts, " Johnson, 256 Wis.2d
While we are to "construe the restitution statute
broadly and liberally in order to allow victims to recover
their losses, " those losses must still be shown to be
"as a result of a defendant's criminal
conduct." State v. Longmire, 2004 WI.App.
90, ¶11, 272 Wis.2d 759, 681 N.W.2d 534 (citation
omitted). It is a "bedrock principle" that
restitution should reflect, and a defendant should be made
liable for, "the consequences of the defendant's own
conduct, " "not the conduct of others."
Paroline v. United States, 134 S.Ct. 1710, 1725,
Here, the evidence presented at the restitution hearing
establishes only financial losses incurred as a result of the
earlier conduct of the mother's husband in producing the
child pornography; it does not establish that any of the
losses resulted from Tarlo's criminal conduct, or even
general trafficking of the daughter's image over the
Internet. The mother presented evidence that she
incurred the $60, 000 of lost income support as a result of
her husband's arrest and incarceration for his production
of child pornography. Of that amount, approximately $45, 000
was lost due to her husband's lost employment and $15,
000 was lost due to her own lost employment because, as the
court commissioner found, the mother "needed to quit her
jobs to supervise her children and transport them to their
treatment sessions." The court commissioner noted,
"In reality, this amount could be much higher, but the
victims are only seeking $60, 000." The amount could
have been much higher because, according to the mother's
testimony, $60, 000 was the amount of loss incurred
"every year" since 2010, when it was discovered her
husband produced the child pornography.
According to the complaint,  most of the images of child
pornography on Tarlo's computer were viewed in November
and December 2009 and in March 2011. The mother indicated at the
restitution hearing, and the record otherwise supports, that
she first learned of the viewing and possession of her
daughter's image-by Tarlo and five other individuals-at
some point in approximately the year leading up to the June
2, 2014 restitution hearing. However, even if the court had
awarded the mother the $10, 000 it did in relation to lost
income for that year immediately preceding the restitution
hearing, the evidence nonetheless still failed to establish a
"causal nexus" between the lost income and the
viewing and possession of the image. The evidence established
that the income was lost due to the husband's earlier
production of child pornography and related arrest and
incarceration; no evidence was ...