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State v. Tarlo

Court of Appeals of Wisconsin

October 5, 2016

State of Wisconsin, Plaintiff-Respondent,
David L. Tarlo, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Walworth County: DAVID M. REDDY, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 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.


         ¶2 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.

         ¶3 The mother of a child alleged to be in one of the images on Tarlo's computer sought $60, 000[1] 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 image.

         ¶4 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.


         ¶5 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.[2] Based upon the evidence presented at the restitution hearing, we must agree.

         ¶6 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)[3] (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 871, ¶7.

         ¶7 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, 1729 (2014).

         ¶8 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.[4] 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.

         ¶9 According to the complaint, [5] most of the images of child pornography on Tarlo's computer were viewed in November and December 2009 and in March 2011.[6] 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.[7] 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 ...

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