Burglar ordered to pay insurance coverage shortfall
After breaking into someone’s home to steal electronics and cash, a convicted criminal must share in the cost of repairing his victim’s home.
An appellate court in Wisconsin has affirmed a trial court’s decision ordering a convicted burglar to pay restitution to a victim in an amount that included the cost of repairing a door damaged by the burglar, which was not covered by the victim’s insurance, and the amount of the victim’s insurance deductible.
Expensive sticky fingers
Damien Farold Robinson was charged with eight counts of burglary as a party to a crime and one count of attempted burglary as a party to a crime. According to the criminal complaint, the charges stemmed from Robinson’s role in a crime spree in which he and a co-actor broke into several homes, primarily by kicking in doors.
In one case, Robinson broke into the home of a victim listed as K.S. He stole a television, a laptop and cash. The complaint described K.S.’s door as “broken inward.”
Pursuant to a plea agreement, Robinson pleaded guilty to four counts, including the burglary of K.S.’s home.
At sentencing, the trial court considered the victims’ claims for restitution. K.S. submitted a victim impact statement and a restitution worksheet seeking, among other things, $500 for her insurance deductible and $300 that was not covered by insurance for a replacement door.
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The trial court sentenced Robinson to a total term of 12 years’ initial confinement, to be followed by eight years’ extended supervision. The trial court also granted K.S.’s request for her insurance deductible and a replacement door, stating, “Apparently, the insurance company must [have] said the door was only worth so much when they paid for everything, and it was $300 more.… Maybe she got a stronger door because of what happened. I am going to order $800 to [K.S.].”
Robinson appealed, challenging part of K.S.’s restitution award.
He argued that the trial court had erroneously exercised its discretion in granting K.S. $300 for a replacement door that K.S. said was not covered by insurance. He asserted that the court erred for three reasons:
- There was “no evidence submitted as to what repairs were actually done and what those repairs cost”;
- The trial court speculated that K.S. had installed a stronger door, which would not be an appropriate replacement cost; and
- There was no evidence that the amount was appropriate under an alternative statutory procedure that would require that he “repay the approximate value of the property as it existed before the damage was done.”
Appellate court affirmation
In its decision, the appellate court first found that K.S. was not required to submit documentary evidence of her loss, but only was required to show, by a preponderance of the evidence, that she had sustained certain damages.
The appellate court noted that Robinson had admitted at the plea hearing that he had damaged K.S.’s property when he burglarized her home, and her victim impact statement stated that she incurred a $300 cost to replace her door above what her insurance covered. The appellate court reasoned that the trial court had implicitly found this amount reasonable when it found K.S.’s claim to be credible, thus satisfying her burden. Moreover, the appellate court added, there was no evidence entered contradicting the reasonableness of the amount K.S. paid to have her door replaced.
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The appellate court then addressed the trial court’s statement that K.S. may have upgraded to a stronger door, agreeing with Robinson that the trial court’s statement was speculative. However, the appellate court continued, the trial court’s speculation did “not alone constitute an erroneous exercise of discretion.”
The appellate court said that if the trial court awarded K.S. $300 under the belief that K.S. had purchased a stronger door, the award would comply with case law holding that a victim was entitled to restitution when he or she showed that items were obtained because the defendant had violated the victim’s sense of safety.
Finally, the appellate court rejected Robinson’s argument that the trial court had not evaluated the cost of K.S.’s door before the burglary and ordered restitution for that amount, adding that a victim was not limited to the “before damage” value of the door. The trial court found, based on K.S.’s statement, that her cost of replacing the door was $300, and the appellate court concluded that the trial court had properly exercised its discretion in finding K.S.’s assertion to be credible.
The case is State v. Robinson, No. 2018AP259-CR (Wisc. Oct. 30, 2018).
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Steven A. Meyerowitz, Esq., (smeyerowitz@meyerowitzcommunications.com) is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc.