State v. Joel A. Hinrichs

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 4, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP970-CR Cir. Ct. No. 2018CF1176

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JOEL A. HINRICHS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
JOHN D. HYLAND, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP970-CR

¶1 PER CURIAM. The State of Wisconsin appeals a circuit court
order denying the State’s request for restitution. We conclude that, based on the
facts agreed to by the State during the circuit court proceedings, the court properly
determined that restitution is not permitted under controlling Wisconsin law, and
that the court therefore properly denied the State’s restitution request without an
evidentiary hearing. Accordingly, we affirm.

BACKGROUND

¶2 Following a “cyber tip” from the National Center for Missing and
Exploited Children that Hinrichs had accessed child pornography, police executed
a search warrant at Hinrichs’ home. Police recovered an iPod on which Hinrichs
admitted that he had stored more than 40 images of child pornography. Included
in these images were 10 videos of prepubescent or pubescent girls engaged in
sexual activity. Based on these images, the State charged Hinrichs with 10 counts
of possession of child pornography and Hinrichs ultimately pleaded guilty to one
count, with the remaining nine counts read in. All counts were alleged to have
occurred in 2018.

¶3 The circuit court sentenced Hinrichs to three years of initial
confinement and seven years of extended supervision. At sentencing, the State
indicated that it would be requesting restitution, and a restitution hearing was
scheduled for February 1, 2019.

¶4 Prior to or at the February 1 restitution hearing, the State filed a
proposed order granting restitution, which indicates only the amounts requested by

2
No. 2019AP970-CR

the claimants1 ($5,000 each) and the payees. The State also provided to Hinrichs,
but not to the circuit court, documents in support of the State’s request for
restitution.2 Based on the parties’ representations in the circuit court, these
documents included psychological evaluations of the five claimants, victim impact
statements, letters from some of the claimants’ family members, and orders from
two federal district courts awarding restitution. The documents also included legal
briefs from two out-of-state attorneys, which relied on the rationale of Paroline v.
United States, 572 U.S. 434 (2014). As discussed in more detail below, Paroline
concludes that, in the context of child pornography cases and based on federal law,
victims may recover restitution even when the defendant is one of thousands who
viewed the images and the victims do not know that the defendant specifically
possessed the pornographic images in which they appear. Id. at 458-59.

¶5 Prior to the February 1 restitution hearing, Hinrichs filed a motion to
“strike” both the State’s restitution request and the evidentiary hearing. Hinrichs
argued that Paroline is not controlling because it is based on federal law and that,
under Wisconsin law, the State’s restitution request must be denied because all of
the damages identified in the State’s documents in support of restitution pre-dated
Hinrichs’ 2018 offense date. Hinrichs also noted that the documents showed that

1
The parties dispute whether the record establishes that the five claimants appear in the
pornographic images that Hinrichs possessed. Because we conclude that the State has otherwise
failed to establish that restitution is permitted under Wisconsin law, we need not address this
issue. See State v. Davis, 2011 WI App 147, ¶15, 337 Wis. 2d 688, 808 N.W.2d 130 (we need
not address other issues if one is dispositive). In light of this dispute, we refer to the five
individuals as “claimants” rather than as “victims.”
2
These documents are not part of the appellate record. On appeal, the State makes
various arguments regarding the fact that these documents were not before the circuit court when
it issued its order denying the State’s restitution request. We provide further background and
address the State’s arguments on this issue in the discussion section below.

3
No. 2019AP970-CR

one of the claimants had not incurred any damages because she was unaware of
the existence of the pornographic images.

¶6 At the February 1 restitution hearing, the State agreed that the
hearing would address legal arguments only and that, depending on the circuit
court’s determinations with respect to the legal issues, an evidentiary hearing may
or may not be held at a later date. The State agreed that Hinrichs’ motion
accurately characterized the documents the State had provided to Hinrichs in
support of the State’s restitution request. The State declined to provide the
documents to the court at the hearing, stating that “none of that matters for this
portion” because the question was one of law. The court accepted the dates of the
pertinent documents set forth in Hinrichs’ motion as accurate, without objection
from the State.

¶7 The circuit court subsequently issued a written decision in which it
granted Hinrichs’ motion to strike restitution and denied the State’s request for
restitution. The court determined that Paroline is inapplicable because its
conclusions are based on federal law. The court further concluded that Wisconsin
law, particularly, State v. Tarlo, 2016 WI App 81, 372 Wis. 2d 333, 887 N.W.2d
898, requires that, to qualify for restitution, damages must be incurred following
the commission of the crime. Here, according to the facts agreed to by the State,
all damages asserted by the claimants pre-dated Hinrichs’ downloading of the
files. Therefore, the court concluded that the State’s restitution request failed
because the facts to which the State agreed did not establish a “causal nexus
between [Hinrichs’] crime, possessing child pornography, and subsequent losses
from revictimization through the creation, circulation or possession of the
pornography.” The State appeals.

4
No. 2019AP970-CR

DISCUSSION

¶8 The State argues that the circuit court erred in denying its request for
restitution for two reasons: first, because the court “failed to allow” the State to
present evidence in support of its claims for restitution; and second, because the
court’s determination is based on a misinterpretation of Paroline and Tarlo. We
address these arguments in turn, after first setting forth the general principles
governing restitution.

I. Legal Standards Governing Restitution

¶9 The Wisconsin Constitution guarantees restitution to crime victims
as provided by law. See WIS. CONST. art. I, § 9m. Restitution is governed by WIS.
STAT. § 973.20. Pursuant to this provision, when imposing sentence or ordering
probation, the circuit court “shall” order the defendant to pay restitution to “any
victim of a crime considered at sentencing,” unless the court finds “substantial
reason not to do so.” Sec. 973.20(1r).3

¶10 At a restitution hearing, the victim has the burden of demonstrating
“by the preponderance of the evidence the amount of loss sustained by [the] victim
as a result of a crime considered at sentencing.” WIS. STAT. § 973.20(14)(a). The
victim must also show a “causal nexus” between the crime considered at
sentencing and the disputed damage. Tarlo, 372 Wis. 2d 333, ¶6; State v. Canady,

3
This provision is subject to some exceptions, not relevant here. Also, the phrase “crime
considered at sentencing” found in WIS. STAT. § 973.20 is defined as “any crime for which the
defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a). Therefore, in discussing
Hinrichs’ crime for purposes of restitution in this opinion, we include his read-in crimes.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP970-CR

2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147. Before a circuit court
may order restitution, “‘there must be a showing that the defendant’s criminal
activity was a substantial factor in causing’ pecuniary injury to the victim in a ‘but
for’ sense.” State v. Johnson, 2005 WI App 201, ¶13, 287 Wis. 2d 381, 704
N.W.2d 625; see also State v. Rash, 2003 WI App 32, ¶7, 260 Wis. 2d 369, 659
N.W.2d 189. While courts are to “construe the restitution statutes 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 activity.” Tarlo, 372 Wis. 2d
333, ¶7 (internal quotation marks omitted) (emphasis in original).

¶11 “[Circuit] courts have discretion in deciding on the amount of
restitution and in determining whether the defendant’s criminal activity was a
substantial factor in causing any expenses for which restitution is claimed.”
Johnson, 287 Wis. 2d 381, ¶10. “When we review a [circuit] court’s exercise of
discretion, we examine the record to determine whether the [circuit] court
logically interpreted the facts, applied the proper legal standard and used a
demonstrated, rational process to reach a conclusion that a reasonable judge could
reach.” Id.

II. Whether the Circuit Court Impermissibly Denied the State the Opportunity to
Present Additional Evidence

¶12 The State argues that the circuit court “denied the State and the
victims their opportunity to present evidence of their losses and evidence to
establish that Hinrichs’ crime caused those losses.” The State further asserts that
the court “declined to allow the admission of evidence under [WIS. STAT.]
§ 973.20(13), limiting the hearing to argument between the parties on the question
of whether restitution was permitted in Hinrichs’ case.” Further, according to the
State, because Hinrichs did not stipulate to the amount of restitution and the

6
No. 2019AP970-CR

amount could not be determined at sentencing, the court was required to hold an
evidentiary hearing after sentencing, pursuant to § 973.20(13)(c)1.-4. The State
also cites § 973.20(14)(d), which provides that at a restitution hearing, “[a]ll
parties interested in the matter shall have an opportunity to be heard, personally or
through counsel, to present evidence and to cross-examine witnesses.”

¶13 In response, Hinrichs argues that the State misconstrues what
actually occurred in the circuit court. We agree.

¶14 Contrary to the State’s characterization, the transcript of the
February 1, 2019 restitution hearing unambiguously shows that the circuit court
and the parties agreed to a bifurcated process in which, at the February 1 hearing,
the parties would present legal arguments as to whether restitution was permitted,
and that, depending on the outcome on the legal issues, an evidentiary hearing
may or may not be held. The court began the February 1 hearing by stating:
“We’re here for a restitution hearing to my understanding that does not require the
taking of evidence but legal argument. The State filed a proposed order. The
Defense, on the 29th of January, filed a motion to strike the restitution request and
supporting Memorandum of Law.” In response to the court’s summary of the
procedural posture of the case, the prosecutor stated:

[T]here likely will be evidence that needs to be taken at
some point, but we figured, through talking with the court’s
clerk, there’s only a half hour set aside for today, that we
could figure out the law that we’ll be operating under to
make that evidentiary hearing a little bit more meaningful
and impactful and that’s what at least I was hoping would
happen today.

Hinrichs then clarified that, in his motion to strike restitution, he had requested
that the court also “strike” any other hearing so that “there would be no
evidentiary hearing.” The prosecutor agreed with Hinrichs’ characterization of

7
No. 2019AP970-CR

Hinrichs’ motion, and later, after the parties presented their legal arguments, the
prosecutor reaffirmed his understanding of the procedure that would follow:

We’re asking for $25,000, but again I guess we only get to
that point if the court at least agrees with me that there
exists a factual basis for a child pornography possessor to
owe restitution because of what I’ve just outlined here
today. If the Court disagrees with that, then I agree with
[defense counsel] that based on Wisconsin law at this point,
there’s no reason to go forward to a restitution evidentiary
hearing.

Thus, the State expressly agreed that an evidentiary hearing was dependent upon
whether the circuit court accepted the State’s legal theory of restitution or instead
accepted the arguments advanced by Hinrichs in support of his motion to strike
restitution.4

¶15 With regard to the State’s documents in support of its restitution
request, the record shows that the State had the opportunity at the restitution
hearing to provide these documents to the court but declined to do so. When the
court informed the prosecutor that the court did not have the documents that
outlined the basis for the claimed losses referenced in Hinrichs’ motion, the
prosecutor stated:

You don’t have those, Your Honor. If you would
like them, I can give them to you. Again I would say that
none of that matters for this portion. If the court finds that
there is a cause to ask for restitution, we’ll go through
everything at the evidentiary portion. I would urge you not
to make any determinations about specific individuals until
we’ve heard evidence on it.

4
Toward the conclusion of the February 1 hearing, the circuit court summarized what
would happen next: “We would have to have an evidentiary hearing, depending on my ruling,
and we’re not doing that here today.... I’m going to take this under advisement and read Tarlo
carefully, think about these arguments and probably get out a written decision, maybe call you
both back just for an oral one.”

8
No. 2019AP970-CR

¶16 Rather than providing the circuit court with the State’s documents in
support of restitution or making any offer of proof as to how the documents would
support its legal theory or respond to Hinrichs’ motion to strike, the State agreed
that Hinrichs’ representations about the documents (contained in Hinrichs’
motion) were accurate. Among those representations were that one of the victims
was unaware that she appeared in any pornographic images and that all of the
psychological evaluations and other documents in support of the claimed losses
contained dates ranging from 2005 to 2017, before Hinrichs possessed any of the
images underlying his conviction, which occurred in 2018.5 The court stated that
it would accept the dates in Hinrichs’ motion as accurate, without objection from
the State. And although the prosecutor stated at one point that “likely a number of
[the documents] would be supplemented during the evidentiary hearing,” he made
no offer of proof as to what any additional evidence would show, and in particular,
he did not challenge Hinrichs’ repeated assertions that, according to the State’s
own documents, no losses accrued after 2017 and that therefore restitution was not
permitted under Tarlo. Thus, the circuit court “decline[d] to accept and review”
the documents the State provided to Hinrichs “because there was no proffer that
they contained evidence which would have supplied the necessary causal nexus”
between Hinrichs’ crime and any losses the restitution claimants may have
suffered.

5
The State’s only reference to what its documents showed, aside from the State’s
agreement to Hinrichs’ characterization of the documents, was the prosecutor’s statement that
“they gave past medicals to describe why they’re asking for future, that the past will likely show
us what might be necessary in the future. They gave us doctor’s evaluations indicating that the
trauma continues but, yes, it was a general restitution.” However, because the State agreed with
Hinrichs’ representations that all of the psychological evaluations occurred prior to 2018, before
Hinrichs’ crime, and that all of the other pertinent documents also pre-dated Hinrichs’ crime,
even the prosecutor’s statement that the “trauma continues” cannot reasonably be construed as a
statement that the trauma continued after Hinrichs’ crime.

9
No. 2019AP970-CR

¶17 Based on the foregoing, we reject the State’s characterization that
the circuit court denied the State the opportunity to present additional information
in support of its restitution request. Rather, the State declined to submit the
documents that it had provided to Hinrichs, agreed to Hinrichs’ characterization of
the date-related contents of those documents, made no offer of proof that it had
pertinent evidence supporting any losses following Hinrichs’ crime, and agreed
with the court that an evidentiary hearing would occur only if the court concluded
that restitution was recoverable under the law.6 Thus, the circuit court did not err
in declining to hold an evidentiary hearing when it determined that, based on the
facts the State agreed to, restitution is not permitted under Wisconsin law. We
now turn to the State’s challenge to the court’s conclusion that restitution cannot
be awarded under Wisconsin law.

III. Whether the Circuit Court Erred in Determining that the State’s Restitution
Request is Not Permitted Under Wisconsin Law

¶18 The State argues that the circuit court erred in determining that the
State’s restitution request is not permitted under Wisconsin law. Specifically,
according to the State, the circuit court’s determination is based on a
misinterpretation of both the United States Supreme Court opinion in Paroline and
this court’s opinion in Tarlo. The State contends that Paroline supports reversal
of the circuit court’s decision and that Tarlo is not on point. We begin by
discussing Paroline, which the State urges us to follow in interpreting Wisconsin
law. We conclude that, even assuming Paroline could be construed as consistent
with Wisconsin law, the circuit court did not err in denying the State’s restitution

6
The State also agreed that its documents showed that one of the claimants was unaware
that pornographic images of her existed and that her psychological evaluation stated that she was
“not currently suffering from clinically diagnosed psychological problems.”

10
No. 2019AP970-CR

request because the State failed to establish, based on the facts to which it agreed,
that restitution is permitted under Wisconsin law.

A. Paroline v. United States

¶19 In Paroline, the United States Supreme Court interpreted 18 U.S.C.
§ 2259 (“the federal statute”), which mandates restitution in cases involving the
possession of child pornography.7 Paroline involved a young girl who was
sexually abused by her uncle when she was eight and nine years old. Paroline,
572 U.S. at 440. This abuse was used to produce child pornography. Id. The
uncle was convicted, sentenced to prison, and ordered to pay $6,000 in restitution.
Id. The victim participated in therapy, and, with time and support from her
family, her therapist determined that she was “back to normal.” Id. However,
approximately 10 years later, when the victim was seventeen, she experienced “a
major blow to her recovery” when “she learned that images of her abuse were
being trafficked on the Internet.” Id. The possessors of her images numbered in
the thousands. Id. This knowledge renewed the victim’s trauma and, as she
explained in a victim impact statement submitted to the federal district court, she
lived “in constant fear” of recognition and humiliation, her life and her feelings
were “worse now,” and she felt she was “being abused over and over and over
again.” Id. at 440-41. The Court noted that “the victim suffers continuing and
grievous harm as a result of her knowledge that a large, indeterminate number of

7
The statute was amended in 2018, at least in part due to the Supreme Court’s Paroline
v. United States, 572 U.S. 434 (2014) decision. See Amy, Vicky, and Andy Child Pornography
Victim Assistance Act of 2018, Pub. L. No. 115-299, 132 Stat. 4383 (2018) (codified at 18
U.S.C. § 2259).

11
No. 2019AP970-CR

individuals have viewed and will in the future view images of the sexual abuse she
endured.” Id. at 457.

¶20 Defendant Paroline was one of the many individuals who possessed
the victim’s images and he was convicted for that possession. Id. at 441. The
victim sought restitution from Paroline, including damages for lost income and
future counseling costs under the federal statute. Id. The parties stipulated that
“the victim did not know who Paroline was and that none of her claimed losses
flowed from any specific knowledge about him or his offense conduct.” Id. at
442.

¶21 On appeal, the Supreme Court addressed “the proper causation
inquiry for purpose of determining the entitlement to and amount of restitution”
under the federal statute. Id. at 443. Because the federal statute defines a victim
as a person harmed “as a result of a commission of a crime,” the parties in
Paroline agreed that the statute imposed a causation requirement. Id. at 445. The
Court construed the federal statute as applying a “proximate cause” requirement,
under which restitution was proper “only to the extent the defendant’s offense
proximately caused a victim’s losses.” Id. at 448.

¶22 Significantly, in determining proximate cause, the Court explicitly
rejected a “but-for” causation requirement, concluding that upon the facts before
it, “a showing of but-for causation cannot be made.” Id. at 450. In support of this
conclusion, the Court observed that “[f]rom the victim’s perspective, Paroline was
just one of thousands of anonymous possessors” and that “it is not possible to
prove that her losses would be less (and by how much) but for one possessor’s
individual role in the large, loosely connected network through which her images
circulate.” Id. Moreover, even without Paroline’s offense of viewing the child

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No. 2019AP970-CR

pornography, “thousands would have viewed and would in the future view the
victim’s images, so it cannot be shown that her trauma and attendant losses would
have been any different but for Paroline’s offense.” Id. The Court noted that this
“is especially so given the parties’ stipulation that the victim had no knowledge of
Paroline.” Id.

¶23 However, the Court also acknowledged that the victim suffered the
type of losses contemplated by the federal statute, stating that “the victim’s costs
of treatment and lost income resulting from the trauma of knowing that images of
her abuse are being viewed over and over are direct and foreseeable results of
child pornography crimes.” Id. at 449. The Court further stated that “[i]t would
be anomalous to turn away a person harmed by the combined acts of many
wrongdoers simply because none of those wrongdoers alone caused the harm.” Id.
at 452. The Court observed: “[T]here can be no doubt [that] Congress wanted
victims to receive restitution for harms like this. The law makes restitution
‘mandatory,’ … for child-pornography offenses …, language that indicates
Congress’ clear intent that victims of child pornography be compensated by the
perpetrators who contribute to their anguish.” Id. at 458.

¶24 Thus, instead of adopting a but-for standard of causation, the Court
looked to tort law and concluded that “the various aggregate causation tests the
victim and the Government cite … are sound principles” to apply under the
circumstances. Id. at 451-52. Ultimately, the Paroline court concluded:

In this special context, where it can be shown both
that a defendant possessed a victim’s images and that a
victim has outstanding losses caused by the continuing
traffic in those images but where it is impossible to trace a
particular amount of those losses to the individual
defendant by recourse to a more traditional causal inquiry,
a court applying [the federal statute] should order
restitution in an amount that comports with the defendant’s

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No. 2019AP970-CR

relative role in the causal process that underlies the victim’s
general losses.

Id. at 458. The Court acknowledged that its approach was “not without its
difficulties” but stated that “courts can only do their best to apply the statute as
written in a workable manner, faithful to the competing principles at stake: that
victims should be compensated and that defendants should be held to account for
the impact of their conduct on those victims,” but not for the conduct of others.
Id. at 462.

¶25 Paroline has been addressed in only one published case in
Wisconsin, Tarlo, which we now discuss.

B. State v. Tarlo

¶26 In Tarlo, the defendant Tarlo was convicted of possession of child
pornography. Tarlo, 372 Wis. 2d 333, ¶3. The mother of a child who was in one
of the images that Tarlo possessed sought restitution from Tarlo for lost income.
Id. The mother claimed that she was deprived of lost income due to the earlier
arrest and ultimate incarceration of her husband (who was not Tarlo) for producing
child pornography, including the pornographic image of her daughter. Id. On
appeal, Tarlo argued that the mother failed to meet her burden of demonstrating
that the lost income she sustained was a result of Tarlo’s crime of viewing and
possessing the daughter’s image. Id. This court agreed. Id.

¶27 We noted that before restitution can be ordered, the victim must
show a “causal nexus” between the crime considered at sentencing and the
damage. Id., ¶6. However, the evidence presented at the restitution hearing in
Tarlo established “only financial losses incurred as a result of the earlier conduct
of the mother’s husband in producing the child pornography” and did “not

14
No. 2019AP970-CR

establish that any of the losses resulted from Tarlo’s criminal conduct, or even
general trafficking of the daughter’s image over the Internet.” Id., ¶8. We
observed that when the mother was asked at the restitution hearing if she
anticipated any future expenses related to Tarlo’s crime such as expenses for
treatment or therapy, she only indicated that “there could be.” Id., ¶10. And
although this court did not doubt the mother’s testimony that her daughter is
revictimized every time an individual views her image, we concluded that
“evidence still needed to be presented from which the circuit court could conclude
that financial losses claimed by the mother resulted from the viewing and
possession of her daughter’s image ….” Id., ¶11.

¶28 Significantly, in reaching this conclusion, we reasoned that “[t]he
restitution statute places on the victim the burden of proving that any losses
sustained were ‘a result of a crime considered at sentencing,’” and that “[a] ‘result’
of a crime follows from the commission of a crime; the result does not precede the
crime.” Id., ¶18 (quoting WIS. STAT. § 973.20(14)(a)).

¶29 The Tarlo court discussed and distinguished the Supreme Court’s
decision in Paroline. Id., ¶¶11-16. We observed that “the evidence discussed by
the Court [in Paroline] indicates [that] the restitution sought by the victim related
to the ‘major blow to her recovery’ which occurred when she learned at age
seventeen that her image was being viewed on the Internet, by individuals, such as
Paroline.” Id., ¶15. “By contrast,” we observed, “in the case before us, there
simply was no evidence presented of income lost or treatment costs incurred or of
income that will be lost or costs that will be incurred, as a result of Tarlo or others
viewing and possessing the daughter’s image.” Id., ¶15. Thus, to the extent Tarlo
suggests that Paroline provides any guidance in interpreting Wisconsin law, Tarlo

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No. 2019AP970-CR

appears to read Paroline as supporting the conclusion that losses must follow,
rather than precede, the defendant’s offense.

C. The Circuit Court Properly Determined that, Under the Facts Agreed to
by the State, Restitution is Not Permitted Under Wisconsin Law

¶30 Here, the circuit court rejected the approach taken in Paroline,
concluding that it was based on a federal statute and was not compatible with
Wisconsin restitution law. Instead, relying on Tarlo, the court concluded that the
State had not shown that any alleged losses resulted from Hinrichs’ crime.
Applying the Tarlo language quoted above, the court concluded that “in order to
be valid for purpose of restitution in Wisconsin, losses sustained by victims must
follow the commission of the crime,” and that “[t]his requires evidence that the
damage be sustained following the downloading of files by [Hinrichs].” The court
found that none of the damages alleged by the State accrued after Hinrichs’
criminal conduct. The court specifically found that one claimant did not have any
knowledge that she appeared in pornographic images, that another claimant’s
“alleged losses are documented from 2007 through 2016, ending two years before
[Hinrichs’] criminal conduct,” and that the “remaining victims offer only
generalized damages, none accruing after [Hinrichs’] criminal conduct.” Thus, the
court “decline[d] to accept and review” the documents the State provided to
Hinrichs “because there was no proffer that they contained evidence which would
have supplied the necessary causal nexus” between the claimed losses and
Hinrichs’ offense, as required by precedent such as Tarlo. As a result, the court
denied the State’s request for restitution without an evidentiary hearing.8

8
The State argues that the circuit court’s denial of restitution is premised on the State’s
failure to show that the victims knew of Hinrichs’ specific conduct of viewing the images. For
example, at one point, the court stated: “The documents could not possibly establish the nexus
(continued)

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No. 2019AP970-CR

¶31 The State argues that, contrary to the circuit court’s conclusion,
Paroline’s reasoning and holding are consistent with Wisconsin’s Constitution,
statutes, and case law, and that circuit courts should employ Paroline’s approach
in determining restitution amounts in cases involving possession of child
pornography.9 The State further argues that the circuit court misinterpreted Tarlo
in various respects. However, the State agrees that “Tarlo holds … that the victim
was not entitled to restitution because she did not meet her burden of linking the
defendant’s crime to her economic losses.”

¶32 We conclude that, even if, as the State argues, Paroline can be
reconciled with Wisconsin law, including Tarlo, the circuit court properly

required by Wisconsin law, again because the five victims did not know about this specific
defendant’s actions in viewing these images.” However, relying on the State’s own
documentation, the court clearly stated that none of the losses alleged by the State occurred after
Hinrichs’ criminal conduct. It is on this basis that we affirm the circuit court’s decision.
9
In so arguing, the State contends that “[f]or the same reasons that the Supreme Court
concluded that applying a ‘but-for’ model of determining cause would undermine the purpose of
the federal restitution statute, applying that model would likewise undermine the purpose of
restitution in Wisconsin.” In response, Hinrichs argues that the circuit court’s rejection of
Paroline was correct because “the but-for causation the Supreme Court dispensed with in
Paroline is an established requirement in the law of this state.” See, e.g., Johnson, 287 Wis. 2d
381, ¶13 (“[B]efore a [circuit] court may order restitution ‘there must be a showing that the
defendant’s criminal activity was a substantial factor in causing’ pecuniary injury to the victim in
a ‘but for’ sense.”) (emphasis added); Rash, 260 Wis. 2d 369, ¶7 (same). And Hinrichs argues
that, as in Paroline, in this case, the but-for standard cannot be met.

In reply, the State does not directly address Hinrichs’ argument that there is a conflict
between Paroline and this court’s precedent. Instead, the State construes Hinrichs to be arguing
that the but-for language found in Wisconsin’s case law means that a victim must show that the
defendant’s actions were the only reason for the victim’s losses, which the State argues is
incorrect. See State v. Behnke, 203 Wis. 2d 43, 58-59, 553 N.W.2d 265 (Ct. App. 1996)
(defendant’s actions need not be the sole factor in the victim’s losses).

We do not address the parties’ dispute over the but-for causation approach to restitution
because we conclude that the State’s restitution request fails under controlling language in Tarlo
separate from that approach.

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No. 2019AP970-CR

construed Tarlo as requiring the State to show that the claimants sustained losses
as a result of—that is, following—Hinrichs’ 2018 crime of possessing child
pornography. See Tarlo, 372 Wis. 2d 333, ¶18 (explaining that a restitution
claimant must show that any losses sustained were a “result of a crime considered
at sentencing” and that “[a] ‘result’ of a crime follows from the commission of a
crime; the result does not precede the crime”). Further, and as Tarlo suggests,
such a showing also appears to be required under Paroline, in which the trial court
had evidence before it regarding the victim’s continued trauma. See Paroline, 572
U.S. at 440-41; Tarlo, 372 Wis. 2d 333, ¶15. We also conclude that the State not
only failed to submit or proffer any facts showing that the claimants sustained any
losses following Hinrichs’ crime but that the State actually agreed to facts showing
that all claimed losses pre-dated Hinrichs’ crime. These facts preclude restitution
under Tarlo, and likely under Paroline as well.10

¶33 Accordingly, we conclude that the circuit court properly denied the
State’s request for restitution without an evidentiary hearing.

CONCLUSION

¶34 For the reasons stated above, we affirm.

10
We note, however, that even if Paroline does not require a specific showing of
damages following a defendant’s offense, the result in this case would be the same because under
the controlling precedent of Tarlo, such a showing is required. And although this court is not
required to follow Paroline because it is based on federal restitution law, we are required to
follow our own precedent. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997)
(we may not modify or overrule a prior opinion of this court).

18
No. 2019AP970-CR

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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