State v. Michael S. Coleman

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.
January 30, 2020
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. 2019AP1999-CR Cir. Ct. No. 2018CM466

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL S. COLEMAN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Wood County:
NICHOLAS J. BRAZEAU, JR., Judge. Affirmed.

¶1 KLOPPENBURG, J.1 Michael S. Coleman challenges the circuit
court’s award of $2,881.71 in restitution for damage Coleman caused to a City of

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1999-CR

Wisconsin Rapids Police Department squad car. As I explain, I reject Coleman’s
arguments and, therefore, affirm.

BACKGROUND

¶2 Coleman was convicted of resisting an officer and disorderly
conduct as a result of Coleman’s conduct on July 15, 2018. The circuit court held
a hearing on restitution sought by the City of Wisconsin Rapids for damage
Coleman caused to a police department squad car after he was arrested. At the
hearing, City of Wisconsin Rapids Police Lieutenant Potocki testified that
Coleman was “combative and striking his head on the cage [in the squad car] and
kicking the squad door [which] caused the squad door to be pushed out and also
the window.” Potocki testified that the area where the window meets the door was
pushed out and the inside of the door was cracked. Potocki testified that an
estimate of the repair cost was provided on July 30, 2018, and that the squad car
was repaired on January 4, 2019 at a cost of $2,881.71, as indicated on a bill for
the repairs. The estimate and bill were admitted into evidence.

¶3 At the close of evidence, Coleman argued that the damage did not
result from a crime considered in sentencing, and that the evidence was
insufficient because there was no proof that the City or its insurer had paid the
repair bill. The circuit court rejected Coleman’s arguments and ordered
“restitution for the damage to the squad car in the amount of $2,881.71.”

¶4 Coleman appeals.

DISCUSSION

¶5 WISCONSIN STAT. § 973.20(1r) authorizes a circuit court to “order
the defendant to make full or partial restitution ... to any victim of a crime

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No. 2019AP1999-CR

considered at sentencing.” Under § 973.20(2)(b), the restitution order may require
that the defendant “pay the owner … the reasonable repair” of the property.
Under § 973.20(14), the victim of a crime bears “[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.”

¶6 On appeal, Coleman argues that the restitution award was excessive
given that the police continued to use the squad car for six months from the time it
was damaged to the time it was repaired, and that the damage resulted only “from
a person banging his head on the car.” However, as the State notes, Coleman
failed to argue before the circuit court that the officer’s testimony regarding the
cost to repair the squad car was unreasonable, on any basis. By failing to
adequately raise or develop this argument in the circuit court, Coleman has
forfeited it, and I reject it on that basis. See State v. Eugene W., 2002 WI App 54,
¶13, 251 Wis. 2d 259, 641 N.W.2d 467 (To preserve an issue for appeal, a party
must raise it “with sufficient prominence such that the [circuit] court understands
that it is called upon to make a ruling.”); Townsend v. Massey, 2011 WI App 160,
¶25, 338 Wis. 2d 114, 808 N.W.2d 155 (“[T]he forfeiture rule focuses on whether
particular arguments have been preserved, not on whether general issues were
raised before the circuit court.”)

¶7 For the first time in his reply brief, Coleman argues that the six-
month period between the time the squad car was damaged to the time it was
repaired “raises questions about the connection between the crime and the
damages.” Coleman’s argument fails because he does not point to any evidence
suggesting that the squad car incurred additional damage during that time other
than the damage that Potocki testified to at the hearing. I also reject this argument
because “[i]t is a well-established rule that we do not consider arguments raised

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No. 2019AP1999-CR

for the first time in a reply brief.” Bilda v. County of Milwaukee, 2006 WI App
57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661.2

CONCLUSION

¶8 For the reasons stated, Coleman’s challenge to the circuit court’s
restitution award based on unreasonableness and delay in repair fails.
Accordingly, I affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

2
Coleman makes an additional argument in his appellant’s brief that he abandons in his
reply brief, based on a misunderstanding of the dates in evidence. I take Coleman to have
conceded the issue and do not consider that argument further. See Fischer v. Wisconsin Patients
Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis. 2d 848, 650 N.W.2d 75 (“An argument
asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as
admitted.”).

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