                                                                      2019 WI 1

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:               2016AP1541-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Shawn T. Wiskerchen,
                                  Defendant-Appellant-Petitioner.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 379 Wis. 2d 367, 906 N.W.2d 183
                                      (2017 – unpublished)

OPINION FILED:          January 4, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 25, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Faye M. Flancher

JUSTICES:
   CONCURRED:           A.W. BRADLEY, J., concurs, joined by ABRAHAMSON,
                        J. (opinion filed).
                        R.G. BRADLEY, J., concurs (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Jeremy A. Newman, assistant state
public defender.


       For the plaintiff-respondent, there was a brief filed by
Sopen B. Shah, deputy solicitor general, with whom on the brief
were    Brad      D.   Schimel,   attorney   general,   and   Misha   Tseytlin,
deputy solicitor general.            There was an oral argument by Sopen
B. Shah.
                                                                       2019 WI 1
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2016AP1541-CR
(L.C. No.    2015CF742)

STATE OF WISCONSIN                         :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                               FILED
      v.                                                      JAN 4, 2019
Shawn T. Wiskerchen,                                            Sheila T. Reiff
                                                             Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.              Affirmed.



      ¶1      PATIENCE DRAKE ROGGENSACK, C.J.         This is a review of

an unpublished decision of the court of appeals1 affirming the

circuit court's2 restitution order of $8,487.41 against Shawn T.
Wiskerchen for losses caused by his burglary of a neighbor's

residence.

      ¶2      Wiskerchen argues that the circuit court erroneously

exercised      its    discretion   in   calculating        the      amount       of


      1
       State v. Wiskerchen, No. 2016AP1541-CR, unpublished slip
op., (Wis. Ct. App. Nov. 1, 2017).
      2
          The Honorable Faye M. Flancher of Racine County presided.
                                                                                 No.     2016AP1541-CR



restitution.             He    argues        that       the    circuit       court        improperly

considered     alleged          prior        burglaries          of    the        victim's       home,

contrary to Wis. Stat. § 973.20 (2015-16),3 which he contends

limits restitution to losses resulting from a "crime considered

at    sentencing."              We     reject       his       argument       in        part    because

Wiskerchen misreads what the circuit court decided, and also

because no evidence was presented at the restitution hearing to

support a finding that N.D.'s missing property was stolen on any

date other than May 8, which was the burglary considered at

sentencing.

       ¶3    First, we conclude that the plain language of Wis.

Stat. § 973.20 authorized the circuit court to order restitution

to    the   victim       in    this     case.           Second,       we    conclude          that   the

circuit     court's       finding        that       the       victim       met    her     burden     in

proving the amount of loss resulting from a crime considered at

sentencing     was        not        clearly    erroneous.                 The     circuit       court

therefore     did        not     erroneously             exercise          its    discretion         in

ordering restitution of $8,487.41.
       ¶4    Accordingly, we affirm the court of appeals.

                                        I.     BACKGROUND

       ¶5    On May 8, 2015, police responded to N.D.'s home after

she    reported      a    burglary.            N.D.       was     visibly         upset,       crying,

shaking, and bleeding when the officers arrived.                                       She told the

officers she had come home to find all her bathroom cabinets

       3
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                                    2
                                                                         No.    2016AP1541-CR



open,      and    had     heard    noises    coming         from    upstairs.      She   went

upstairs and opened the back bedroom door to find Wiskerchen,

her neighbor, in the bedroom.

       ¶6        When N.D. discovered that Wiskerchen was inside her

home, she began yelling, and she and Wiskerchen began pushing

each other.             During the ensuing struggle, N.D. reported that

Wiskerchen grabbed her by the arm and threw her down the stairs

before fleeing the home.                N.D. suffered injuries to her wrist,

ankle, and shoulder as a result of this fall, and needed to wear

a brace on her foot as a result of her injuries.                                    She had

difficulty sleeping after the home invasion, and has stated that

she no longer feels safe and secure in her home.

       ¶7        Shortly after arriving at N.D.'s home, police found

Wiskerchen hiding in a neighbor's backyard.                            They searched the

backyard         and     found      a   pile          of    clothing    matching     N.D.'s

description of what the suspect was wearing, as well as a badly

bent       screwdriver.           Wiskerchen      was       arrested   and     charged   with

misdemeanor battery, possession of burglarious tools, burglary
of     a     building       or     dwelling,          and    second-degree       recklessly

endangering safety, all as a repeater.                             He eventually pled no

contest to the burglary charge without the repeater enhancer,

and was sentenced to five years of initial confinement followed

by four years of extended supervision.

       ¶8        Police    initially        had       a    difficult    time    discovering

Wiskerchen's point of entry into N.D.'s home.                                It turned out

that he had drilled a hole into a basement storm window and had
modified the window so it could be opened from the outside with
                                                  3
                                                              No.    2016AP1541-CR



a screwdriver.        N.D. told the presentence investigative report

(PSI) writer that Wiskerchen may have chosen this particular

window because it was not facing any neighbors.                      An officer

reported finding fresh sawdust in the grass beneath the storm

window.

    ¶9      N.D. informed the PSI writer that she had discovered a

"nest"     in   the   back    bedroom       closet,   where   Wiskerchen      had

apparently pulled down clothes and arranged a place where he

could hide.       She also found liquor bottles in the "nest."               This

discovery caused N.D. to worry that he may have been hiding in

her house on prior occasions while she was home, further eroding

her sense of security.          According to the PSI writer, Wiskerchen

bragged that he had previously burglarized "100 to 200 homes,"

and had made "more money than any judge or cop" by pawning his

stolen items in Illinois.

    ¶10     After the burglary of May 8, N.D. searched her home to

take stock of potentially stolen items and collected whatever

receipts    she    could     find.   She      then    submitted     an   itemized
insurance claim listing her total loss at $32,138.43.                        N.D.

explained that many of the stolen items had deep sentimental

value to her.      These included her children's nearly 200-year-old

baby rings from Germany, her grandmother's wedding ring that was

purchased during the great depression, and a pair of earrings

her brother had purchased for her in 1977 after taking on odd

jobs so he could afford to buy her a high school graduation

gift.     On cross-examination, N.D. said that prior to May 8, she
did not notice that any of the items listed on her statement of
                                        4
                                                                     No.     2016AP1541-CR



loss    were    missing.       However,          the    PSI   report       relates    that

Wiskerchen disputed the number of items that N.D. claimed were

stolen.

       ¶11     At the contested restitution hearing, N.D. asked to be

reimbursed      $32,138.43,     the    value       she      placed   on     her   stolen

property.       The insurance company had depreciated the value of

the stolen items to $22,279, and eventually paid her $13,791 due

to her policy limits.

       ¶12     N.D. testified that Wiskerchen was wearing a backpack

on May 8.        However, Wiskerchen's attorney argued "there was no

backpack that was reported, the only thing that could have been

-– that he could have concealed, would have been on his person

somehow or in his hands," implying that restitution must be

limited to the items found on or near Wiskerchen's person on May

8.     He also argued against the contention that Wiskerchen had

previously      burglarized    N.D.'s        home,      stating    that     "other    than

[N.D.'s] opinion of whether he was in [her] house, there's been

no other reports completed or done with the police department
regarding any other times he was in [her] house."                           This echoed

his statements at sentencing that "I don't really think there's

any evidence of [any prior entries]."                       He argued that because

N.D. did not know which items Wiskerchen stole during the May 8

burglary       versus      during      the       alleged,         unevidenced        prior

burglaries, Wis. Stat. § 973.20 limited restitution to the items

she could prove he stole on May 8.

       ¶13     The   circuit   court    began          by   acknowledging      that    the
burden of proof is on the victim to show, by a preponderance of
                                             5
                                                                     No.    2016AP1541-CR



the evidence, "the amount of loss sustained by a victim as a

result of a crime considered at sentencing."                          See Wis. Stat.

§ 973.20(14)(a).        After reciting the relevant provisions of the

restitution statute, including the correct statutory definition

of "crime considered at sentencing," the circuit court made the

following factual findings:             "[b]ased on the record, I find that

there    is   a   nexus     between     Mr.    Wiskerchen's         conduct     and    the

victim's loss, and I find that the victim has met her burden of

proof [in the amount of $8,487.41]."

    ¶14       We granted Wiskerchen's petition for review and now

affirm.

                                 II.    DISCUSSION

                            A.   Standard of Review

    ¶15       This   case    requires     us     to    interpret      a    statute,        to

review    a   circuit     court's      finding    of        fact,   and    to   review      a

circuit court's discretionary restitution order.

    ¶16       "Statutory     interpretation           and    the    application       of    a

statute to a given set of facts are questions of law that we
review independently, but benefiting from the analyses of the

court of appeals and the circuit court."                            Marder v. Bd. of

Regents, 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.

    ¶17       We uphold a circuit court's findings of fact unless

they are clearly erroneous.              Phelps v. Physicians Ins. Co. of

Wis. Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615.                                 A

circuit court's finding of fact is not clearly erroneous unless

it is against the great weight and clear preponderance of the


                                          6
                                                                               No.     2016AP1541-CR



evidence.          Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI

46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.

    ¶18          Restitution orders involve discretionary decisions of

the circuit court.                State v. Fernandez, 2009 WI 29, ¶20, 316

Wis. 2d 598, 764 N.W.2d 509.                               "Reviewing the calculation of

restitution         involves          a    question          of   whether      the    trial    court

misused      its       discretionary             authority."            Id.     This    court      may

reverse      a    trial     court's         discretionary           decision         "only    if   the

trial court applied the wrong legal standard or did not ground

its decision on a logical interpretation of the facts."                                        State

v. Behnke, 203 Wis. 2d 43, 58, 553 N.W.2d 265 (Ct. App. 1996);

Fernandez,         316    Wis. 2d          598,       ¶20.        "We   look    for    reasons     to

sustain a trial court's discretionary decision."                                     Farmers Auto.

Ins. Ass'n v. Union Pac. Ry. Co., 2009 WI 73, ¶32, 319 Wis. 2d

52, 768 N.W.2d 596.

                   B.     Interpretation of Wis. Stat. § 973.20

        1.   Whether Wis. Stat. § 973.20 Authorized Restitution

    ¶19          The     first    issue          is    whether      Wisconsin's        restitution
statute, Wis. Stat. § 973.20, authorized the circuit court to

order    restitution             to       N.D.    in       this    case.       Wisconsin       Stat.

§ 973.20 states in relevant part:

    (1g)(a) "Crime considered at sentencing" means any
    crime for which the defendant was convicted and any
    read-in crime.

         (b) "Read-in crime" means any crime that is
    uncharged or that is dismissed as part of a plea
    agreement, that the defendant agrees to be considered
    by the court at the time of sentencing and that the
    court considers at the time of sentencing the

                                                       7
                                                                    No.     2016AP1541-CR


      defendant for the crime for which the defendant was
      convicted.

           (1r) When imposing sentence or ordering probation
      for any crime . . . for which the defendant was
      convicted, the court . . . shall order the defendant
      to make full or partial restitution under this section
      to any victim of a crime . . . .

           (2) If a crime considered at sentencing resulted
      in damage to or loss or destruction of property, the
      restitution order may require that the defendant:

            . . . .

           (b) . . . pay the owner or owner's designee the
      reasonable repair or replacement cost or the greater
      of:

           1. The value of the property on the date of its
      damage, loss or destruction . . .

            . . . .

           (14)(a) The   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.
      ¶20   Statutory interpretation begins with the language of

the statute.           State ex. rel. Kalal v. Circuit Court for Dane

Cty.,   2004      WI    58,    ¶45,   271    Wis. 2d        633,   681     N.W.2d   110.

Statutory language is given its common, ordinary, and accepted

meaning,    except      that    technical       or   specially-defined         words   or

phrases     are    given      their    technical       or    special       definitional

meaning.     Id.       "If the words chosen for the statute exhibit a

'plain, clear statutory meaning,' without ambiguity, the statute

is   applied      according     to    the   plain     meaning      of    the   statutory

terms."     State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752
N.W.2d 769 (citing Kalal, 271 Wis. 2d 633, ¶46).


                                            8
                                                                             No.    2016AP1541-CR



       ¶21       "Statutory         purpose       is     important      in   discerning         the

plain meaning of a statute."                      Westmas v. Creekside Tree Serv.,

2018 WI 12, ¶19, 379 Wis. 2d 471, 907 N.W.2d 68 (citing Kalal,

271 Wis. 2d 633, ¶48).                    "[S]tatutory language is interpreted in

the context in which it is used; not in isolation but as part of

a whole; in relation to the language of surrounding or closely-

related          statutes;          and     reasonably,          to     avoid       absurd      or

unreasonable results."                   Kalal, 271 Wis. 2d 633, ¶46.                Therefore,

in construing a statute, "we favor a construction that fulfills

the    purpose         of    the    statute       over    one    that    defeats      statutory

purpose."         Westmas, 379 Wis. 2d 471, ¶19.

       ¶22       The    primary         purpose    of     Wis.    Stat.      § 973.20      is    to

compensate the victim.                    State v. Madlock, 230 Wis. 2d 324, 332,

602 N.W.2d 104 (Ct. App. 1999).                        The statute "reflects a strong

equitable public policy that victims should not have to bear the

burden       of    losses          if     the   defendant        is     capable      of   making

restitution."4              State v. Canady, 2000 WI App 87, ¶8, 234 Wis. 2d

261,       610    N.W.2d      147       (citations      omitted).         For      this   reason,
Wisconsin courts have repeatedly held that "restitution is the

rule and not the exception," and "should be ordered whenever

warranted."            Id. (quoting Madlock, 230 Wis. 2d at 333).                                In

light of this important public policy, courts should "construe


       4
       Wisconsin's strong public policy of supporting victims'
rights is further reflected in Wis. Stat. ch. 950, which
contains a bill of rights for victims and ensures that all crime
victims are "treated with dignity, respect, courtesy, and
sensitivity."


                                                   9
                                                             No.   2016AP1541-CR



the restitution statute 'broadly and liberally in order to allow

victims to recover their losses as a result of a defendant's

criminal conduct.'"     Madlock, 230 Wis. 2d at 332 (quoting State

v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App.

1997)).      We   interpret     the    restitution     statute     with    these

principles in mind.

    ¶23   Wisconsin      Stat.        § 973.20(1r)     requires     that     the

sentencing court 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 and states the reason on

the record."      If "a crime considered at sentencing" resulted in

a loss of property, courts are authorized to pay the victim

either the replacement cost or the property's value.                Wis. Stat.

§ 973.20(2)(b).

    ¶24   A "crime considered at sentencing" means the crime of

conviction and any read-in crime.             Wis. Stat. § 973.20(1g)(a).

A "read-in crime" is a crime that meets three criteria:                   (1) is

uncharged or is dismissed as part of a plea agreement, (2) the
defendant agrees that it will be considered at sentencing, and

(3) the   court     considers     it     at    the    time   of    sentencing.

§ 973.20(1g)(b).

    ¶25   At a restitution hearing, the victim has the burden of

proving the amount of loss she sustained as a result of a crime

considered   at    sentencing.        Wis.    Stat.   § 973.20(14)(a).        In

keeping with Wisconsin's strong public policy of compensating

victims, Wisconsin courts have interpreted "crime considered at
sentencing" quite broadly.       The crime encompasses "all facts and
                                       10
                                                                             No.   2016AP1541-CR



reasonable       inferences            concerning          the     defendant's         activity

related to the 'crime' for which the defendant was convicted,

not just those facts necessary to support the elements of the

specific charge of which the defendant was convicted."                                     Canady,

234 Wis. 2d 261, ¶10 (quoting Madlock, 230 Wis. 2d at 333).                                   The

victim needs to show that there is a "causal nexus" between the

crime     and    the     victim's           losses,     such      that       the   defendant's

criminal     activity        was       a    "substantial       factor"       in    causing    the

losses.      Canady, 234 Wis. 2d 261, ¶9.                        The court considers the

defendant's "entire course of conduct" in committing the crime

of conviction, not merely the facts necessary to support the

conviction.       Id., ¶10 (quoting State v. Rodriguez, 205 Wis. 2d

620, 627, 556 N.W.2d 140 (Ct. App. 1996)).

       ¶26   Canady demonstrated the breadth of "crime considered

at    sentencing."           In    that       case,     Canady        "put    forth    quite    a

struggle"       when    police         attempted      to   arrest       him    for    burglary.

Canady, 234 Wis. 2d 261, ¶11.                         As the officers struggled to

escort him to the ground, he attempted to grab a pry bar from
his   pocket.          Id.        An       officer    tossed     it    out    of     his   reach,

breaking a glass door behind him.                      Id.       Canady was convicted of

burglary and resisting arrest.                        Id., ¶3.           The circuit court

ordered Canady to pay restitution for the cost of repairing the

broken door, and the court of appeals affirmed.                               Id., ¶12.      Even

though Canady did not break the door himself, and even though

this fact was not strictly necessary to convict him of resisting

arrest, his conduct in committing the crime of conviction was a
"substantial factor" in causing the damage.                           Id.
                                                 11
                                                             No.    2016AP1541-CR



      ¶27   In this case, Wiskerchen was convicted of burglarizing

N.D.'s home on May 8.            This burglary was a "crime considered at

sentencing" under Wis. Stat. § 973.20(1g)(a), as it was a crime

for which the defendant was convicted.                N.D. was the victim of

the May 8 burglary, as it was her home that was burglarized, so

she   was    a    victim    of    a   "crime   considered    at    sentencing."

Therefore, Wis. Stat. § 973.20 authorized the circuit court to

order Wiskerchen to pay restitution to N.D.

      ¶28   Finally, we note that any potential prior burglaries

were not "read-in crimes."            As mentioned above, one component of

a read-in crime under Wis. Stat. § 973.20(1g)(b) is that the

defendant        agrees    to     have    it   considered     at    sentencing.

Wiskerchen did not agree to have any potential prior burglaries

considered       at   sentencing.        Therefore,   they   are   not   read-in

crimes.

                            2.    Restitution Amount

      ¶29   We next review the circuit court's finding of fact

that the victim met her burden of proving a loss of $8,487.41 as
a result of a crime considered at sentencing.                We conclude that

although the circuit court did not itemize which stolen items

were included in the award of $8,487.41, the finding of fact

that N.D. proved her loss is not clearly erroneous.

      ¶30   As noted above, a circuit court's finding of fact is

not clearly erroneous unless it is against the great weight and

clear preponderance of the evidence, even if the evidence may

have presented competing factual inferences.                 See Phelps, 319
Wis. 2d 1, ¶39.        Findings of fact will be affirmed on appeal as
                                          12
                                                                           No.        2016AP1541-CR



long as the evidence would permit a reasonable person to make

the same finding.                Royster-Clark, Inc., 290 Wis. 2d 264, ¶12.

We    search       the    record        not   for     evidence     opposing       the     circuit

court's decision, but for evidence supporting it.                               Id.

       ¶31        In     this     case,       the      evidence      presented           at      the

restitution hearing would permit a reasonable person to find

that       N.D.    had    met    her     burden     to     prove   "the    amount        of     loss

sustained."            First, evidence was presented that numerous items

were stolen from N.D.'s home.                       N.D. presented an itemized list

of missing property that she had submitted to her insurance

company.           She    testified       that      this    document      was    a     "true    and

accurate representation" of the items she found missing after

the    burglary.                There     was     no     evidence      presented          at    the

restitution hearing to rebut N.D.'s claim.

       ¶32        Second, we know Wiskerchen burglarized N.D.'s home on

May 8.       He pled guilty to this burglary, which was by definition

a    "crime       considered        at    sentencing"        pursuant       to       Wis.      Stat.

§ 973.20(1g)(a).
       ¶33        Third, there was no evidence presented that any of the

items comprising the amount for which restitution was ordered

were stolen from N.D.'s home on any date other than May 8.                                     Only

Wiskerchen's mother's hearsay statement relayed by N.D. that he

had been in and out of her house prior to May 8 implied there

could have been other thefts.5

       5
       Wiskerchen's mother did not testify at the restitution
hearing.


                                                 13
                                                                 No.    2016AP1541-CR



    ¶34     Next,    the    "nest"    in    the    bedroom    closet      could     be

evidence that Wiskerchen may have burglarized N.D.'s home on

days other than May 8.        However, he also could have hidden there

and drank liquor on prior occasions, without stealing any of the

property    that    N.D.    discovered      was    missing    after     the   May   8

burglary.

    ¶35     Crucially,      there    was    no    evidence    presented       at   the

restitution hearing that either he or anyone else had stolen any

of the listed items from N.D.'s home on days other than May 8.

On the contrary, his attorney asked N.D. the following question

at the restitution hearing:          "other than your opinion of whether

he was in your house, there's been no other reports completed or

done with the police department regarding any other times he was

in your house, correct?"             Shortly thereafter, he asked her:

"May 8 is the only report that he was in your house, correct?"

N.D. answered both questions in the affirmative.                       Wiskerchen's

attorney had previously stated at the sentencing hearing that "I

don't   think      there's    really       any     evidence      of    [any    prior
burglaries]."

    ¶36     The consistent theme from the defense was that there

was no evidence Wiskerchen burglarized N.D.'s home before May 8.

That said, the finding that N.D. proved a loss in the amount of

$8,487.41    for    which    restitution         was   ordered   due     to   stolen

property is not against the great weight and clear preponderance

of the evidence presented to the circuit court.                   Therefore, the

circuit court's finding that N.D. met her burden of proving a


                                       14
                                                                           No.    2016AP1541-CR



loss    of    $8,487.41      as    a   result       of     a    crime        considered     at

sentencing is not clearly erroneous.

             C.   The Circuit Court's Exercise of Discretion

       ¶37    Having concluded that restitution was authorized and

that the circuit court's finding that the victim had met her

burden of proof was not clearly erroneous, we now review the

circuit      court's   discretionary         decision          to    set     restitution    at

$8,487.41.        As   mentioned          above,        restitution          orders    involve

discretionary decisions of the circuit court.                              We may reverse a

circuit court's discretionary decision "only if the trial court

applied the wrong legal standard or did not ground its decision

on a logical interpretation of the facts."                           Behnke, 203 Wis. 2d

at 58; Fernandez, 316 Wis. 2d 598, ¶20.                        We look for reasons to

sustain a trial court's discretionary decision.                               Farmers Auto.

Ins. Ass'n, 319 Wis. 2d 52, ¶32.

       ¶38    In this case, the circuit court applied the correct

legal     standard     and        grounded        its     decision          on    a   logical

interpretation of the facts.                The court applied the mandate of
Wis. Stat. § 973.20 and found that N.D. suffered a loss due to

Wiskerchen's      conduct.          The    court        knew        that    Wiskerchen     had

burglarized N.D.'s home on May 8, and no evidence was introduced

that he or anyone else had stolen N.D.'s property on any other

date.     Given that this was the evidence presented, the finding

that Wiskerchen was responsible for N.D.'s loss based on the May

8 burglary is a logical interpretation of the evidence.

       ¶39    Wiskerchen      contends        that        the        court       of   appeals'
decision applied the wrong law, erroneously considering possible
                                             15
                                                                             No.        2016AP1541-CR



prior burglaries in its restitution award.                               According to the

court       of    appeals,      any    prior      burglaries      of    N.D.'s           home   were

proper subjects of consideration under Wis. Stat. § 973.20, as

they were part of the same "course of criminal conduct" as the

May     8    burglary.           State       v.    Wiskerchen,         No.     2016AP1541-CR,

unpublished slip op., ¶13 (Wis. Ct. App. Nov. 1, 2017).

      ¶40        The    court    of     appeals        relied    heavily           on     State   v.

Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, in

reaching its conclusion.                    However, Queever is distinguishable.

There, a woman suspected that her home was being burglarized

repeatedly.            Id., ¶3.        She watched her home's security camera

footage and saw a man with "longer hair and a larger body build"

entering her home.               Id.        The footage was not clear enough to

identify the suspect, so she purchased a new security system for

$2,495.          Id., ¶¶6-8.      The new system was then used to identify

and capture the suspect, Thomas Queever.                        Id., ¶6.

      ¶41        The circuit court awarded restitution for the cost of

the new security system, and the court of appeals affirmed.
Id., ¶1.          The court held that the circuit court's finding that

Queever          committed      the    previous        burglaries       was        not      clearly

erroneous,          and   that        the    previous     burglaries           were        properly

considered under Wis. Stat. § 973.20 as "part of the same course

of conduct as the crime of conviction."                         Id., ¶¶16, 25.

      ¶42        Relying on Queever, the court of appeals in the case

now before us held that Wiskerchen's alleged prior burglaries of

N.D.'s       home      properly        could      be    considered       at        Wiskerchen's
restitution hearing as part of a "single course of criminal
                                                  16
                                                                          No.    2016AP1541-CR



conduct" related to the May 8 burglary.                      Wiskerchen, unpublished

slip op., ¶13.

       ¶43    We    reject      Wiskerchen's            argument.         We     review     the

circuit      court's        exercise   of       discretion,         not    the     court    of

appeals' reasoning.            See Fernandez, 316 Wis. 2d 598, ¶20.                        That

said, we read the circuit court's decision a bit differently

than did the court of appeals.

       ¶44    The   court      of   appeals        assumed    the    restitution          order

implied      that     "[t]he    circuit       court      determined        that    it     could

consider the prior burglaries as conduct related to Wiskerchen's

May 8 burglary."            Wiskerchen, unpublished slip op., ¶5.                       We do

not read the circuit court's restitution order or the transcript

from    the    restitution          hearing        as    necessarily        implying       this

conclusion of law.            The circuit court explicitly found only that

"based on the record . . . the victim has met her burden of

proof."       Her burden was to prove the amount of her loss.                              Wis.

Stat. § 973.20(14)(a).               She proved a loss of $8,487.41.                         As

explained above, this finding of fact is not clearly erroneous.
We conclude that the circuit court did not apply the wrong law,

and that its decision was grounded on a logical interpretation

of the evidence that was presented at the restitution hearing.

The circuit court therefore did not erroneously exercise its

discretion by setting restitution at $8,487.41.

                                    III.    CONCLUSION

       ¶45    Wiskerchen argues that the circuit court erroneously

exercised       its     discretion         in       calculating       the         amount     of
restitution.           He    argues    that        the    circuit     court       improperly
                                              17
                                                                               No.    2016AP1541-CR



considered        alleged         prior    burglaries          of     the      victim's     home,

contrary     to     Wis.       Stat.      § 973.20          which     he       contends    limits

restitution        to    losses      resulting         from    a     "crime      considered     at

sentencing."        We reject his argument in part because Wiskerchen

misreads what the circuit court decided and also because no

evidence was presented at the restitution hearing to support a

finding that N.D.'s missing property was stolen on any date

other      than    May       8,    which     was       the     burglary         considered      at

sentencing.

      ¶46    First, we conclude that the plain language of Wis.

Stat. § 973.20 authorized the circuit court to order restitution

to   the    victim      in    this     case.          Second,       we    conclude      that    the

circuit     court's       finding         that    the       victim       met    her    burden   in

proving the amount of loss resulting from a crime considered at

sentencing        was    not       clearly       erroneous.              The     circuit    court

therefore         did    not       misuse        its    discretion             in     calculating

restitution at $8,487.41.

      ¶47    Accordingly, we affirm the court of appeals.


      By    the    Court.—The         decision         of    the     court      of    appeals   is

affirmed.




                                                 18
                                                                No.   2016AP1541-CR.awb


      ¶48    ANN    WALSH      BRADLEY,    J.     (concurring).            Although    I

agree with the majority's conclusion that N.D. is entitled to

recover restitution in the amount of $8,487.41, I do not join

its analysis.       I part ways with the majority because it misreads

the record and anchors its analysis on a skewed focus of the

circuit court's factual findings.

      ¶49    The    majority     misreads       the   record    by    asserting      that

"there      was    no   evidence      presented       that     any    of    the   items

comprising the amount for which restitution was ordered were

stolen from N.D.'s home on any date other than May 8."                                See

majority op., ¶33.

      ¶50    Neither the State nor Wiskerchen argued in support of

the   majority's        view   of    the   record.       Likewise,         neither   the

circuit court nor the court of appeals subscribed to such an

approach.

      ¶51    Rather, the testimony in the circuit court supports a

contrary assertion, i.e., some of the property likely was stolen

on dates prior to May 8.              Accordingly, the circuit court found
"that there is a nexus between Mr. Wiskerchen's conduct and the

victim's loss, and I find that the victim has met her burden of

proof."

      ¶52    With the actual facts of record and complete circuit

court finding in hand, I would affirm the court of appeals.

Relying on our prior case law, I conclude that where a circuit

court     makes     specific        factual     findings     regarding       uncharged

conduct that is "related to" the crime of conviction, and there
is a causal nexus between the conduct and the loss, restitution

                                           1
                                                                 No.    2016AP1541-CR.awb


is    permissible         for     uncharged       conduct.             Accordingly,    I

respectfully concur.

                                            I

      ¶53     The circuit court determined that N.D. was entitled to

restitution.        It arrived at this determination by explicitly

referencing Wiskerchen's alleged prior burglaries, how he had

been in the victim's home many times, and that he built a "nest"

in    her     closet.           The     circuit    court        further      referenced

Wiskerchen's practice of pawning stolen goods in Illinois.                          From

this evidence, the circuit court actually found "that there is a

nexus between Mr. Wiskerchen's conduct and the victim's loss,

and   I     find   that    the    victim    has    met    her    burden      of   proof"

(emphasis added).

      ¶54     The majority focuses on the second half of the circuit

court's      statement     while      ignoring    the    first.         It   criticizes

Wiskerchen for "misread[ing] what the circuit court decided" and

concludes that "no evidence was presented at the restitution

hearing to support a finding that N.D.'s missing property was
stolen on any date other than May 8, which was the burglary

considered at sentencing."              Majority op., ¶2.

                                           II

      ¶55     Such an assertion is backwards.                  It is the majority,

and   not     Wiskerchen,        that   "misreads       what    the     circuit   court

decided."

      ¶56     A finding that all of the stolen property was taken on

May 8 is contrary to the evidence in this record.                            There was
testimony that Wiskerchen used a chisel to gain access to N.D.'s

                                            2
                                                                     No.    2016AP1541-CR.awb


home through a storm window and that he repeatedly entered and

exited in such a fashion.              The record reflects that N.D. claimed

the   loss   of     over    100    items,    including        a    video        game    system,

several coats, a case of wine, dishes, a microwave, a crockpot,

and a printer.        Further, the record reflects that Wiskerchen was

carrying     only    a     backpack     during      the      course        of    the     May    8

burglary.     When asked if Wiskerchen could have fit all of the

lost items in his backpack, N.D. responded, "Not on that day.

It was many days that he was in my house."

      ¶57    Neither       Wiskerchen    nor     the     State       argued      that     every

item was stolen on May 8.              From the testimony, the circuit court

understandably        determined        that     there       was     a      nexus       between

Wiskerchen's prior conduct and the May 8 burglary and ordered

restitution accordingly.

      ¶58    Rather        than    embrace       the      factual          and    analytical

missteps of the majority, I would affirm the court of appeals

based   on   restitution          principles     and        statutory       interpretation

gleaned from prior case law.
      ¶59    Restitution          is   governed        by     Wis.       Stat.      § 973.20.

Pursuant to Wis. Stat. § 973.20(2)(b), "[i]f a crime considered

at sentencing resulted in damage to or loss or destruction of

property,     the        restitution        order       may        require        that         the

defendant . . . pay the owner or owner's designee the reasonable

repair or replacement cost" of the property lost.                                      A "crime

considered at sentencing" is defined by statute as "any crime

for which the defendant was convicted and any read-in crime."
Wis. Stat. § 973.20(1g)(a).

                                             3
                                                                     No.    2016AP1541-CR.awb


          ¶60    We are to interpret the restitution statute "broadly

and liberally in order to allow victims to recover their losses

as    a    result     of     a   defendant's       criminal       conduct."        State    v.

Gibson, 2012 WI App 103, ¶10, 344 Wis. 2d 220, 822 N.W.2d 500.

The       restitution      statute       "reflects     a    strong       equitable    public

policy that victims should not have to bear the burden of losses

if the defendant is capable of making restitution."                                 State v.

Kennedy, 190 Wis. 2d 252, 258, 528 N.W.2d 9 (Ct. App. 1994).

          ¶61    In   State        v.     Rodriguez,        the     court     of     appeals

established that a sentencing court is to take into account "a

defendant's entire course of conduct" in determining an award of

restitution.           205 Wis. 2d 620, 627, 556 N.W.2d 140 (Ct. App.

1996).          Accordingly, we broadly define what constitutes a "crime

considered at sentencing" for which restitution may be ordered.

See Wis. Stat. § 973.20(1g)(a); State v. Canady, 2000 WI App 87,

¶10, 234 Wis. 2d 261, 610 N.W.2d 147.

          ¶62    The term "crime" "as used in the restitution statute

is properly understood as 'encompassing all facts and reasonable
inferences concerning the defendant's activity related to the

"crime" for which the defendant was convicted, not just those

facts necessary to support the elements of the specific charge

of which the defendant was convicted.'"                           State v. Madlock, 230

Wis. 2d 324,          333,       602    N.W.2d 104    (Ct.        App.   1999).       Before

restitution may be ordered, a causal nexus must be established

between the "crime considered at sentencing" and the damage for

which restitution is ordered.                  Canady, 234 Wis. 2d 261, ¶9.                 In
proving          causation,       the     victim     must     demonstrate          that    the

                                               4
                                                                        No.   2016AP1541-CR.awb


defendant's          criminal       activity       was     a    substantial          factor       in

causing the damage.             Id.

       ¶63      Relying on our prior case law, I conclude that where a

circuit        court        makes     specific       factual           findings         regarding

uncharged conduct that is "related to" the crime of conviction,

and there is a causal nexus between the conduct and the loss,

restitution          is     permissible        for       uncharged          conduct.             See

Rodriguez,          205   Wis. 2d at        627;   Madlock,           230   Wis. 2d at        333;

Canady,        234    Wis. 2d 261,       ¶9.         The       requirement         of    specific

factual findings serves a dual purpose.                           First, it provides a

safeguard       to    defendants       so    as    to    not     hold       them    financially

responsible for losses that may have occurred to victims not as

a    result     of    the     defendants'      conduct.          Second,       it       avoids    an

unreasonable         result that would leave a crime victim with no

restitution for the sole reason that the victim is unable to

prove which items were taken on any specific day.                                  See State ex

rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271

Wis. 2d 633, 681 N.W.2d 110 (explaining that statutory language
is    to       be     interpreted       "reasonably,             to     avoid       absurd       or

unreasonable results").

       ¶64      Here,     the   circuit      court       made    such       specific      factual

findings.            Citing     the   presentence          investigation           report,       the

circuit court found that:

               "[Wiskerchen] stated that he had burglarized between

                one hundred to two hundred homes and had never been

                caught."



                                               5
                                                                No.    2016AP1541-CR.awb


           "He further told the PSI writer that he would take the

            items that he stole to the state of Illinois where he

            knew a guy who would pawn the stolen goods and would

            not ask for identification."

           "[The victim] told the PSI writer how Mr. Wiskerchen's

            mother told her how the defendant had been in her home

            many times prior to actually being caught."

           "[The victim] also reported to the PSI writer how she

            had    discovered      that       the    defendant        made    what    she

            referred to as a nest in the back of her closet where

            she discovered liquor bottles, and it appeared that he

            had    hid    out     during       the     day     when     she     was   at

            work . . . ."

           "Based on the record, I find that there is a nexus

            between      Mr.    Wiskerchen's         conduct    and     the    victim's

            loss . . . ."

      ¶65   These factual findings describe a course of conduct

that is "related to" the May 8 burglary.                     The course of conduct
described is "related to" the May 8 burglary because it involves

the same house where Wiskerchen created a "nest" in the closet

and appeared to hide out during the day, the same victim, and

the same mode of entry.           See State v. Queever, 2016 WI App 87,

¶22, 372 Wis. 2d 388, 887 N.W.2d 912.                  Consequently, in my view

restitution is appropriate.

      ¶66   In    sum,   I     agree   with     the    majority        that    N.D.   is

entitled to $8,487.41 in restitution.                   However, I do not join
the   majority's    reasoning      because      it    misreads        the    record   and

                                          6
                                                     No.   2016AP1541-CR.awb


bases its analysis on a skewed focus of the circuit court's

findings of fact.    Accordingly, I respectfully concur.

    ¶67   I   am   authorized   to   state   that   Justice   SHIRLEY    S.

ABRAHAMSON joins this concurrence.




                                     7
                                                                             No.   2016AP1541.rgb


    ¶68      REBECCA GRASSL BRADLEY, J.                        (concurring).                Like the

majority, I would affirm the court of appeals decision affirming

the circuit court's restitution order.                               I join the majority

opinion    in    full      but     I    write         separately       because          a       textual

interpretation        of     the   restitution              statute,       specifically            Wis.

Stat.    § 973.20(1r)        and       (13)(a),        supports      the     circuit            court's

decision.

                                                  I

    ¶69      The interpretation and application of a statute begin

with the language of the statute.                           See State ex rel. Kalal v.

Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d      110.              Because          "[c]ontext             is      important              to

meaning . . . statutory language is interpreted in the context

in which it is used; not in isolation but as part of a whole; in

relation    to       the   language       of       surrounding         or    closely-related

statutes;       and     reasonably,          to       avoid    absurd       or     unreasonable

results."       Id., ¶46 (citations omitted).                       "Statutory language is

read where possible to give reasonable effect to every word, in
order to avoid surplusage."                  Id.

    ¶70      The text of Wis. Stat. § 973.20(1r) interpreted in the

context of the surrounding sections of the restitution statute

shows that subsection (1r) does not constrain the circuit court

to the crime considered at sentencing when ordering restitution.

Subsection       (1r)      requires       the         circuit       court     to        order       the

defendant       to    make    restitution              to     any    victim        of       a    crime

considered      at    sentencing:             "the      court . . . shall               order       the
defendant    to       make    full      or    partial         restitution . . . to                  any

                                                  1
                                                                                  No.    2016AP1541.rgb


victim of a crime considered at sentencing[.]"                                    Subsection (1r),

unlike    several         of      the     other       statutory          subsections         addressing

restitution,         does         not   restrict           the     circuit      court's       order        of

restitution to only crimes considered at sentencing nor does it

limit the court to ordering restitution for only those losses

incurred    as       a    result          of    a     crime      considered        at    sentencing.

Instead, it requires the circuit court to award restitution to

any    victim        of       a     crime       considered          at     sentencing,                thereby

establishing the category of persons to whom the defendant must

be ordered to pay restitution.

      ¶71   In       contrast           to      the    text        of     subsection         (1r),       the

language of subsections (2), (3), (4), and (5) imposes limits on

the      particular               types        of      restitution              addressed——namely,

restitution       under             these      subsections          is     confined          to        losses

arising from the crime considered at sentencing.                                        For example,

subsection      (3)        allows         the       court     to    order       the     defendant         to

"[r]eimburse the injured person for income lost as a result of a

crime considered at sentencing."                            (Emphasis added.)                Similarly,
subsection       (5)          permits          the    circuit           court     to    require           the

defendant    to      "[p]ay          all       special      damages . . . which               could        be

recovered       in        a       civil        action       against         the       defendant          for

his . . . conduct in the commission of a crime considered at

sentencing."          Subsection (1r) is phrased quite differently; it

simply identifies the group of people to whom the defendant must

be    ordered     to          pay     restitution:                 "any    victim       of        a    crime

considered      at        sentencing."                If    the     legislature          intended         to
confine the scope of restitution orders to losses incurred as a

                                                      2
                                                                          No.    2016AP1541.rgb


result of a crime considered at sentencing, it certainly could

have   done     so     by     employing       the    exact    language          it    wrote    in

subsections addressing particular types of losses sustained by

victims.        Instead,        it     afforded      courts       much     flexibility         in

crafting restitution orders, so long as restitution is ordered

to be paid to any victim of a crime considered at sentencing.

       ¶72     Additionally, Wisconsin Stat. § 973.20(13)(a) directs

the    circuit        court    to     consider       five    factors       in    determining

whether to order restitution and in what amount:

        1.   The amount of loss suffered by any victim as a
       result of a crime considered at sentencing.

        2.    The financial resources of the defendant.

        3.   The present and future earning ability of the
       defendant.

        4. The needs and earning ability of the defendant's
       dependents.

        5.     Any other              factors       which     the        court       deems
       appropriate.
The statute specifically requires the circuit court to consider

the    loss    suffered        by     the    victim     as    a     result       of    a     crime

considered at sentencing.               But the statute does not restrict the

circuit       court    to     ordering       restitution          only    for    that        loss.

Subdivision 5 grants to the                   circuit       court the discretion to

consider       "[a]ny         other    factors"        the     circuit          court        deems

appropriate.          (Emphasis added.)

       ¶73     Many cases do not involve a defendant's commission of

repeated      crimes     against       the    same    victim       causing       losses       with
potentially      unidentifiable             dates    such    as    the    possible         serial

burglaries in this case, so we address a relatively infrequent
                                               3
                                                                     No.    2016AP1541.rgb


if not rare situation perhaps not contemplated by the statutes,

and   one     that    the   legislature       may   wish    to   address      with    more

specificity.         Wisconsin Stat. § 973.20(13)(a)5 gives the circuit

court    great       latitude    to     consider    among     "other       factors"   the

difficulty (if not impossibility) of establishing May 8th as the

one   and     only     date     on    which   the   defendant        burglarized       the

victim's home.         While the circuit court must consider the amount

of loss suffered by the victim as a result of a crime considered

at sentencing, the circuit court is free to consider any other

factors the court deems appropriate.

      ¶74     Subsection (14) also uses the language "as a result of

a crime considered at sentencing" in designating the burden of

proof:

       (a) The 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.

         . . .

       (c) The burden of demonstrating, by the preponderance
      of the evidence, such other matters as the court deems
      appropriate is on the party designated by the court,
      as justice requires.
There    is    nothing      in    the    statutes       requiring     the    victim     to

identify the date on which her losses were sustained; she must

only establish by a preponderance of the evidence the loss she

suffered as a result of a crime considered at sentencing and the

circuit     court's     conclusion       that     she   met   that     burden    is    not

clearly erroneous.            Her home was burglarized on May 8th, she
presented documentation of items that were missing after that

burglary, and nothing contradicted her evidence.
                                              4
                                                                            No.    2016AP1541.rgb


      ¶75       The    legislature          used       "as    a     result        of   a   crime

considered at sentencing" or similar language tying a victim's

recovery        of    particular          losses       to    the    crime     considered      at

sentencing in certain sections of the restitution statute, but

not   in    a    way       that    restricts       the      circuit    court      to    awarding

restitution only for losses sustained "as a result of a crime

considered at sentencing."                     In other sections of the statute,

the legislature did not limit restitution to only those losses

arising "as a result of a crime considered at sentencing."                                  Most

significantly,             in    Wis.   Stat.      §     973.20(1r),        the    legislature

mandated an order of restitution to be paid by the defendant "to

any   victim          of    a     crime     considered         at     sentencing."           The

legislature did not command an order of restitution to be paid

by the defendant for a crime considered at sentencing or as a

result of a crime considered at sentencing.                                 Where a statute

"used one term in one place, and a materially different term in

another, the presumption is that the different term denotes a

different idea."                Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012); Johnson v. City of

Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996)

("When     the       legislature        uses    different          terms    in    a    statute——

particularly in the same section——we presume it intended the

terms to have distinct meanings.").                            Because the legislature

used different language in separate sections of the restitution

statute, we presume distinct meanings and give full effect to

the language chosen.



                                                 5
                                                               No.   2016AP1541.rgb


    ¶76    Because   the    text   of       the   restitution    statute    fully

supports   the   circuit    court's     restitution       award,     I   join   the

majority   opinion   in    affirming    the       court   of   appeals   decision

affirming the circuit court's order.




                                        6
    No.   2016AP1541.rgb




1
