COURT OF APPEALS

DECISION

DATED AND FILED

February 4, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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 
No. 2019AP970-CR

3

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. 
No. 2019AP970-CR

4

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. 
No. 2019AP970-CR

5

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.
No. 2019AP970-CR

6

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 
No. 2019AP970-CR

7

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 
No. 2019AP970-CR

8

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.” 
No. 2019AP970-CR

9

¶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.
No. 2019AP970-CR

10

¶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.” 
No. 2019AP970-CR

11

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). 
No. 2019AP970-CR

12

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 
No. 2019AP970-CR

13

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 
No. 2019AP970-CR

14

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 
No. 2019AP970-CR

15

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
No. 2019AP970-CR

16

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)
No. 2019AP970-CR

17

¶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. 
No. 2019AP970-CR

18

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).
No. 2019AP970-CR

19

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.