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Appeals court upholds restitution for pot damage

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Kevin Murphy
May 12, 2011
— A state appeals court rejected arguments that marijuana is a victimless crime and upheld a $106,409 restitution order for damage a marijuana growing operation caused to a Walworth County house.

The District 2 Court of Appeals found Wednesday that $160,000 in unauthorized alterations Michael S. Hoseman made to the house for his large-scale marijuana growing operation were “at the heart of the extensive damages.”


Hoseman in 2006 and 2007 leased the 1885 Victorian house in the town of Troy from Thomas and Lisa Burbey.


John G. Olson, a convicted co-conspirator, provided the money, and Hoseman, 40, of Skokie, Ill., served as the architect, converting two bedrooms into a complex grow operation. Nutrients were brought from Canada, hydroponic equipment from California and seeds from Amsterdam. The operation yielded marijuana with a street value of $200,000 to $500,000, according the appeals opinion.


It also produced extensive damage to the house, including chemical stains on curtains and wooden floors, residue on the walls, a broken furnace, broken water pipes and mold and mildew from excessive humidity, according to the opinion.


The Burbeys had moved to Las Vegas. When Hoseman didn’t pay rent for several months, Thomas Burbey returned and discovered the grow operation.


Hoseman and four Chicago men were charged with conspiracy to manufacture 200 to 500 marijuana plants. Hoseman pleaded guilty, and Walworth County Judge John Carlson sentenced him to three years in prison, three years extended supervision and restitution of $106,409.


Hoseman’s attorney argued to Carlson that the property damage was a civil matter and the Burbeys hadn’t sought civil damages. Carlson disagreed, saying the property damage resulted from a criminal conspiracy and entitled the Burbeys to restitution.


Hoseman’s appeals attorney, Timothy Johnson, agreed the Victorian home had been extensively damaged, but he argued the Burbeys were not the victims of Hoseman’s conviction and therefore were not entitled to restitution.


“Manufacture with intent to deliver THC does not have a direct victim in this case,” Johnson wrote in his appeal brief.


The appeals court disagreed, finding the Burbeys were victims of the crime because the defendants could not have grown marijuana without altering the Burbey home.


“The alterations are not collateral to the manufacture of marijuana, they are integral,” Judge Daniel Anderson wrote in the 14-page opinion.


Johnson said he hadn’t seen the decision Wednesday and had no comment. Johnson confirmed Hoseman has paid $25,000 toward his restitution.


In a prepared statement Attorney General J.B. Van Hollen agreed with the decision.


“When a defendant is found guilty of turning an 1885 Victorian home that he was leasing into a 21st century hydroponic marijuana growing operation, the home owner is patently a ‘victim’ of the drug offense, entitled by statute to restitution,” Van Hollen said.



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