### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 15, 2002 STATE OF TENN ESSEE v. WENDELL GA RY GIBSON Direct Appeal from the Circuit Court for Maury County No. 12135 Robert L. Holloway, Judge

No. M2001-01430-CCA-R3-CD - Filed June 24, 2002

The sole issue in this appeal is whether the trial court erred in order ing the defendant to pay $18,000 in restitution. We reverse the judgment of the trial court regarding restitution and remand this matter for further proceedings. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Rever sed; Remanded
J OE G

. R ILEY , J., d elivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined. Claudia S. Jack, D istrict Pub lic Defend er; and Ro bin Farber, Assistant District Public Defender, for the appellant, Wendell Gary Gibson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney Genera l; Mike Bottoms, District Attorney General; and Brent A. Cooper, Assistant District A

ttorney G eneral , for the appellee, State of Tennessee.

OPINION The defendant pled guilty to aggravated burglary, burglary, and two counts of Class D felony theft for breaking into the home and business of Shawn Sax, a tattoo artist, and stealing her property. He received an agreed ef

fective sentence of four year s probation. The tria l court la ter held a hearing t o determine the amount of re stitution, w hich was a conditi on of prob ation. At t he hear ing, Sa x testified she s ustained losses to her business totaling $3,650, damage to her house and personal propert y totaling $3,000, and lost revenue of $1, 000 as a result of the burglaries and thefts. She further stated a washer and dryer, a microwave, three DVD players, he r grandmother’s jewelry, and tools were missing, all of which she valued at $5,200. Therefore , accordi ng to the victim’s1 At the conclus ion of the t esti mony, the victi m m ade a vague reference to a “st atement” in which s he indicat ed

losses of “$14, 000 at home and $3,000 at the busi ness.” The recor d does not reveal the na ture of t he “st atement ” or t he me thod of ca lculatio n of the fig ures. T here we re no exh ibits to h er testim ony .

2 W e reco gniz e the m onth ly pa ym ents o rder ed b y the trial cou rt total on ly $4 ,800

. -2- testimony, the total loss was approximately $12,850. 1 At the close of the hearing, the trial court set the amount of restitution at $18,000 and ordered the defendant to pay a minimum of $ 100 per mo nth toward the restitution during his period of probation. 2
The defendant cont ends: (1) the amount of restituti on was unreasonable given the defendant’s economic circumstances; and (2) the proof at trial was insuff icient to support

the trial court’s finding the victim suffered a loss of $18,000. We remand for a nother hearing.

STANDARD

OF REVIEW When an appellant

challenges a trial court’s restitution order, this court conducts a de novo review with a presumption the trial court’s determinations are correct. See Tenn. Code Ann. § 40- 35-401(d ); State v. Johnson , 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997).

SETTING THE AM OUNT OF RESTI TUTION
A sentencing court may direct a defendant to make restitution to the victim

for pecuniary lo ss as a condition of

probation. See Tenn. Cod e Ann. § 40 -35-304( a); State v. Alford , 970 S.W.2d 944, 945 (Tenn. 1998). When e ver the trial court believes restitution may be proper, or if the vic tim or districtattorne

y genera l reques ts restitu

tion, the c ourt shal l order the presentence officer to include documentation regarding the nat ure an d amount of the victim’s pecuniary loss in the presentence report. Tenn. Cod

e Ann. § 40 -35-304(

b). The s tatute de

fines “p ecuniar

y loss” to b e: (1) All special damages, but not general damages, as substantiated by evidence in the record or as agre ed to by the defendant; and (2) Reasonable out-of-pock et ex penses incurred

by the vic tim resulting from the filing of charges or cooperating in the investigation and prosecution of the off ense; provided, that payment of special prosecutors shall not be considered an out-of-pocke t expense. Id . at (e). Special damages are those which are “ the actual, but not the necessary, result of the injury complainedof, and which in fact follow it as a natural and proximate c onsequence.” State v. Le wis ,-3-

917 S.W.2d 251, 255 (Tenn. Crim. App. 1995) (quoting B LACK ’ S L AW D ICTIONARY , 392 (6 th ed. 1990)). Genera

l damage s a

re those which are “the necessary a nd immediate consequence of the wrong.” Id . (quoting W EBSTER ’ S N EW I NTERNATIONAL D ICTIONARY , 664 (2d ed. 1957)). When the victim’s property has been damaged, the victim’s damages are mea su red by determining the difference in the property’s market value immediately before and immediately after the incident, or the cost of repair, whichever is less. See State v. Robert Patrick Swygert , No. 03C01-9801-CR-0043, 1999 Tenn. Crim. App. LEXIS 505, at *7 (Tenn. Crim. App. May 25, 1999, at Knoxville ). A victi m seeking restitutio n must pre sent suff icient ev idence t o allow the trial court to make a reasonable, reliable determination as to the amount of the victim’s loss. State v. D avid D. Bottoms , No. M2000-02080-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 408, at *35-36, *38 (Tenn. Crim. App. May 31, 2001, at Nashville). The trial court should determine the victim’s actual loss based on realistic values. State v. Smith , 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994).
It is unnecessary for the sentencing court to determine res titution in accordance with the strict rules of damages applied in civil cases. Johnson , 968 S.W.2d at 887. However, though the rules of damages are relaxed, they are not completely discarded. Bottoms , 2001 Tenn. Crim. App. LEXIS 408, at *36.
In Swygert , we stated the victim’s loss must be document ed. 1999 Tenn. Crim. App. LEXIS 505, at *7. We

have als o ruled general statements by a victim regarding the amount of his or her loss containing no explan ation as to how the vi ctim

arrived at the amount are insufficient. Smith , 898 S.W.2d at 747. We conclude tha t while a victim’ s testimony standing a

lone may b e suffic ient to establish special damages fo r the purposes of restitution, the victim should explain how he or she arrived at the amount of damages requested. Further, documentation supporting the victim’s testimony is helpful. The sum of restitution ordered must be reasonable and does not have to mirror or equal the precise pecunia ry loss. Id . There

is no set fo

rmula or m

ethod for determin ing the am

ount. Johnson , 968 S.W.2d at 88 6. The sentencing court must consider not only the victim’s loss, but also the financial resources and future ability of the defenda nt to pay or perform in determining the amount and method of

payment. Tenn. Cod

e Ann. § 40 -35-304( d); Johnson , 968 S.W.2d at 886. An order of restitution which obviously cannot be fulfilledserves no purpose for the appella nt or the victim. Johnson , 968 S.W.2d at 886. When ordering restitution, the tria l court sh all spec ify the a mount of tim

e and pa yment; it may permit payment or performance of restitution in installme

nts. Tenn. Code Ann. § 40-35-304(c). However, the court may not establish a payment or performance schedule which e xtends beyond the maximum statutory term of probation supervision that could have been imposed for the offense. Id

. If th e defendant, victim, or district attorney petitions the trial court, it may hold a hearing , and i f appropriate, waive, adjust, or modify its order regard ing restitution. Id . at (f). Furthermore, a restitution order may be converted to a civil judgment. Id . at (h) (Supp. 2001).-4- ANALYSIS A. The Defendant’s Ability to Pay The defendant testified at the restitutionhearing he worked as a roofer earning $250 to $300 per week at a rate of $7 per

hour. He stated his child support obligation was $80 per wee k; he paid his mother $100 per month rent; and his probationfees were $45 per month. The defendant said he could pay $100 per month during most months of the year. Given this proof, we do not find the trial court erred in ordering the defendant to pay minimum payments of $100 per month in restitution. B. Amount of Victim ’s Loss The trial court did not indicate how it calculated the victim’s losses to be $18,000, and the record indicate s that figu

re is inaccurate. According to the victim’s calculations in her testimony, her losses were $12,850. Therefore, the evide nce does not support the findings of the trial court. The state’s proof at the restitution hearing consisted solely of the victim’s testimony. The victim testified regarding the cost of replacing severa l items which were damaged or lost during the offense s. She indicated she replaced an air conditioner a t a cost of $499 becau se it “bro ke in to a million pieces”when the

defenda nt enter ed the bui lding through the ho le where the air conditioner was installed . Howeve

r, the victim did

not provide a value of the air conditioner at the time of the offense; she merely recited the cost of its replacement. She testifie d ten tattoo machines were missing, costing $2 00 each . She state d three o f these ma chines w ere “br

and new, still in

the box;” most of them were “fairly new;” and two or thr e e were at the e nd of their two-year life span, although they could still be used. It can be inferred from the victim’s testimony that the $200 value she plac ed on each ma chine was the cost of a new machine, although this is not clear fr om her testimony. The cost of replacing a used item with a brand new item is not the prope r measure of damages

. Swygert , 1999 Tenn. Crim. App. LEXIS 505, at *7. The victim further valued other used items based on

their pur chase pr ice. Sh e stated her five -year- old washe r and dry er were

worth $1,000, their original purchase price. She valued a DVD player that was more than one year old at approximately$200, the cost of a new DVD play er. This e vidence was not su fficien

t to establ ish the value of the items at the time of their loss. The victi m made conclusory statements regarding the value of seve ral items witho u t explaini ng her me

thod for d etermini ng their v alue. She stated a n almost new stereo purchased by her brother was worth $250; three power supplies were worth $200 each; and her e x-husband’s tools were worth

$3,000. Though the victim said she had an itemized list of the tools, she did not specify the type and number of tools stolen or describe them in any way except to indicate there were many of them, they were made by “Craf tsman,” a nd they we

re expe nsive. The victim te stified $4 00 to $500 was a “lo w guess” as to the value for her grandmother’s jewe lry; however, she did not

describe the jewelry.-5-

This proof was insufficient to allow the trial court to ma ke a rea sonable, reliable determination as to the amount of the victim’s loss, nor are we able to do so. For these reasons, we must remand this matter to the trial court so more specific proof ca n be taken regarding the victim’s loss and to allow the trial court to make its determination upon sufficient evidence. While the defe ndant doe s not raise

the error on appeal, we observe the presentence report was notfiled until after the trial court set thedefendant’s restitution; it was unavailable to the trial court at the time of the hearing. Thus, there was no documentation rega rding the nature and the amount of the victim’s pecuniary loss in a presentence repor t, as mandated by Tennessee Code Annotated section 40-35-304(b). On remand, the trial court should order the presentence officer to make a report documenting the nature and amount of the victim’s pecuniary loss so the trial court ma y use the report in making its determination. Further, accord

in g to testimony of the victim, some of the losses were incurred by the victim’s former husband, who owned the tools and one of the DVD players. On remand, the trial court should det

ermine w hether p ayment to

more than one victim is proper, and if so, should order an amount of

restitutio n to each victim based on his or her pecuniary loss. See Tenn. Code Ann. § 40-35-304(g)(3).

CONCLUSION Accordingly, we reverse and remand this matter to the tria l court for a determination of restitution.

___________________________________ JOE G. RILEY, JUDGE