IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 7, 2015

STATE OF TENNESSEE v. JOHN N. MOFFITT

Appeal from the Circuit Court for Henderson County

No. 131231 Roy B. Morgan, Jr., Judge

No. W2014-02388-CCA-R3-CD - Filed January 29, 2016

_____________________________

Defendant, John N. Moffitt, was convicted of reckless aggravated assault and sentenced 

to four years‟ incarceration to be served at 30 percent release eligibility. Defendant was 

also ordered to pay restitution and a $2,500 fine. On appeal, Defendant asserts that the 

evidence was insufficient to support his conviction; that the trial court erred by failing to 

instruct the jury that his conduct must have caused serious bodily injury; that the 

evidence was insufficient to support the trial court‟s order of restitution; and that the trial 

court erred by imposing the maximum sentence within the applicable range. Having 

carefully reviewed the record before us, we affirm Defendant‟s conviction and sentence. 

However, we reduce the amount of restitution and remand this case to the trial court to 

determine Defendant‟s ability to pay restitution. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court 

Affirmed in Part, Modified in Part, and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT 

WILLIAMS and D. KELLY THOMAS, JR., JJ., joined.

Michael Thorne, Lexington, Tennessee, (on appeal), and John S. Colley, Columbia, 

Tennessee, (at trial), for the Appellant, John N. Moffitt. 

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant 

Attorney General; and James G. Woodall, District Attorney General; and Angela R. 

Scott, Assistant District Attorney General, for the Appellee, State of Tennessee.
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OPINION

Facts

On May 16, 2013, Stephen Phelps, the victim in this case, was doing repair work 

for landowner Charles McPeake on a fence and outbuilding that had been damaged in a 

storm. At approximately 4:00 p.m., Mr. Phelps began loading his tools into his truck. 

Mr. Phelps “heard two people kind of being loud with each other[.]” He turned around 

and saw Defendant and Orbin McPeake arguing about the fence. Mr. Phelps approached 

the men and told Defendant to “[c]hill out” because they were going to repair the fence. 

Defendant told Mr. Phelps to put the fence back up, and Mr. Phelps told Defendant to 

“[j]ust go on home.” Defendant turned around to leave and then turned back towards Mr. 

Phelps. Mr. Phelps testified, “as he was doing that, I saw him reach into his pocket and 

he pulled out a pocket knife and he opened it up, and he says, „well maybe you want 

some of this before I leave[.]‟” Defendant swung the knife across Mr. Phelps body and 

back across his body a second time. Mr. Phelps raised his arm to block it, and on the 

second swing across his body, “it sunk in [his] arm[.]” Defendant “just turned and 

walked away[.]” Mr. Phelps “could not believe that it happened.” He wrapped up his 

arm and drove to the hospital. Mr. Phelps testified that he could not use his arm for 

approximately four months. He testified that he still had numbness in one of his fingers

and pain in his shoulder. He was unable to perform certain tasks as well as he could prior 

to the injury. 

On cross-examination, Mr. Phelps testified that he had only seen Defendant once 

before the incident. He testified that the fence had been taken down for approximately 

one month prior to the incident while he worked to repair the barn. Mr. Phelps testified 

that he took one or two steps towards Defendant after Defendant pulled out the knife. 

Orbin McPeake testified that he had known Defendant for “[a] long time.” He 

testified that on the day of the incident, Defendant “just came out there and jumped on us 

and told us we needed to get that fence put up by 4:00 or something like that[.]” Mr. 

McPeake told Defendant that they were working to “get everything cleaned up.” Mr. 

McPeake testified that he saw Defendant and Mr. Phelps “in each other‟s face[s], and 

Phelps told [Defendant] he needed to go home[.]” Mr. McPeake saw Defendant reach 

into his pocket, and he saw Defendant and Mr. Phelps “arguing right close together and 

[Mr. McPeake] was trying to get them to go home and be quiet and let everything go, and 

they just kept arguing.” Mr. McPeake testified that he “d[id]n‟t think [Mr. Phelps] was 

really threatening [Defendant]. He was just talking and telling him that we was gonna fix 

that back and that wasn‟t none of his business.” Mr. McPeake heard Mr. Phelps tell 

Defendant to go home. Mr. McPeake testified Defendant and Mr. Phelps “met together.” 
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He testified, “I don‟t know where they – one of them run any more at the other one than 

one did it at the other one [sic].” 

William Patterson was also present during the incident. He testified that “Mr. 

Phelps went to walking over there towards [Defendant], and that‟s when he run his hand 

in his pocket and came out and cut him.” Mr. Patterson testified that he did not hear Mr. 

Phelps make any threats against Defendant. 

Donna Heatherington, a criminal investigator with the Lexington Police 

Department, spoke to Mr. Phelps at the hospital and took photographs of his injury. She 

also took statements from Mr. Patterson and Mr. McPeake. Officer Heatherington 

arrested Defendant at his residence. She testified that she knocked on Defendant‟s door, 

and Defendant “hollered, „Come on in. I know why you‟re here.‟” She asked Defendant 

to empty his pockets, and Defendant had a pocketknife in his right pocket. Officer 

Heatherington testified that Defendant‟s hand was injured when she put handcuffs on 

him. 

Defendant‟s brother, Sam Moffitt, testified that Mr. McPeake told him after the 

incident that Defendant turned around to leave, and Mr. Phelps “jumped on him, and 

that‟s what caused the altercation.” Mr. Moffitt testified that Mr. McPeake told him, “If 

[Mr. Phelps] had just sat still and let [Defendant] go on, none of this would have 

happened.” On cross-examination, Mr. Moffit clarified what he meant by “jumped on.” 

He testified, “Well, I don‟t mean physically jumped on him, but he said, „I‟m going to do 

something to you,‟ and made some threatening statement and took off after him.‟” 

Defendant testified that he rented property adjacent to the property where work 

was being done to repair a tractor shed damaged by a storm. On the day of the incident, 

Defendant approached Orbin McPeake and asked why the fence had been torn down. 

Defendant testified that Mr. McPeake began cussing and told Defendant that he “told 

them to tear it down.” Defendant testified that he turned around and began walking 

away, “and the next thing I knew, somebody was behind me[.]” He testified, “[Mr. 

Phelps] was in my face like that with his arm, and he swung at me with something in his 

hand.” Defendant testified that Mr. Phelps hit the back of Defendant‟s hand with a tripod 

tool. Defendant pulled out his pocketknife and cut Mr. Phelps‟ arm. 

Analysis

Sufficiency of the evidence

Defendant contends that the evidence was insufficient to support his conviction. 

An appellate court‟s standard of review when the defendant questions the sufficiency of 
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the evidence on appeal is “whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This 

court does not reweigh the evidence; rather, it presumes that the jury has resolved all 

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor 

of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 

571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in 

testimony, and the weight and value to be given to evidence were resolved by the jury. 

See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the 

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the 

defendant has the burden of illustrating why the evidence is insufficient to support the 

jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). “This [standard] 

applies to findings of guilt based upon direct evidence, circumstantial evidence, or a 

combination of [both] direct and circumstantial evidence.” State v. Pendergrass, 13 

S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). 

The offense of reckless aggravated assault requires a finding that the defendant has 

recklessly committed an assault that results in serious bodily injury to another, or results 

in the death of another, or involved the use or display of a deadly weapon. T.C.A. § 39-

13-102(B). A person acts recklessly with respect to circumstances surrounding their 

conduct or the result of their conduct when the person is aware of but consciously 

disregards a substantial and unjustifiable risk that the circumstances exist or the result 

will occur. The risk must be of such a nature and degree that its disregard constitutes a 

gross deviation from the standard of care that an ordinary person would exercise under all 

the circumstances as viewed from the accused person‟s standpoint. T.C.A. § 39-11-

302(c). 

Defendant contends that he was not aware “that waving his knife would cause the 

injuries sustained by the victim, particularly in light of the fact that the victim walked 

toward [Defendant] as he stood still.” Viewed in a light most favorable to the State, the 

evidence shows that Defendant turned away to leave and then turned back towards Mr. 

Phelps. Defendant pulled out a pocketknife and threatened, “Well maybe you want some 

of this before I leave.” Defendant then swung the knife across Mr. Phelps‟ body twice, 

cutting Mr. Phelps‟ arm as he swung back across and Mr. Phelps raised his arm to block 

the knife. Defendant then turned and walked away. This evidence is sufficient to support 

Defendant‟s conviction for reckless aggravated assault. 

Defendant also contends that the evidence showed that he was acting in selfdefense. The use of force likely to cause death or serious bodily injury may be justified 

when a person (1) “has a reasonable belief that there is imminent danger of death or 

serious bodily injury”; (2) “[t]he danger creating the belief of imminent death or serious 
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bodily injury is real, or honestly believed to be real at the time”; and (3)”[t]he belief of 

danger is founded upon reasonable grounds.” T.C.A. § 39-11-611(b)(2). Self defense is 

a question of fact for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn., Crim. App. 

1994). 

Defendant asserts that the evidence established that Mr. Phelps moved closer to 

Defendant after Defendant brandished the knife. Mr. Phelps testified that he did not feel 

threatened by the knife, and he said to Defendant, “So you‟re going to stab me with that.” 

Defendant argues that Mr. Phelps‟ testimony established that Mr. Phelps was the initial 

aggressor. Defendant further asserts that he felt threatened by Mr. Phelps when Mr. 

Phelps swung a tool at him. However, the jury was free to discredit Defendant‟s 

testimony that he used force to protect himself against threats from Mr. Phelps. Other 

witnesses testified that Mr. Phelps was unarmed and that he did not threaten Defendant. 

The evidence showed that Defendant returned to Mr. Phelps after initially turning away, 

uttered a threat, and used a knife on an unarmed man. The jury‟s verdict shows that it 

rejected Defendant‟s claim of self-defense. Defendant is not entitled to relief on this 

issue. 

Jury instructions

Defendant contends that the jury‟s verdict was contrary to the applicable law 

because the jury charge contained errors. Defendant argues that the trial court failed to 

instruct the jury that his conduct must have caused serious bodily injury in order to 

amount to reckless aggravated assault. The State responds that Defendant has waived 

this issue by failing to object to the jury instructions. “Questions concerning the [jury] 

instructions are generally deemed to be waived in the absence of objection or special 

request, unless they contain plain error.” State v. Cravens, 764 S.W.2d 754, 756-57 

(Tenn. 1989). The record shows that Defendant stated no objection to the jury charge. 

Additionally, Defendant‟s motion for new trial asserted only that “[t]he verdict was 

contrary to applicable law.” Defendant did not assert that the jury instruction was 

inadequate. Therefore, Defendant has waived appellate review of the issue. See Tenn. R.

App. P. 3(e) (“[N]o issue presented for review shall be predicated upon error in the . . . 

jury instructions granted or refused . . . unless the same was specifically stated in a 

motion for a new trial; otherwise such issues will be treated as waived.”); Tenn. R. App. 

P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party 

responsible for an error or who failed to take whatever action was reasonably available to 

prevent or nullify the harmful effect of an error.”). 

Defendant does not ask this court to consider whether the omission in the jury 

instructions was plain error. Nevertheless, the State asserts that the instruction was not 

plainly erroneous because Defendant was indicted on the basis that he used a deadly 
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weapon, and not on the basis that Defendant caused serious bodily injury to the victim.

Despite Defendant‟s waiver of the issue, we conclude that the trial court‟s omission of 

the element of serious bodily injury in its instructions to the jury was appropriate based 

on the theory of aggravated assault under which Defendant was charged. In fact, the trial 

court would have erred if it had charged the jury that the State had to prove serious bodily 

injury to the victim. 

“It is well-settled that a defendant has a constitutional right to a complete and 

correct charge of the law, so that each issue of fact raised by the evidence will be 

submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390 

(Tenn. 2011). Defendant was indicted for one count of aggravated assault. The 

indictment alleges that Defendant “did intentionally and/or knowingly cause bodily injury 

to [the victim] by use of a deadly weapon, to-wit: a knife . . . .” Defendant was convicted 

by a jury of the lesser-included offense of reckless aggravated assault. The trial court 

instructed the jury as to reckless aggravated assault as follows:

For you to find the defendant guilty of this offense, the state must 

have proven beyond a reasonable doubt the existence of the following 

essential elements:

Part F:

(1)(a) that the defendant recklessly caused bodily injury to another;

and

(2)(b) that the defendant used or displayed a deadly weapon.

 Defendant is not entitled to relief on this issue. 

Restitution

Defendant challenges the trial court‟s order regarding the payment of restitution, 

arguing both that the proof was insufficient to show that the victim suffered a loss in the 

amount of $27,129, the amount of restitution ordered by the trial court, and that the trial 

court failed to consider Defendant‟s financial resources and ability to pay restitution. The 

State responds that the record supports the restitution award and that the trial court did 

not abuse its discretion in ordering Defendant to pay restitution to the victim. 

When a defendant challenges the restitution amount ordered by the trial court, this 

court will utilize an abuse of discretion standard of review with a presumption that the 

trial court‟s ruling was reasonable. See State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); 

State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012); see also State v. David Allen 
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Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254, at *4 (Tenn. Crim. App., 

at Nashville, Oct. 25, 2013), no perm. app. filed (concluding that “the appropriate 

standard of review for restitution orders is the abuse of discretion standard with a 

presumption of reasonableness”). A finding of abuse of discretion “„reflects that the trial 

court‟s logic and reasoning was improper when viewed in light of the factual 

circumstances and relevant legal principles involved in a particular case.‟” State v. 

Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 

(Tenn. 1999)). Furthermore, the defendant bears the burden of demonstrating the 

impropriety of the sentence. See T.C.A. § 40-35-401 (2014), Sentencing Comm‟n Cmts; 

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

While there is no set formula for determining restitution, above all, the restitution 

amount must be reasonable. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App.

1994). When ordering restitution, the trial court must base the amount on the pecuniary 

loss to the victim. T.C.A. § 40-35-304(b); Smith, 898 S.W.2d at 747. The amount of 

restitution ordered, however, “does not have to equal or mirror the victim‟s precise 

pecuniary loss.” State v. Mathes, 114 S.W.3d 915, 919 (Tenn. 2003) (quoting Smith, 898 

S.W.2d at 747). “Pecuniary loss” is statutorily defined as “[a]ll special damages, but not 

general damages, as substantiated by evidence in the record or as agreed to by the 

defendant.” T.C.A. § 40-35-304(e)(1) (2010). “Special damages” are “the actual, but not 

the necessary, result of the injury complained of, and which in fact follow it as a natural 

and proximate consequence in the particular case . . . .” State v. Lewis, 917 S.W.2d 251, 

255 (Tenn. Crim. App. 1995) (quoting Black‟s Law Dictionary 392 (6th ed.1990)). 

Tennessee law mandates that “[i]n determining the amount and method of payment or 

other restitution, the court shall consider the financial resources and future ability of the 

defendant to pay or perform.” T.C.A. § 40-35-304(d) (2014). This is because “[a]n order 

of restitution which obviously cannot be fulfilled serves no purpose for the appellant or 

the victim.” State v. Johnson, 968 S.W.2d 883, 886 (Tenn. Crim. App. 1997). 

In ordering restitution, the trial court shall specify the amount of time and payment 

and may permit payment or performance of restitution in installments. T.C.A. § 40-35-

304(c). The court may not, however, establish a payment or schedule extending beyond 

the expiration of the sentence. T.C.A. § 40-35-304(g)(2). If the defendant, victim, or 

district attorney petitions the trial court, it may hold a hearing and, if appropriate, waive, 

adjust, or modify its order regarding restitution. T.C.A. § 40-35-304(f). Further, any 

unpaid portion of the restitution may be converted to a civil judgment. T.C.A. § 40-35-

304(h)(1); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001).

At the sentencing hearing, the victim, Mr. Phelps, testified that he incurred 

medical expenses in the amount of $25,063 as a result of his injury. He testified that 

insurance only covered $1,231 of his expenses. A copy of Mr. Phelps‟ hospital bill was 
8

entered into evidence. The bill showed total charges of $25,063, it showed a credit for 

total payments in the amount of $1,055.83, and it showed a “total adjustment” of 

$24,007. A separate document showed total payments processed by the Veteran‟s 

Administration in the amount of $1,281.31. Mr. Phelps testified that he understood that 

the hospital would “write off” the charges in the event that “there‟s no judgment and 

there‟s no compensation . . . .” He testified that he was self-employed and was unable to

work for four months as a result of his injury. Mr. Phelps testified that he was supposed 

to have been paid $2,700 to complete the job he was working on when the incident 

happened, that he did not receive any payment for the job, and that he did not have other 

jobs lined up at the time of the incident. 

Tim McPeake testified that Defendant rented property owned by Mr. McPeake‟s 

mother. Defendant paid rent “every month just like clockwork.” Defendant also mowed 

the property and cooked meals for Mr. McPeake‟s mother.

The trial court heard the arguments of counsel, which are not part of the record 

before us, and stated that it had reviewed the presentence report. The presentence report 

reflects that Defendant was 65 years old at the time of sentencing and was divorced. 

Defendant had two prior DUI convictions in 2008 and 2012; a conviction in 2007 for 

reckless driving; and a conviction in 1988 for second degree murder. The highest grade 

in school completed by Defendant was eighth grade. Defendant had prior work 

experience as a welder. Defendant had various health problems and had undergone back 

surgery. Defendant reported that “he became disabled in 1987 after being hurt twice on 

the job, and having a mental breakdown.” Defendant‟s driving privileges were revoked

for a prior DUI conviction. Defendant received $836.00 per month in social security 

income. Defendant listed as his only asset a 1983 Buick Regal. 

At the conclusion of the sentencing hearing, the trial court approved a $2,500 fine 

imposed by the jury. The court stated that it had reviewed the entire record, the evidence 

presented at trial, the presentence report, the victim‟s hospital bill introduced as an 

exhibit, and the nature and characteristics of the criminal conduct involved. The trial 

court ordered restitution in the amount of $27,194. The court explained that restitution 

included the victim‟s unpaid medical expenses, as well as lost earnings in the amount of 

$2,700. 

Defendant contends that the evidence presented at the sentencing hearing was 

insufficient to establish the amount of the victim‟s loss. Defendant argues that Mr. 

Phelps‟s testimony regarding his lost wages, without further proof, is insufficient. This 

court has noted that a victim seeking restitution must present sufficient evidence to allow 

the trial court to make a reasonable, reliable determination as to the amount of the 

victim‟s losses. State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001). 
9

General statements by a victim regarding the amount of his or her loss 

containing no explanation as to how the victim arrived at the amount are 

insufficient. While a victim‟s testimony standing alone may be 

sufficient to establish special damages for 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.

State v. Jerry Lee Truette, No. M2005-00927-CCA-R3-CD, 2006 WL 2000540, at *3 

(Tenn. Crim. App., Nashville, July 19, 2006) (quoting State v. Charles R. Turner, No. 

M2003-02064-CCA-R3-CD, 2004 WL 2775485, at *8 (Tenn. Crim. App., Nashville, 

Dec. 1, 2004)). 

The trial court ordered restitution for Mr. Phelps‟ lost wages in the amount of 

$2,700. At the sentencing hearing, Mr. Phelps explained that he was self-employed and 

was unable to work for four months as a result of his injury. He testified that he was 

supposed to be paid $2,700 to complete the job on which he was working on the day of 

the assault, that he was never paid for the job, and that he did not have other jobs lined up 

at the time of the incident. Although no documentation of Mr. Phelps‟ lost wages was 

admitted into evidence, we conclude that his testimony was sufficient to establish this 

loss. 

Defendant also argues that Mr. Phelps‟ medical bills established that Mr. Phelps 

did not pay any of his medical expenses out-of-pocket. Defendant contends that 

restitution should not be allowed because the victim‟s medical bills were either covered 

by insurance or were “written off” by the hospital. At the sentencing hearing, Mr. Phelps 

testified as to the amount of his uncompensated medical bills. Mr. Phelps‟ hospital bill 

was presented as evidence. The bill showed that Mr. Phelps incurred medical expenses in 

the amount of $25,063 as a result of his injury. The bill showed total payments in the 

amount of $1,055.83 and a total adjustment of $24,007.17, with a “CR” notation beside 

both the payments and adjustments. The bill showed the total amount due as $0.00. Mr. 

Phelps testified that he understood that the hospital would “write off” that amount in the 

event that “there‟s no judgment and there‟s no compensation . . . .” 

The evidence shows that at the time of sentencing, the victim owed a zero balance 

for his medical expenses, and the balance not paid by insurance had already been “written 

off” by the hospital. Therefore, the victim incurred no actual loss. The prosecutor stated 

at the sentencing hearing, “technically [the victim]‟s still liable for [$24,007 in medical 

expenses]. Now they have not sued him for it, but he‟s the one on the bill, and at this 

point it has not been written off.” However, the hospital bill shows that the victim did
10

not owe that amount. We recognize that “[t]he victim in the case is the person who 

incurred the losses as he is personally responsible for the medical bills incurred as a result 

of [the offense]. Thus, he is the proper person to receive that restitution.” State v. Steven 

Watson, No. W2008-00452-CA-R3-CD, 2009 WL 2407752, at *13 (Tenn. Crim. App., 

Jackson, Aug. 6, 2009). Where there is an expectation that a hospital might absorb the 

loss in the future, this court has upheld a restitution award, noting that “[i]t will be the 

victim‟s responsibility to forward the restitution received to the proper parties, if 

necessary; such is not a matter for this Court.” State v. Victor Wayne Browning, No. 

M2009-00509-CCA-R3-CD, 2010 WL 877523, (Tenn. Crim. App., at Nashville, Mar. 

12, 2010). In this case, however, due to reasons not ascertainable from the hospital bill or 

the victim‟s testimony, the victim‟s bill had already been adjusted and a credit of 

$24,007.17 was applied, resulting in a balance of $0.00. The evidence shows that the 

victim was not responsible for any amount. Therefore, we conclude the evidence does 

not support the trial court‟s order for restitution for the victim‟s medical expenses. 

Regarding Defendant‟s ability to pay the ordered restitution during the length of 

his sentence, the record is silent. The trial court did not consider Defendant‟s financial 

resources and his future ability to pay as required by statute, nor did the trial court impose 

a payment schedule for restitution. The trial court noted that Defendant was indigent and 

stated, 

[The statute] doesn‟t say that I cannot assess or include restitution in the 

judgment if the Defendant is indigent, it says you can come back and ask 

the Court to forgive it and waive it, but it doesn‟t say I can‟t assess the 

restitution amount, at least I didn‟t see it as I‟ve looked through it here 

on the bench, that I could not do that. But the question of indigency 

could apply toward a fine as well as restitution.

The record established that Defendant dropped out of school after eighth grade, he 

was disabled, and he owned no property. Defendant received a sentence of incarceration. 

He received social security income in the amount of $836.00 per month prior to his 

incarceration. We note that the No Social Security Benefits for Prisoners Act of 2009 

bars social security payments to individuals during periods of incarceration. 42 U.S.C. § 

1383(b)(7)(A); see also Fowlkes v. Thomas, 667 F.3d 270, 271 (2d Cir. 2012) (per 

curiam). Essentially the legislative branch took away a victim‟s ability in many cases to 

recover restitution from incarcerated defendants in Tennessee. As this court noted in 

State v. Bottoms, “it would appear to be a difficult exercise for the trial court to establish 

a payment schedule, for it is unclear when the defendant will be released and what his 

future income will be.” 87 S.W.3d at 108. Nevertheless, Tennessee Code Annotated 

Section 40-35-304(c) requires that a trial court, in ordering restitution, consider not only 

the amount of the victim‟s loss but also the amount which a defendant can reasonably 
11

pay. Furthermore, the period during which the defendant can be made to pay restitution 

extends only until the expiration of the sentence imposed by the trial court. T.C.A. § 40-

35-304(g)(2). 

We have concluded that the amount of restitution ordered by the trial court must 

be reduced to exclude all medical expenses. The proof showed that all medical expenses 

were either paid by the insurance company or forgiven (“written off”) by the medical 

provider(s). The victim himself did not have to pay any medical expenses. We have also 

concluded that the victim sufficiently proved his lost wages. Therefore, we modify the 

restitution amount to $2,700, representing the victim‟s lost wages. Accordingly, 

restitution is modified to the amount of $2,700, and this case is remanded for the trial 

court to determine Defendant‟s ability to pay and an appropriate payment schedule in 

accordance with applicable statutory provisions. 

Length of sentence

Defendant contends that the trial court erred by sentencing him to the maximum 

sentence within the applicable range. Defendant argues that “the record is devoid of any 

specific written or articulated factors for imposing the maximum sentence within the 

range.” The State responds that under the Bise standard of review, Defendant‟s challenge 

to the length of his sentence is without merit. 

When the record establishes that the trial court imposed a sentence within the 

appropriate range that reflects a “proper application of the purposes and principles of our 

Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic 

and reasoning was improper when viewed in light of the factual circumstances and 

relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553, 

555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). 

Although the trial court should consider enhancement and mitigating factors, the 

statutory enhancement and mitigating factors are advisory only. See T.C.A. § 40-35-114; 

see also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). 

Our supreme court has stated that “a trial court‟s weighing of various mitigating and 

enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at 

345. In other words, “the trial court is free to select any sentence within the applicable 

range so long as the length of the sentence is „consistent with the purposes and principles 

of [the Sentencing Act].” Id. at 343 (emphasis added). Appellate courts are “bound by a 

trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a 
12

manner consistent with the purposes and principles set out in sections -102 and -103 of 

the Sentencing Act.” Id. at 346.

In Bise, our supreme court held:

We hold, therefore, that a trial court‟s misapplication of an enhancement 

or mitigating factor does not invalidate the sentence imposed unless the 

trial court wholly departed from the 1989 Act, as amended in 2005. So 

long as there are other reasons consistent with the purposes and 

principles of sentencing, as provided by statute, a sentence imposed by 

the trial court within the appropriate range should be upheld. 

Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed 

out that in sentences involving misapplication of enhancement factors (even in those 

cases where no enhancement factor actually applies) the sentences must still be affirmed 

if the sentences imposed are within the appropriate range, and the sentences are in 

compliance with statutory sentencing purposes and principles. Id. at 710. 

Our General Assembly has enacted twenty-five (25) statutory sentencing 

enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-

35-114 (Supp. 2015). The standard of review established in Bise provides that the 

minimum sentence can be imposed even if the trial court correctly applies all twenty-five 

enhancement factors, or conversely the maximum sentence can be imposed even if no 

statutory enhancement factors are applicable, so long as the sentence is within the correct 

range and the sentence complies with the sentencing purposes and principles. 

Accordingly, appellate review of enhancement factor issues is mostly unnecessary when 

reviewing the length of a sentence. 

In determining the proper sentence, the trial court must consider: (1) the evidence, 

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf 

about sentencing. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001). The trial court must also consider the potential or lack of potential for 

rehabilitation or treatment of the defendant in determining the sentence alternative or 

length of a term to be imposed. T.C.A. § 40-35-103. 
13

To facilitate meaningful appellate review, the trial court must state on the record 

the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-

35-210(e); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the articulation of 

the reasons for imposing a particular sentence . . . should not negate the presumption [of 

reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging the sentence on 

appeal bears the burden of establishing that the sentence was improper. T.C.A. § 40-35-

401, Sentencing Comm‟n Cmts.

In this case, the trial court explicitly stated that it had considered the evidence 

presented at trial, the presentence report, and the nature and characteristics of the criminal 

conduct involved. The trial court sentenced Defendant to four years, the maximum 

sentence within the range, and there is nothing in the record indicating that the trial court 

erred by doing so under the standard of review adopted in Bise. 

The trial court did not abuse its discretion when it sentenced the Defendant to four

years‟ incarceration.

CONCLUSION

Based upon the foregoing, the judgment of conviction and sentence imposed, with 

respect to length and manner of service, are affirmed. The amount of restitution to which 

the victim is entitled is reduced to $2,700, and this case is remanded for a determination 

of Defendant‟s ability to pay restitution and an appropriate payment schedule. 

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE