State of Tennessee v. Charles R. Turner ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 22, 2004
STATE OF TENNESSEE v. CHARLES R. TURNER
Appeal from the Criminal Court for Davidson County
No. 2002-C-1790 Carol Soloman, Judge
No. M2003-02064-CCA-R3-CD - Filed December 1, 2004
The Appellant, Charles R. Turner, was convicted by a Davidson County jury of two counts of
identify theft and sentenced to concurrent sentences of three years, with service of one year in
confinement. In addition, Turner was ordered to pay restitution. On appeal, Turner raises four issues
for our review: (1) whether the trial court erred by failing to suppress an in-court identification by
a witness; (2) whether the evidence was sufficient to support his convictions; (3) whether the trial
court imposed excessive sentences; and (4) whether the trial court erred in determining the amount
of restitution. After review of the record, we conclude that the identification issue is without merit
and the evidence is legally sufficient to support the convictions. Accordingly, we affirm the
judgments of conviction. However, after review, we conclude that the trial court failed to sentence
the Appellant in accordance with the 1989 Sentencing Act and to properly determine the Appellant’s
ability to pay the ordered restitution. Accordingly, we remand the case for a proper determination
of these sentencing issues.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part;
Reversed in Part and Remanded
DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.
Emma Rae Tennent (on appeal) and Rebecca Warfield (at trial), Assistant Public Defenders,
Nashville, Tennessee, for the Appellant, Charles R. Turner.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michelle
Chapman McIntire, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and
Ryan D. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Factual Background
On the dates the crimes were committed, the Appellant was employed by Music Land Motors
as a car salesman. While employed at other car dealerships in the Nashville area, the Appellant had
come into contact with both victims, Lawrence Pillow and Darrell Grimes, when they purchased cars
from him.1 During the purchase of the vehicles, each victim gave the Appellant the information
necessary for him to check their credit rating, including social security number, driver license
number, employment history, date of birth, and address. Neither victim did business with the
Appellant at Music Land Motors.
In May 2002, a man purporting to be Lawrence Pillow called the 1-800-Loan-by-Phone
program at South Trust Bank and initiated a loan application. After being approved for a $4,100.00
loan, the paperwork was sent to the local bank branch in order to close the loan. A man claiming
to be Pillow and presenting a driver license identification came to the bank late in the afternoon on
May 28, 2002. Brenda Hess, a loan specialist with the bank, spoke with the man for approximately
fifteen minutes but did not feel comfortable issuing the check despite the identification. She testified
that the man could not remember his social security number, did not resemble the picture on the
driver license, kept his head down while talking, and refused to take his hat off the first time she
asked. Additionally, Hess noted that the driver license presented to her was a duplicate license and
was only a month old. She further noted that the Metro School Board check stub presented to verify
employment was not a form which she recognized. Hess testified that she did not believe that the
man was Lawrence Pillow and, as a result, asked him to come back the next morning to complete
the loan when her manager would be in. The man left the bank and did not return. Hess identified
the Appellant at trial as the man she spoke with.
Pillow was contacted by South Trust Bank and informed that someone was attempting to
borrow money in his name. The bank presented Pillow with security photos of the person, but he
was initially unable to recognize the Appellant. Pillow ran his credit history and learned that
someone at Music Land Motors had checked his credit in April 2002. He then spoke with the
general manager of Music Land Motors, who identified the Appellant as the person in the security
photos. Pillow later discovered that a duplicate driver license had been issued in his name on April
23, 2002.
In June 2002, a man using the name Darrell Grimes originated a $4,500.00 loan through the
1-800-Loan-by-Phone program at AmSouth Bank. The paperwork was then sent to the local
Nashville office, where loan officer David Hayes attempted unsuccessfully to contact the applicant
at the phone number listed on the application. A short time later, a man purporting to be Darrell
1
The Appellant was employed at M usic Land M otors from March 2002 until June 2002. In May 2001, the
Appellant, while employed at Crown Ford, sold a car to Pillow. Grimes had previously purchased several cars from the
Appellant while employed at various Nashville dealerships.
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Grimes came into the bank and spoke with Hayes. He presented a driver license bearing the name
Darrell Grimes and signed the necessary loan paperwork. Hayes spent approximately forty-five
minutes with the person and even convinced him to open a checking account, which he did in the
name of Darrell Grimes. Part of the loan funds were placed in the checking account, with the
remainder being distributed in cash. Hayes noted that there was some discrepancy in the appearance
of the person present and the driver license photo. However, after checking with another employee,
the two agreed that there was enough of a resemblance that it could be the same person.
Hayes saw the person a few days later when he returned to the bank attempting to withdraw
funds from the new checking account. The person had no identification with him but, because Hayes
recognized him as “Darrell Grimes,” he was allowed to cash the check. Hayes identified the person
who purported to be Darrell Grimes as the Appellant.
Grimes learned about the incident when he contacted AmSouth Bank after receiving a letter
informing him that a line of credit had been issued in his name. Upon further investigation, Grimes
learned that a duplicate copy of his driver license had been issued on June 11, 2002. He also ran his
credit history and learned that his credit had been checked at Music Land Motors. Upon speaking
with the general manager there, Grimes was informed that it was the Appellant who had conducted
the credit check.
In September 2002, a Davidson County grand jury returned an indictment against the
Appellant charging him with two counts of identity theft, class D felonies. Following a jury trial,
the Appellant was convicted as charged. At an April 30, 2003 sentencing hearing, the trial court
sentenced the Appellant to two concurrent sentences of three years, with one year to be served in
confinement. Additionally, the court ordered the Appellant to pay restitution of $4,500.00 to
AmSouth Bank, $1,100.00 to Lawrence Pillow, and $3,000.00 to Darrell Grimes for their pecuniary
losses. The Appellant’s motion for a new trial was denied, with this appeal following.
Analysis
On appeal, the Appellant has raised four issues for our review: (1) whether the trial court
erred by failing to suppress an in-court identification by a witness; (2) whether the evidence was
sufficient to support his convictions; (3) whether the trial court imposed excessive sentences; and
(4) whether the trial court erred in determining the respective awards of restitution.
I. Suppression of In-Court Identification
First, the Appellant contends that the trial court erred in denying his motion to suppress based
upon what he refers to as an “unconstitutional pre-trial identification by the witness Brenda Hess.”
In reviewing suppression issues, we will affirm the trial court’s findings of fact unless the evidence
preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Furthermore, in
reviewing a trial court’s ruling on a motion to suppress, this court may consider proof adduced at
both the suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
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In compliance with a subpoena, Hess appeared in the courtroom on the first day of the
Appellant’s scheduled trial. Hess was present in the courtroom while pre-trial motions were being
heard in this case, and the Appellant, who was the only African American in the courtroom, was
seated at counsel’s table with his attorneys. The Appellant argues that this pre-trial confrontation
was unduly suggestive and, as a result, that Hess’ subsequent in-court identification was tainted and
should have been suppressed. In support of this argument, the Appellant relies upon the United
States Supreme Court decision in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).
We find no State action in arranging the courtroom “confrontation” between Hess and the
Appellant. We reject the argument that the issuance of a subpoena which compels a witness to
appear, thus permitting the witness to view the accused at trial, is the functional equivalent of an
improper show-up.
“It is well settled in Tennessee law that in the absence of state action in the identification
process, constitutional due process rights are not implicated; therefore, the analysis adopted by the
United State Supreme Court in Neil v. Biggers is not appropriate.” State v. Reid, 91 S.W.3d 247,
272 (Tenn. 2002); State v. Drinkard, 909 S.W.2d 13, 15-16 (Tenn. Crim. App. 1995) (refusing to
find the identification unduly suggestive and violative of due process because the police did not
arrange the confrontation between the defendant and the witness) (citing State v. Dixon, 656 S.W.2d
49, 51 (Tenn. Crim. App. 1983)). An inadvertent or accidental meeting involves no abuse of the
identification process. State v. Burns, 777 S.W.2d 355, 358 (Tenn. Crim. App. 1989).
In a related issue, the Appellant also argues that “a substantial likelihood existed that the
witness misidentified the [Appellant].” We also find this conclusory argument without merit. Hess
testified that she spent approximately fifteen minutes in close proximity with the Appellant when
he came into the bank to obtain the loan. She also testified that in the course of her job she had
received training to observe people in situations such as these and that she had carefully observed
the Appellant. Additionally, Hess testified that she was positive that the Appellant was the person
who impersonated Lawrence Pillow. She also noted that, when she first saw the Appellant in the
courtroom on the day of trial, he was sitting in a group with more than thirty people and that she
immediately picked him out.
The Appellant was permitted to cross-exam Hess with regard to her memory and the length
of time since she had seen the Appellant commit the crime. The issue became one of credibility for
the jury, who we must presume was properly instructed with regard to eyewitness identification
testimony. We conclude that the identification testimony was properly admitted.
II. Sufficiency of the Evidence
Next, the Appellant contends that the evidence presented at trial was insufficient to support
his two convictions for identity theft. Specifically, the Appellant contends the evidence with regard
to the identity of the perpetrator was insufficient to establish that he committed the crimes.
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In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], 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, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).
“A person commits identify theft who knowingly transfers or uses, without lawful authority,
a means of identification of another person with the intent to commit, or otherwise promote, carry
on, or facilitate any unlawful activity.” Tenn. Code Ann. § 39-14-150(a) (2003). A “means of
identification” includes “any name or number that may be used to identify a specific individual,
including” their name, social security number, date of birth, official state or government issued driver
license or identification number. Tenn. Code Ann. § 39-14-150(b)(1).
The Appellant does not dispute that someone acquired duplicate driver licenses for both
Lawrence Pillow and Darrell Grimes and then presented themself to the banks in order to acquire,
or attempt to acquire, loan proceeds without the knowledge or consent of the victims. The Appellant
merely argues that the proof is insufficient to show beyond a reasonable doubt that he was that
person. Specifically, the Appellant argues that the only testimony directly identifying him as the
perpetrator came from Brenda Hess and David Hayes, the two loan officers. The Appellant asserts
that Hess’ testimony should not have been admitted because it was tainted by a pre-trial
identification of the Appellant and was, therefore, unreliable. Additionally, he asserts that the
testimony of David Hayes was unduly bolstered by Hess’ testimony. He contends that had the trial
court properly suppressed Hess’ identification, Hayes’ identification would have been insufficient
to sustain the verdict. We disagree.
As previously determined, the identification testimony of Brenda Hess was properly admitted
into evidence. The evidence before the jury established that Hess positively identified the Appellant
as the person who presented himself to her as Lawrence Pillow, gave her a copy of Pillow’s driver
license, his social security number, and date of birth in an attempt to obtain a $4,100.00 loan. Hayes
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also positively identified the Appellant as the person who presented himself as Darrell Grimes in
order to obtain a $4,500.00 loan from AmSouth Bank. He testified that the Appellant presented a
copy of Grimes’ driver license, as well as verifying Grimes’ address and social security number.
Moreover, strong circumstantial evidence against the Appellant was presented to the jury. Both
victims had purchased cars from the Appellant and had given him personal information necessary
to check their credit, including social security and driver license numbers. Each victim’s credit was
checked, without authorization, at Music Land Motors, the dealership where the Appellant was
employed, just prior to the issuance of duplicate driver licenses for both victims. There was also
testimony from Hayes, Grimes, and a co-worker of the Appellant regarding a distinctive way that
the Appellant held a pen. This evidence, when considered in the light most favorable to the State,
is more than sufficient to support the Appellant’s convictions. This issue is without merit.
III. Excessive Sentencing
Third, the Appellant asserts that the trial court imposed excessive sentences in his case.
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review with a presumption that the determinations made by the trial
court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is “conditioned upon
the affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also State
v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the Appellant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.
The Appellant was convicted of two counts of identity theft, class D felonies, for which the
appropriate sentence range is two to four years. Tenn. Code Ann. § 40-35-112(a)(4) (2003). The
presumptive sentence to be imposed by the trial court for a class D felony is the minimum sentence
within the applicable range unless there are enhancement or mitigating factors present. Tenn. Code
Ann. § 40-35-210(c) (2003). If there are enhancement factors present but no mitigating factors, the
court may set the sentence above the minimum. Id. at (d). If both enhancement and mitigating
factors are present, the court must start at the minimum sentence, enhance the sentence as
appropriate for the enhancement factors, then reduce the sentence for all applicable mitigating
factors. Id. at (e). The weight given to each factor is left to the discretion of the trial judge. Shelton,
854 S.W.2d at 123. However, the sentence must be adequately supported by the record and comply
with the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d
229, 237 (Tenn. 1986).
The Appellant contends that the trial court erred in imposing a sentence greater than the
minimum of two years for each conviction and, further, that the trial court’s sentencing decision is
not entitled to the presumption of correctness because the court enhanced the sentences without
specifying any statutory enhancement factors and failed to apply three applicable mitigating factors.
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The trial court made the following pronouncements on the record prior to sentencing the
Appellant:
THE COURT: . . . He shows no remorse, and according to 40[-]35-102
Defendant should be imposed to prevent crime of remote respect of the law. Well,
with this gentleman’s behavior pre and post trial it’s undermined respect for the law
because he has told his sister, at least, and I assume his other six siblings that he
didn’t do this act.
Therefore, what respect for the law can the children, and his family have for
a judicial system that they now perceive to be unfair. Not only has he undermined
Mr. Grimes, and Mr. Pillow, he’s undermined the legal system, or the justice system,
and that is almost as distracting as the personal problems that Mr. Pillow, and Mr.
Grimes have suffered. . . .
It says it is also to encourage a federal rehabilitation for the Defendant. Well,
since the Defendant does not admit to his offense, and shows absolutely not a
smithereens of remorse, the rehabilitation process is going to have to be altered. I am
going to sentence him to pay the restitution of the victims. The potential for
rehabilitation pursuant to 40[-]35-13 section 45 without a long sentence, I don’t think
[the Defendant] would be rehabilitated. Therefore, I wish I could sentence him to
more, but I’m going to sentence him to two three year terms to run concurrent, which
I regret, but I have no other choice.
After review, it is apparent that the Appellant is correct that the trial court failed to specify
on the record its application of any enhancement or mitigating factors or even the appropriate
sentencing range.2 Tennessee Code Annotated section 40-35-210(f) mandates, “Whenever the court
imposes a sentence, it shall place on the record either orally or in writing what enhancement or
mitigating factors it found, if any, as well as findings of fact as required by Tenn. Code Ann. § 40-
35-209.” To facilitate appellate review, the trial court “must place on the record its reasons for
2
The Appellant also alleges that the trial court erred by failing to apply mitigating factors. First, he asserts
that the trial court should have applied factor (1), that the Appellant’s criminal conduct neither caused nor threatened
serious bodily injury. See Tenn. Code Ann. § 40-35-113(1) (2003). The State concedes that this factor should have been
applied, and this court has previously concluded that mitigating factor (1) may be considered in sentencing
determinations for property offenses. State v. Daniel James Cosgrove, No. M2001-02127-CCA-R3-CD (Tenn. Crim.
App. at Nashville, Nov. 15, 2002), perm. to appeal denied, (Tenn. 2003).
Additionally, the Appellant asserts that the trial court should have applied mitigating factor (13), the catchall
mitigator, based upon both his long record of stable employment and his strong supportive family ties in the community.
See Tenn. Code Ann. § 40-35-113(13). W e note that this court has stated that work ethic and family contribution are
entitled to favorable consideration under Tennessee Code Annotated section 40-35-113(13). State v. McKnight, 900
S.W .2d 36, 55 (Tenn. Crim. App. 1994). Moreover, this court has held that employment should be considered in
sentencing a defendant. State v. Kelley, 34 S.W .3d 471, 482-83 (Tenn. Crim. App. 2000). The trial court should
consider the evidence presented and make a determination as to the application and weight of these factors, as well as
any others which may be applied on the facts of the case.
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arriving at the final sentencing decision, identify the mitigating and enhancement factor found, state
the specific facts supporting each enhancement factor found, and articulate how the mitigating and
enhancement factors have been evaluated and balanced in determining the sentence.” State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997); see also Tenn. Code Ann. § 40-35-210(f).
The record reflects that, in addition to failing to specify any statutorily enumerated
enhancement factors, the trial court in enhancing the Appellant’s sentence from two to three years
appears to have considered the Appellant’s lack of remorse, lack of respect for the law, and his
amenability to rehabilitation, none of which are proper considerations in determining the length of
a sentence. See Tenn. Code Ann. § 40-35-114 (2003). As the trial court is the primary court for
sentencing, and because here the court failed to impose a sentence in accordance with sentencing
guidelines, we remand for resentencing.3
IV. Restitution Amounts
Lastly, the Appellant asserts that the trial court erred in ordering the Appellant to pay
restitution in the following amounts: $4,500.00 to AmSouth Bank, $1,100.00 to Lawrence Pillow,
and $3,000.00 to Darrell Grimes.
A sentencing court may direct a defendant to make restitution to the victim for pecuniary loss
as a condition of probation. See Tenn. Code Ann. § 40-35-304(a) (2003); State v. Alford, 970
S.W.2d 944, 945 (Tenn. 1998). Whenever the trial court believes restitution may be proper or if the
victim or the district attorney general requests restitution the court shall order the presentence officer
to include documentation regarding the nature and amount of the victim’s pecuniary loss in the
presentence report. Tenn. Code Ann. § 40-35-304(b). The statute defines "pecuniary loss" to be:
(1) All special damages, but not general damages, as substantiated by evidence in the
record or as agreed by the defendant; and
(2) Reasonable out-of-pocket expenses incurred by the victim resulting from the
filing of charges or cooperating in the investigation and prosecution of the offense;
provided, that payment of special prosecutors shall not be considered an out-of-
pocket expense.
Id. at (e). Special damages are those which 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." State v. Lewis,
917 S.W.2d 251, 255 (Tenn. Crim. App. 1995). General damages are those which are "the necessary
and immediate consequence of the wrong." Id.
3
W e note that the trial court’s reconsideration of the Appellant’s sentence should be conducted in view of the
recent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S._____, 124 S. Ct. 2531 (2004).
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It is unnecessary for the sentencing court to determine restitution in accordance with the strict
rules of damages applied in civil cases. State v. Johnson, 968 S.W.2d 883, 887 (Tenn. Crim. App.
1997). However, though the rules of damages are relaxed, they are not completely discarded. State
v. David D. Bottoms, No. M2000-02080-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 31,
2001). The sum of restitution ordered must be reasonable but does not have to mirror or equal the
precise pecuniary loss. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). There is no
set formula or method for determining the amount. Johnson, 968 S.W.2d at 886. The sentencing
court must consider not only the victim's loss, but also the financial resources and future ability of
the Appellant to pay or perform in determining the amount and method of payment. Tenn. Code
Ann. § 40-35-304(d); State v. Bottoms, 87 S.W.3d 95,108 (Tenn. Crim. App. 2001). An order of
restitution which obviously cannot be fulfilled serves no purpose for the Appellant or the victim.
Johnson, 968 S.W.2d at 886.
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 loss. David D. Bottoms, No.
M2000-02080-CCA-R3-CD. 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. Smith, 898
S.W.2d at 747. 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.
When ordering restitution, the trial court shall specify the amount of time and payment and
may permit payment or performance of restitution in installments. Tenn. Code Ann. § 40-35-304(c).
However, the court may not establish a payment or performance schedule which extends beyond the
maximum statutory term of probation supervision that could have been imposed for the offense. Id.
(a) AmSouth Bank
With regard to AmSouth Bank, the Appellant concedes that the monetary losses resulting to
the bank from the fraudulent loan were special damages and, thus, properly recoverable. However,
he argues that the evidence presented failed to sufficiently establish that the bank suffered an actual
pecuniary loss of $4,500.00. He asserts that the proof shows that while the original loan was for
$4,500.00, the proof also established that the Appellant did not take the entire amount of the
proceeds with him in cash but rather deposited part of it in a checking account.
We disagree with the Appellant’s assertion and find the proof sufficient to establish that the
Appellant received proceeds in the amount of $4,500.00 from a fraudulent loan. The State submitted
loan documentation in the amount of $4,500.00. The loan officer, David Hayes, testified that the
Appellant opened a checking account with part of the proceeds and took the remainder in cash. The
record also establishes that the Appellant later withdrew $450.00 by check from the account. There
is nothing in the record to indicate that the bank recovered any of their loss from the loan. The order
of restitution is correct.
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(b) Lawrence Pillow/Darrell Grimes
With regard to the amounts awarded Pillow and Grimes for lost wages during the prosecution
and investigation of the case, as well as the wages they lost to procure new driver licenses, the
Appellant asserts that the awarded amounts were not reasonable under Tennessee Code Annotated
section 40-35-304(e)(2). That statute defines “pecuniary loss” to be “[r]easonable out-of-pocket
expenses incurred by the victim resulting from the filing of charges or cooperating in the
investigation and prosecution of the offense[.]” Tenn. Code Ann. § 40-35-304(e)(2).
There is no dispute that lost wages are pecuniary losses under the restitution statute, as this
court has recognized lost wages as part of a restitution order. See State v. Vanderford, No. 01-C-01-
9101-CC-00004 (Tenn. Crim. App. at Nashville, Aug. 22, 1991); State v. Cowart, No. 01-C-01-
9508-CC-00251 (Tenn. Crim. App. at Nashville, Nov. 22, 1996). Indeed, the Appellant
acknowledges that lost wages are recoverable, but he asserts that part of the pecuniary loss in this
case was for out-of-pocket expenses or lost wages the men incurred for matters other than those
directly related to the prosecution of the case. See Tenn. Code Ann. § 40-35-304(e)(2). Specifically,
the Appellant disputes the money awarded for lost wages when the victims were procuring new
driver licenses.
While it may be true that the time the victims spent in having new driver licenses issued did
not result “from the filing of charges or cooperating in the investigation and prosecution of the
offense,” the Appellant’s argument appears to ignore sub-section (e)(1) of Tennessee Code
Annotated section 40-35-304, which states that restitution may be ordered for a crime victim's
"pecuniary loss," defined as all special damages substantiated by evidence in the record or as agreed
to by the Appellant but not to include general damages. See Tenn. Code Ann. § 40-35-304(b), (e)(1)
(2003).
Clearly, the lost wages disputed by the Appellant were special damages. The wages the
victims lost while procuring new driver licenses were an actual result of the injury complained of,
which followed as a natural and proximate consequence. The Appellant had duplicate driver licenses
issued in the victim’s names. If this had not occurred, no renewal of the licenses would have been
required. Indeed, with regard to Mr. Grimes, the Appellant had his driver license classification
changed, resulting in additional loss of wages.
The statute also requires that restitution be made only where special damages are
"substantiated by evidence in the record." In this case, Pillow testified that he had missed a total of
five days of work due to the Appellant’s actions and that he made $225 per day. He specifically
testified that he suffered approximately $1,100.00 in lost wages. Grimes testified that he missed
twelve days of work due to the Appellant’s conduct and that he earned approximately $1,400.00 per
week. He testified that he easily lost $3,000.00 in wages. Thus, after reviewing the record, this
court finds that the victims’ testimony about their wages, which was unchallenged by the Appellant,
was sufficient to warrant restitution for lost wages in the amounts ordered. The Appellant’s issue
is without merit.
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Notwithstanding the proper awards, the record is silent with regard to any finding of the
Appellant’s ability to pay the ordered restitution during his period of probation. The record
establishes that the Appellant is employed as a car salesman but no mention is made of his earnings.
As this is a required finding prescribed by the statute, we must remand for a determination of the
Appellant’s ability to pay the ordered restitution within the scheduled period.
CONCLUSION
Based upon the foregoing, we affirm the Appellant’s judgments of conviction. The case is
remanded to the Davidson County Criminal Court for determinations of the appropriate sentences
and the Appellant’s ability to pay the ordered restitution consistent with this opinion.
___________________________________
DAVID G. HAYES, JUDGE
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