         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 28, 2009

         STATE OF TENNESSEE v. JOSEPH BENJAMIN COMER, IV

                      Appeal from the Criminal Court for Loudon County
                        No. 10740    James B. Scott, Jr., Special Judge



                   No. E2008-02559-CCA-R3-CD - Filed December 30, 2009


The Defendant, Joseph Benjamin Comer, IV, was convicted in the Loudon County Criminal Court
on his guilty plea of reckless endangerment, a Class A misdemeanor, for which he received an
eleven-month, twenty-nine-day sentence on probation. At issue in this appeal is the amount of
restitution for damages caused by his crime. We affirm the judgment in part and remand the case
to the trial court for entry of a corrected judgment reflecting that restitution is to be paid in monthly
installments of $200.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed In Part;
                                    Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
D. KELLY THOMAS, JR., JJ., joined.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for
the appellant, Joseph Benjamin Comer, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; Russell Johnson, District Attorney General; and Frank A. Harvey, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The Defendant was indicted for Class E felony reckless endangerment following his shooting
.22 caliber ammunition into the home of Ginger Wilson, the victim. The State and the Defendant
reached a plea agreement to the misdemeanor charge of which the Defendant was later convicted.
The plea agreement called for the parties to reach an agreement about the amount of restitution,
although they were unsuccessful in doing so. The question of the amount of restitution was
submitted to the trial court for determination. The opinion in a previous appeal reflects the
following:
                        A restitution hearing was held in Loudon County Criminal
               Court on February 5, 2007. At that hearing, Ginger Wilson testified
               that the defendant fired three bullets into her 1992 Oakwood mobile
               home. The bullets left “2 huge holes and one dent” in the mobile
               home, damaging the wallpaper and sheetrock. Ms. Wilson testified
               that as a result of the damage, the entire mobile home needed to be re-
               sided.

                      An estimate for the repair in the amount of $12,995 was
               entered into evidence.

                       On cross examination Ms. Wilson admitted to receiving a
               subpoena to bring in additional documents to substantiate her claim,
               but she testified that she had no such documentation. She testified
               that she paid “about $24,000” for the mobile home originally, a price
               that included some furniture. She did not know where the title to the
               mobile home was. The defense then entered into evidence a 2005 tax
               appraisal for the entire mobile home in the amount of $14,733.

                       The defense called no witnesses.

                        The trial court ordered the defendant to pay $12,995 in
               restitution to Ms. Wilson, with the payment schedule to be set by the
               trial court “upon completion of Appeal Process.”

State v. Comer, 278 S.W.3d 758 (Tenn. Crim. App. 2008).

         The Defendant appealed the restitution determination, and this court dismissed the appeal
on the basis that the appellate court lacked jurisdiction because no final judgment had been entered
in the case. The court noted, as well, that the trial court had the obligation to consider both the
victim’s loss and the Defendant’s financial resources and future ability to pay pursuant to Code
section 40-35-304(d) and State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim App. 2001). The
appellate court also noted that the trial court must establish the amount of time and payment of
restitution and had the ability to allow periodic payments. See T.C.A. 40-35-304(c); Comer, 278
S.W.3d at 761.

         After the dismissal, the trial court conducted a second hearing. The victim testified that the
cost to re-side her mobile home would be $12,995. She said she did not know the value of her home
before the Defendant damaged it, nor did she know the value of her home afterwards. She did not
dispute that her county tax appraisal valued her home at $14,733, but she stated that her home was
worth more than this. She said she had temporarily repaired the holes in the exterior of her home
with caulking.



                                                 -2-
        The Defendant testified about his income and expenses using a written statement that was
introduced as an exhibit. It reflects that he received Social Security disability payments of $800 per
month and rental income of $159 per month. He listed itemized expenses totaling $2,172 and
additional credit card debt on which he was not making payments. He said that his wife was
employed with an annual income of $20,000 and that she had additional expenses that he had not
listed on the document he prepared for the hearing. He said that in addition to his wife, his
unemployed daughter and three grandchildren lived in his home.

        After receiving the evidence, the trial court determined that a proper award of restitution was
$6,450 and set the Defendant’s monthly restitution payment at $200. The court stated that it made
its determination “in view of [the Defendant’s] income.” The court also noted, “I don’t think that
will satisfy anybody but the proof in this case isn’t all that clear.”

        On appeal, the Defendant argues that the trial court erred in determining the monthly and
total restitution amount. He asks this court either to remand for a third restitution hearing or to
modify the judgment to reflect no award of restitution. In support of his argument, he contends that
the proper measure of the loss was the diminished value as a result of the crime, yet the victim
sought $12,995 to completely re-side a mobile home with an assessed value of $14,733. He notes
that the damage consisted of one hole that penetrated through the interior and exterior walls, a hole
in the exterior with a bullet lodged in the wall, and a dent, and he notes that the victim incurred no
cost in repairing her home by plugging the holes. The State responds that the Defendant has not
demonstrated error in the trial court’s ruling. We agree with the State.

        Restitution may be ordered as a component of sentencing pursuant to Code sections 40-35-
104(c)(2) and 40-35-304. Code section 40-35-304 allows restitution for the victim’s “pecuniary
loss,” consisting of special damages and out-of-pocket expenses incurred by the victim relative to
investigation and prosecution of the crime. Section 40-35-304 also states that in determining a
proper amount and method of payment of restitution, “the trial court shall consider the financial
resources and future ability of the defendant to pay or perform.” T.C.A. § 40-35-304(d). If the trial
court determines that the proper restitution amount pursuant to section 40-35-304(d) is less than the
amount established by the jury under section 40-20-116(a), the court should establish the deficiency
amount, which is collectable by execution. See T.C.A. § 40-20-116(a); State v. Patricia White, No.
W2003-00751-CCA-R3-CD, Gibson County (Tenn. Crim. App. Oct. 15, 2004) (relying on State v.
Charles Chesteen, E1999-00910-CCA-R3-CD, Cocke County (Tenn. Crim. App. June 8, 2000)).
On appeal, review of an award of restitution is subject to de novo review, accompanied by a
presumption that the trial court’s determination was correct. State v. Johnson, 968 S.W.2d 883, 884
(Tenn. Crim. App. 1997); see T.C.A. § 49-35-401(d).

         In the present case, the State presented proof that the victim had attempted to obtain repair
estimates from several businesses, but none other than Sears would work on a mobile home. She
determined that the exterior siding and interior wallpapered sheetrock could not be matched due to
the age of the home. She acknowledged the appraisal value of her mobile home, but she testified
that its actual value would be higher, although she could not provide precise figures for the actual
value or the diminished value. She sought the cost to have the exterior re-sided, and despite having


                                                 -3-
testified about damage to the interior, she did not testify about an amount required to restore the
interior.

        The Defendant presented proof of personal expenses that were much greater than his income,
although the proof demonstrated that some of the expenses the Defendant included in his statement
of expenses were paid in part by his wife, although he had not accounted for his wife’s income in
his statement of income. The Defendant offered no proof that a less costly means existed for
adequately repairing the damage he caused to the victim’s home.

         We hold that the Defendant has not overcome the presumptive correctness of the trial court’s
restitution determinations. The trial court took into account the facts of the case, which included the
limitations the victim faced in finding someone who would work on her mobile home, the difficulty
posed by the inability to match the siding the Defendant damaged, and the Defendant’s limited
income and his monthly expenses. We note, though, that the judgment of conviction does not reflect
that the Defendant is obligated to pay $200 per month in restitution. The judgment needs to be
corrected.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed in part, but the case is remanded to the trial court for entry of a corrected judgment
reflecting that restitution is to be paid in monthly installments of $200.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




                                                 -4-
