         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 18, 2008

               STATE OF TENNESSEE v. DEBBIE DAWN WALES

                    Direct Appeal from the Circuit Court for Giles County
                           No. 12,505    Stella L. Hargrove, Judge



                       No. M2007-01231-CCA-R3-CD - Filed 12/11/2008



The Defendant pled guilty to theft of property in excess of $60,000, and the trial court sentenced her
to ten years in prison and ordered her to pay $162,603 in restitution. The Defendant appeals,
claiming that the restitution amount is excessive. After a thorough review of the record and
applicable law, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.

Robert H. Stovall, Jr., Pulaski, Tennessee, for the Appellant, Debbie Dawn Wales.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clarence E. Lutz, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick
S. Butler, Assistant District Attorney General, for the Appellee, the State of Tennessee.


                                             OPINION

                                              I. Facts

        A Giles County Grand Jury indicted the Petitioner on theft of property valued at over
$60,000. At the hearing on the Petitioner’s guilty plea to that charge, the State informed the trial
court that, had the case gone to trial, the evidence would have shown:

       [B]etween the months of May[] 2002, and November 2005, [the Defendant], while
       in the scope of her employment, did take from her employer a sum of money in
       excess of $60,000.00, which I believe is the statutory amount to get it into a Class B
       felony range.
Additionally, in response to questioning from the trial court, the Defendant stated that she graduated
from high school and accumulated approximately twenty-six college credits. She worked at Hillside
Hospital as a remittance specialist for six years and made $10.25 per hour. The Defendant explained
that her job required her to post insurance payments and patient payments. Before working at the
hospital, she worked at Johnson Controls and at fast food restaurants. After hearing the evidence
and verifying the Defendant’s plea was voluntarily and knowingly entered, the trial court accepted
the Defendant’s guilty plea, imposed the agreed ten year prison sentence and set a hearing date to
determine the amount of restitution.

         At the restitution hearing, the following evidence was presented: William Scott Duvall, the
director of ethics and compliance for Hillside Hospital, testified that in 2005 he became aware of a
theft at Hillside Hospital. Duvall said the Defendant was “receiving cash from patients . . . paying
bills” and also from the cafeteria’s cash flow. The Defendant’s initials and login name were next
to the entries on the payment system. Duvall said there were discrepancies in the amount of cash
received versus the amount deposited. He said, “[T]he discrepancies were cleared by zeroing out
patient accounts or putting refunds in patient accounts that were old.” He also said, “[A]ll of those
entries had [the Defendant’s] initials, [which were a part of] her login information[,] next to them.”
Duvall estimated the hospital’s losses at: $87,952 in 2002; $94,796 in 2003; $98,324 in 2004; and
$102,796 in 2005. He admitted the hospital received $16,000 to $19,000 from its insurance
company as reimbursement after it met its $500,000 deductible.

        On cross-examination, Duvall testified that he did not know the hospital’s insurance
deductible from 2000-2005 and that he did not know the insurance company’s involvement with the
hospital. He also said the Defendant had two supervisors, both of whom denied involvement in the
theft. Duvall said the Defendant would post a payment to one account and then issue cash to another
patient’s account. He said she did this with about 1200 patients, but he did not verify this procedure
with each patient whose account she used.

        On redirect-examination, Duvall testified that the hospital did not regularly pay cash refunds
to patients. He also stated that the Defendant lacked authority to make cash refunds to patients.
Additionally, Duvall noted that the Defendant paid money into patient accounts that had been
inactive for at least six months.

        Special Agent Brad Elliott with the Tennessee Bureau of Investigation testified that he
interviewed the Defendant, and she confessed to embezzling funds after being read her Miranda
rights. The Defendant told him that she made “[c]ontractual and insurance adjustments to accounts.”
In his words, “She stated she pulled the money off, posted insurance, contractual, or adjustment to
zero the balance.” “She didn’t actually make the deposits. She filled the deposits out, put all of the
money together and someone else would actually carry the deposit bag into the bank.” Agent Elliott
said he subpoenaed the Defendant’s bank records, which showed large amounts of money being
deposited. When Agent Elliott tried locating the Defendant’s assets, he found a home valued at
$65,000 to $75,000; vehicles; a motorcycle; and a boat. He said she still owed money on the house.


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The Defendant told agent Elliott that she bought “everyday” things with the money she stole. Agent
Elliott also said the Defendant earned $35,000 to $36,000 a year from her job.

        On cross-examination, Agent Elliott testified that, in addition to her yearly salary, the
Defendant deposited into her personal bank account about $162,000 over the five-year span. He said
she stole enough money each year to create a “salary” of $60,000.

        Jim Edmondson, an administrator at Hillside Hospital, testified that the Defendant’s job was
to “take cash and payments that were made and prepare a deposit slip and to post these payments to
patient[s’] accounts.” On cross-examination, Edmondson said he would not rehire the Defendant
at $25,000 a year, and he would not recommend her to other employers at $25,000 a year. He then
qualified that statement, saying he was not sure whether he would “feel the same” in eight to ten
years. When later called back to the stand, Edmondson admitted it was “reasonable” that the
Defendant was authorized to make cash refunds for patients with private rooms.

        The Defendant testified that she was thirty-seven years old, and had begun serving the ten
year sentence for theft. She obtained her “GED” and two years of college credits. The Defendant
recited that, before her job at the hospital, she worked six years at the Johnson Controls factory, and
before that as an intern manager at a fast food restaurant. Working for the hospital, the Defendant
earned $10.25 an hour, which amounted to around $20,000 to $25,000 a year. She has two sons,
ages seventeen and nineteen, and has no physical or medical limitations. The Defendant agreed that
she should be able to get a minimum wage job after being released from prison. She then listed her
expected monthly expenses, which included: $400 for rent, $250 to $300 for utilities, $300 for food,
$200 for transportation, $50 for clothing, and $50 for medical expenses. The Defendant said she
also owes Home Depot $1000 and agreed that there is a “substantial possibility” that she will have
to pay taxes on the money she stole. She also said she would be sharing the rent and utilities with
her husband, making the total for her monthly expenses around $1000. The Defendant said that with
a minimum wage job, she expects to earn between $900 and $1000 a month. The Defendant testified
that she thought she would be able to pay $25 or $30 a week for restitution.

        On cross-examination, the Defendant stated that her husband was unemployed, but he had
earned $7 an hour at his previous job. She also said she has not had any disciplinary problems in
prison. If she were granted parole after serving thirty percent of her sentence at prison, she would
still have approximately seven years and four months to pay restitution. The Defendant said her
college classes were in business and accounting. She admitted she could return to work at the
factory, where she earned $10.25 an hour. The Defendant said she previously owned a Dodge
Durango, but she and her husband sold it. Her husband has a small fishing boat and at some point
also owned a recreational vehicle.

        On redirect-examination, the Defendant testified that her boss gave her permission to make
cash refunds to patients. She also said that when she earned $10.25 an hour at the factory, she was
not a convicted felon; she believed she would only be able to earn $6 an hour because of her status
as a convicted felon.


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       When answering the court’s questions, the Defendant admitted that she alone embezzled
from the hospital. The Defendant affirmed that she had previously given a statement to law
enforcement in which she said she took full responsibility for the crime, and in which she stated: “I
am willing to pay back the money.” The Defendant testified that her statement is true.

       Additionally, the following exchange occurred between the trial court and the Defendant:

       The Court: Now, at some point you filled out an indigency form and you were
       appointed a lawyer that the taxpayers are paying for you; right?

       The Witness: Yes, ma’am.

       The Court: And on this form, I don’t see where you show you got any cash. What
       happened to all of that cash?

       The Witness: Basically just spent it on everyday anything whether it was shopping,
       clothes, my children. Of course, they were both at the home at the time. Just the
       bills. Just everyday. Of course, at the time, you know, if I wanted to go out and buy
       a new outfit, I went out and bought it. It wasn’t just like, you know. So a lot of it
       just went to everyday items and paying the bills.

       The Court: In addition to this, though, I am hearing that you would have acquired
       things that you wanted rather than needed.

       The Witness: Yes, ma’am. That is true.

       The Court: Because you had all of that money you stole to do it with; right?

       The Witness: I bought thing[s] that if I – you know, that I wanted, yes.

       After hearing the relevant testimony and considering the evidence in the record, the trial court
ordered restitution to Hillside Hospital in the amount of $162,603. It is from this judgment that the
Defendant now appeals.

                                            II. Analysis

        On appeal, the Defendant claims the trial court ordered her to pay excessive restitution.
When the defendant challenges the restitution amount ordered by the trial court, this Court will
utilize a de novo standard of review with a presumption that the trial court’s ruling was correct.
T.C.A. § 40-35-401(d) (2006); State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997).
The purpose of ordering restitution is to compensate the victim and to punish and rehabilitate the
defendant. Johnson, 968 S.W.2d at 885. “In determining the amount and method of payment or
other restitution, the court shall consider the financial resources and future ability of the defendant


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to pay or perform.” T.C.A. § 40-35-304 (d) (2006); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn.
Crim. App. 2001). After all, “[a]n order of restitution which obviously cannot be fulfilled serves no
purpose for the appellant or the victim.” Johnson, 968 S.W.2d at 886. There is “no formula for
determining restitution,” but the amount must be “reasonable” and “must be based upon the victim’s
pecuniary loss and the financial condition and obligations of the defendant; and the amount ordered
to be paid does not have to equal or mirror the victim’s precise pecuniary loss.” Johnson, 968
S.W.2d at 886; State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). Pecuniary loss is
defined as “(1) All special damages, but not general damages, as substantiated by evidence in the
record or as agreed to 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.” T.C.A. § 40-35-304(e).

        When a trial court orders a defendant to serve a sentence of incarceration, as opposed to
probation, it lacks the jurisdiction to order a restitution payment plan, and, thus, it may only order
a total amount of restitution. State v. James Lewis Fritz, No. 02C01-9503-CC-00094, 1995 WL
686112 (Tenn. Crim. App., at Jackson, Nov. 15, 1995) (holding that a trial court lacks jurisdiction
to impose restitution payment plans on a defendant it ordered to be incarcerated because the payment
methods would be conditions to the defendant’s parole, over which the Board of Probation and
Paroles has exclusive authority), no Tenn. R. App. P. 11 application filed. A defendant ordered to
pay restitution “shall be responsible for the payment of the restitution until the expiration of the
sentence imposed by the court, and any payment or performance schedule established by the court
shall not extend beyond the expiration date.” T.C.A.§ 40-35-304(g)(2); Bottoms, 87 S.W.3d at 108.
“Any unpaid portion of the restitution ordered may be converted into a civil judgment.” T.C.A. §
40-35-304(h)(1).

       The trial court explained how it arrived at the restitution amount of $162,603 as follows:

                The conflicting testimony of the two witnesses on behalf of Lifepoint and
       Hillside relative to cash refunds makes it impossible for the Court to distinguish cash
       refunds to patients with private rooms from the 1200 patients receiving cash refunds.
       While the Court believes that restitution exceeds $162,603, it is unable to set the
       restitution any higher with the evidence presented by the State. To do so would
       amount to pure speculation. Defendant admits that she is able to pay restitution of
       $162,603, and the Court finds that she is able to pay this sum over the period of
       parole.

         The process for determining a restitution amount is a two-step process: the trial court must
first determine the pecuniary loss to the victim, and then it must determine how much of that amount
the defendant can reasonably be expected to pay. See Johnson, 968 S.W.2d at 886; State v. Wendell
Gary Gibson, No. M2001-01430-CCA-R3-CD, 2002 WL 1358711, at *3 (Tenn. Crim. App., at
Nashville, Jun. 24, 2002), no Tenn. R. App. P. 11 application filed. We conclude the trial court
properly found that the victim suffered a proven pecuniary loss of $162,603. The Defendant,
although not specifically admitting “that she is able to pay restitution of $162,603,” as stated by the
trial court, did testify that she is “willing to pay back the money.” We recognize that there could be

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a difference between the Defendant’s willingness to pay and the Defendant’s ability to pay. The
Defendant’s financial condition was extensively explored at the restitution hearing. The credibility
of the Defendant’s testimony concerning what she can reasonably be expected to pay, including her
explanation as to what happened to the large quantity of cash that she stole, is properly a matter for
the trial court to determine. In our view, the trial court carefully considered the evidence presented
at the restitution hearing and then determined the pecuniary loss to the victim and the Defendant’s
financial condition to arrive at the restitution amount of $162, 603. We have carefully reviewed the
judgment of the trial court and have found no error.

                                          III. Conclusion

       After a thorough review of the record and applicable law, we conclude the trial court properly
ordered the Defendant to pay $162,603 in restitution. We affirm the trial court’s judgment.

                                                            ________________________________
                                                             ROBERT W. WEDEMEYER, JUDGE




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