        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   May 18, 2010 Session

            STATE OF TENNESSEE v. RAYMOND BRADLEY, JR.

                 Appeal from the Criminal Court for Davidson County
                      No. 2008-B-1786     Seth Norman, Judge




                  No. M2009-02055-CCA-R3-CD - Filed July 21, 2010


The Defendant, Raymond Bradley, Jr., pleaded guilty to one count of facilitation of
aggravated burglary, a Class D felony. See Tenn. Code Ann. § 39-11-403(b), -14-403(b).
He was sentenced to four years to be served on probation. He was also ordered to pay a total
of $15,500 in restitution at a rate of $323 per month. In this direct appeal, the Defendant
contends that the trial court erred in setting the amount of restitution and in determining that
he had the ability to pay the ordered monthly payments. After our review, we affirm the
judgment of the trial court.


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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Raymond Bradley, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and J.W. Hupp, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                   Factual Background
       At the Defendant’s August 3, 2009 guilty plea hearing, the State presented the
following factual basis for the Defendant’s plea:
       If this matter had gone to trial, the State would have produced witnesses and
       evidence to show that on April 2, 2007, that a residence on Jackson Downs
       Boulevard was broken into. The residence of Marilyn Charles. Subsequent
       investigation revealed that the [D]efendant had pawned a couple of items that
       had been taken in the burglary. The [D]efendant was a friend of the owner’s
       daughter. He had been in the residence before; however, there was [sic] no
       other links to him actually being in the residence besides the fact that he had
       stolen items from the residence.

As a part of his plea, the Defendant agreed that the trial court would set an amount of
restitution after an evidentiary hearing.

        Marilyn Charles testified for the State at the September 15, 2009 restitution hearing.
She said that she kept most of the valuables the Defendant stole along with an appraisal of
those items in a safe. Because the appraisal was also stolen, she was only able to guess at the
value of the stolen items she had not personally bought. In addition to the two returned
items, the Defendant had stolen a number of other items of jewelry, an ivory cigarette box,
and a laptop computer. On cross-examination, she individually estimated the value of each
of these unreturned items, leading, according to our calculations, to a combined estimate of
between $19,874 and $20,874. The State estimated the items’ combined value as being
“[s]omewhere between $10,000 and $15,000” based on some earlier testimony by Ms.
Charles. Ms. Charles testified that she had not insured the stolen items and had no
homeowner’s insurance.

        The Defendant testified that he had been employed in “IS Engineering” but had been
unable to work since November, 2008, due to gout. He lived with his mother. More
recently, his condition had prevented him from employment in lawn care. He said he had
applied for disability payments and food stamps but had not yet received either. He planned
to pay restitution out of his disability payments. On cross-examination, the Defendant said
that he had suffered from gout for twenty years, most severely “in the last year or two.” He
admitted that a gout “flare up” can be treated by a doctor, and that he had been arrested while
he had gout “going back a number of years for various kinds of charges, assaults, drugs . .
. .”

       The Defendant argued that he did not have the ability to pay $15,000 in four years,
and requested “a reasonable amount of payment” through his probationary period, the
remainder to be converted to a civil judgment following that period. In its ruling, the trial
court simply stated as follows: “Set the restitution at $15,500. It will be payable at the rate
of $323 per month.” The Defendant now appeals.



                                              -2-
                                          Analysis

        When a defendant challenges the validity and amount of restitution, this Court must
conduct a de novo review of both the amount of restitution ordered and the method by which
it was determined. State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997) (citing
Tenn. Code Ann. § 40-35-401(d) (1990); State v. Frank Stewart, No. 01-C-019007CC00161,
1991 WL 8520, at *1 (Tenn. Crim. App., Nashville, Jan. 31, 1991)). The trial court is
entitled to a presumption of correctness. Tenn. Code Ann. § 40-35-401(d).

        A trial court, in conjunction with a probated sentence, may order a defendant to make
restitution to the victims of the offense. See Tenn. Code Ann. § 40-35-304(a). “The purpose
of restitution is not only to compensate the victim but also to punish and rehabilitate the
guilty.” Johnson, 968 S.W.2d at 885. The statue that governs restitution as a condition of
probation provides, in pertinent part, as follows:

       (b) Whenever the court believes that restitution may be proper or the victim of
       the offense or the district attorney general requests, the court shall order the
       presentence service officer to include in the presentence report documentation
       regarding the nature and amount of the victim’s pecuniary loss.

       (c) The court shall specify at the time of the sentencing hearing the amount and
       time of payment or other restitution to the victim and may permit payment or
       performance in installments. The court may not establish a payment or
       performance schedule extending beyond the statutory maximum term of
       probation supervision that could have been imposed for the offense.

       (d) In 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.

       (e) For the purposes of this section, “pecuniary loss” means:

              (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; provided, that payment of special
              prosecutors shall not be considered an out-of-pocket expense.



                                             -3-
Tenn. Code Ann. § 40-35-304(b)-(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) (quoting Black’s Law
Dictionary 392 (6th ed. 1990)). General damages are those which are “‘the necessary and
immediate consequence of the wrong.’” Id. (quoting Webster’s New International Dictionary
664 (2d ed. 1957)). It is unnecessary for the sentencing court to determine restitution in
accordance with the strict rules of damages applied in civil cases. Johnson, 968 S.W.2d at
887.

       The sum of restitution ordered must be reasonable and does not have to equal the
precise pecuniary loss. State v. Smith, 898 S .W.2d 742, 747 (Tenn. Crim. App. 1994).
There is no set formula. 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 defendant
to pay. Tenn. Code Ann. § 40-35-304(d); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim.
App. 2001). In 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). The court may not, however, establish a payment or schedule
extending beyond the expiration of the sentence. Tenn. Code Ann. § 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. Tenn. Code Ann. §
40-35-304(f). Further, any unpaid portion of the restitution may be converted to a civil
judgment. Tenn. Code Ann. § 40-35-304(h)(1); Bottoms, 87 S.W.3d at 108.

I. Amount of Restitution
       In arguing against the amount of restitution on appeal, the Defendant correctly notes
that Ms. Charles could only guess at the value of many of the stolen items. The Defendant
also doubts the accuracy of Ms. Charles’ estimates of the value of some items, including her
$3,000 laptop computer and a pearl necklace the value of which she estimated by visiting a
jewelry store and viewing similar pearls.

       “[W]hile 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.”               State v. Wendell Gary Gibson, No.
M2001-01430-CCA-R3-CD, 2002 WL 1358711, at *2 (Tenn. Crim. App., Nashville, Jun.
24, 2002). Ms. Charles did so. Although she originally valued the stolen items at between
$10,000 and $15,000, her later itemized testimony established a combined value of between
$19,874 and $20,874. We conclude that Ms. Charles adequately explained the source of her
estimates. We also conclude that the Defendant has failed to overcome the presumption of

                                              -4-
correctness to which the trial court is entitled: the total ordered restitution amount of $15,500
is sufficiently below Ms. Charles’ itemized estimate total to account for any inaccuracy in
some of her individual estimates. We conclude that the ordered restitution is a reasonable
amount. See Smith, 898 S .W.2d at 747. This issue is without merit.

II. Ability to Pay
       The Defendant next contends that the trial court failed to consider his financial
resources and future ability to pay. See Tenn. Code Ann. § 40-35-304(d). He bases this
argument largely on a pair of exchanges at his restitution hearing. The first occurred during
the State’s cross-examination of the Defendant:

       [The State]: [Defendant], tell me a little bit about your gout condition.

       ....

       [The Defendant]: [I’ve had it for] [a]bout 20 years, but it has gotten worse in
       the last year or two.

       [The Court]: General, gout keeps you from working, but it don’t keep you
       from breaking in and stealing. See you can break in and steal when you got
       gout, but you can’t work, you see? You’re disabled.

       The second exchange occurred after the Defendant had testified regarding his gout
condition and resulting inability to work:

       [Defense Counsel]: Also, in addition the [c]ourt has to find that he has the
       specific ability to pay the restitution amount that is ordered. We are not saying
       that he can’t pay restitution. I don’t believe that he can pay the $15,000 in four
       years if that is what the [c]ourt orders.

       We are asking for a reasonable amount of restitution, a reasonable amount of
       payment. And then after his probationary period is over, that amount can be
       converted over to a civil judgment pursuant to the statute.

       [The Court]: You’re telling me that you don’t think much of the value of the
       property; is that what you’re telling me, [Defense Counsel]?

       [Defense Counsel]: I think there has to be more proof than just her statements.




                                               -5-
         [The Court]: If your stealing, thieving client would bring it back to her so she
         can take it in and get an appraisal on it, then she might be able to bring some
         proof into court. How is she supposed to bring proof into court on an appraisal
         when your client stole it all?

       Although the record reflects a certain combative tone on the part of the trial court, we
disagree with the Defendant that it reflects a failure to consider his financial resources and
future ability to pay. The trial court allowed the Defendant to testify regarding his medical
and disability status; the exchanges above reflect that the trial court simply found this
testimony lacking in credibility, concluding, from the Defendant’s apparent ability to commit
burglary, that he was or would be able to find gainful employment sufficient to pay $323 per
month in restitution. The Defendant has again failed to overcome the presumption of
correctness to which the trial court is entitled. This issue is without merit.

                                          Conclusion

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.


                                             _________________________________
                                                   DAVID H. WELLES, JUDGE




                                               -6-
