            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE

                             JANUARY 2000 SESSION                       FILED
                                                                      February 23, 2000

                                                                      Cecil Crowson, Jr.
                                                                     Appellate Court Clerk
STATE OF TENNESSEE,                  *   C.C.A. # E1999-00804-CCA-R3-CD

      Appellee,                      *   ROANE COUNTY
VS.                                  *   Hon. E. Eugene Eblen, Judge

RALPH DEWAYNE MOORE,                 *   (Restitution)

      Appellant.                     *




For Appellant:                           For Appellee:
Joe Walker                               Paul G. Summers
District Public Defender                 Attorney General and Reporter
Bernard R. Sargent
Assistant District Public Defender       Patricia C. Kussman
P.O. Box 334                             Assistant Attorney General
Harriman, TN 37748                       Criminal Justice Division
(on appeal)                              425 Fifth Avenue North
                                         Second Floor, Cordell Hull Building
Walter Johnson and                       Nashville, TN 37243-0493
Roland Cowden
Assistant District Public Defenders      J. Scott McCluen
P.O. Box 334                             District Attorney General
Harriman, TN 37748                       P.O. Box 703
(at hearing)                             Kingston, TN 37763-0703

                                         D. Roger Delp
                                         Asst. District Attorney General
                                         P.O. Box 703
                                         Kingston, TN 37763-0703



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                                      OPINION

                   The defendant, Ralph Dewayne Moore, was indicted for driving under

the influence of an intoxicant and leaving the scene of an accident. By agreement
of the state, the defendant entered a plea of guilty to reckless driving; the second

charge was dismissed. As a part of the agreement, the defendant stipulated that his

reckless driving sentence would "include any restitution due to Shelby Gann." The
trial court imposed a sentence of six (6) months, suspended all but seven (7) days,1
and ordered restitution to Ms. Gann in the amount of $500.00.



                   The only issue presented in this appeal of right is whether the trial

court erred by ordering restitution.



                   We affirm the judgment of the trial court.



                   At the restitution hearing, Ms. Gann testified that on January 11, 1997,

she and her husband drove to the Walnut Hill boat ramp in Harriman, where they

encountered the defendant. The defendant and Ms. Gann's husband were engaged
in an argument when the defendant then got into his vehicle and intentionally struck

the Ganns' pick-up truck twice. According to Ms. Gann, the defendant first struck

the Gann vehicle head-on and then backed up and struck the door on the driver's
side.



                   Ms. Gann's testimony was corroborated in part by the preliminary
hearing testimony of Harriman Police Department Officer Mike Capps. Officer

Capps testified that he responded to a call regarding an accident at the Walnut Hill

boat ramp and that he arrived in time to observe the defendant leaving the scene.

The officer followed the defendant to a nearby residence and then confronted the
defendant, who admitted to drinking and driving. The defendant also acknowledged


    1
     On u nrela ted c harg es, th e trial c ourt a lso se nten ced the d efen dan t to thirt y (30) d ays fo r diso rder ly
condu ct, eleven (1 1) mo nths an d twenty-nin e (29) da ys for ass ault, and on e (1) year in th e state
penitentiary for reckless endangerm ent. The reckless driving and disorderly conduct sentenc es were
to run concurrent with the reckless endangerment sentence, with the assault sentence running
conse cutive ther eto, for an effective s entenc e of one year, eleven mon ths and twenty-nine (29) days .

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having been involved in an accident with the Ganns, but denied that he intentionally

struck their vehicle. Officer Capps arrested the defendant for DUI and leaving the

scene of an accident resulting in damage in excess of $400. See Tenn. Code Ann.
§ 55-10-102(b)(2).



              After the plea agreement, the trial court was unable to proceed with a
scheduled sentencing hearing because the defendant had failed to contact his

probation officer. Thus, a pre-sentence report had not been prepared. Because

Shelby Gann and her husband were present, however, the trial court conducted a
hearing on "any restitution due to Shelby Gann." Ms. Gann was the only witness.

She testified that she and her husband purchased the pick-up truck for

approximately $1,500.00 on the date of the accident. She stated that the truck was
not driveable immediately after the incident and that it was worth approximately

$500.00 at that point in time. She sold the truck shortly after the incident for

between $200.00 and $250.00. The defendant cross-examined Ms. Gann on her

failure to produce any documentation of ownership of the pick-up truck, but did not

question her as to the amount of the damage to the truck. The defendant did not
offer any proof.



              On appeal, review of the propriety of the trial court's award of
restitution must be de novo with a presumption that the determination made by the

trial court is correct. Tenn. Code Ann. § 40-35-401(d); State v. Johnson, 968

S.W.2d 883, 884 (Tenn. Crim. App. 1997). In sentencing a defendant to probation,
a trial court may, as a condition of the probation, require restitution to the victim of

the offense for any pecuniary loss. Tenn. Code Ann. § 40-35-304(a). The term

pecuniary loss includes "all special damages . . . as substantiated by evidence in the

record." Tenn. Code Ann. § 40-35-304(e)(1).


              The defendant asserts that the trial court erred by ordering restitution

in the amount of $500.00 because the state failed to prove that Ms. Gann was the
owner of the truck. In our view, the claim is without merit.


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              Before addressing the issue of ownership, this court would observe

that as a part of the plea agreement, the defendant stipulated that Ms. Gann was

the proper party to receive restitution for the damage. Our information is that the
agreement specifically identified Ms. Gann as the recipient of any restitution. Had

the defendant desired to contest the propriety of Ms. Gann as the restitution

recipient, he should have specifically reserved that question. The wording of the
agreement implies an entitlement to Ms. Gann. No proof contradicts that.



              Notwithstanding the terms of the plea agreement, there is sufficient
evidence, in our assessment, to support a finding that Ms. Gann had an ownership

interest in the pick-up truck and, therefore, was entitled to testify to its value under

Rule 701(b) of the Tennessee Rules of Evidence. The testimony that she and her
husband owned the truck is unrefuted. Furthermore, the trial court was entitled to

rely upon Ms. Gann's testimony to establish ownership of the truck. See State v.

William T. Cowart, No. 01C01-9508-CC-00251 (Tenn. Crim. App. at Nashville, Nov.

22, 1996) (noting that trial court properly relied upon testimony of victim to establish

victim's ownership of damaged property).


              Finally, there is adequate evidence to support the amount of the

restitution award even if Ms. Gann's opinion testimony concerning the value of the
damaged pick-up truck is not considered. A trial court need not apply any particular

formula or method in determining restitution. State v. Johnson, 968 S.W.2d at 886.

Nor is it necessary for the trial court to determine restitution in accordance with the
strict rules of damages applied in civil cases. Id. at 887. Shelby Gann testified that

she and her husband purchased the damaged pick-up truck for $1,500.00 the day of

the incident and sold it shortly thereafter, without driving it any further, for either

$200.00 or $250.00. Using the $250.00 sale figure, the net loss on the pick-up truck
was $1,250.00. In light of that evidence, the presumption that the trial court's order

of restitution in the amount of $500.00 was correct has not been overcome by any

other evidence in the record.




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           Accordingly, the judgment of the trial court is affirmed.



                                       ________________________________
                                       Gary R. Wade, Presiding Judge

CONCUR:


_____________________________
Joseph M. Tipton, Judge



_____________________________
James Curwood Witt, Jr., Judge




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