        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 10, 2015


           STATE OF TENNESSEE v. EMILY BRITTANY DAVIS

               Appeal from the Criminal Court for Davidson County
                  No. 2014-B-1334    Mark J. Fishburn, Judge




             No. M2015-00262-CCA-R3-CD – Filed September 22, 2015
                       _____________________________

The Defendant, Emily Brittany Davis, pleaded guilty to one count of vandalism under
$500 and was sentenced to serve eleven months, twenty-nine days on supervised
probation and pay restitution to the victim. After a hearing, where the victim testified
about the cost of the Defendant‟s vandalism, the criminal court ordered the Defendant to
pay $800 in restitution, and the Defendant appeals this order. Following a careful review
of the record and applicable law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Emily Brittany Davis.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn Funk, District Attorney General; and Brian Ewald and Sarah Davis, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION
                                Factual and Procedural History

       A Davidson County Grand Jury indicted the Defendant with one count of
vandalism under $500 and one count of simple assault for vandalizing her ex-boyfriend‟s
car and threatening his fiancée. The Defendant pleaded guilty to the charge of vandalism,
and the State dismissed the assault charge under a plea agreement. Under the plea
agreement, the Defendant was sentenced to eleven months, twenty-nine days on
supervised probation. The Defendant agreed to attend eight hours of anger management
counseling and pay restitution to the victim, the amount of which would be set at a later
hearing.

       At the restitution hearing, the State called the victim, Orian Thomas, to testify
about the damage the Defendant caused to his property. Mr. Thomas testified that he and
the Defendant dated for approximately a year. On December 15, 2013, approximately
three months after Mr. Thomas and the Defendant ended their relationship, the Defendant
went over to Mr. Thomas‟s house and asked for the keys to Mr. Thomas‟s car. Mr.
Thomas informed the trial court that he owned the car in question and the Defendant had
only “helped [Mr. Thomas] fix a couple of parts.” When Mr. Thomas refused to give the
Defendant the car keys, the Defendant destroyed the car‟s temporary license tag, broke
the windshield wipers off the car, and poured soda into the car‟s gas tank.

       Due to the damage caused by the Defendant, Mr. Thomas had to replace the
temporary tag, gas tank, and fuel line on the car, and clean the injectors. Mr. Thomas
stated that he had not yet repaired the broken windshield wiper arm and, consequently,
that part of the car still did not function correctly. Mr. Thomas estimated that the
Defendant caused approximately $2,100 in damage and stated that the Defendant had
agreed to pay the cost of the damage—both verbally and in a text message. According to
Mr. Thomas, in a separate written agreement,1 the Defendant agreed to pay $1,800 of the
damage to Mr. Thomas‟s car and both Mr. Thomas and the Defendant had a copy of this
agreement. Mr. Thomas stated that the Defendant had given him approximately $1,000
but the Defendant still owed him $800.

       On cross-examination, Mr. Thomas stated that the vehicle in question was a “2001
Monte Carlo” which had been driven approximately 200,000 miles. Mr. Thomas had
obtained the vehicle by trading a truck that he owned for the car. Mr. Thomas stated that
the former owner of the car had valued it at $4,500 when Mr. Thomas obtained the car.
At one time, Mr. Thomas had receipts detailing the cost of the car repairs as well as a

       1
          It appears that the Defendant agreed via text message to pay for the damage to Mr. Thomas‟s
car and that the parties also executed a written agreement separate from the text-message conversation.
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copy of the written agreement between the Defendant and himself, but he had lost both
items. The mechanic who had performed the repairs on Mr. Thomas‟ car was currently
incarcerated and, therefore, was not available to testify regarding the value of the repairs.
Mr. Thomas stated that both he and his fiancée witnessed the Defendant‟s vandalism of
his vehicle.

        The State asked the trial court to “take Mr. Thomas at his word” and order the
Defendant to pay $800 in restitution. The Defendant‟s counsel argued that Mr. Thomas
was not credible because he had “incentive to embellish in order to get some money” and
asked the court to order the Defendant to pay $300 to $400 in restitution. The trial court
stated that it found Mr. Thomas credible and ordered the Defendant to pay $800 in
restitution to Mr. Thomas.

                                          Analysis

         On appeal, the Defendant argues that the trial court erred by (1) setting restitution
for $800 when the victim “provided absolutely no corroborating documents, photographs,
or written communications establishing an actual restitution figure”; (2) “neglect[ing] to
take into account [the Defendant‟s] financial status and/or future ability to pay restitution
. . .”; and (3) “ordering restitution in excess of the amount to which [the Defendant] pled
guilty.”

        The Tennessee Supreme Court has not yet addressed what impact, if any, State v.
Bise, 380 S.W.3d 683 (Tenn. 2012), has on our review of restitution orders, but we have
previously applied an abuse of discretion standard with a presumption of reasonableness.
See State v. David Allan Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254,
at *5 (Tenn. Crim. App. Oct. 25, 2013). A finding of abuse of discretion “„reflects that
the trial court‟s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.‟” State v.
Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242
(Tenn. 1999)). On appeal, the appellant bears the burden of demonstrating that the
sentence is improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

      “The purpose of restitution is not only to compensate the victim but also to punish
and rehabilitate the guilty.” State v. Johnson, 968 S.W.2d 883, 885 (Tenn. Crim. App.
1997). There is no set formula for determining restitution. State v. Smith, 898 S.W.2d
742, 747 (Tenn. Crim. App. 1994). Instead, the trial court “must ascertain both the
amount of the victim‟s loss and the amount which the defendant can reasonably be
expected to pay.” State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001).



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        Tennessee Code Annotated section 40-35-304 provides the procedure for
imposing restitution as a condition of probation and requires that, “[i]n 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.” Tenn. Code Ann. § 40-
35-304(d) (2014). The trial court has the duty to determine the defendant‟s ability to pay
and may not delegate that duty to another. State v. Donna Harvey, No. E2009-01945-
CCA-R3-CD, 2010 WL 4527013, at *5 (Tenn. Crim. App. Nov. 9, 2010). When
restitution is ordered as a term of a sentence that is suspended to probation, the defendant
“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[.]” Tenn. Code Ann. § 40-35-304(g)(2)
(2014).
                             Lack of Documentation of Damages

       The Defendant alleges that the trial court abused its discretion by finding the
victim, Mr. Thomas, credible regarding the amount of damage to his car when Mr.
Thomas did not provide any documentation of the damage.

       “A victim seeking restitution must present sufficient proof so that a trial court can
determine with some reliability the amount of the loss.” Bottoms, 87 S.W.3d at 108-09.
“While a victim‟s testimony alone may be sufficient to establish special damages for
purposes of restitution, general statements regarding the amount of loss without
explanation as to how the value was determined are insufficient.” David Allan Bohanon,
2013 WL 5777254, at *7 (citing State v. David Robert Blevins, No. E2006-00830-CCA-
R3-CD, 2007 WL 1153122, at *8 (Tenn. Crim. App. Apr. 19, 2007); State v. Wendell
Gary Gibson, No. M2001-01430-CCA-R3-CD, 2002 WL 1358711, at *3-4 (Tenn. Crim.
App. June 24, 2002)). Additionally, “documentation supporting the victim‟s testimony is
helpful.” Wendell Gary Gibson, 2002 WL 1358711, at *2.

        At the restitution hearing, Mr. Thomas testified how he calculated the value of the
damage from the Defendant‟s vandalism, stating that the $2,100 amount included the
repairs performed by the mechanic, as well as the cost of replacing the temporary license
tag that the Defendant destroyed. Further, Mr. Thomas explained that he and the
Defendant had signed a written agreement stating that the Defendant would pay Mr.
Thomas $1,800 to cover the damage from the vandalism and that the Defendant had
already paid him $1,000. Finally, the trial court explicitly stated that it found Mr.
Thomas‟ testimony credible. Accordingly, we conclude that the trial court did not abuse
its discretion in ordering the Defendant to pay $800 in restitution despite the lack of
documentation of the damage to Mr. Thomas‟ car.


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                       Lack of Findings on the Defendant’s Ability to Pay

      The Defendant argues that the trial court abused its discretion in ordering the
Defendant to pay restitution when the trial court failed to make findings regarding the
Defendant‟s financial situation and ability to pay restitution.

       The State points to State v. Steven Murray, where this court held:
       If no proof is presented at the sentencing hearing pertaining to a
       defendant‟s financial resources and/or ability to pay at the time of the
       sentencing hearing, then no facts exist to support a trial court‟s
       consideration of this factor. Even though a defendant may be declared
       indigent and have appointed counsel, as in this case, without a submission
       of proof concerning the defendant‟s financial status at the sentencing
       hearing, the court‟s decision would have to be based upon mere
       speculation.

State v. Steven Murray, No. E2000-02878-CCA-R3-CD, 2002 WL 1400055, at *2 (Tenn.
Crim. App. June 28, 2002). The Murray Court further noted that if a defendant fails to
provide proof of an inability to pay restitution and is ordered to pay restitution, the
defendant may “petition the sentencing court at any time „to adjust or otherwise waive
payment or performance of any ordered restitution or any unpaid or unperformed portion
thereof.‟” Id. (quoting Tenn. Code Ann. § 40-35-304(f) (1997 & Supp. 2001)).

       In this case, the Defendant did not present any evidence or testimony about her
financial condition or ability to pay at the restitution hearing. Therefore, the trial court
considered the evidence that was available, such as Mr. Thomas‟s testimony regarding
the written agreement between himself and the Defendant. The trial court explicitly
stated that it found Mr. Thomas credible. Mr. Thomas testified that the Defendant had
agreed to pay Mr. Thomas $1,800 and already had paid $1,000 toward that agreement.
The trial court could reasonably conclude from that testimony that the Defendant had the
financial ability to pay the outstanding balance of the agreement. Further, the Defendant
did not present any evidence that she was unable to honor the agreement, so any
conclusion by the trial court that the Defendant could not pay the outstanding balance
would have been “mere speculation.” See Steven Murray, 2002 WL 1400055, at *2.
Accordingly, we conclude that the trial court did not abuse its discretion in ordering the
Defendant to pay $800 in restitution.

                    Trial Court’s Restitution Order in Excess of $500

      Lastly, the Defendant argues that the trial court abused its discretion by ordering
the Defendant to pay restitution of $800 when the Defendant was indicted for and
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pleaded guilty to vandalism under $500. Initially, we note that the Defendant has failed
to support her claim with case law or other relevant authority in her brief. In its response,
the State points to State v. Lavey Hayes, a case in which the defendant also was
convicted of misdemeanor vandalism but was ordered to pay restitution in an amount
over $500. State v. Lavey Hayes, No. 01C01-9601-CC-00036, 1997 WL 126815, at *1
(Tenn. Crim. App. March 20, 1997). Under a de novo review, this court held that the
trial court‟s restitution order, totaling over $500, was proper but reversed and remanded
on other grounds. Id. at *1, *8.

        The restitution statute does not facially prohibit a trial judge from ordering
restitution over $500 when the defendant has pleaded to or been found guilty of a
misdemeanor. See Tenn. Code Ann. § 40-35-304. Regarding the amount of restitution,
the trial judge only needs to ensure that the amount is reasonable considering “the
appellant‟s means and future ability to pay.” See Johnson, 968 S.W.2d at 886.

        Upon consideration of the record as a whole, we conclude that the restitution
amount set by the trial court was reasonable. The Defendant has failed to establish that
the trial court abused its discretion and is not entitled to relief.

                                        Conclusion

      In consideration of the foregoing and the record as a whole, the judgment of the
criminal court is affirmed.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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