State of Tennessee v. Charles R. Turner

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 22, 2004

STATE OF TENNESSEE v. CHARLES R. TURNER

Appeal from the Criminal Court for Davidson County

No. 2002-C-1790 Carol Soloman, Judge

No. M2003-02064-CCA-R3-CD - Filed December 1, 2004

The Appellant, Charles R. Turner, was convicted by a Davidson County jury of two counts of

identify theft and sentenced to concurrent sentences of three years, with service of one year in

confinement. In addition, Turner was ordered to pay restitution. On appeal, Turner raises four issues

for our review: (1) whether the trial court erred by failing to suppress an in-court identification by

a witness; (2) whether the evidence was sufficient to support his convictions; (3) whether the trial

court imposed excessive sentences; and (4) whether the trial court erred in determining the amount

of restitution. After review of the record, we conclude that the identification issue is without merit

and the evidence is legally sufficient to support the convictions. Accordingly, we affirm the

judgments of conviction. However, after review, we conclude that the trial court failed to sentence

the Appellant in accordance with the 1989 Sentencing Act and to properly determine the Appellant’s

ability to pay the ordered restitution. Accordingly, we remand the case for a proper determination

of these sentencing issues.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part;

Reversed in Part and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.

WOODALL, JJ., joined.

Emma Rae Tennent (on appeal) and Rebecca Warfield (at trial), Assistant Public Defenders,

Nashville, Tennessee, for the Appellant, Charles R. Turner.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michelle

Chapman McIntire, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and

Ryan D. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On the dates the crimes were committed, the Appellant was employed by Music Land Motors

as a car salesman. While employed at other car dealerships in the Nashville area, the Appellant had

come into contact with both victims, Lawrence Pillow and Darrell Grimes, when they purchased cars

from him.1 During the purchase of the vehicles, each victim gave the Appellant the information

necessary for him to check their credit rating, including social security number, driver license

number, employment history, date of birth, and address. Neither victim did business with the

Appellant at Music Land Motors.

In May 2002, a man purporting to be Lawrence Pillow called the 1-800-Loan-by-Phone

program at South Trust Bank and initiated a loan application. After being approved for a $4,100.00

loan, the paperwork was sent to the local bank branch in order to close the loan. A man claiming

to be Pillow and presenting a driver license identification came to the bank late in the afternoon on

May 28, 2002. Brenda Hess, a loan specialist with the bank, spoke with the man for approximately

fifteen minutes but did not feel comfortable issuing the check despite the identification. She testified

that the man could not remember his social security number, did not resemble the picture on the

driver license, kept his head down while talking, and refused to take his hat off the first time she

asked. Additionally, Hess noted that the driver license presented to her was a duplicate license and

was only a month old. She further noted that the Metro School Board check stub presented to verify

employment was not a form which she recognized. Hess testified that she did not believe that the

man was Lawrence Pillow and, as a result, asked him to come back the next morning to complete

the loan when her manager would be in. The man left the bank and did not return. Hess identified

the Appellant at trial as the man she spoke with.

Pillow was contacted by South Trust Bank and informed that someone was attempting to

borrow money in his name. The bank presented Pillow with security photos of the person, but he

was initially unable to recognize the Appellant. Pillow ran his credit history and learned that

someone at Music Land Motors had checked his credit in April 2002. He then spoke with the

general manager of Music Land Motors, who identified the Appellant as the person in the security

photos. Pillow later discovered that a duplicate driver license had been issued in his name on April

23, 2002.

In June 2002, a man using the name Darrell Grimes originated a $4,500.00 loan through the

1-800-Loan-by-Phone program at AmSouth Bank. The paperwork was then sent to the local

Nashville office, where loan officer David Hayes attempted unsuccessfully to contact the applicant

at the phone number listed on the application. A short time later, a man purporting to be Darrell

1

The Appellant was employed at M usic Land M otors from March 2002 until June 2002. In May 2001, the

Appellant, while employed at Crown Ford, sold a car to Pillow. Grimes had previously purchased several cars from the

Appellant while employed at various Nashville dealerships.

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Grimes came into the bank and spoke with Hayes. He presented a driver license bearing the name

Darrell Grimes and signed the necessary loan paperwork. Hayes spent approximately forty-five

minutes with the person and even convinced him to open a checking account, which he did in the

name of Darrell Grimes. Part of the loan funds were placed in the checking account, with the

remainder being distributed in cash. Hayes noted that there was some discrepancy in the appearance

of the person present and the driver license photo. However, after checking with another employee,

the two agreed that there was enough of a resemblance that it could be the same person.

Hayes saw the person a few days later when he returned to the bank attempting to withdraw

funds from the new checking account. The person had no identification with him but, because Hayes

recognized him as “Darrell Grimes,” he was allowed to cash the check. Hayes identified the person

who purported to be Darrell Grimes as the Appellant.

Grimes learned about the incident when he contacted AmSouth Bank after receiving a letter

informing him that a line of credit had been issued in his name. Upon further investigation, Grimes

learned that a duplicate copy of his driver license had been issued on June 11, 2002. He also ran his

credit history and learned that his credit had been checked at Music Land Motors. Upon speaking

with the general manager there, Grimes was informed that it was the Appellant who had conducted

the credit check.

In September 2002, a Davidson County grand jury returned an indictment against the

Appellant charging him with two counts of identity theft, class D felonies. Following a jury trial,

the Appellant was convicted as charged. At an April 30, 2003 sentencing hearing, the trial court

sentenced the Appellant to two concurrent sentences of three years, with one year to be served in

confinement. Additionally, the court ordered the Appellant to pay restitution of $4,500.00 to

AmSouth Bank, $1,100.00 to Lawrence Pillow, and $3,000.00 to Darrell Grimes for their pecuniary

losses. The Appellant’s motion for a new trial was denied, with this appeal following.

Analysis

On appeal, the Appellant has raised four issues for our review: (1) whether the trial court

erred by failing to suppress an in-court identification by a witness; (2) whether the evidence was

sufficient to support his convictions; (3) whether the trial court imposed excessive sentences; and

(4) whether the trial court erred in determining the respective awards of restitution.

I. Suppression of In-Court Identification

First, the Appellant contends that the trial court erred in denying his motion to suppress based

upon what he refers to as an “unconstitutional pre-trial identification by the witness Brenda Hess.”

In reviewing suppression issues, we will affirm the trial court’s findings of fact unless the evidence

preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Furthermore, in

reviewing a trial court’s ruling on a motion to suppress, this court may consider proof adduced at

both the suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

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In compliance with a subpoena, Hess appeared in the courtroom on the first day of the

Appellant’s scheduled trial. Hess was present in the courtroom while pre-trial motions were being

heard in this case, and the Appellant, who was the only African American in the courtroom, was

seated at counsel’s table with his attorneys. The Appellant argues that this pre-trial confrontation

was unduly suggestive and, as a result, that Hess’ subsequent in-court identification was tainted and

should have been suppressed. In support of this argument, the Appellant relies upon the United

States Supreme Court decision in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).

We find no State action in arranging the courtroom “confrontation” between Hess and the

Appellant. We reject the argument that the issuance of a subpoena which compels a witness to

appear, thus permitting the witness to view the accused at trial, is the functional equivalent of an

improper show-up.

“It is well settled in Tennessee law that in the absence of state action in the identification

process, constitutional due process rights are not implicated; therefore, the analysis adopted by the

United State Supreme Court in Neil v. Biggers is not appropriate.” State v. Reid, 91 S.W.3d 247,

272 (Tenn. 2002); State v. Drinkard, 909 S.W.2d 13, 15-16 (Tenn. Crim. App. 1995) (refusing to

find the identification unduly suggestive and violative of due process because the police did not

arrange the confrontation between the defendant and the witness) (citing State v. Dixon, 656 S.W.2d

49, 51 (Tenn. Crim. App. 1983)). An inadvertent or accidental meeting involves no abuse of the

identification process. State v. Burns, 777 S.W.2d 355, 358 (Tenn. Crim. App. 1989).

In a related issue, the Appellant also argues that “a substantial likelihood existed that the

witness misidentified the [Appellant].” We also find this conclusory argument without merit. Hess

testified that she spent approximately fifteen minutes in close proximity with the Appellant when

he came into the bank to obtain the loan. She also testified that in the course of her job she had

received training to observe people in situations such as these and that she had carefully observed

the Appellant. Additionally, Hess testified that she was positive that the Appellant was the person

who impersonated Lawrence Pillow. She also noted that, when she first saw the Appellant in the

courtroom on the day of trial, he was sitting in a group with more than thirty people and that she

immediately picked him out.

The Appellant was permitted to cross-exam Hess with regard to her memory and the length

of time since she had seen the Appellant commit the crime. The issue became one of credibility for

the jury, who we must presume was properly instructed with regard to eyewitness identification

testimony. We conclude that the identification testimony was properly admitted.

II. Sufficiency of the Evidence

Next, the Appellant contends that the evidence presented at trial was insufficient to support

his two convictions for identity theft. Specifically, the Appellant contends the evidence with regard

to the identity of the perpetrator was insufficient to establish that he committed the crimes.

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In considering this issue, we apply the rule that where the sufficiency of the evidence is

challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in

the light most favorable to the [State], any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility

of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the

trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not

reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).

“A person commits identify theft who knowingly transfers or uses, without lawful authority,

a means of identification of another person with the intent to commit, or otherwise promote, carry

on, or facilitate any unlawful activity.” Tenn. Code Ann. § 39-14-150(a) (2003). A “means of

identification” includes “any name or number that may be used to identify a specific individual,

including” their name, social security number, date of birth, official state or government issued driver

license or identification number. Tenn. Code Ann. § 39-14-150(b)(1).

The Appellant does not dispute that someone acquired duplicate driver licenses for both

Lawrence Pillow and Darrell Grimes and then presented themself to the banks in order to acquire,

or attempt to acquire, loan proceeds without the knowledge or consent of the victims. The Appellant

merely argues that the proof is insufficient to show beyond a reasonable doubt that he was that

person. Specifically, the Appellant argues that the only testimony directly identifying him as the

perpetrator came from Brenda Hess and David Hayes, the two loan officers. The Appellant asserts

that Hess’ testimony should not have been admitted because it was tainted by a pre-trial

identification of the Appellant and was, therefore, unreliable. Additionally, he asserts that the

testimony of David Hayes was unduly bolstered by Hess’ testimony. He contends that had the trial

court properly suppressed Hess’ identification, Hayes’ identification would have been insufficient

to sustain the verdict. We disagree.

As previously determined, the identification testimony of Brenda Hess was properly admitted

into evidence. The evidence before the jury established that Hess positively identified the Appellant

as the person who presented himself to her as Lawrence Pillow, gave her a copy of Pillow’s driver

license, his social security number, and date of birth in an attempt to obtain a $4,100.00 loan. Hayes

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also positively identified the Appellant as the person who presented himself as Darrell Grimes in

order to obtain a $4,500.00 loan from AmSouth Bank. He testified that the Appellant presented a

copy of Grimes’ driver license, as well as verifying Grimes’ address and social security number.

Moreover, strong circumstantial evidence against the Appellant was presented to the jury. Both

victims had purchased cars from the Appellant and had given him personal information necessary

to check their credit, including social security and driver license numbers. Each victim’s credit was

checked, without authorization, at Music Land Motors, the dealership where the Appellant was

employed, just prior to the issuance of duplicate driver licenses for both victims. There was also

testimony from Hayes, Grimes, and a co-worker of the Appellant regarding a distinctive way that

the Appellant held a pen. This evidence, when considered in the light most favorable to the State,

is more than sufficient to support the Appellant’s convictions. This issue is without merit.

III. Excessive Sentencing

Third, the Appellant asserts that the trial court imposed excessive sentences in his case.

When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of

this court to conduct a de novo review with a presumption that the determinations made by the trial

court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is “conditioned upon

the affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also State

v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies inappropriate factors or

otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments

provide that the burden is on the Appellant to show the impropriety of the sentence. Tenn. Code

Ann. § 40-35-401, Sentencing Commission Comments.

The Appellant was convicted of two counts of identity theft, class D felonies, for which the

appropriate sentence range is two to four years. Tenn. Code Ann. § 40-35-112(a)(4) (2003). The

presumptive sentence to be imposed by the trial court for a class D felony is the minimum sentence

within the applicable range unless there are enhancement or mitigating factors present. Tenn. Code

Ann. § 40-35-210(c) (2003). If there are enhancement factors present but no mitigating factors, the

court may set the sentence above the minimum. Id. at (d). If both enhancement and mitigating

factors are present, the court must start at the minimum sentence, enhance the sentence as

appropriate for the enhancement factors, then reduce the sentence for all applicable mitigating

factors. Id. at (e). The weight given to each factor is left to the discretion of the trial judge. Shelton,

854 S.W.2d at 123. However, the sentence must be adequately supported by the record and comply

with the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d

229, 237 (Tenn. 1986).

The Appellant contends that the trial court erred in imposing a sentence greater than the

minimum of two years for each conviction and, further, that the trial court’s sentencing decision is

not entitled to the presumption of correctness because the court enhanced the sentences without

specifying any statutory enhancement factors and failed to apply three applicable mitigating factors.

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The trial court made the following pronouncements on the record prior to sentencing the

Appellant:

THE COURT: . . . He shows no remorse, and according to 40[-]35-102

Defendant should be imposed to prevent crime of remote respect of the law. Well,

with this gentleman’s behavior pre and post trial it’s undermined respect for the law

because he has told his sister, at least, and I assume his other six siblings that he

didn’t do this act.

Therefore, what respect for the law can the children, and his family have for

a judicial system that they now perceive to be unfair. Not only has he undermined

Mr. Grimes, and Mr. Pillow, he’s undermined the legal system, or the justice system,

and that is almost as distracting as the personal problems that Mr. Pillow, and Mr.

Grimes have suffered. . . .

It says it is also to encourage a federal rehabilitation for the Defendant. Well,

since the Defendant does not admit to his offense, and shows absolutely not a

smithereens of remorse, the rehabilitation process is going to have to be altered. I am

going to sentence him to pay the restitution of the victims. The potential for

rehabilitation pursuant to 40[-]35-13 section 45 without a long sentence, I don’t think

[the Defendant] would be rehabilitated. Therefore, I wish I could sentence him to

more, but I’m going to sentence him to two three year terms to run concurrent, which

I regret, but I have no other choice.

After review, it is apparent that the Appellant is correct that the trial court failed to specify

on the record its application of any enhancement or mitigating factors or even the appropriate

sentencing range.2 Tennessee Code Annotated section 40-35-210(f) mandates, “Whenever the court

imposes a sentence, it shall place on the record either orally or in writing what enhancement or

mitigating factors it found, if any, as well as findings of fact as required by Tenn. Code Ann. § 40-

35-209.” To facilitate appellate review, the trial court “must place on the record its reasons for

2

The Appellant also alleges that the trial court erred by failing to apply mitigating factors. First, he asserts

that the trial court should have applied factor (1), that the Appellant’s criminal conduct neither caused nor threatened

serious bodily injury. See Tenn. Code Ann. § 40-35-113(1) (2003). The State concedes that this factor should have been

applied, and this court has previously concluded that mitigating factor (1) may be considered in sentencing

determinations for property offenses. State v. Daniel James Cosgrove, No. M2001-02127-CCA-R3-CD (Tenn. Crim.

App. at Nashville, Nov. 15, 2002), perm. to appeal denied, (Tenn. 2003).

Additionally, the Appellant asserts that the trial court should have applied mitigating factor (13), the catchall

mitigator, based upon both his long record of stable employment and his strong supportive family ties in the community.

See Tenn. Code Ann. § 40-35-113(13). W e note that this court has stated that work ethic and family contribution are

entitled to favorable consideration under Tennessee Code Annotated section 40-35-113(13). State v. McKnight, 900

S.W .2d 36, 55 (Tenn. Crim. App. 1994). Moreover, this court has held that employment should be considered in

sentencing a defendant. State v. Kelley, 34 S.W .3d 471, 482-83 (Tenn. Crim. App. 2000). The trial court should

consider the evidence presented and make a determination as to the application and weight of these factors, as well as

any others which may be applied on the facts of the case.

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arriving at the final sentencing decision, identify the mitigating and enhancement factor found, state

the specific facts supporting each enhancement factor found, and articulate how the mitigating and

enhancement factors have been evaluated and balanced in determining the sentence.” State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997); see also Tenn. Code Ann. § 40-35-210(f).

The record reflects that, in addition to failing to specify any statutorily enumerated

enhancement factors, the trial court in enhancing the Appellant’s sentence from two to three years

appears to have considered the Appellant’s lack of remorse, lack of respect for the law, and his

amenability to rehabilitation, none of which are proper considerations in determining the length of

a sentence. See Tenn. Code Ann. § 40-35-114 (2003). As the trial court is the primary court for

sentencing, and because here the court failed to impose a sentence in accordance with sentencing

guidelines, we remand for resentencing.3

IV. Restitution Amounts

Lastly, the Appellant asserts that the trial court erred in ordering the Appellant to pay

restitution in the following amounts: $4,500.00 to AmSouth Bank, $1,100.00 to Lawrence Pillow,

and $3,000.00 to Darrell Grimes.

A sentencing court may direct a defendant to make restitution to the victim for pecuniary loss

as a condition of probation. See Tenn. Code Ann. § 40-35-304(a) (2003); State v. Alford, 970

S.W.2d 944, 945 (Tenn. 1998). Whenever the trial court believes restitution may be proper or if the

victim or the district attorney general requests restitution the court shall order the presentence officer

to include documentation regarding the nature and amount of the victim’s pecuniary loss in the

presentence report. Tenn. Code Ann. § 40-35-304(b). The statute defines "pecuniary loss" to be:

(1) All special damages, but not general damages, as substantiated by evidence in the

record or as agreed 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.

Id. at (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). General damages are those which are "the necessary

and immediate consequence of the wrong." Id.

3

W e note that the trial court’s reconsideration of the Appellant’s sentence should be conducted in view of the

recent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S._____, 124 S. Ct. 2531 (2004).

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It is unnecessary for the sentencing court to determine restitution in accordance with the strict

rules of damages applied in civil cases. State v. Johnson, 968 S.W.2d 883, 887 (Tenn. Crim. App.

1997). However, though the rules of damages are relaxed, they are not completely discarded. State

v. David D. Bottoms, No. M2000-02080-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 31,

2001). The sum of restitution ordered must be reasonable but does not have to mirror or equal the

precise pecuniary loss. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). There is no

set formula or method for determining the amount. 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 Appellant to pay or perform in determining the amount and method of payment. Tenn. Code

Ann. § 40-35-304(d); State v. Bottoms, 87 S.W.3d 95,108 (Tenn. Crim. App. 2001). An order of

restitution which obviously cannot be fulfilled serves no purpose for the Appellant or the victim.

Johnson, 968 S.W.2d at 886.

A victim seeking restitution must present sufficient evidence to allow the trial court to make

a reasonable, reliable determination as to the amount of the victim’s loss. David D. Bottoms, No.

M2000-02080-CCA-R3-CD. General statements by a victim regarding the amount of his or her loss

containing no explanation as to how the victim arrived at the amount are insufficient. Smith, 898

S.W.2d at 747. While 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. Further, documentation supporting the victim’s testimony is helpful.

When 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).

However, the court may not establish a payment or performance schedule which extends beyond the

maximum statutory term of probation supervision that could have been imposed for the offense. Id.

(a) AmSouth Bank

With regard to AmSouth Bank, the Appellant concedes that the monetary losses resulting to

the bank from the fraudulent loan were special damages and, thus, properly recoverable. However,

he argues that the evidence presented failed to sufficiently establish that the bank suffered an actual

pecuniary loss of $4,500.00. He asserts that the proof shows that while the original loan was for

$4,500.00, the proof also established that the Appellant did not take the entire amount of the

proceeds with him in cash but rather deposited part of it in a checking account.

We disagree with the Appellant’s assertion and find the proof sufficient to establish that the

Appellant received proceeds in the amount of $4,500.00 from a fraudulent loan. The State submitted

loan documentation in the amount of $4,500.00. The loan officer, David Hayes, testified that the

Appellant opened a checking account with part of the proceeds and took the remainder in cash. The

record also establishes that the Appellant later withdrew $450.00 by check from the account. There

is nothing in the record to indicate that the bank recovered any of their loss from the loan. The order

of restitution is correct.

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(b) Lawrence Pillow/Darrell Grimes

With regard to the amounts awarded Pillow and Grimes for lost wages during the prosecution

and investigation of the case, as well as the wages they lost to procure new driver licenses, the

Appellant asserts that the awarded amounts were not reasonable under Tennessee Code Annotated

section 40-35-304(e)(2). That statute defines “pecuniary loss” to be “[r]easonable out-of-pocket

expenses incurred by the victim resulting from the filing of charges or cooperating in the

investigation and prosecution of the offense[.]” Tenn. Code Ann. § 40-35-304(e)(2).

There is no dispute that lost wages are pecuniary losses under the restitution statute, as this

court has recognized lost wages as part of a restitution order. See State v. Vanderford, No. 01-C-01-

9101-CC-00004 (Tenn. Crim. App. at Nashville, Aug. 22, 1991); State v. Cowart, No. 01-C-01-

9508-CC-00251 (Tenn. Crim. App. at Nashville, Nov. 22, 1996). Indeed, the Appellant

acknowledges that lost wages are recoverable, but he asserts that part of the pecuniary loss in this

case was for out-of-pocket expenses or lost wages the men incurred for matters other than those

directly related to the prosecution of the case. See Tenn. Code Ann. § 40-35-304(e)(2). Specifically,

the Appellant disputes the money awarded for lost wages when the victims were procuring new

driver licenses.

While it may be true that the time the victims spent in having new driver licenses issued did

not result “from the filing of charges or cooperating in the investigation and prosecution of the

offense,” the Appellant’s argument appears to ignore sub-section (e)(1) of Tennessee Code

Annotated section 40-35-304, which states that restitution may be ordered for a crime victim's

"pecuniary loss," defined as all special damages substantiated by evidence in the record or as agreed

to by the Appellant but not to include general damages. See Tenn. Code Ann. § 40-35-304(b), (e)(1)

(2003).

Clearly, the lost wages disputed by the Appellant were special damages. The wages the

victims lost while procuring new driver licenses were an actual result of the injury complained of,

which followed as a natural and proximate consequence. The Appellant had duplicate driver licenses

issued in the victim’s names. If this had not occurred, no renewal of the licenses would have been

required. Indeed, with regard to Mr. Grimes, the Appellant had his driver license classification

changed, resulting in additional loss of wages.

The statute also requires that restitution be made only where special damages are

"substantiated by evidence in the record." In this case, Pillow testified that he had missed a total of

five days of work due to the Appellant’s actions and that he made $225 per day. He specifically

testified that he suffered approximately $1,100.00 in lost wages. Grimes testified that he missed

twelve days of work due to the Appellant’s conduct and that he earned approximately $1,400.00 per

week. He testified that he easily lost $3,000.00 in wages. Thus, after reviewing the record, this

court finds that the victims’ testimony about their wages, which was unchallenged by the Appellant,

was sufficient to warrant restitution for lost wages in the amounts ordered. The Appellant’s issue

is without merit.

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Notwithstanding the proper awards, the record is silent with regard to any finding of the

Appellant’s ability to pay the ordered restitution during his period of probation. The record

establishes that the Appellant is employed as a car salesman but no mention is made of his earnings.

As this is a required finding prescribed by the statute, we must remand for a determination of the

Appellant’s ability to pay the ordered restitution within the scheduled period.

CONCLUSION

Based upon the foregoing, we affirm the Appellant’s judgments of conviction. The case is

remanded to the Davidson County Criminal Court for determinations of the appropriate sentences

and the Appellant’s ability to pay the ordered restitution consistent with this opinion.

___________________________________

DAVID G. HAYES, JUDGE

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