Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 8, 2016
from the Criminal Court for White County No. 2012-CR-5363
David A. Patterson, Judge
second appeal of the amount of restitution ordered in a Class
E felony theft case, the defendant, James Allen Ballew,
appeals the $36, 473.00 at the rate of $50 per month that the
trial court ordered he pay to the victim lumber company,
arguing that the amount is unreasonable given the evidence of
the victim's losses presented at the second restitution
hearing, the two-year length of his sentence, and his
financial resources and future ability to pay. The State
concedes that the trial court erred by imposing an amount of
restitution that the defendant could not reasonably be
expected to pay and by ordering a payment schedule that
exceeds the length of the sentence. Following our review, we
reverse the judgment of the trial court with respect to
restitution and remand for further proceedings consistent
with this opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed and Remanded
K. Tollison, Sparta, Tennessee, for the appellant, James
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Bryant C. Dunaway,
District Attorney General; and Philip Hatch, Assistant
District Attorney General, for the appellee, State of
E. Glenn, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
E. GLENN, JUDGE
defendant was indicted by the White County Grand Jury for
theft of property valued at $10, 000 or more but less than
$60, 000, a Class C felony, based on his theft of motors from
his employer, White County Lumber Company. On January 29,
2013, he pled guilty to theft of property valued at $500 or
more but less than $1000, a Class E felony, in exchange for a
two-year sentence on probation and the payment of
restitution, with the amount to be set by the trial court at
a later hearing. See State v. James Allen Ballew,
No. M2014-00378-CCA-R3-CD, 2015 WL 1059067, at *1 (Tenn.
Crim. App. Mar. 9, 2015).
the restitution hearing, the trial court took the matter
under advisement. The trial court later entered an amended
judgment which reflected that the amount of restitution to be
paid to White County Lumber Company was $11, 000.
Id. at *2. The defendant appealed, arguing that the
restitution amount was unreasonably high and unsupported by
the evidence. Because the judgment was silent as to payment
terms and there was no indication that the trial court
considered the defendant's ability to pay, this court
reversed and remanded to the trial court "for a new
restitution hearing to determine the restitution amount,
Defendant's ability to pay, and the payment terms."
Id. at *3.
second restitution hearing, Ronald Thompson, who worked in
maintenance at the lumber company, identified from
photographs fifty-five motors belonging to the company that
the defendant had sold for scrap to Cooper's Recycling.
He said the company was able to recover twenty-five of those
motors, but only two of them were still in working condition.
On cross-examination, he acknowledged his only proof that the
motors had belonged to the lumber company was his personal
identification of the motors as ones he had personally
handled and recognized; the company had kept no inventory and
had recorded the serial number of only one of the recovered
motors, which had been brand new.
Holman, a handyman at the lumber company, identified a list
he had prepared of the replacement values of the motors that
had been stolen. Mr. Holman testified that the total
replacement value of the motors was $36, 953, from which he
had subtracted $480, the value of the two motors that were
recovered in working condition, for a total replacement cost
or restitution value of $36, 473. On cross-examination, he
explained that he had obtained his values by contacting
"Slatton's Enterprise" and getting a quotation
for the price of a "useable motor" to replace each
stolen motor. He further explained that some of the motors
were very uncommon and therefore extremely hard to replace.
Upon questioning by the trial court, he testified that, with
the exception of three or possibly four motors which had just
been uncrated, all of the stolen motors had been used.
Mills, the manager of Slatton Electric, testified that the
list prepared by Mr. Holman contained his estimation of the
replacement value of each of the electric motors identified
in the photographs, for a total of $36, 953. He said he had
inspected the twenty- five recovered motors and found that
only two were in working condition. He valued one of those
working motors at $375 and the other one at $75, for a total
of $450. On cross-examination, he acknowledged that
he had not investigated what it would cost to repair the
non-working motors. He further testified that the replacement
costs he had quoted were for new motors, explaining that some
of the ...