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State v. Ballew

Court of Criminal Appeals of Tennessee, Nashville

March 24, 2017


          Assigned on Briefs November 8, 2016

         Appeal from the Criminal Court for White County No. 2012-CR-5363 David A. Patterson, Judge

         In this 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded

          Billy K. Tollison, Sparta, Tennessee, for the appellant, James Allen Ballew.

          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 Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.


          ALAN E. GLENN, JUDGE


         The 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).

         Following 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.

         At the 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.

         Rex 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.

         Curtis 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.[1] 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 ...

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