Assigned on Briefs July 9, 2019
from the Circuit Court for Henderson County No. 18032-2
Donald H. Allen, Judge
defendant, Trenton Ray Forrester, aggrieved of his Henderson
County Circuit Court jury convictions of aggravated burglary
and theft of property valued at more than $1, 000 but less
than $2, 500, appeals, challenging the sufficiency of the
convicting evidence and the propriety of the
fully-incarcerative, six-year effective sentence. We affirm
both the conviction and the accompanying sentence. Because,
however, the trial court failed to consider the
defendant's ability to pay when setting the amount of
restitution, we reverse the restitution order and remand the
case for a new restitution hearing.
R. App. P. 3; Judgments of the Circuit Court Affirmed in
part; Reversed in part; Remanded
F. Johnson, Assistant District Public Defender, for the
appellant, Trenton Ray Forrester.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Assistant Attorney General; Jody S. Pickens,
District Attorney General; and Angela Scott, Assistant
District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.
CURWOOD WITT, JR., JUDGE.
Henderson County Grand Jury charged the defendant with
aggravated burglary and theft of property valued at more than
$1, 000 but less than $2, 500 related to the September 26,
2017 burglary of the residence of James Donnelly, Jr., and
the theft of property therefrom.
June 2018 trial, the victim, James Donnelly, Jr., testified
that he had known the defendant since 2013 and that the
defendant lived with him for a period of time in 2014. The
defendant also worked for the victim periodically. The victim
also said that he had been a friend of Daniel Tuten. Both the
defendant and Mr. Tuten were familiar with the layout of the
victim's residence. The victim said that his job required
that he travel out of town for extended periods of time and
that he was gone from his Henderson County residence from the
beginning of August 2017 until the end of September or
beginning of October 2017. He recalled that immediately upon
entering his bedroom upon his return, he saw that a tall
dresser "was turned over in the floor," and when he
opened the blinds, he saw that the bedroom window was open.
point, the victim began looking around the residence to see
if any of his property was missing. He said that a 12-gauge
"870 pump shotgun" was missing from the top of his
bedroom closet. Clips for an AR-15 along with "a 100
round drum full of .223" ammunition was missing from the
living room. The victim then went outside to the shop where
he kept his race car. Inside, he discovered that "a
bunch of [his] shop tools," including welders and air
compressors, were missing. Inside a second shop building, the
victim found that "a big chop saw," a "speaker
box," drill presses, and other tools were missing. The
trailer for the victim's race car was missing from a
third shop building. The victim observed tire tracks leading
from the shop showing where "the race car trailer was
pulled around the back side of [the] house." The victim
noted that "an 8600 watt generator" and "an
aluminum toolbox" were on the race car trailer. The
victim estimated the value of the property taken to be
"approximately $7, 000."
victim recalled that he communicated with the defendant via
SnapChat "a week or two before" he returned home
from his work trip. During that conversation, the victim told
the defendant that he was not home.
victim said that he telephoned the police and reported the
theft of his property. A day or so later, the victim
"gathered up some pictures of some of the items that
[were] stolen and . . . made a $500 reward on Facebook."
In response to information received related to the Facebook
post, the victim "went towards Perry County over there
and . . . rode up on Charlie Hall's yard sale." The
victim immediately recognized his property among the items
for sale, and he telephoned the police. The police arrived
approximately 45 minutes later, and the victim was able to
reclaim some of his property: "I got the generator, my
shotgun, the three drill presses, a couple of power tools,
cordless drills, the two spare tires that was my camper spare
tires and the extension ladder." He was unable to
recover the trailer.
victim testified that he had previously seen the defendant
driving a black Tahoe sport utility vehicle.
Hall testified that he supplemented his income by buying
property at flea markets and yard sales and then reselling it
at his own yard sale. He recalled that at the end of
September 2017, Daniel Tuten, whom Mr. Hall had known for
years, contacted him via telephone about some property and
then came to his yard sale with the defendant. Mr. Tuten and
the defendant arrived in a "black SUV, Tahoe-like
thing" pulling a trailer. The two men had "[a]
welder and a generator and some other tool-like stuff"
in the vehicle. Mr. Tuten had previously assured Mr. Hall
that the property was not stolen, and, when asked, the
defendant "said [the property] was his" and then
told Mr. Hall "how he had accumulated it." The
defendant told Mr. Hall that "he works on the road so he
needed that stuff to work on the road and he was laid off so
he was going to have to sell it and then when he went back to
work he would replace it." Mr. Tuten did not claim to
own any of the property. Mr. Tuten and the defendant brought
two loads of property to him, and Mr. Hall gave approximately
$700 to Mr. Tuten in exchange for the property.
Hall listed some of the items for sale on Facebook. Later,
the victim contacted him, and then the police came to the
location where Mr. Hall was having a yard sale. Mr. Hall
returned the victim's property and then "bought a
generator back for $200" and returned it to the victim.
Mr. Hall was unable to recover some of the victim's
property that he had already sold.
cross-examination, Mr. Hall admitted that he made no mention
of the defendant's claiming ownership of the property in
his written statement to the police. In that statement, Mr.
Hall indicated that the defendant and Mr. Tuten made two
trips to sell him items; the first trip included tools and a
shotgun while the second trip included a trailer, generator,
toolbox, and other tools.
County Sheriff's Department Investigator Jeremiah Adams
testified that he conducted the investigation into the
burglary and theft of the victim's property. Investigator
Adams said that he attempted to recover fingerprints from the
victim's residence but was unable to lift any usable
prints because of the rainy weather. Investigator Adams said
that, upon interviewing Mr. Hall, he learned that Mr. Hall
came into possession of the victim's property on
September 26, 2017. He also assisted in the recovery of some
of the ...