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State v. Moore2/23/2000
The defendant, Ralph Dewayne Moore, was indicted for driving under the influence of an intoxicant and leaving the scene of an accident. By agreement of the state, the defendant entered a plea of guilty to reckless driving; the second charge was dismissed. As a part of the agreement, the defendant stipulated that his reckless driving sentence would "include any restitution due to Shelby Gann." The trial court imposed a sentence of six (6) months, suspended all but seven (7) days, and ordered restitution to Ms. Gann in the amount of $500.00.
The only issue presented in this appeal of right is whether the trial court erred by ordering restitution.
We affirm the judgment of the trial court.
At the restitution hearing, Ms. Gann testified that on January 11, 1997, she and her husband drove to the Walnut Hill boat ramp in Harriman, where they encountered the defendant. The defendant and Ms. Gann's husband were engaged in an argument when the defendant then got into his vehicle and intentionally struck the Ganns' pick-up truck twice. According to Ms. Gann, the defendant first struck the Gann vehicle head-on and then backed up and struck the door on the driver's side.
Ms. Gann's testimony was corroborated in part by the preliminary hearing testimony of Harriman Police Department Officer Mike Capps. Officer Capps testified that he responded to a call regarding an accident at the Walnut Hill boat ramp and that he arrived in time to observe the defendant leaving the scene. The officer followed the defendant to a nearby residence and then confronted the defendant, who admitted to drinking and driving. The defendant also acknowledged having been involved in an accident with the Ganns, but denied that he intentionally struck their vehicle. Officer Capps arrested the defendant for DUI and leaving the scene of an accident resulting in damage in excess of $400. See Tenn. Code Ann. § 55-10-102(b)(2).
After the plea agreement, the trial court was unable to proceed with a scheduled sentencing hearing because the defendant had failed to contact his probation officer. Thus, a pre-sentence report had not been prepared. Because Shelby Gann and her husband were present, however, the trial court conducted a hearing on "any restitution due to Shelby Gann." Ms. Gann was the only witness. She testified that she and her husband purchased the pick-up truck for approximately $1,500.00 on the date of the accident. She stated that the truck was not driveable immediately after the incident and that it was worth approximately $500.00 at that point in time. She sold the truck shortly after the incident for between $200.00 and $250.00. The defendant cross-examined Ms. Gann on her failure to produce any documentation of ownership of the pick-up truck, but did not question her as to the amount of the damage to the truck. The defendant did not offer any proof.
On appeal, review of the propriety of the trial court's award of restitution must be de novo with a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d); State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997). In sentencing a defendant to probation, a trial court may, as a condition of the probation, require restitution to the victim of the offense for any pecuniary loss. Tenn. Code Ann. § 40-35-304(a). The term pecuniary loss includes "all special damages . . . as substantiated by evidence in the record." Tenn. Code Ann. § 40-35-304(e)(1).
The defendant asserts that the trial court erred by ordering restitution in the amount of $500.00 because the state failed to prove that Ms. Gann was the owner of the truck. In our view, the claim is without
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