De Tran v. State

• Court: Court of Appeals of Georgia
• Decided: November 14, 2022
• Docket: A22A1487
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

November 14, 2022

In the Court of Appeals of Georgia A22A1487. TRAN v. THE STATE.

PHIPPS, Senior Appellate Judge.

After De Tran pled guilty to four counts of second-degree criminal damage to

property and two counts of criminal trespass, the trial court ordered him to pay

$15,529.75 in restitution to the victims. Tran appeals, contending that the trial court

erred by: (i) denying his motion for a continuance of the restitution hearing;

(ii) ordering him to pay restitution that exceeds the victims’ damages; and (iii) failing

to consider his financial circumstances. Because the trial court’s restitution award is

not supported by sufficient evidence, we vacate the award and remand for a new

restitution hearing.

The record shows that Tran pled guilty to committing the charged offenses by

puncturing the tires on, breaking the windows of, and scratching the two victims’ vehicles on multiple occasions in February and March 2021. The trial court imposed

a total sentence of five years on probation, after awarding Tran credit for time served

in custody, and scheduled a restitution hearing for several months later. At the

conclusion of the restitution hearing, the court entered an order requiring Tran to pay

$15,529.75 in restitution to the victims. This appeal followed.

1. We first address Tran’s challenges to the sufficiency of the evidence to

support the amount of restitution imposed. Where, as here, the parties dispute the

amount of restitution to be paid, the State bears the burden of establishing, by a

preponderance of the evidence, the amount of losses sustained by crime victims.

OCGA § 17-14-7 (b). Thus, on appeal from an order of restitution, “we determine

whether the evidence was sufficient, under the preponderance of the evidence

standard, to support that order, including the amount of restitution.” Watts v. State,

321 Ga. App. 289, 295 (3) (739 SE2d 129) (2013) (citation and punctuation omitted);

accord Austin v. State, 315 Ga. App. 713, 714 (727 SE2d 535) (2012) (“[R]eview of

evidence by this Court is limited to questions of sufficiency.”) (citation and

punctuation omitted). “[D]eterminations regarding the credibility of the witnesses and

the weight to be accorded conflicting evidence are for the trial court, and this Court

2 will not interfere with such determinations as long as there is any evidence to support

them.” Austin, 315 Ga. App. at 714 (citation and punctuation omitted).

A primary goal of restitution is, “as nearly as possible, to make the victim

whole.” Barnes v. State, 239 Ga. App. 495, 500 (2) (521 SE2d 425) (1999) (citation

and punctuation omitted). Thus, “[t]he amount of restitution ordered may be equal to

or less than, but not more than, the victim’s damages.” In the Interest of E. W., 290

Ga. App. 95, 97 (3) (658 SE2d 854) (2008) (citation and punctuation omitted),

overruled in part on other grounds by In the Interest of N. T., 355 Ga. App. 205, 212

(2), n. 7 (843 SE2d 877) (2020); accord OCGA § 17-14-9 (“The amount of restitution

ordered shall not exceed the victim’s damages.”). In that vein, the maximum amount

of restitution recoverable in a criminal case is that which would be recoverable in a

civil action. See OCGA § 17-14-2 (2) (defining “[d]amages” to include “all special

damages which a victim could recover against an offender in a civil action . . . based

on the same act or acts for which the offender is sentenced, except punitive damages

and damages for pain and suffering, mental anguish, or loss of consortium”). While

fair market value typically is the measure of such damages, “evidence of the cost to

repair an item [also] might be sufficient to establish the amount of damages.” In the

Interest of E. W., 290 Ga. App. at 97 (3); accord Burke v. State, 201 Ga. App. 50, 51

3 (3) (410 SE2d 164) (1991). In a case involving an automobile, however, even when

the cost to repair the vehicle is used as a measure of damages, evidence of the fair

market value of the car before it was damaged is required to determine whether the

cost of repairs exceeded the car’s value, so as to comply with OCGA § 17-14-9.

Burke, 201 Ga. App. at 51-52 (3). Importantly, fair market value “must be determined

exactly.” De La Cruz v. State, 358 Ga. App. 822, 823 (1) (856 SE2d 397) (2021)

(citation and punctuation omitted); accord In the Interest of E. W., 290 Ga. App. at

97 (3).

When determining the nature and amount of restitution, a trial court also must

consider several factors in addition to the amount of damages, including the

offender’s financial resources, assets, income, and financial obligations, and the dual

goals of restitution to the victim and rehabilitation of the offender. OCGA § 17-14-10

(a). However, written findings of fact supporting a restitution order are not required

under Georgia law. Ezebuiro v. State, 308 Ga. App. 282, 286 (2) (b) (707 SE2d 182)

(2011). “Rather, the only requirement is that the restitution order be supported by a

preponderance of the evidence.” Id.

The victims in this case, I. A. and J. A., are a married couple. J. A. testified at

the restitution hearing that he and his wife had incurred $4,197.69 in out-of-pocket

4 expenses for damage to their vehicles caused by Tran ($1,625.96 for J. A.’s truck and

$2,571.73 for I. A.’s car). The victims sought an additional $11,332.06, based on

estimates for repairs that had not yet been completed as of the date of the restitution

hearing. J. A. further testified that the fair market value of his truck was $9,000 in

February 2021 but that he did not know the fair market value of his wife’s car at that

time. I. A. did not testify during the restitution hearing.

Turning to Tran’s claims of error, we reject his contention that the trial court

failed to consider his financial circumstances, given the substantial evidence he

presented in that regard. We likewise reject his assertion that his limited financial

means preclude an award in the amount ordered by the court. While Tran testified that

he has been out of work for some time since his initial incarceration in this case and

currently relies on his family for support, he also testified that he has a commercial

driver’s license and previously earned $50,000 per year driving trucks. Given his

earning potential, we discern no error in the trial court’s implicit conclusion that

Tran’s financial situation does not preclude the amount of restitution imposed. See,

e.g., In the Interest of N. T., 355 Ga. App. at 210-213 (2) (concluding that the trial

court did not err in ordering a juvenile to pay $28,516.16 in restitution, based on

evidence that the juvenile was determined to “do better” in school, had the ability to

5 learn skills that would provide him with an earning capacity, and had received a

positive psychological evaluation); Tindol v. State, 284 Ga. App. 45, 45, 48 (4) (643

SE2d 329) (2007) (evidence that the defendant earned at least $6,000 yearly and

would be on probation for at least six more years was sufficient for the trial court to

find that he had the ability to pay $6,700.67 in restitution).

We also reject Tran’s contention that the trial court was not authorized to award

any restitution whatsoever for costs of vehicle repairs that have not yet been made.

See De La Cruz, 358 Ga. App. at 824-826 (1) (the victims’ testimony that the fair

market value of a tractor trailer before it was damaged by the defendants was at least

$23,000 and that the damage would require the replacement of numerous panels,

which had not been replaced before trial, at a cost of $1,000 to $2,000 each was

sufficient to support a restitution award of $12,401); Mayfield v. State, 307 Ga. App.

630, 632-633 (2) (b) (705 SE2d 717) (2011) (the victim’s testimony regarding the

value of his home before it was damaged by the defendant and estimates for the total

cost to repair the damage was sufficient to establish the cost of repairs in relation to

the home’s value).

However, the trial court’s restitution award cannot stand for several other

reasons. First, J. A.’s testimony regarding the costs to repair his and his wife’s

6 vehicles did not account for the total amount of restitution imposed. During the

restitution hearing, J. A. identified the following amounts regarding damages to his

truck:

$384.98 to replace a window; $880.67 for paint and body damage; $816.00 to replace the tires; and $4,196.02 for additional paint and body damage.

The total of each of those figures is $6,277.67.1 J. A. also identified the following

amounts regarding damages to his wife’s car:

$331.00 to replace the tires; $3,744.89 for paint and body damage; $375.00 to replace the tires a second time; $1,383.38 for additional paint and body damage; $796.37 to replace two windows; $165.50 to replace two tires a third time; and $1,929.99 to replace two additional windows.

1 On appeal, Tran does not challenge the admissibility of the repair estimates and receipts on which J. A. based his testimony as to the damages sustained by his and his wife’s vehicles.

7 The total of each of those figures is $8,726.13, and the total for both vehicles is

$15,003.80.2 The trial court’s restitution award of $15,529.75 exceeds that amount

by more than $500.00 Second, the amounts identified above include sums paid for

warranties on replacement tires, but no evidence was presented as to how the costs

of the warranties constituted “damages” sustained by either victim. Third, while J. A.

testified as to the fair market value of his truck before it was damaged, the State

presented no evidence of the value of I. A.’s car before any of the damages occurred.

Consequently, we must vacate the trial court’s restitution award and remand

this case for a new restitution hearing to address (i) the discrepancies between the

evidence regarding the total repair costs and restitution awarded and (ii) after those

discrepancies are resolved, whether the cost to repair either vehicle exceeds that

vehicle’s fair market value. See Burke, 201 Ga. App. at 51-52 (3); see also De La

Cruz, 358 Ga. App. at 823 (1) (fair market value must be determined “exactly”); see

also generally, e.g., Austin, 315 Ga. App. at 716-717 (vacating and remanding for a

new restitution hearing because the victim provided insufficient evidence of the value

of stolen coins); In the Interest of E. W., 290 Ga. App. at 97-98 (3) (vacating and

2 We note that the record contains J. A.’s handwritten notes purporting to identify the total costs of repairs as $6,702.63 for J. A.’s truck and $8,827.62 for I. A.’s car. As stated above, J. A.’s testimony did not support those totals.

8 remanding for a new restitution hearing because, inter alia, the State presented no

evidence of the fair market value of a car damaged by the defendant); Hawthorne v.

State, 285 Ga. App. 196, 198 (1) (648 SE2d 387) (2007) (vacating the trial court’s

restitution order and remanding for a new restitution hearing because the evidence of

fair market value was insufficient); Lovell v. State, 189 Ga. App. 311, 313 (3) (375

SE2d 658) (1988) (a trial court may not set the amount of restitution “by

approximation rather than by a proper opinion of the value of the [property]

damaged”); accord In the Interest of R. H., 316 Ga. App. 317, 319 (728 SE2d 911)

(2012) (physical precedent only).

2. Our ruling in Division 1 renders it unnecessary to address Tran’s challenge

to the denial of his motion for a continuance of the restitution hearing.

Judgment vacated and case remanded with direction. Doyle, P. J., and Reese,

J., concur.