State of Louisiana v. Anthony Scott Tubbs
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Opinion
Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,417-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ANTHONY SCOTT TUBBS Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 209,089
Honorable Parker Self, Judge
FLOWERS, LONG & HATCH, LLP Counsel for Appellant By: Christopher Hatch
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN MICHAEL LAWRENCE Assistant District Attorney
Before PITMAN, GARRETT, and STEPHENS, JJ. GARRETT, J.
The defendant, Anthony Scott Tubbs, was convicted of insurance
fraud. He was ordered to serve five years at hard labor, with all but one year
suspended. He was placed on four years’ active, supervised probation and
ordered to pay a fine of $1,500, along with restitution. He appeals his
conviction and sentence. For the following reasons, we affirm.
FACTS
Tubbs operated ASAP Appliances (“ASAP”) in Bossier City,
Louisiana. The business sold and repaired used appliances. Richard Hayden
was an employee. On Saturday, May 12, 2012, the vehicles driven by
Hayden and Tubbs were parked in a lot behind the business. As Hayden was
leaving, he backed his Ford Expedition into a Dodge Ram 3500 truck which
was being used that day by Tubbs.1 Tubbs told the police officers who
responded to the accident that he was getting into his vehicle when the
accident occurred. Hayden later delivered a typed and signed statement to
the police taking full responsibility for the accident and stating that Tubbs
was entering his vehicle when the accident occurred.
At the scene, Tubbs said he was not injured, but asked for paramedics
to check him out because he had recently had a medical procedure. Tubbs
later claimed that he was seriously injured in the accident and filed a civil
lawsuit against Hayden, State Farm and USAA. State Farm later settled the
claim with Tubbs for $8,500. Tubbs also claimed to have been involved in
1 Hayden’s vehicle was owned by Donald Leaver, a relative of Hayden’s girlfriend at the time. The vehicle was insured by USAA Insurance Company (“USAA”). The vehicle being used by Tubbs was registered to Oris R. Corners and was insured by State Farm Insurance Company (“State Farm”). That vehicle was a large truck known as a “dually.” It had four wheels on the rear, two on each side. Tubbs also alleged that State Farm was his uninsured/underinsured motorist insurer. separate, unrelated accidents with other drivers on May 28, 2012, and
June 29, 2012, and received settlements from State Farm in those cases as
well. According to hospital records, the accident on May 28, 2012, occurred
when Tubbs was traveling in his truck at a low rate of speed and was
impacted on the passenger side by another vehicle. The accident on June 29,
2012, occurred when Tubbs claimed he was rear-ended in traffic by another
vehicle. Tubbs settled the second and third accidents with State Farm for
$10,494.18 and $10,592.04, respectively.
Tubbs’s insurance claims were eventually investigated by the
insurance fraud and auto theft unit of the Louisiana State Police. Hayden
changed his version of the events concerning the May 12 accident and said
that Tubbs was actually inside the business at the time the collision occurred.
In early 2015, Tubbs was charged with one count of insurance fraud in
connection with this accident. He was tried by a six-person jury. On
March 21, 2017, Tubbs was found guilty as charged. He filed motions for
new trial and for post verdict judgment of acquittal, which were denied by
the trial court on October 17, 2017.
On November 21, 2017, Tubbs was sentenced to serve five years at
hard labor, with all but one year suspended. He was given credit for time
served. He was placed on four years’ active, supervised probation and
ordered to pay a fine of $1,500, along with restitution to State Farm in the
amount of $8,500. Tubbs stated his intent to appeal.
After some procedural maneuvering, Tubbs filed a second motion for
new trial and sought an evidentiary hearing to supplement the record. The
trial court denied the second motion for new trial as untimely. Tubbs now
appeals, claiming there was insufficient evidence to support his conviction, 2 the trial court erred when it denied his first motion for new trial, and the
sentence imposed was excessive.2
SUFFICIENCY OF THE EVIDENCE
Tubbs argues that the evidence adduced at trial was insufficient to
support his conviction for insurance fraud. This argument is without merit.
Legal Principles
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Hughes, 2018-0006 (La.
6/26/19), ___ So. 3d ___, 2019 WL 2750945; State v. Turner, 52,510 (La.
App. 2 Cir. 4/10/19), 267 So. 3d 1202, writ denied, 2019-00873 (La.
9/24/19), ___ So. 3d ___, 2019 WL 4884059. This standard, now
legislatively embodied in La. C. Cr. P. art. 821, does not provide the
appellate court with a vehicle to substitute its own appreciation of the
evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.
2/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1
So. 3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So. 3d 297; State v.
Turner, supra.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. Direct evidence provides proof of the existence of
2 Tubbs has chosen not to challenge the trial court’s ruling that the second motion for new trial was untimely. Tubbs is represented by different counsel on appeal. 3 a fact, for example, a witness’s testimony that he saw or heard something.
State v. Turner, supra; State v. Wooten, 51,738 (La. App. 2 Cir. 2/13/18),
244 So. 3d 1216. An appellate court reviewing the sufficiency of evidence
in such cases must resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When the direct
evidence is thus viewed, the facts established by the direct evidence and
inferred from the circumstances established by that evidence must be
sufficient for a rational trier of fact to conclude beyond a reasonable doubt
that the defendant was guilty of every essential element of the crime. State
v. Sutton, 436 So. 2d 471 (La. 1983); State v. Turner, supra.
Circumstantial evidence is defined as evidence of facts or
circumstances from which one might infer or conclude the existence of other
connected facts. Circumstantial evidence consists of proof of collateral facts
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Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,417-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ANTHONY SCOTT TUBBS Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 209,089
Honorable Parker Self, Judge
FLOWERS, LONG & HATCH, LLP Counsel for Appellant By: Christopher Hatch
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN MICHAEL LAWRENCE Assistant District Attorney
Before PITMAN, GARRETT, and STEPHENS, JJ. GARRETT, J.
The defendant, Anthony Scott Tubbs, was convicted of insurance
fraud. He was ordered to serve five years at hard labor, with all but one year
suspended. He was placed on four years’ active, supervised probation and
ordered to pay a fine of $1,500, along with restitution. He appeals his
conviction and sentence. For the following reasons, we affirm.
FACTS
Tubbs operated ASAP Appliances (“ASAP”) in Bossier City,
Louisiana. The business sold and repaired used appliances. Richard Hayden
was an employee. On Saturday, May 12, 2012, the vehicles driven by
Hayden and Tubbs were parked in a lot behind the business. As Hayden was
leaving, he backed his Ford Expedition into a Dodge Ram 3500 truck which
was being used that day by Tubbs.1 Tubbs told the police officers who
responded to the accident that he was getting into his vehicle when the
accident occurred. Hayden later delivered a typed and signed statement to
the police taking full responsibility for the accident and stating that Tubbs
was entering his vehicle when the accident occurred.
At the scene, Tubbs said he was not injured, but asked for paramedics
to check him out because he had recently had a medical procedure. Tubbs
later claimed that he was seriously injured in the accident and filed a civil
lawsuit against Hayden, State Farm and USAA. State Farm later settled the
claim with Tubbs for $8,500. Tubbs also claimed to have been involved in
1 Hayden’s vehicle was owned by Donald Leaver, a relative of Hayden’s girlfriend at the time. The vehicle was insured by USAA Insurance Company (“USAA”). The vehicle being used by Tubbs was registered to Oris R. Corners and was insured by State Farm Insurance Company (“State Farm”). That vehicle was a large truck known as a “dually.” It had four wheels on the rear, two on each side. Tubbs also alleged that State Farm was his uninsured/underinsured motorist insurer. separate, unrelated accidents with other drivers on May 28, 2012, and
June 29, 2012, and received settlements from State Farm in those cases as
well. According to hospital records, the accident on May 28, 2012, occurred
when Tubbs was traveling in his truck at a low rate of speed and was
impacted on the passenger side by another vehicle. The accident on June 29,
2012, occurred when Tubbs claimed he was rear-ended in traffic by another
vehicle. Tubbs settled the second and third accidents with State Farm for
$10,494.18 and $10,592.04, respectively.
Tubbs’s insurance claims were eventually investigated by the
insurance fraud and auto theft unit of the Louisiana State Police. Hayden
changed his version of the events concerning the May 12 accident and said
that Tubbs was actually inside the business at the time the collision occurred.
In early 2015, Tubbs was charged with one count of insurance fraud in
connection with this accident. He was tried by a six-person jury. On
March 21, 2017, Tubbs was found guilty as charged. He filed motions for
new trial and for post verdict judgment of acquittal, which were denied by
the trial court on October 17, 2017.
On November 21, 2017, Tubbs was sentenced to serve five years at
hard labor, with all but one year suspended. He was given credit for time
served. He was placed on four years’ active, supervised probation and
ordered to pay a fine of $1,500, along with restitution to State Farm in the
amount of $8,500. Tubbs stated his intent to appeal.
After some procedural maneuvering, Tubbs filed a second motion for
new trial and sought an evidentiary hearing to supplement the record. The
trial court denied the second motion for new trial as untimely. Tubbs now
appeals, claiming there was insufficient evidence to support his conviction, 2 the trial court erred when it denied his first motion for new trial, and the
sentence imposed was excessive.2
SUFFICIENCY OF THE EVIDENCE
Tubbs argues that the evidence adduced at trial was insufficient to
support his conviction for insurance fraud. This argument is without merit.
Legal Principles
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Hughes, 2018-0006 (La.
6/26/19), ___ So. 3d ___, 2019 WL 2750945; State v. Turner, 52,510 (La.
App. 2 Cir. 4/10/19), 267 So. 3d 1202, writ denied, 2019-00873 (La.
9/24/19), ___ So. 3d ___, 2019 WL 4884059. This standard, now
legislatively embodied in La. C. Cr. P. art. 821, does not provide the
appellate court with a vehicle to substitute its own appreciation of the
evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.
2/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1
So. 3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So. 3d 297; State v.
Turner, supra.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. Direct evidence provides proof of the existence of
2 Tubbs has chosen not to challenge the trial court’s ruling that the second motion for new trial was untimely. Tubbs is represented by different counsel on appeal. 3 a fact, for example, a witness’s testimony that he saw or heard something.
State v. Turner, supra; State v. Wooten, 51,738 (La. App. 2 Cir. 2/13/18),
244 So. 3d 1216. An appellate court reviewing the sufficiency of evidence
in such cases must resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When the direct
evidence is thus viewed, the facts established by the direct evidence and
inferred from the circumstances established by that evidence must be
sufficient for a rational trier of fact to conclude beyond a reasonable doubt
that the defendant was guilty of every essential element of the crime. State
v. Sutton, 436 So. 2d 471 (La. 1983); State v. Turner, supra.
Circumstantial evidence is defined as evidence of facts or
circumstances from which one might infer or conclude the existence of other
connected facts. Circumstantial evidence consists of proof of collateral facts
and circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Turner, supra; State v.
Walker, 51,217 (La. App. 2 Cir. 5/17/17), 221 So. 3d 951, writ denied, 2017-
1101 (La. 6/1/18), 243 So. 3d 1064.
Where there is conflicting testimony about factual matters, the
resolution of which depends upon a determination of the credibility of the
witnesses, the matter is one of the weight of the evidence, not its sufficiency.
State v. Turner, supra. The appellate court does not assess the credibility of
witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661
So. 2d 442; State v. Turner, supra. A reviewing court accords great
deference to the factfinder’s decision to accept or reject the testimony of a
witness in whole or in part. In the absence of internal contradiction or
irreconcilable conflict with physical evidence, one witness’s testimony, if 4 believed by the trier of fact, is sufficient support for a requisite factual
conclusion. State v. Turner, supra; State v. Payne, 52,310 (La. App. 2 Cir.
1/16/19), 262 So. 3d 498.
Regarding automobile insurance policies, La. R.S. 22:1925 states, in
part:
A. (1) Any person who with an intent to injure, defraud, or deceive any insurance company commits any of the acts specified in Paragraph (2) of this Subsection is guilty of a felony and shall be subjected to a term of imprisonment, with or without hard labor, not to exceed five years or a fine not to exceed five thousand dollars, or both, and payment of restitution to the victim company of any insurance payments to the defendant that the court determines were not owed and the costs incurred by the victim company associated with the evaluation and defense of the fraudulent claim, including but not limited to the investigative costs, attorney fees, and court costs. However, mere possession of a fraudulent proof of insurance card or document shall be punishable by a fine of five hundred dollars, imprisonment for not more than six months, or both.
(2) The following acts shall be punishable as provided in Paragraph (1) of this Subsection:
....
(c) Engaging in any of the actions or activities described in R.S. 22:1924, relative to insurance policies in general.
Regarding insurance policies in general, La. R.S. 22:1924 (A)(2)(c)
provides, in relevant part:
(2) The following acts shall be punishable as provided in Paragraph (1) of this Subsection:
(c) Assisting, abetting, soliciting, or conspiring with another to prepare or make any written or oral statement that is intended to be presented to any insurance company, insured, the Department of Insurance, or other party in interest or third-party claimant in connection with, or in support of or denial, or any claim for payment of other benefit pursuant to an insurance policy, knowing that such statement contains any false,
5 incomplete, or fraudulent information concerning any fact or thing material to such claim or insurance policy.
Testimony and Evidence
At trial, the jury heard live testimony from six witnesses. Numerous
exhibits were introduced, which included the dash camera video depicting
the scene after the police responded; a demand letter sent on June 4, 2012,
on Tubbs’s behalf to State Farm; the typed statement signed by Hayden; the
police department private property accident report; the petition for damages
that Tubbs filed against USAA, Hayden, and State Farm; the receipt and
release form regarding the settlement with State Farm; and medical records.
The first witness was Senior Trooper Lawrence Hartsfield of the
Louisiana State Police. Trooper Hartsfield is an investigator with the
insurance fraud and automobile theft unit. He began investigating this
matter in April 2013. He examined the police report, the police dash camera
video, and the statement signed by Hayden. Trooper Hartsfield also
examined the records from USAA and State Farm and took a statement from
Hayden. The record shows that Tubbs claimed to have been involved in
automobile accidents, with bodily injury, on May 12, 2012, as well as
May 28, 2012, and June 29, 2012. Trooper Hartsfield noted that the police
dash camera video taken at the scene shortly after the accident in this matter
showed a minor, low impact collision with minor damage to the rear of both
vehicles caused by a backing maneuver. In spite of the minor nature of the
accident, Tubbs claimed to have been seriously injured. Trooper Hartsfield
examined the statement submitted to the police by Hayden and noted that on
February 14, 2013, Tubbs filed a civil lawsuit against Hayden, USAA, and
State Farm arising from this accident. In the suit, Tubbs claimed he was on
6 the running board, getting into his vehicle when Hayden backed into his
vehicle at a high rate of speed. He claimed that he suffered serious, painful,
and permanent injury requiring medical treatment. State Farm settled with
Tubbs for $8,500 on October 29, 2014. Trooper Hartsfield turned the matter
over to the district attorney’s office in December 2014.
Detective Tina Smith of the Bossier City Police Department testified
that she was a patrol officer in 2012, and responded to the scene of this
accident. The dash camera in her vehicle was activated and recording when
she responded to the scene. The dash camera video was submitted into
evidence. It shows very minor damage to the rear of both vehicles. Tubbs is
seen on the video and can be heard telling the officers that he was not
injured, but stated he wanted to be “checked out” because he had recently
had some medical issues.
Hayden testified that he is an electrician and was working for Tubbs at
the time of the accident. He repaired appliances and made deliveries.
Hayden admitted that he had prior criminal convictions for misdemeanor
carnal knowledge of a juvenile, possession of Schedule IV controlled
dangerous substances, and burglary.
Hayden said that Tubbs would occasionally do some manual labor and
that he complained about his back on a daily basis. According to Hayden,
on the date of the accident, he was leaving the business in his girlfriend’s
vehicle when he rear-ended Tubbs’s vehicle. Hayden stated that Tubbs was
inside the business at the time the accident occurred. Hayden went inside
and told Tubbs about hitting the vehicle; they went outside to inspect the
damage. Hayden testified that Tubbs gave him two options. The first was to
“go with the story.” The second was to find a new job. When the police 7 arrived, Hayden told them he rear-ended Tubbs’s vehicle. Hayden could not
remember if he said that Tubbs was in the vehicle at the time of the
collision. Hayden also said that, at one point, Tubbs offered him several
thousand dollars to provide the false statement.
Hayden identified the typewritten letter he signed and submitted to the
Bossier City Police Department.3 Hayden said he did not write the letter.
He claimed it was written by Tubbs. Hayden stated that he cannot type and
3 The letter was signed and dated by Hayden. The content of the letter is as follows, verbatim:
Accident Report
Personal Statement
I Richard Hayden on May 12, 2012 was departing my place of employment located at 2056 E. Texas St. Bossier city Louisiana 71111 I was driving my girlfriends Ford expedition Natalie Leaver is the owner of said vehicle my supervisor Scott Tubbs was also leaving at the same time I had entered my vehicle and started to back out as Mr. Tubbs was entering his vehicle no other vehicles were in the parking lot at the time that is why I believed the parking lot was clear for me to be backing up at a higher rate of speed than normal the back right of the vehicle I was driving struck the back of Mr. Tubbs’s vehicle I’m not sure if he was getting into the vehicle or just set down in the vehicle at the time of the collision as I exited the vehicle I noticed Mr. Tubbs was getting up off of the ground I quickly came to his aid he appeared to be okay however shaken up a great deal we decided to call the Bossier city fire department because Mr. Tubbs was knocked out of his vehicle during this collision Mr. Tubbs advise me he just had a procedure done a week ago to date at Christus Schumpert medical center in Shreveport Louisiana for a low hemoglobin due to a bleed somewhere in his intestines. Mr. Tubbs felt dizzy and was scared so he felt it necessary to get his vital signs checked out by EMS they took his blood pressure twice I overheard on both occasions it was high probably due to the high stressful situation he just encountered I apologized many times and feared I might lose my job and offered to pay if able for any damages or medical expenses to the best of my ability I admit I was not paying attention when backing out and that I high rate of speed I did advise a Bossier city police officer when questioned that I didn’t think I was backing up that quick but I was also scared in closing I accept responsibility for being careless and not looking where I was backing as well as backing up too fast the last I spoke with Mr. Tubbs he was not feeling well however was somewhat afraid to go to the emergency room even though he was advised to do so later on that evening I spoke with his wife Kelly and apologize to her for not paying attention and at that time I believe that she may have demanded he go get checked out due to the recent procedure he recently had just a week ago, I personally believe I have taken responsibility 100% by giving my account of what happened in the above question accident
Richard Hayden
Case #12-5946
Bossier City Police Department
8 does not own a typewriter. Hayden was asked to read the letter in court. He
had difficulty reading and pronouncing some of the words. At the point in
the letter in which Tubbs’s low hemoglobin was discussed, Hayden could
not pronounce the word “hemoglobin” and stated that he did not know what
that was. Hayden acknowledged that he signed and dated the letter and
delivered it to the police department. Hayden only worked for Tubbs for a
short time after the accident. Tubbs filed a civil lawsuit against Hayden
based upon the accident.
In connection with the civil lawsuit, Hayden said he gave a deposition
in which he stated that Tubbs was not in the vehicle at the time the accident
occurred. He claimed that his deposition testimony and his trial testimony in
this case contained the true version of the accident. Hayden stated that he
had not been offered any deal, compensation, or plea bargain by the district
attorney’s office in exchange for his testimony.
At the time of the trial, Hayden was 28 years old and had a tenth-
grade education. He did not remember if he went to the Tubbs residence the
evening of the accident to apologize to Mrs. Tubbs. Hayden did not recall
who called the police after the accident. He also stated that he did not know
whether Tubbs had undergone a medical procedure prior to the accident.
Hayden stopped working for Tubbs several months after the accident
because they had an argument and a “falling out.” Hayden admitted that he
gave two versions of how the accident occurred, but stated that his trial
testimony was the true version.
Officer Stephen Boothe of the Bossier City Police Department made a
Private Property Accident Report in this matter. The document was
prepared for insurance purposes. If there had been a report of injuries, 9 Officer Boothe would have prepared an Accident Report form. Officer
Boothe stated that he got the information for the report from Hayden. The
time on the report is 1914, which would be 7:14 p.m. Hayden told him that
he backed into Tubbs’s vehicle, but that both drivers were okay. The officer
observed minor damage to the rear of both vehicles. There were no reports
of injury, but Tubbs said he had recently had a medical procedure and
wanted to be checked out by the Bossier City Fire Department.
The state introduced into evidence some of Tubbs’s medical records.
Other medical records were introduced by Tubbs. The records of Dr. James
Wiseman, a chiropractor, showed that Tubbs consulted him in April 2010,
with neck and back pain. His x-rays showed thinning at the L4-L5 and L5-
S1 levels of the spine, but there was no disc injury or annular tears. Dr.
Wiseman observed that, after the present accident, Tubbs was diagnosed
with a significant disc injury that was not present in 2010.
In early May 2012, Tubbs had an endoscopy and a colonoscopy.
On the date of the accident, at 9:41 p.m., Tubbs went to the
emergency room complaining of back pain. He claimed his vehicle was hit
by another vehicle, he fell out of his truck, and landed on his back. An x-ray
showed a normal thoracic spine. He was diagnosed with back strain and a
back contusion. He was discharged with medication at 11:07 p.m.
After the second auto accident, which occurred on May 28, 2012,
Tubbs went to the emergency room. His lumbar spine x-ray was compared
to the x-ray made on May 12, 2012. No fractures or bone destruction were
observed.
10 Tubbs went to the emergency room after the third accident, on
June 29, 2012, complaining of acute neck pain and muscle strain. A CT
scan of the cervical spine did not show any fractures or dislocations.
After the accident in this case, Tubbs was treated by Dr. Rodney
Crews, a chiropractor. His first visit was on May 24, 2012. He told Dr.
Crews that he went to the emergency room after the accident. He claimed
that, later that night, he awoke to go to the restroom and had a “dead leg”
with extreme numbness and tingling which radiated to his foot. An MRI
was done on May 25, 2012. This test showed, at the L4-L5 level, a
moderate central disc bulge or herniation with an annular tear and moderate
compression of the thecal sac. The L5-S1 level showed a small central disc
bulge without nerve root impingement or displacement. These were the
same areas treated by Dr. Wiseman in 2010. After the accident on May 28,
2012, Dr. Crews recommended a neurosurgical consultation.
Tubbs also saw Dr. Richard Kamm, a medical doctor, after the first
two accidents. His first visit was on June 5, 2012. Tubbs described the
accident in this case, stating that he had one foot on the step of the vehicle
and one hand on the steering wheel, when the other car backed into his
vehicle. The records reflect that Tubbs claimed he was knocked out of his
truck onto the ground where he landed on his buttocks and back. He
reported that he then did a backward flip and jumped up with the assistance
of the other driver. Tubbs claimed he began to suffer back and neck pain
after the accident in this case. On June 7, 2012, an x-ray of Tubbs’s cervical
spine showed degenerative disc disease.
Tubbs had a follow-up appointment with Dr. Kamm on July 18, 2012.
Tubbs saw Dr. Kamm again on August 1, 2012, and received prescriptions 11 for pain and anxiety. On August 29, 2012, Tubbs informed Dr. Kamm that
he would not be returning for any more visits.
Tubbs saw Dr. Marco Ramos for a consultation on July 2, 2012. Dr.
Ramos suggested physical therapy with a reevaluation after treatment. On
August 28, 2012, Dr. Ramos recommended surgery.
On October 8, 2012, Tubbs had an initial consultation with Dr. Pierce
Nunley at the Spine Institute of Louisiana. Tubbs complained of neck and
leg symptoms since the accident in this case, and neck and arm symptoms
since the second accident on May 28, 2012. Regarding the accident in this
case, Tubbs said he was trying to get into his vehicle when he was rear-
ended. He said he “essentially flipped over backwards landing on concrete
on his back.” The MRI of Tubbs’s back taken on May 25, 2012, discussed
above, was reviewed. At a visit on November 8, 2012, Dr. Nunley found
that Tubbs was not a candidate for surgery and recommended back
injections to treat the symptoms.
Tubbs saw Dr. Ramos on August 28, 2013, and September 19, 2013.
At that point, Dr. Ramos opined that the first accident caused Tubbs’s
problems with his spine. An MRI taken on August 27, 2013, showed lumbar
spondylosis, worse at L4-L5 bilaterally and L5-S1 on the left.
In March 2014, Tubbs decided to have surgery with Dr. Ramos. On
March 28, 2014, a minimally invasive left laminectomy and
microdiscectomy was performed at the L4-L5 and L5-S1 levels. Tubbs was
discharged from the hospital on March 29, 2014. He went to the emergency
room on March 31, 2014, claiming he fell at home. Dr. Ramos’s notes on
April 10, 2014, indicate that Tubbs was recovering normally.
12 After the conclusion of the state’s case, the defense made a motion for
a directed verdict of acquittal, arguing that the state failed to provide
sufficient evidence of the elements of the crime of insurance fraud to sustain
a verdict of guilty against Tubbs. The trial court denied the motion.
The defense then presented its case. Tubbs did not testify, but called
two witnesses and introduced additional medical records and a receipt and
release from State Farm. Kelly Tubbs testified that she had been married to
Tubbs for 20 years and she was the owner of ASAP. She stated that her
cousin, Tara Pilcher, managed the business. Mrs. Tubbs testified that, on the
day of the accident, Hayden called at 5:45 p.m. to see if Tubbs would lend
him $100 to take his girlfriend out to eat for Mother’s Day, which was the
next day. Mrs. Tubbs told him that Tubbs was at the business and to call
and ask him. Later, Tubbs called his wife and told her about the accident.
Tubbs said that Hayden was “acting crazy,” backed up “real fast,” hit
Tubbs’s vehicle, and knocked him out of it. Tubbs said the paramedics had
left, he was okay, and would be home in a little while.
Mrs. Tubbs testified that she called Ms. Pilcher to come to her house
and watch her children so she could take Tubbs to the hospital and make
sure that he was alright. Mrs. Tubbs said that Hayden came to the house that
evening after they returned from the emergency room. He brought a letter
admitting his fault. She glanced at the letter and gave it back to Hayden.
When shown the letter admitted into evidence, Mrs. Tubbs said it looked
like the letter Hayden presented to her. According to Mrs. Tubbs, Ms.
Pilcher was present when Hayden arrived. Mrs. Tubbs said she would not
have fired Hayden because of an accident, but that he was fired three to four
months later for improperly touching someone at the business. 13 On cross-examination, Mrs. Tubbs said her husband did not have back
problems prior to this accident and she was unaware of his medical history
indicating that he had been treated for back pain in 2010. Mrs. Tubbs said
she did not know how Hayden prepared the letter and was not sure if he ever
used the computer at work. She claimed that Hayden said that he prepared
the letter himself. Mrs. Tubbs acknowledged that her husband filed lawsuits
in connection with all three accidents and received payment from State Farm
for all of them. She stated that the money either went into the business
account or her account.
Ms. Pilcher testified that her former husband was Mrs. Tubbs’s
cousin. Ms. Pilcher said that she occasionally worked at ASAP. On
May 12, 2012, she was shopping for Mother’s Day when Mrs. Tubbs called
her to babysit so she could take Tubbs to the hospital. According to Ms.
Pilcher, after they returned from the hospital, Hayden arrived and handed
Mrs. Tubbs a letter. Mrs. Tubbs gave the letter back to Hayden. Ms. Pilcher
said she did not know who prepared the letter.
Hayden testified on rebuttal. He said he first saw the letter the day
after the accident and it was prepared by Tubbs. Hayden said he did not
remember taking the letter to the Tubbs’s house. He denied borrowing $100
from Tubbs and reiterated that he quit his job sometime after the accident.
He was asked whether he had ever gotten angry at the business or at a
customer’s house and damaged a refrigerator or a door. He denied that
happened.
Discussion
Tubbs contends there is insufficient evidence to support his conviction
for insurance fraud. He claims that Hayden’s testimony was so unreliable 14 and internally contradictory that deference should not be given to the jury’s
determination that the testimony was credible. Also, Tubbs claims that,
because the state failed to introduce into evidence a copy of the insurance
policy or present a witness from the insurance company to prove that the
statement signed by Hayden was presented to the insurance company, an
essential element of the crime of insurance fraud was not proved.
Based upon our examination of the record, we reject the argument that
Hayden’s testimony was insufficient to support the conviction in this case.
Hayden took the written statement discussed above to the police department.
However, he testified at trial that the statement was not true and that he
initially gave that version of the accident because Tubbs threatened to fire
him if he did not “go with the story.” Hayden stated that Tubbs was inside
the business when the accident occurred. Hayden gave a deposition in the
civil trial to that effect and testified at trial in this case that the statement to
the police and the contents of the written statement were not true. Hayden
said that he could not type and the letter was written by Tubbs. At trial,
Hayden was asked to read the letter aloud. He had marked difficulty
pronouncing words contained therein. Hayden did not know what
“hemoglobin” was. The letter exhibits a great deal of familiarity with
Tubbs’s medical history that would not ordinarily be expected of an
employee. Also, the letter states that Hayden went to the Tubbs’s residence
the evening of the accident and apologized to Mrs. Tubbs. If, as Mrs. Tubbs
testified at trial, the letter was presented to her that evening after the
accident, it would be unusual for it to contain information about their
conversation. Tubbs was discharged from the emergency room at 11:07
p.m. If Hayden had actually gone to the Tubbses’ residence after they 15 returned from the emergency room, as stated by Ms. Tubbs, the encounter
would have occurred very late at night.
Tubbs claims that Hayden’s trial testimony should be equated with
recanted trial testimony and should be discredited, citing State v. Guidry, 94-
678 (La. App. 3 Cir. 12/7/94), 647 So. 2d 502, and State v. Linkletter, 345
So. 2d 452 (La. 1977), cert. denied, 434 U.S. 1016, 98 S. Ct. 733, 54 L. Ed.
2d 760 (1978). In Linkletter, a witness testified that the defendant was her
accomplice in a burglary and he was convicted. Later, the witness told
defense counsel that she perjured herself and her trial testimony was not
true. The trial court denied a motion for new trial based upon the
recantation. The supreme court stated that recantations of trial testimony
should be looked upon with the utmost suspicion and found that the
recantation was a confession to perjury which destroys the credibility of the
witness. In Guidry, the defendant was convicted of the aggravated rape of
his minor daughter. A motion for new trial was denied after the child
recanted her trial testimony. The court cited Linkletter, and refused to give
any weight to the recanted testimony.
The cases of Linkletter and Guidry are distinguishable from the facts
of this case. This case does not deal with recanted trial testimony. Here,
Hayden testified that he gave untrue statements to police regarding how the
accident occurred. These statements were unsworn. Later, in a deposition
and at trial, he declared that the statements were false and testified under
oath that Tubbs was not in the vehicle when the collision occurred. Hayden
said that Tubbs induced him to make the false statements and that he did so
in order to keep his job.
16 Tubbs has failed to demonstrate that Hayden’s testimony was
unreliable or contained internal contradictions or inconsistencies with the
physical evidence which would cause this court not to afford deference to
the jury’s factual conclusion and credibility determination. The jury here
was able to observe Hayden during his testimony and was aware of his prior
criminal background, his prior statements, and the fact that his employment
with Tubbs ended under unpleasant circumstances. Regarding the physical
evidence, the damage to both vehicles was minor. The police dash camera
video taken immediately after the accident shows that the parking lot where
the accident occurred was very small and Hayden could not have built up
much speed before hitting Tubbs’s vehicle. At the scene, Tubbs denied that
he was injured. Tubbs had preexisting issues at the same points in his back
that he claimed were injured in this accident. He provided different versions
of how the accident allegedly occurred to the various medical providers he
consulted. The jury considered all the evidence and made a credibility
determination and found Hayden’s trial testimony to be credible. As
outlined above, the testimony of one witness, if believed by the trier of fact,
is sufficient to support a conviction. Under the facts presented here, the
jury’s factual conclusion and credibility determination are entitled to
deference.
We also reject Tubbs’s argument that the state failed to prove the
existence and applicability of an insurance policy and that Tubbs had the
intent that the statement signed by Hayden would be used in support of a
claim pursuant to an insurance policy. Tubbs argues that the state was
required to introduce a copy of an insurance policy or have a witness testify
that the statement at issue here was presented to the insurance company. 17 Tubbs contends that the failure to present either of these items of proof
warrants a reversal of his conviction. In support of this argument, Tubbs
cites three civil cases dealing with the failure to file insurance policies into
evidence when the plaintiffs were seeking to recover under those policies.4
These cases are inapposite to the present case. The record shows that, in his
civil lawsuit, Tubbs alleged that State Farm provided
uninsured/underinsured motorist coverage and State Farm actually settled
the matter with him. The receipt and release were filed into evidence.
Tubbs also alleged that USAA had issued one or more policies of insurance
on the vehicle driven by Hayden. There is no dispute about the existence of
an insurance policy.
Regarding Tubbs’s intent concerning the statement signed by Hayden,
the statute does not require that the defendant personally submit the
statement containing false information directly to the insurance company.
The intent to defraud an insurance company is a specific intent crime.
See State v. Landry, 2008-1553 (La. App. 1 Cir. 5/8/09), 15 So. 3d 138;
State v. Copes, 2009-1206 (La. App. 1 Cir. 12/23/09), 2009 WL 5647227.
Specific intent is that state of mind which exists when the circumstances
indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act. La. R.S. 14:10(1). Such
state of mind can be formed in an instant. State v. Cousan, 94-2503 (La.
11/25/96), 684 So. 2d 382; State v. Landry, supra. Due to the difficulty of
4 See Cao v. Liberty Mut. Ins. Co., 12-954 (La. App. 5 Cir. 5/30/13), 119 So. 3d 725, and Jackson v. United Servs. Auto. Ass’n Cas. Ins. Co., 08-333 (La. App. 5 Cir. 10/28/08), 1 So. 3d 512 (in which no policy of insurance was introduced into evidence to establish coverage); Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La. App. 5 Cir. 1/26/99), 726 So. 2d 474 (in which no supporting documents were introduced into evidence on a rule to show cause for the surrender of a vehicle).
18 presenting direct evidence as to the defendant’s state of mind, the trier of
fact may infer intent from the facts and circumstances of a transaction and
the defendant’s actions. The existence of specific intent is an ultimate legal
conclusion to be resolved by the trier of fact. State v. Landry, supra.
Tubbs’s bill of information shows that he was charged with violations
of La. R.S. 22:1925 and La. R.S. 22:1924(A)(2)(c), in that he did knowingly
and intentionally assist, abet, solicit, or conspire with another to prepare or
make any written or oral statement intended to be presented to any insurance
company, insured, the Department of Insurance, or other party in interest or
third-party claimant in connection with, or in support of or denial, or any
claim for payment of other benefit pursuant to an insurance policy, knowing
that such statement contains any false, incomplete, or fraudulent information
concerning any fact or thing material to such claim or insurance policy. This
provision does not require that the statement be actually presented to the
insurance company by the defendant. The statute requires only that the
defendant assist, abet, solicit, or conspire with another to prepare or make
any written or oral statement that is intended to be presented to any
insurance company. The facts show that Tubbs solicited and conspired with
Hayden to tell the police that Tubbs was getting into the vehicle when the
accident occurred. Tubbs then prepared a statement and solicited and
conspired with Hayden to present the statement to the police department
claiming that Tubbs was getting into the vehicle when the accident occurred
and was knocked to the ground. It also contained the claim that Hayden was
backing up at a high rate of speed when the accident occurred, a fact not
supported by the physical evidence in the case. The police report and the
statement were documents that would be provided to State Farm when 19 Tubbs sought to recover under the policy. The demand letter, dated June 4,
2012, sent on Tubbs’s behalf to State Farm, contained a copy of the accident
report. From the circumstances, it can be inferred that Tubbs intended that
the statement would eventually be presented to the insurance company and
would support his claim.
The facts of the present case are somewhat similar to those found in
State v. Landry, supra, where the defendant, the fire chief of Donaldsonville,
Louisiana, was found guilty of insurance fraud. Fire departments are
required to provide the details of fires to the Property Insurance Association
of Louisiana (“PIAL”), a statutorily created rating agency which uses the
information in a grading process that affects the rates insurance companies
charge residents for fire and homeowner’s insurance policies. Fire reports
showed that the city did not have enough personnel or equipment responding
to fires. After being told that the deficiencies would affect the city’s PIAL
ratings, the defendant fraudulently altered the records to show that more
personnel and equipment responded to fires. The city received a higher
protection category rating than it should have. The defendant claimed that
the evidence against him was insufficient to prove the elements of insurance
fraud because the only entity presented with the false information was PIAL,
not any insurance companies. In finding that there was sufficient evidence
to convict the defendant, the first circuit found that the statute in effect at
that time included knowingly and with intent to defraud preparing with the
knowledge and belief that the statement will be presented to an insurer, any
written statement which he knows to contain materially false information.
Although the wording of the statute in Landry is not identical with that here,
it is similar and the reasoning of Landry is persuasive. 20 Based upon the record before us, the jury did not err in finding that
Tubbs committed all the elements of the offense of insurance fraud beyond a
reasonable doubt.
MOTION FOR NEW TRIAL
Tubbs argues that the trial court erred in denying his motion for new
trial based upon the discovery of a letter filed into the record after the trial.
This argument is without merit.
Regarding the grounds for new trial, La. C. Cr. P. art. 851 provides, in
relevant part:
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
In the context of newly discovered evidence, La. C. Cr. P. art. 854
states:
A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
21 (1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.
In order to obtain a new trial based on “newly discovered evidence,”
the defendant has the burden of showing that (1) the new evidence was
discovered after trial, (2) the failure to discover the evidence at the time of
the trial was not caused by lack of diligence, (3) the evidence is material to
the issues at trial, and (4) the evidence is of such a nature that it would
probably have produced a different verdict. State v. Bell, 2009-0199 (La.
11/30/10), 53 So. 3d 437, cert. denied, 564 U.S. 1025, 131 S. Ct. 3035, 180
L. Ed. 2d 856 (2011); State v. Matthews, 50,838 (La. App. 2 Cir. 8/10/16),
200 So. 3d 895, writ denied, 2016-1678 (La. 6/5/17), 220 So. 3d 752.
A ruling on a motion for new trial rests within the sound discretion of
the trial judge. In ruling on the motion, the trial judge’s duty is not to weigh
the new evidence as though he were a jury determining guilt or innocence;
rather his duty is the narrow one of ascertaining whether there is new
material fit for a new jury’s judgment. State v. Brisban, 2000-3437 (La.
2/26/02), 809 So. 2d 923; State v. Hilliard, 52,652 (La. App. 2 Cir. 8/14/19),
___ So. 3d ___, 2019 WL 3808037. See also State v. Matthews, supra.
On review a trial court’s discretion will be given great weight;
however, where the exercise of discretion is arbitrary and the judgment is 22 unjust, it will be set aside. Furthermore, it is not for the trial judge to weigh
the evidence to determine the guilt or innocence of the defendant; rather the
judge must ascertain whether another jury presented with all the evidence
including that recently discovered, would probably reach a different verdict.
State v. Knapper, 555 So. 2d 1335 (La. 1990).
Newly discovered evidence affecting only a witness’s credibility
ordinarily will not support a motion for a new trial, because new evidence
which is merely cumulative or impeaching is not, according to the often-
repeated statement of the courts, an adequate basis for the grant of a new
trial. Mesarosh v. United States, 352 U.S. 1, 77 S. Ct. 1, 1 L. Ed. 2d 1
(1956); State v. Cavalier, 96-3052 (La. 10/31/97), 701 So. 2d 949.
Nevertheless, the court possesses the discretion to grant a new trial when the
witness’s testimony is essentially uncorroborated and dispositive of the
question of guilt or innocence and it appears that, had the impeaching
evidence been introduced, it is likely that the jury would have reached a
different result. In making this determination, the court may assume that the
jury would have known that the witness had lied about the matter. State v.
Cavalier, supra; State v. Beaner, 42,532 (La. App. 2 Cir. 12/5/07), 974 So.
2d 667, writ denied, 2008-0061 (La. 5/30/08), 983 So. 2d 896. See and
compare State v. Kelly, 576 So. 2d 111 (La. App. 2 Cir. 1991), writ denied,
580 So. 2d 666; State v. Lyles, 03-141 (La. App. 5 Cir. 9/16/03), 858 So. 2d
35.
The admissibility at a new trial of the newly discovered evidence is a
factor in determining its “fitness” for consideration by a jury at a second
trial, and it should be addressed before a conviction is reversed and a new
trial ordered. State v. Coleman, 2005-1617 (La. 6/29/07), 959 So. 2d 465. 23 When the allegations of a motion for new trial are not supported by
proof, a trial judge properly overrules the motion. Allegations raised in the
motion alone are not sufficient, as a defendant has the burden to show that
an injustice has been done to him. In the absence of any showing before the
trial court that the rights of the accused had been jeopardized, and that the
alleged injustice could be rectified at another trial, the court would be
warranted in its refusal to set aside the verdict. State v. McKinnies, 2013-
1412 (La. 10/15/14), 171 So. 3d 861.
A letter purportedly written by a woman named Jennifer Stovall was
mailed to the court detailing a conversation with Hayden in which he said he
“would do anything to get even with Mr. Tubbs,” because Tubbs fired him
from his job.5 Tubbs was convicted on March 21, 2017. The letter was
dated March 31, 2017, and was filed into the court record on April 4, 2017.
Copies of the letter and the envelope with Stovall’s address on it were
attached to the motion for new trial, which was filed on July 7, 2017. The
5 The substance of the letter is as follows:
My name is Jennifer Stovall. I was the foster parent for the juvenile daughter of Anthony Scott Tubbs in 2014 and was called to testify for the state in the aggravated incest case in which he was acquitted in September 2014.
During the time of his trial in September 2014, I became acquainted with another witness in that case, Richard Hayden. Richard Hayden stated to me that Anthony Scott Tubbs had fired him from his job at ASAP [A]ppliances and that he was angry at him for the way he was let go from his job. He stated to me that he would do anything to get even with Mr. Tubbs.
I recently read on the news that Richard Hayden testified against him again in a recent case on insurance fraud in which he was found guilty. I don’t know the specifics of that case, however I do know that Richard Hayden has stated to me several times that he was looking for revenge against Mr. Tubbs. I would hate to think that an innocent man would go to jail based on the testimony of someone just out for revenge.
24 motion alleged that defense counsel did not know about the letter until he
checked the record. In the motion, Tubbs contended that, if he had known
about the letter, he would have called Ms. Stovall to testify at the trial to
impeach Hayden’s credibility. He contended that the newly discovered
evidence warranted the granting of a new trial.
A hearing on the motion was held on October 17, 2017. Ms. Stovall
was not called to testify at the hearing nor did Tubbs request that an
evidentiary hearing be held. The trial court noted that the appearance of the
letter in the record was unusual. The trial court judge, who had been on the
bench for 14 years, noted that whenever he receives a letter in a case, he
writes on the correspondence “File into the record,” signs it, dates it, and
sends it to the clerk’s office. None of that was done here. The trial court
stated, “I’m at a loss to explain as to how it’s in the record.” Based upon its
review of the law and the evidence, the court denied both the motion for new
trial and the motion for post verdict judgment of acquittal.
The defendant argues on appeal that the letter constituted new,
material evidence bearing on the credibility of Hayden, that it was
discovered after the trial, the failure to discover it earlier was not due to a
lack of diligence by the defendant, the evidence was material to the issues at
trial, and was of such a nature that it would probably produce a different
verdict in the event of a retrial. Tubbs contends that, because Hayden’s
testimony was uncorroborated and dispositive of the question of guilt or
innocence, the letter should serve as the basis for the grant of a new trial.
We find no error in the trial court judgment denying the motion for
new trial. Essentially, Tubbs presented no evidence in support of his
motion. The Stovall letter was filed into the record under highly irregular 25 circumstances and a copy of the letter was merely attached to the motion for
new trial. Tubbs did not call Ms. Stovall to testify at the hearing and did not
attempt to introduce the letter into evidence.
Even if Tubbs had attempted to introduce the unsworn letter into
evidence, it likely would have been found to be inadmissible hearsay under
La. C.E. art. 801(C), which defines hearsay as a statement other than one
made by the declarant while testifying at the present trial or hearing, offered
into evidence to prove the truth of the matter asserted. Hearsay is
inadmissible except as provided by law. La. C.E. art. 802. Had Ms. Stovall
been present to testify, it is not clear that Tubbs could have established that
the statement fell within one of the exceptions to the hearsay rule.
As stated above, newly discovered evidence affecting only a witness’s
credibility ordinarily will not support a motion for new trial. In support of
the motion for new trial, Tubbs presented only bare allegations of possible
bias on the part of Hayden. The allegations were unsupported by competent
evidence fit for consideration by a new jury. The jury in this matter was
informed that Hayden left his employment with Tubbs under less than
favorable circumstances and was able to use that information in its
assessment of Hayden’s credibility and possible motives for testifying
differently from his prior statements. Tubbs failed to offer any new
evidence not previously presented to the jury. Accordingly, due to the lack
of any competent evidence to support the motion for new trial, the trial court
did not err in denying the motion in this matter.
EXCESSIVE SENTENCE
Tubbs argues that his sentence of imprisonment for a first nonviolent
felony offense is excessive. This argument is without merit. 26 Legal Principles
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Hilliard, supra;
State v. DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ
denied, 16-0959 (La. 5/1/17), 219 So. 3d 332. The articulation of the factual
basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or
mechanical compliance with its provisions. State v. Lanclos, 419 So. 2d 475
(La. 1982); State v. DeBerry, supra. The trial court is not required to list
every aggravating or mitigating circumstance so long as the record reflects
that it adequately considered the guidelines of the article. State v. Smith,
supra; State v. Kelly, 52,731 (La. App. 2 Cir. 6/26/19), 277 So. 3d 855. The
important elements which should be considered are the defendant’s personal
history (age, family ties, marital status, health, employment record), prior
criminal record, seriousness of the offense, and the likelihood of
rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry,
supra. There is no requirement that specific matters be given any particular
weight at sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547
(La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La.
9/28/07), 964 So. 2d 351.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. Art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more 27 than a purposeless and needless infliction of pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980). A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ
denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.
The sentencing court has wide discretion in imposing a sentence
within statutory limits, and such a sentence will not be set aside as excessive
in the absence of manifest abuse of that discretion. State v. Williams, 03-
3514 (La. 12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir.
1/16/13), 109 So. 3d 921, writ denied, 13-0324 (La. 9/13/13), 120 So. 3d
280. The trial court is in the best position to consider the aggravating and
mitigating circumstances of a particular case and, therefore, is given broad
discretion in sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d
957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996);
State v. Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764; State v.
Hilliard, supra. On review, an appellate court does not determine whether
another sentence may have been more appropriate, but whether the trial
court abused its discretion. State v. Kelly, supra.
When an individual receives a full executive pardon by the governor
upon recommendation of the Department of Corrections, he is restored to the
status of innocence. La. Const. Art. IV, § 5(E)(1). See State v. Childers,
197 La. 715, 2 So. 2d 189 (1941); State v. Lee, 171 La. 744, 132 So. 219
(1931); State v. Riser, 30,201 (La. App. 2 Cir. 12/12/97), 704 So. 2d 946. In
State v. Adams, 355 So. 2d 917 (La. 1978), the court held that a full pardon 28 by the governor would preclude the use of a pardoned offense to enhance
punishment, while the automatic first offender pardon established by La.
Const. Art. IV, § 5(E)(1) would not. See State v. Riser, supra; State v.
Rollins, 32,686 (La. App. 2 Cir. 12/22/99), 749 So. 2d 890, writ denied,
2000-0549 (La. 9/15/00), 768 So. 2d 1278.
Prior criminal activity is one of the factors listed in La. C. Cr. P. 894.1
to be considered by the trial judge in selecting a sentence. Prior criminal
activity is not limited to convictions. State v. Brown, 410 So. 2d 1043 (La.
1982); State v. Washington, 414 So. 2d 313 (La. 1982); State v. Palmer, 448
So. 2d 765 (La. App. 2 Cir. 1984), writ denied, 452 So. 2d 695 (La. 1984).
Tubbs argues that he should not have been sentenced to serve any
time in prison. He maintains that, because he is a first felony nonviolent
offender, he should have only received probation in this matter. Tubbs
asserts that, in imposing sentence, the trial court improperly considered a
prior offense of insurance fraud for which he received a full gubernatorial
pardon, restoring him to innocence.
In imposing sentence, the trial court fully complied with the
sentencing guidelines of La. C. Cr. P. art. 894.1. The court noted that it
considered a presentence investigation prepared in this matter, as well as a
letter from Tubbs expressing appreciation for the professional and respectful
way he was treated during the case.
As a mitigating factor, the court considered Tubbs to be relatively
young at 47 years old. The court considered the present conviction to be a
first felony offense. Tubbs had some charges for issuing worthless checks,
which were dismissed, and received a governor’s pardon for a 1999 29 insurance fraud conviction involving the arson of a vehicle. The court stated
that offense could not be utilized for sentence enhancement, but could “be
reviewed for the nature of that offense.” The court specified that it did not
consider other charges for which Tubbs was acquitted.
The trial court noted Tubbs’s social history that he was married with
two children. The court considered Tubbs’s work history and his National
Guard service.
Based upon these factors, the trial court sentenced Tubbs to five years
at hard labor, with all but one year suspended, with credit for time served.
Tubbs was placed on four years’ supervised probation, ordered to pay
probation fees and a fine of $1,500. He was also ordered to pay restitution
to State Farm in the amount of $8,500, to be paid over the first three years of
probation. Tubbs was correctly informed of the delays for filing an appeal
and an application for post conviction relief.6
The sentence imposed was not constitutionally excessive. Tubbs
coerced an employee to make a false statement concerning how this very
minor accident occurred. Based upon that false statement, Tubbs claimed
serious physical injury in order to profit financially. The period of
incarceration imposed was low and was not excessive under the facts of this
case. Also, the trial court did not err in noting Tubbs’s gubernatorial pardon
for insurance fraud. While a governor’s pardon restored Tubbs to a position
of innocence, the trial court was entitled to review all prior criminal activity,
including arrests that did not result in convictions. We do not find, under the
facts presented here, that the pardoned offense inappropriately influenced
6 Tubbs announced in court his intent to appeal and the trial court granted him an appeal bond of $25,000. 30 the trial court’s sentencing determination. Our sense of justice is not
shocked by the sentence imposed.
CONCLUSION
For the reasons stated above, the defendant’s conviction and sentence
are affirmed.
AFFIRMED.
Related
Cite This Page — Counsel Stack
State of Louisiana v. Anthony Scott Tubbs, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-anthony-scott-tubbs-lactapp-2019.