State v. James Somerville

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

SEPTEMBE R SESSION, 1997

STATE OF TENNESSEE, )

FILED

C.C.A. NO. 02C01-9608-CC-00289 ) October 13, 1997 Appellee, )

) Cecil Crowson, Jr.

Appellate C ourt Clerk

) TIPTON COUNTY

VS. )

) HON. JOE H. WALKER JAMES EARL SOMERVILLE, ) JUDGE )

Appe llant. ) (Arson and Presenting Fraudulent ) Insurance Claim)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF TIPTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

BRE TT B . STE IN JOHN KNOX WALKUP 100 N. Main, #3102 Attorney General and Reporter Memphis, TN 38103 DARYL J. BRAND

Assistant Attorney General 425 5th Avenu e North

Nashville, TN 37243

ELIZABETH RICE

District Attorney General

WALT FREELAND

Assistant District Attorney General 302 Market Street

Somerville, TN 38068

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Defendant was convicted on a jury verdict of one count of arson and one count of p resenting a false or fraudulent insurance claim in excess of one thousand dollars.1 He ap peals from h is convic tions a s of righ t pursu ant to R ule 3 of the Tennes see Rules of Appellate Pro cedure. W e affirm the judgment of the trial court.

The Defe ndan t’s con victions cam e as th e resu lt of the destruction b y fire of a house which he owned in Covington, Tennessee. In the arson charge, it was alleged that the D efenda nt burne d his hou se withou t the cons ent of the bank which held a mortgage on the house. In the making of a false or fraudulent insurance claim charg e, it was allege d that th e Def enda nt ma de a c laim w ith his insurance company for items which were not in fact located in the house at the time the house burned.

In this appeal, the Defendant argues three issues: (1) That the evidence presented at trial is insuffic ient to s uppo rt the find ing of g uilt beyon d a rea sona ble doubt; (2) that the trial court erred in its instructions to the jury concerning the defense of alibi; and (3) that the trial court erred in its instructions to the jury conce rning rea sonab le doub t.

1 Tenn. Code Ann. §§ 39-14-301; 39-14-133.

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We first address the issue of the sufficiency of the convicting evidence.2

When an ac cuse d cha llenge s the s ufficiency of the convicting evidence, the standard is whether, after reviewing the evid ence in the ligh t mos t favora ble to the prosecu tion, any rational trier of fact could have found the essential eleme nts of the c rime b eyond a reas onab le doubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (19 79). Qu estions c oncern ing the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inferences therefrom . Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493 S.W.2d at 476.

2 The Defend ant has appealed from both convictions. His argument co ncerning the sufficiency of the con victing evide nce ap pears to addres s only the co nviction of a rson. Be cause no argu men ts are made concerning sufficiency of the convicting evidence for the insurance fraud conviction, and because no references to the record are made pointing out alleged evidentiary shortfalls for that conviction, the issue would normally be waived. Nevertheless, we have examined the evidence presented concerning the conviction for presenting a false or fraudulent insurance claim (Tenn. Code Ann. § 39-15-133) and we conclude that the evidence is sufficient to support the finding of guilt beyond a reaso nable do ubt.

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A crime ma y be established by circumstantial evid ence a lone. State v.

Tharpe, 726 S.W .2d 896 , 899-90 0 (Ten n. 1987 ). However, before an accused may be convicted of a criminal offense based only upon circumstantial evidence, the facts and circumstances “must be so strong and coge nt as to exclude e very other reaso nable hypothesis sa ve the guilt of the defen dant.” State v. Crawfo rd, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt must be woven around the defendant from which he cannot escape and from which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference save the guilt of the defendant beyond a reasonable doubt.” 225 Tenn. at 484, 470 S.W .2d at 613 .

The Defen dant’s form er wife testified that a couple of months before the house burned, she had asked the Defendant to pay her some child support for their children. She said th e Def enda nt told her not to worry ab out child suppo rt money, because he was going to burn his house down and he would give her some money from the insuranc e proce eds. She also testified that he had made a prior statement about burning the house.

Jerry Lee Hall, whose nickname was “Tojo” testified that around dark on the night that the house burned , he helpe d one B obby S mith move furniture out of the house. He testified that while they were moving the furniture, the Defendant came by the house and talked to Bobby Smith. The witness testified that he did not know why they were moving the furniture bu t that he wa s paid to help Bobby Smith move the furniture. He further testified that the day before the trial the De fendan t came to him an d aske d him to c hange his testim ony.

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Pearllie Lois Hoover testified that she was a neighbor who lived near the house that bu rned. E arly in the evening of the night that the house burned, she saw people moving furniture out of the house. One of the people he saw was “Tojo.” The truck she saw moving the furniture was Bobby Smith’s truck.

Cap tain Tommy Dunavent, the arson investigator for the Covington, Tennessee fire department, was qualified as an expe rt witness and testified that the fire was “an arson fire.” He stated that he found three separate points of origin of fire and found no evidence to indicate a natural or accidental cause of the fire. He testified that the fire department had responded to the fire at 1:38 a.m.

The day after the fire, the De fendant filed a claim with his insurance company showing a los s totaling thirty-five thousand o ne hundre d and forty-five dollars ($35,145.00). The amount of insurance coverage was thirty-five thousand dollars ($35,000.00). The tenant who was renting the house from the Defendant at the time of the fire testified that numerous items listed o n the in suran ce claim filed by the Defendant were not in fact in the house at the time of the fire and had not been fo r some period o f time. He testified regarding other discrepancies between the items listed on the insurance claim form and the items destro yed in the fire. This witness also testified that the Defendan t told him som e four to six months before the fire that the Defendant wanted to burn the house down so he could build another one. The witness said that he thought the Defendant was joking wh en he m ade tha t stateme nt.

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The Defendant did not testify. His girlfriend testified that at the time of the fire the Defendant lived with her. She said that on the night of the fire, the Defendant was at her home when she got in from work at about 10:20 or 10:30 that night. She stated that the Defendant spent the rest of the night with her and that he did not leave during the night.

In arguing against the sufficiency of the convic ting evidence, the Defendant prima rily argues that the evidence is not sufficient because the jury should not have believed the testimony presented by the State’s witnesses and shou ld have believed the testimony of the Defe ndant’s g irlfriend who “furnished a legitima te and believable alibi for the A ppellant.” It is clear from the verdict, however, that issues concerning the credibility of the witnesses and the weight and value to be given the evidence, w ere resolved b y the jury against th e Defe ndant. As we ha ve stated, this Court may not reweigh or reevaluate the evidence once the jury has done s o. W e conclude that the evidence is sufficient to support the findings by the jury of gu ilt beyond a reason able do ubt. This issue is with out me rit.

The D efenda nt next arg ues tha t the trial judge erred in its ins tructions to the jury concerning the defense of alibi. The court instructed the jury as follows:

The Defendant presented evidence of an alibi in this case. An alibi is defined as evidence which, if believed, would establish that the Defendant was not present at the scene of the alleged crime when it allegedly occurred. If the Defendant was not present when the crime was committed, then he cannot be g uilty unless you find the Defendant procured someone else to commit arson.

The Defendant argues that the underlined portion of the above charge amou nts to a direct co mm ent on the evidenc e by the jud ge and thus violates

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Article VI, Section 9 of the Tennessee Constitution. We disagree. The trial court properly instructed the jury that the burden was on the State to prove the eleme nts of the offense beyond a reasonab le doubt. The judge instructed the jury that the State m ust prove that the Defendant was at the scene of the crime when it was committed. The judge had also instructed the jury concerning the law of criminal responsibility for the conduct of another. W e believe that the trial judge recognized the apparen t contradiction resulting from these proper instructions and that the u nderlin ed po rtion of th e instru ction w as a re ason able precaution made in a n attempt to avo id or alleviate jury confusion regarding the instructions. See State v. Woods, 764 S.W.2d 217, 218 (Ten n. Crim. App . 1988). W e do not believe that the underlined portion of the instruction had the effect of giving the jury any impression as to the trial judge’s feelings concerning the credibility of the witnesses or the evidence in the case. This issue is without merit.

As his fina l issue, th e Def enda nt argu es tha t the trial ju dge e rred in instructing the jury concerning the meaning of “reasonable doubt” because the instruction told the jury that “absolute certainty” is not required to convict. The court’s instruction on reasonable doubt was as follows:

A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. It’s not necessa ry that the defen dant’s guilt be proven beyond all poss ible do ubt, as abso lute certainty of guilt is not demanded by the law to convict of any criminal charge.

A reaso nable doub t is just tha t, a dou bt that is reaso nable after an examination of all the facts in the case. If you find the State has not proven every element of the offen se beyo nd a rea sonab le doub t, then you sho uld find the defend ant not guilty.

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The Defendant argues that by including the “abs olute certainty” language, the instruc tion co uld be cons trued a s the ju dge’s commenting upon the evidence in the case and also dilutes the importance of the State’s burde n of pro ving gu ilt beyond a reaso nable d oubt.

W e note that the Defendant neither objected to this portion of the charge nor requested additiona l instruc tions c once rning th e me aning of “reas onab le doubt.” As the State points out, this Court has previously examined a near identical charge concerning reasonable doubt. While we expressed some concerns regardin g the instru ction, we w ere una ble to con clude th at use of the instruction constitute d reversib le error. State v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County, (Tenn. Crim. App., Jackson, Aug. 2, 1996). In the case sub judice, we also conclude that the trial judge’s instruction concerning reasonab le doubt doe s not constitute reve rsible error.

The judgment of the trial court is affirmed.

___________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE