# FILED

July 2, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE , §

APPELLEE § VS. C.C.A. No. 01C01-9705-CC-00195 § LEWIS COUNTY HONORABLE CORNELIA CLARK LARRY FRANKS AND § WILLIAM TURNER

APPELLANTS § (INS URANCE FRAUD)

FOR THE APPE

LLANT FOR THE APPELLEE Bobby McGee John Knox Walkup Attorney at law Attorney General and Report er P. O. Box 327 425 Fifth A venue, N orth 122 Eas t Main S t. Nashville, TN 37243 Linden, TN 37096 Debora h A. Tullis Assistant Att

orney General 425 Fifth A venue, N orth Nashville, TN 378243 Joseph D. Baugh District Att

orney General Donald W. Schwendiman Assistant Dist

rict Attor

ney General Hohenwald,

TN

–––––

OPINION FILED: _______________________

AFFIRMED L. T. LAFFERTY,

SPECIAL JUDGEOPINION The defendants, L

arry Franks and Wi

lliam Turner, w

ere found guilty of insurance f

raud in violation of T

enn. Code Ann. § 39- 14-133 by a Lewis County jury. Following the over-ruling of a motion for a new trial, the trial c

ourt sentenced the de

fendant, Franks,

to three (3) year

s in the Department of

Correction and a f

ine of $2,500. Fra

nks was placed on probation for four (

4) years and as a co

ndition of probation wa

s ordered to serve 45 days, day f

or day. The defe

ndant, Turner, received a sentenc e of two (2) years in the Depar tment of Correction an d a fine of $1,200. Turner was plac

ed on a three (3) ye

ar probation term a

nd was ordered to serve 25 days, day f

or day. In this appe

al of right, the app

ellants raise the following issues: 1. Whether the evidence adduced at trial was sufficient to find th

e defendants guilty of

violating Tenn. Cod

e Ann. § 39-14-133 beyond a rea sonable doubt. 2. Whether the evidence was sufficient to convict either defendant of insurance fraud over $1,000, but less than $10,000. 3. Whether the tr ial court erred in not granting defendants a motion for a new trial because the verdicts were inconsistent. After a review

of the record and th

e applicable law,

we affirm the judgment of the trial

court. Background In count one of indictm

ent no. 5625 the defe

ndants, Larry Fr

anks and William Turne

r, were indicte

d by the Lewis County

Grand Jury of presenting a false or fraudulent clai m, in December

, 1995, in an amount of $1,000 but less than $10,000 on a contract of insurance between LarryFranks DBA Kw ik Lube and the Hohe

nwald Insurance A

gency and Hauler’s Insurance Company. In count two, the indictment alleges that Larry Franks and

Margaret Bailey , in December, 1995, presented a f

alse or fraudulent claim on a contract of insuran ce between Larry Franks DBA A1 Performance and Hohenwald Insurance Agency and Hauler’s Insurance Company in the amou nt of $1,000, but les s than $10,000. The evidence at tr

ial established that in December, 199 5, the defendant, Larry Franks, operated a garage in Hohenwald, Tennessee called Kwik Lube. Also, on the same premises, Larry Franks operated an auto parts store called A-1 Performance. Both businesses had an insurance property liability policy with t he Hauler Insura

nce Company of Columbia, Tennessee, issued by the Ho henwald Insurance

Agency. Also, Larry Franks and

William Turner w

ere operating Ka

r-Mart, a car

lot, on the same premises. This business was insured with the same insurance agency. On Dec

ember 20, 1995, the

defendant Franks called the Hohenwald Insuran

ce Agency and repo

rted a burglary of h

is office and the theft of his truck. At a later date t he defendant Frank

s furnished the insurance agency with two lists of items stolen from Kwik Lube, A-1 Performance and Kar-Mart. Ricky Joe Odem, testifying for the Sta te, informed the j ury that he and his uncle, Tim Fisher, drove to H ohenwald from La

wrence County on the night of Decemb

er 19th and the earl

y morning of Decem

ber 20th, 1995, to commit a burg

lary. Odem admi

tted to breaking into th

e business of Kwik Lube, A

-1 Performance , and Kar-Mart . From the offic e of Kwik Lube, Odem stole a 20.20 rifle with scope, a camera, a phone and somecash from a desk dra wer. After pl

acing these items out

side, Odem broke into the garage (A

-1 Performance

). From the gara

ge office, Odem

took a little bit of cash, a Ho lly carburetor, 8 in-t ake manifolds, an oil -cooler, 2 pistols and a set of rocker arms. Odem placed these items outside, watching for his uncle, who had been detained by the Hohenwald Police Department for a traffic off ense. Since his uncle fai

led to reappear,

Odem returned to t

he scene of his first entry and obtai

ned a set of keys to som

e U-Haul trucks i

n the car lot. Before taking the keys, Odem admitted to looking inside a race car trailer, seeing some car parts, but not taking anything. After loading the stolen items in a Toyota U-Haul truck, Odem drove to Iron City, hiding the truck in some woods. Some

of the stolen items w

ere taken to Odem’ s home and the rest were left in the truck. After Odem’s arrest, he gave a written statement of the bur

glary and assisted the

Hohenwald Police

Department in recovering the st olen items. In late December, 1995, Franks presented two lists of stolen items to his insurance agency. Kwik Lube’s loss was $7,860.72, which included a 1⁄2" drive socket set (Snap-On brand) valued at $1,205.40. A-1Performance’s loss was $7,598.26. Franks and Turner, in behalf of KarMart tendered a list o f three stolen items, a Ho nda generator ($1,42 9), a Snap-On battery c

harger ($3,74.95) , and a sand bag ($25. 99) for scoping a rifle. The items stolen by R icky Odem and reco

vered by the Hohenw

ald Police are: Kar-Mart

22 interarm calibe

r rifle with scopeA-1 Performance 6 Wyman aluminum inta ke manifolds 1 transmission cooler Kwik Lube Colt mustang 380 blue pis tol RL 38 caliber revolver 3 aluminum intakes Also recovered was a camera an d an AT&T phone. On December 20,

1995, Sgt. Greg W

ise, Investigator f

or the Hohenwald Police

Department, int

erviewed the def

endant, Franks, a

nd verified a burglar

y had occurred at these premises. Fra nks and Ms. Margaret Bailey, an employee, advised Sgt. Wise what was missing--some cash, phone, rifl

e, pistols, etc. Ricky Odem was a rrested Decembe

r 28, 1995. On Decembe

r 29, 1995, Sgt. W

ise obtained a copy of

the two lists of stolen items submitted by the defendants to the Hohenwald Insurance Agency. On Dec

ember 29th, Sgt. W

ise specifically questioned Franks and Ms. Bailey about the c amera on the insuranc e list valued at $30 7.66. Franks stated he bough

t the camera, a Pentax, with cas h and it had no serial number. A

lthough he and Ms. Bai

ley stated the came

ra was used in the business, they had

no receipts to support

the purchase of this business item. Also, on Decembe r 20, 1995, Sgt. W

ise talked to the def

endant, William Turner,

about the burglary. Turner never com plained about any Snap-On tools being t

aken in this burglary.

On the 29th, while

talking to Larry Franks, S gt. Wise inquired a bout the 1⁄2" socket set o

f Snap-On tools on the insurance list.

Franks advised Sgt.

Wise the tools belonge

d to Turner. Subseque

ntly Sgt. Wise talk

ed to Turner, show

ed him the insurance list, and

inquired about the sock

et set. Turner b

ecame nervousand agitated. Sgt. Wise asked Turner

where and when he

bought the set, but Turner would tr

y to change the subjec

t. Finally, Tur

ner stated that he purchased the set from a Snap-On dealer in Lexington, Kentucky, a year earlier. Sgt. Wise advised Turne r he would contact S nap-On and verify t he sale in Lexington. At 5:00 PM on Decem ber 29th, Turner appeared at the Hohenwald Police

Department and af

ter being advised of h

is rights, said he had had a change of m ind as to of how he ob tained the Snap-On to ols. Turner stated tha

t he had bought the tools f rom an individual he did

not know and it was not a full set of tools. T urner advised Sgt. Wise he and Franks came up with the value of $1,200 for t he tools. On January 24, 1996,

Sgt. Wise reinte

rviewed Franks a

nd Franks informed Sgt. Wise that he had a couple of more items to re

port missing and a couple of items he had found since t he break-in. The total value of i

tems taken by Ricky O

dem from Kwik L

ube and recovered by law enforcement was $487.00. The items taken from A-1 Performance and recovered were valued at $2,100.50. The lists submitted to the insurance com

pany of stolen items w

ere valued at $15,0

00.00 It is obvious from the r

ecord the defendan

ts vigorously attempte

d to establish that no witn

esses had personal kno

wledge that any of t

he property claimed on the proofs of loss of t he businesses did not exi st and/or was not on the premises prior to the burglary. However, the jury found to the contrary and resolved these questions in behalf of the State. Based on the evidence

in this trial, the ju

ry found the defendan

ts, Larry Franks and

William Turner,

guilty, in count one of

indictment #5625 of insurance fraud greater than $1,000, but less than $10,000. In count two of the same

indictment, the def

endants, Larry F

ranks andMargaret Bailey were foun d not guilty. Sufficiency of Evidence When reviewing a t

rial court’s judgme

nt, the appellate c

ourt will not disturb a verdict of guilty unless the facts of the record and inferences which may be drawn from it are sufficient as a matter of law for a rational trier of fact to f

ind the defendant or d

efendants guilty beyond

a reasonable doubt. Tenn. R. App. P. 13 (e). State v. Tuggle, 639 S.W.2d 913 (T enn. 1982). State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim . App. 1996). Initially, a defendan t is cloaked with the presumption of in nocence. State v. Tuggle, at 914. However , a jury conviction r

emoves the presumpti

on of innocence and replaces it with one of guilt, so that on appeal a convicted defendant has the bur

den of demonstrating t

hat the evidence is insufficient. Id . In determining the sufficiency of evidence, this court does not reweigh or re- evaluate the eviden ce. State v. Cabbage, 571 S.W. 2d 832, 835 (Tenn. 19

78). On appeal,

the State is entitle

d to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn theref rom. State v. Harris, 839 S.W.2d 54, 75 ( Tenn. 1992). It is the appe

llate court’s duty to affirm the convic tion if the evidence viewed under these standards was sufficient for any rational trier of fact to have found

the essential elem

ents of the offense beyond a reasonable doubt

. Jackson v. Virginia, 99 S.Ct. 2781, 2789 ( 1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). T his rule is applicable

to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of b oth direct and circu mstantial evidenc e. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).In their first issue , the defendants co ntend the convictions in

count one were predica

ted solely upon conject

ure, guess and spec

ulation and that the evidence was not sufficient to support their convictions. In support of this claim,

the defendants argu

e that no witnesses of

the State could testify that the items on the submitted list to the insurance agency did not exist or were

disposed of by the defe

ndants. Also, the jury could not have given any weight or credence to Ricky Odem’s testimony since they (jury) found t he defendant, Larry Frank s, not guilty in co unt two. The weight and credibility of the witnesses’ testimony are matters entrusted exclusi vely to the jury as t he trier of fact. State v. Sheffield, 676 S.W.2d 542 (Ten

n. 1984) at 547. Fr

anks presented a cla

im of loss on his insurance contract with Hauler’s Insurance Co. that included several items that Ricky Odem denied stealing. Thus, Ricky Odem’s credibility became a clear issue in this

trial. The jury o

bviously accredited h

is testimony despite the defendant’s efforts to discredit him. Based on circumstantial evidence, the jury certainly inferred the defendants intentionally presented a fraudulent claim. Although the defen dant, William Turner, owne d the 1⁄2” Snap-On socket set, it was

reported stolen on Fr

anks’ claim of loss.Based on Turner’s different statements about the purchase and value of the socket set, a jury could ce

rtainly conclude tha

t both were crimin

ally responsible for submitting a fra

udulent claim. The

refore, the evid

ence is more thansufficient to support the jury’s verdict t

hat the defendants in

tentionally presented, or cau sed to be presented, a false or fraudul

ent claim for the payment of loss upon a c ontract of insuranc

e coverage, or pr

epared a false or fraudulent acco

unt with the intent tha

t the same be prese

nted or used in support of such cl aim, for an amount over $ 1,000, but less the n $10,000. There is no merit t

o defendants’ first

issue. It is dismisse

d. In their second issue, the defendants contend the evidence was insufficient to convict them of insurance fraud over $1,000, but less than $10,000. Since the

State’s five wit

nesses could not say the

defendants did not own or possess the e

quipment submitted to th e insurance company , the defendants argue tha

t no fair market va

lues were establi shed beyond a reasonable doubt. H

owever, the def

endants do concede tha

t witness Ricky Odem, testified

he took approximately

$400 in cash. The S tate established, through the testimony of Sgt. Wise, the recovered stolen items from Ricky Odem amounted to $2,587 in value. The defendant is correct in that the State did not prove the indi vidual values of eac h stolen item. The trial court in its charge instructe d the jury they must det

ermine the range of value of the

property claimed to

be stolen from the de

fendants in the burglary. The

jury had three options , based on the proof, to establish the values at $1,000,

but less than $10,000 or

more than $500, but le ss than $1,000 or at $500 or less. The jury, by its verdict, was satisfied that the State provided su

fficient evidence

to fix the value at mo

re than $1,000 and this Court believes that there was suf ficient evidence f

or the jury to so conclude. Defen

dants’ second issue is without merit and is dismissed. In issue three the de

fendants complain the

trial court was in

error forfailing to grant a ne w trial because th

e verdicts were i

nconsistent. The defendants contend th

at the jury in finding F

ranks and Bailey not g

uilty in count two of the indic

tment could not have be

lieved the testimony of Ricky Odem as the f

acts in count one. U

nfortunately for the

defendants, juries sometimes do that very thing after listening to multiple offenses arising in the same set of facts or circumstances. Also, that does not mean a jury’s verdicts a

re inconsistent. T

he trial court in rul

ing on the merits of the motion for new t

rial on this issue stat

ed: “Secondly, as to each individual, Mr. McGee has made an interesting

and well thought out ar

gument about the inconsistencies of the verdicts in Count 1 and Count 2. Each of them charged, essentially, the sam e offense, but as t

o the two different busin

ess operations that e

xisted in these combined quarters.Particularly as t o Mr. Franks, I g

uess, who was charged in both of them, there is some argument that can be made that if you’re simply relying on the burglar’s testimony and you don’t believe him in Count 2 about what was taken--or you d

on’t believe him in Co

unt 1, that you should not believe him in Count 2 either. I’m not sure that works quite as wel

l for the co-defen

dant. But, once again, i

t is my judgment that the motions must be denied o n this ground, because

I don’t find them to be automatic ally inconsistent. A nd once I got straight in my mind which items were which--I think a lot of this case, or a lot of the proof,

focused on the socket

set in particular,

and some of the other ite

ms, there was mo

re proof presented

about some of the items on Count 1, Kwik Lube list, as to values after the fact than there

were on the Count 2 A

-1 list. I think a lot

of the testimony or a lot of what the jury ma y have relied on is the testimony about the socket set.” Based on the evidence in this record, we believe the trial court was correct in it’s dec

ision. In Wiggins v. State, 498 S.W.2d 32 (Tenn. 1973), the Supreme Court s

tated as to inconsiste

nt verdicts in a case

involving different verdic

ts for petit larce

ny and concealing stole

n property: “But, as the instant factual situation is unique, and so that there can be no question as re gards the subject, we specifically adopt the reasoning and result of Dunn v. UnitedStates 52 S.Ct. 189 (1932). Consistency in verdic

ts for multiple count indictm

ents is unnecessary a

s each count is a separate indictment . Therein lies the essen tial reasoning. An acquittal on one count c

annot be considered r

es judicata to another count even though both counts stem from the same criminal transac

tion. This Court w

ill not upset a seeming

ly inconsistent verdict by speculating as to the jury’s reasoning if we are satisf

ied that the evidence

establishes guilt of t

he other offense upon which the conviction was returned”. See State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. A pp. 1992); State v. Tony Scott Walker, No. 02C01-9704-CC-00147 at Jackson, filed December 3, 1997, Judg e David G. Hayes. We find the trial c

ourt’s analysis corr

ect and the judgments of conviction for both def

endants are affir

med.

_________________________ L. T. Laff erty, Special Judg

e CONCUR:

__________________________ Gary R. Wade,

Presiding Judge

__________________________ Thomas T. Wooda

ll, Judge