FILED

October 13, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9608-CC-00289

)

Appellee, )

)

) TIPTON COUNTY

VS. )

) HON. JOE H. WALKER

JAMES EARL SOMERVILLE, ) JUDGE

)

Appellant. ) (Arson and Presenting Fraudulent

) Insurance Claim)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF TIPTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

BRETT B. STEIN JOHN KNOX WALKUP

100 N. Main, #3102 Attorney General and Reporter

Memphis, TN 38103

DARYL J. BRAND

Assistant Attorney General

425 5th Avenue 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
1

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

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OPINION

The Defendant was convicted on a jury verdict of one count of arson and

one count of presenting a false or fraudulent insurance claim in excess of one

thousand dollars.1

 He appeals from his convictions as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. We affirm the judgment of the

trial court.

The Defendant’s convictions came as the result of the destruction by fire

of a house which he owned in Covington, Tennessee. In the arson charge, it was

alleged that the Defendant burned his house without the consent of the bank

which held a mortgage on the house. In the making of a false or fraudulent

insurance claim charge, it was alleged that the Defendant made a claim with 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 insufficient to support the finding of guilt beyond a reasonable

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

concerning reasonable doubt.
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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We first address the issue of the sufficiency of the convicting evidence.

2

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979). Questions concerning 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

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. 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. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.
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A crime may be established by circumstantial evidence alone. State v.

Tharpe, 726 S.W .2d 896, 899-900 (Tenn. 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 cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant.” State v. Crawford,

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 and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt.” 225 Tenn. at 484,

470 S.W .2d at 613. 

The Defendant’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 the Defendant told her not to worry about child support

money, because he was going to burn his house down and he would give her

some money from the insurance proceeds. 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 helped one Bobby Smith 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 but that he was paid to

help Bobby Smith move the furniture. He further testified that the day before the

trial the Defendant came to him and asked him to change his testimony. 
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Pearllie Lois Hoover testified that she was a neighbor who lived near the

house that burned. Early 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.

Captain Tommy Dunavent, the arson investigator for the Covington,

Tennessee fire department, was qualified as an expert 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 Defendant filed a claim with his insurance

company showing a loss totaling thirty-five thousand one hundred 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 on the insurance claim

filed by the Defendant were not in fact in the house at the time of the fire and had

not been for some period of time. He testified regarding other discrepancies

between the items listed on the insurance claim form and the items destroyed in

the fire. This witness also testified that the Defendant told him some 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 when he made that statement.
-6-

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 convicting evidence, the Defendant

primarily argues that the evidence is not sufficient because the jury should not

have believed the testimony presented by the State’s witnesses and should have

believed the testimony of the Defendant’s girlfriend who “furnished a legitimate

and believable alibi for the Appellant.” 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, were resolved by the jury against the Defendant. As we have

stated, this Court may not reweigh or reevaluate the evidence once the jury has

done so. We conclude that the evidence is sufficient to support the findings by

the jury of guilt beyond a reasonable doubt. This issue is without merit.

The Defendant next argues that the trial judge erred in its instructions 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 guilty unless you find the

Defendant procured someone else to commit arson.

The Defendant argues that the underlined portion of the above charge

amounts to a direct comment on the evidence by the judge 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

elements of the offense beyond a reasonable doubt. The judge instructed the

jury that the State must 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. We believe that the trial

judge recognized the apparent contradiction resulting from these proper

instructions and that the underlined portion of the instruction was a reasonable

precaution made in an attempt to avoid or alleviate jury confusion regarding the

instructions. See State v. Woods, 764 S.W.2d 217, 218 (Tenn. Crim. App. 1988).

We 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 final issue, the Defendant argues that the trial judge erred 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

necessary that the defendant’s guilt be proven beyond

all possible doubt, as absolute certainty of guilt is not

demanded by the law to convict of any criminal charge.

A reasonable doubt is just that, a doubt that is

reasonable after an examination of all the facts in the

case. If you find the State has not proven every

element of the offense beyond a reasonable doubt,

then you should find the defendant not guilty.
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The Defendant argues that by including the “absolute certainty” language,

the instruction could be construed as the judge’s commenting upon the evidence

in the case and also dilutes the importance of the State’s burden of proving guilt

beyond a reasonable doubt.

We note that the Defendant neither objected to this portion of the charge

nor requested additional instructions concerning the meaning of “reasonable

doubt.” As the State points out, this Court has previously examined a near

identical charge concerning reasonable doubt. While we expressed some

concerns regarding the instruction, we were unable to conclude that use of the

instruction constituted reversible 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 reasonable doubt does not constitute reversible error.

The judgment of the trial court is affirmed.

___________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE