# FILED
October 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R 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 ) Appe llant. ) (Arson and Present ing Fraudulent ) Ins ura nce Cla im)
ON APPEA L 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 Generaland Reporter Memphis, TN 38103 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 ELIZAB ETH RICE Distri ct Attorney General WALT FREELAND Assistant Distri ct Attorney General 302 Market Street Somervill e, TN 38068
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 39-14- 301; 39-14-133. -2- 

# OPINION

The Defendant was convicted on a jury verdict of one count of ar

son and
one count of p resenting a false or fraudulent insurance cl aim 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 i n Covington, Tennessee. In t he arson charge, it was alleged that the D efenda nt burne d his hou se withou t the cons ent of the ban k which hel d a mo rtga ge on the house. I n the making of a f alse or fr

audulent 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 notin fact located i n the house at t he time the house burned.

In this appeal, t he Defendantargues three issues: (1)That the evidence presented at tri al is insuffic ient to s uppo rt the find ing of g uilt beyon d a rea sona ble doubt; (2) that

the tri al court erred in it s instruc

tion s t o the jury

concerning t he defense of ali bi; and (3)that the t rial cour t erred in its in structions to the jury
conce rning rea sonab le doub t.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 evid ence for the i nsurance fraud conviction, and because no references t o the record ar

e made pointing out

alleged evidenti ary short falls f or that convicti on, the i ssue would normally be waived . Neverthel ess, we have examined the evidence presented concerni ng the convi ction for presentinga false or f raudulent insurance cl aim (Tenn. Code Ann. § 39-15-133)and we conclude t hat the evidence is suffi cient to support the findingof guilt beyond a reaso nable do ubt. -3- We first address t he issue of t he suffi ciency of the convict ing evidence
. 2

When an ac cuse d cha llenge s the s uffic iency of the convi cting evi dence, the standard i s whether, af ter revi ewing the evid ence in the ligh t mos t favora ble to the prosecu tion, any rational tri er of fa ct could have found the essent ial 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 th e cred ibility of t he witnesses, the weightand value to be given the evidence, as well asall factual i ssues raised by the evidence, ar

e resolved by

the tri er of fact , notthis court. State v. Pappas , 754 S.W.2d 620, 62 3 (Tenn. Crim. Ap p. 1987). Nor may this cour t reweigh or reevalua te the evidence. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury ver

dict approv

ed by the trial j udge accredits the State’ s witnes s es 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 ent itled t o the stron gest legiti mate viewof the evi dence and all i nferences therefrom
. Cabbage , 571 S.W.2d at 835. Because a verdict

of guil t removes thepresumption of innocence and replaces it with a presumption of guil t, the accuse d has the b urden in thi s court of illustrati ng why the evi dence is insuf ficien t 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.-4- A crime ma y be established by c ircum stantial evid ence a lone. State v. Tharpe , 726 S.W .2d 896 , 899-90 0 (Ten n. 1987 ). However, befor e an accused may be convicted of a cri minal offense based only upon ci rcumstantialevidence, the facts and circumstances “must be so str

ong and coge nt as to exclude e very otherreaso 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). I n other words, a “web ofguilt must be woven around the defendant from whic h he cannot escape and f ro m which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference
save the guil t of thedefendant beyond a reasonable doubt .” 225 Tenn. at 484, 470 S.W .2d at 613
.
The Defen dant’s form er wife testi fi ed that a coupl e of months befor e the ho use bu rned, she had asked t he Defendant to pay her some child su pport 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 gi ve her
some money from the insuranc e proce eds. She also test ified t hat he had made a prior statement about burni ng the house.

J erry Lee Hall, whose nickname was “Tojo” testifi ed that aroun d dark o n the night that the house burned , he helpe d one B obby S mith move furniture out of the house. He te stifi ed that whil e they were movi ng t h e furnit ure, the Defendant came by the house and tal ked to Bobby Smith. The witness testified thathe did not know why theywere moving thefurniture bu t that he wa s paid to help Bobby Smith move the f urnitur e. He furt her testi fied that the da y before t he trial the De fendan t came to him an d aske d him to c hange his testim ony.-5- Pearlli e Lois Hoover testifi ed that shewas a neighbor wholived near the house that bu rned. E arly in the eveni ng of the night that the ho use burned, she
saw people moving f urnit ure out of the ho use. One of the peopl e he saw wa s “Tojo.” The truck she saw moving the furni ture was Bobby Smith’s truck.
Cap tain Tommy Dunavent, the arson i nvestigator for t he Coving t on, Tennessee fire depar tment, was qual ifiedas an expe rt witness and testifi ed that the fire was “an arson fi re.” He stated that he found three sep ar a te points of origin of fir

e and found no evi dence to indi cate a naturalor accidental cause of the f ire. He testif ied that t he fire depar tment had responded to the fir e at 1:38
a.m.

The day after the fire, the De fendant filed a claim with his insura n ce company showing a los s totaling thirty-five thousand o ne hundre d and forty-five dol lars ($35,145.00) . The amount of ins urance coverage was t hirty-fivet housan d dollars ($35,000.00) . The tenant who was renting the house from t he Defendant at the time of

thefi re test if iedthat nu mero us i tems listed o n the in suran ce claim filedby the Defendant were not in f

act in t he hous e at

theti me of the fi re and had not been fo r some period o f time. He testi fied r egarding other discrepanci es between the items l isted on the insur ance claim form and the items destro yed in the fire. This witness also test ifiedthat the Defe ndan t told him som e four to six months before the fire that the Defendant wanted to burn the ho use down so he could build anot her one. The wit ness said that he though t t he Defendant was joking wh en he m ade tha t stateme nt.-6- The Defendant did not testif y. His gi rlfr iend test ified t hat at the t ime of the fire t he Defendant lived with her . She said t hat on the ni ght of the fire, t he Defendant was at her home when she got in f rom work at about 10:20 or 10:30 thatnight. She stated that the Defendant spent t he rest of t he night wi th her and that he did not leave during the night.

In arguing agai nst the suf ficien cy of the convic tin g evidence, t he Defendant prima rily argues tha t the evi dence is not suf ficien t because the j ury should not have believed t he testi mony presented by the State’ s witnessesand shou ld have believed the testi mony of the Defe ndant’s g irlfriend who “furnished a legitima te and believable alibi for the A ppellant.” It is clear fr om the verdict , however, that issues concerning t he credibil ity of the witnes ses 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 r eevaluate t he evidence once t he jury has done s o. W e conclude that the evidence is suf ficien t to support

the findi ngs 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 t he defense of alibi. The court instructed t he jury as foll ows:
The Defendant presented evidence of an ali bi i n thi s case. An alibi is defined as ev idence w hich, if beli eved, would est ablish t hat the Defendant was not present at the sceneof the al leged cri me when it allegedl y occurred. If the Defendan t was notpresent when the crime was committed, t hen he cannot be g uilty unless you f ind the Defendant procured someone else to commit ar son . The D efendant argues that the underli ned portion of the above charge
amou nts to a direct co mm ent on the evidenc e by the jud ge and th us viol ates-7-

Article VI, Secti on 9 of the Tennessee Constitution. We disagree. The trial court properl y inst ructed the j ury that the burden was on t he State to pr ove the eleme nts of the off

ense beyond a reas onab le doubt. The judge instructed the jury that the State m ust prove that the Defendant was at t he scene of thecri me when it was committed. The judge ha d also instructed the jury concerning t he law of crimi nal responsi bilit y for t he conduct of

another. W e believe that the t rial judge recognized the apparen t contradiction resulting from these pro pe r instruct ions and th at 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 r egarding the instructi ons. See State v. Woods , 764 S.W.2d 217, 218 (Ten n. Crim. App . 1988). We do not believe that theunderlined portion of the inst ruction had the effect of giving the jury an y impression as to the t rial j udge’s feel ings concerni ng the credibility of the wit nesses or the ev idence in t he case. This issu e is wit hout merit.

As his fina l issue, th e Def enda nt argu es tha t the trial ju dge e rred in instructi ng the ju ry concerni ng the meaning of “ reasonable doubt” because the instruct ion told the jury that “a bsolute cert ainty” is not required to convict. The court’s inst ruction on reasonable doubt was as foll ows:

A reasonable doubt

is a doubt bas ed up on reason and common sense after careful an d impartial considerati on of all the evi dence in the c ase. It’ s not necessa ry that the defen dant’s guilt be proven beyond all poss ible do ubt, as abso lu te c ertaint y of guil t is not demanded by the law to convict of any criminalcharge. A reaso nable doub t is just tha t, a dou bt that is reaso nable after an ex amination of all t he facts i n the case. If you find the State has not proven every ele me nt of the offen se beyo nd a rea sonab le doub t, then you sho uld find the defend ant not guilty.-8- The Defendant argues t hat by incl uding the “abs olute certaint y” language, the instruc tion co uld be cons trued a s the ju dge’s commenting upon the evidence in the case and als o dilute s the importance of the State’s burde n of pro ving gu ilt beyond a reaso nable d oubt.

We note that t he Defendant neit her objectedto this portion of the charg e nor requested ad ditiona l instruc tions c once rning th e me aning of “reas onab le doubt.” As the State poi nts out, t his Court has pr eviously examined a near identical charge con cerningreasonabl e doubt. While we expr ess ed s ome concerns regardin g the instru ction, we w ere una ble to con clude th at use of the instruct ion constitute d reversib le error. St ate v. Derek Denton , C.C.A. No. 02C01-9409-CR-00186, Shel by Co u nty, (Tenn. Crim. App., J ackson, Aug. 2, 1996). In the case sub judice , we also concl ude that thetrialjudge’s i nstructi on concerning reasonab le doubt doe s not constitute reve rsible error.
The judgment of the t rial cour t is af firmed.

___________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE