            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                          APRIL 1998 SESSION
                                                   FILED
                                                       July 2, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
                                          §
STATE OF TENNESSEE ,
          APPELLEE
                                  §
VS.                                      C.C.A. No. 01C01-9705-CC-00195
                                  §      LEWIS COUNTY
                                         HONORABLE CORNELIA CLARK
LARRY FRANKS AND                  §
WILLIAM TURNER
         APPELLANTS               §      (INSURANCE FRAUD)




FOR THE APPELLANT                        FOR THE APPELLEE

Bobby McGee                              John Knox Walkup
Attorney at law                          Attorney General and Reporter
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 Attorney General
                                         425 Fifth A venue, N orth
                                         Nashville, TN 378243

                                         Joseph D. Baugh
                                         District Attorney General

                                         Donald W. Schwendiman
                                         Assistant District Attorney General
                                         Hohenwald, TN
                                           –––––




OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                                  OPINION

      The defendants, Larry Franks and William Turner, were found

guilty of insurance fraud in violation of Tenn. Code Ann. § 39-14-133 by

a Lewis County jury. Following the over-ruling of a motion for a new

trial, the trial court sentenced the defendant, Franks, to three (3) years in

the Department of Correction and a fine of $2,500. Franks was placed on

probation for four (4) years and as a condition of probation was ordered to

serve 45 days, day for day. The defendant, Turner, received a sentence of

two (2) years in the Department of Correction and a fine of $1,200.

Turner was placed on a three (3) year probation term and was ordered to

serve 25 days, day for day. In this appeal of right, the appellants raise the

following issues:

                    1. Whether the evidence adduced at trial was
      sufficient to find the defendants guilty of violating Tenn. Code
      Ann.
      § 39-14-133 beyond a reasonable 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 trial court erred in not granting
      defendants a motion for a new trial because the verdicts were
      inconsistent.

      After a review of the record and the applicable law, we affirm the

judgment of the trial court.

                                Background

      In count one of indictment no. 5625 the defendants, Larry Franks

and William Turner, were indicted by the Lewis County Grand Jury of

presenting a false or fraudulent claim, in December, 1995, in an amount of

$1,000 but less than $10,000 on a contract of insurance between Larry
Franks DBA Kwik Lube and the Hohenwald Insurance Agency and

Hauler’s Insurance Company. In count two, the indictment alleges that

Larry Franks and Margaret Bailey, in December, 1995, presented a false or

fraudulent claim on a contract of insurance between Larry Franks DBA A-

1 Performance and Hohenwald Insurance Agency and Hauler’s Insurance

Company in the amount of $1,000, but less than $10,000.

      The evidence at trial established that in December, 1995, 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 the Hauler Insurance Company of

Columbia, Tennessee, issued by the Hohenwald Insurance Agency. Also,

Larry Franks and William Turner were operating Kar-Mart, a car lot, on

the same premises. This business was insured with the same insurance

agency. On December 20, 1995, the defendant Franks called the

Hohenwald Insurance Agency and reported a burglary of his office and the

theft of his truck. At a later date the defendant Franks 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 State, informed the jury that he

and his uncle, Tim Fisher, drove to Hohenwald from Lawrence County on

the night of December 19th and the early morning of December 20th,

1995, to commit a burglary. Odem admitted to breaking into the business

of Kwik Lube, A-1 Performance, and Kar-Mart. From the office of Kwik

Lube, Odem stole a 20.20 rifle with scope, a camera, a phone and some
cash from a desk drawer. After placing these items outside, Odem broke

into the garage (A-1 Performance). From the garage office, Odem took a

little bit of cash, a Holly carburetor, 8 in-take 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 offense.

         Since his uncle failed to reappear, Odem returned to the scene of his

first entry and obtained a set of keys to some U-Haul trucks in 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 were taken to Odem’s home and

the rest were left in the truck. After Odem’s arrest, he gave a written

statement of the burglary and assisted the Hohenwald Police Department

in recovering the stolen 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 ½" drive socket set (Snap-On brand) valued at $1,205.40. A-1

Performance’s loss was $7,598.26. Franks and Turner, in behalf of Kar-

Mart tendered a list of three stolen items, a Honda generator ($1,429), a

Snap-On battery charger ($3,74.95), and a sand bag ($25.99) for scoping a

rifle.

         The items stolen by Ricky Odem and recovered by the Hohenwald

Police are:

                                   Kar-Mart
                      22 interarm caliber rifle with scope
                           A-1 Performance
                   6 Wyman aluminum intake manifolds
                         1 transmission cooler

                                Kwik Lube
                        Colt mustang 380 blue pistol
                          RL 38 caliber revolver
                            3 aluminum intakes

        Also recovered was a camera and an AT&T phone.

        On December 20, 1995, Sgt. Greg Wise, Investigator for the

Hohenwald Police Department, interviewed the defendant, Franks, and

verified a burglary had occurred at these premises. Franks and Ms.

Margaret Bailey, an employee, advised Sgt. Wise what was missing--some

cash, phone, rifle, pistols, etc. Ricky Odem was arrested December 28,

1995. On December 29, 1995, Sgt. Wise obtained a copy of the two lists

of stolen items submitted by the defendants to the Hohenwald Insurance

Agency. On December 29th, Sgt. Wise specifically questioned Franks and

Ms. Bailey about the camera on the insurance list valued at $307.66.

Franks stated he bought the camera, a Pentax, with cash and it had no

serial number. Although he and Ms. Bailey stated the camera was used in

the business, they had no receipts to support the purchase of this business

item.

        Also, on December 20, 1995, Sgt. Wise talked to the defendant,

William Turner, about the burglary. Turner never complained about any

Snap-On tools being taken in this burglary. On the 29th, while talking to

Larry Franks, Sgt. Wise inquired about the ½" socket set of Snap-On tools

on the insurance list. Franks advised Sgt. Wise the tools belonged to

Turner. Subsequently Sgt. Wise talked to Turner, showed him the

insurance list, and inquired about the socket set. Turner became nervous
and agitated. Sgt. Wise asked Turner where and when he bought the set,

but Turner would try to change the subject. Finally, Turner stated that he

purchased the set from a Snap-On dealer in Lexington, Kentucky, a year

earlier. Sgt. Wise advised Turner he would contact Snap-On and verify the

sale in Lexington. At 5:00 PM on December 29th, Turner appeared at the

Hohenwald Police Department and after being advised of his rights, said

he had had a change of mind as to of how he obtained the Snap-On tools.

Turner stated that he had bought the tools from an individual he did not

know and it was not a full set of tools. Turner advised Sgt. Wise he and

Franks came up with the value of $1,200 for the tools.

      On January 24, 1996, Sgt. Wise reinterviewed Franks and Franks

informed Sgt. Wise that he had a couple of more items to report missing

and a couple of items he had found since the break-in.

      The total value of items taken by Ricky Odem from Kwik Lube 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 company of stolen items were valued at $15,000.00

      It is obvious from the record the defendants vigorously attempted to

establish that no witnesses had personal knowledge that any of the

property claimed on the proofs of loss of the businesses did not exist

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 jury found the defendants,

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 defendants, Larry Franks and
Margaret Bailey were found not guilty.

                          Sufficiency of Evidence

      When reviewing a trial court’s judgment, the appellate court 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 find the defendant or defendants guilty beyond a reasonable

doubt. Tenn. R. App. P. 13 (e). State v. Tuggle, 639 S.W.2d 913 (Tenn.

1982). State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

Initially, a defendant is cloaked with the presumption of innocence. State

v. Tuggle, at 914. However, a jury conviction removes the presumption of

innocence and replaces it with one of guilt, so that on appeal a convicted

defendant has the burden of demonstrating that the evidence is

insufficient. Id. In determining the sufficiency of evidence, this court

does not reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.

2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all legitimate or reasonable inferences

which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). It is the appellate court’s duty to affirm the conviction if the

evidence viewed under these standards was sufficient for any rational trier

of fact to have found the essential elements 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). This rule is applicable to

findings of guilt predicated upon direct evidence, circumstantial evidence,

or a combination of both direct and circumstantial evidence. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
      In their first issue, the defendants contend the convictions in count

one were predicated solely upon conjecture, guess and speculation and

that the evidence was not sufficient to support their convictions. In

support of this claim, the defendants argue 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 defendants. Also, the jury could

not have given any weight or credence to Ricky Odem’s testimony since

they (jury) found the defendant, Larry Franks, not guilty in count two.

      The weight and credibility of the witnesses’ testimony are matters

entrusted exclusively to the jury as the trier of fact. State v. Sheffield, 676

S.W.2d 542 (Tenn. 1984) at 547. Franks presented a claim 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 obviously accredited his 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 defendant, William Turner, owned the ½” Snap-On

socket set, it was reported stolen on Franks’ claim of loss. Based on

Turner’s different statements about the purchase and value of the socket

set, a jury could certainly conclude that both were criminally responsible

for submitting a fraudulent claim. Therefore, the evidence is more than
sufficient to support the jury’s verdict that the defendants intentionally

presented, or caused to be presented, a false or fraudulent claim for the

payment of loss upon a contract of insurance coverage, or prepared a false

or fraudulent account with the intent that the same be presented or used in

support of such claim, for an amount over $1,000, but less then $10,000.

There is no merit to defendants’ first issue. It is dismissed.

      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 witnesses could not say the defendants did

not own or possess the equipment submitted to the insurance company, the

defendants argue that no fair market values were established beyond a

reasonable doubt. However, the defendants do concede that witness Ricky

Odem, testified he took approximately $400 in cash. The State

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 individual values of each stolen item.

The trial court in its charge instructed the jury they must determine the

range of value of the property claimed to be stolen from the defendants 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 less

than $1,000 or at $500 or less. The jury, by its verdict, was satisfied that

the State provided sufficient evidence to fix the value at more than $1,000

and this Court believes that there was sufficient evidence for the jury to so

conclude. Defendants’ second issue is without merit and is dismissed.

      In issue three the defendants complain the trial court was in error for
failing to grant a new trial because the verdicts were inconsistent. The

defendants contend that the jury in finding Franks and Bailey not guilty in

count two of the indictment could not have believed the testimony of

Ricky Odem as the facts in count one. Unfortunately 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 are inconsistent. The trial court in ruling on the merits of

the motion for new trial on this issue stated:

                   “Secondly, as to each individual, Mr. McGee has
      made an interesting and well thought out argument about the
      inconsistencies of the verdicts in Count 1 and Count 2. Each
      of them charged, essentially, the same offense, but as to the
      two different business operations that existed in these
      combined quarters. Particularly as to Mr. Franks, I guess, 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 don’t believe him in Count 1, that you
      should not believe him in Count 2 either. I’m not sure that
      works quite as well for the co-defendant.

                    But, once again, it is my judgment that the
      motions must be denied on this ground, because I don’t find
      them to be automatically inconsistent. And 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 items, there was more 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 may 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 decision. In Wiggins v. State, 498 S.W.2d 32 (Tenn. 1973),

the Supreme Court stated as to inconsistent verdicts in a case involving

different verdicts for petit larceny and concealing stolen property:

                    “But, as the instant factual situation is unique,
      and so that there can be no question as regards the subject, we
      specifically adopt the reasoning and result of Dunn v. United
      States 52 S.Ct. 189 (1932). Consistency in verdicts for
      multiple count indictments is unnecessary as each count is a
      separate indictment. Therein lies the essential reasoning. An
      acquittal on one count cannot be considered res judicata to
      another count even though both counts stem from the same
      criminal transaction. This Court will not upset a seemingly
      inconsistent verdict by speculating as to the jury’s reasoning
      if we are satisfied that the evidence establishes guilt of the
      other offense upon which the conviction was returned”.

See State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992); State

v. Tony Scott Walker, No. 02C01-9704-CC-00147 at Jackson, filed

December 3, 1997, Judge David G. Hayes.

      We find the trial court’s analysis correct and the judgments of

conviction for both defendants are affirmed.



                                      _________________________
                                      L. T. Lafferty, Special Judge

CONCUR:

__________________________
Gary R. Wade, Presiding Judge

__________________________
Thomas T. Woodall, Judge
