                                                                                         12/07/2018
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 22, 2018 Session

         STATE OF TENNESSEE v. REUBEN EUGENE MITCHELL

                  Appeal from the Criminal Court for Knox County
                         No. 102034    Steve Sword, Judge


                             No. E2017-01739-CCA-R3-CD


A Knox County jury convicted the Defendant, Reuben Eugene Mitchell, of arson and
filing a false insurance claim valued between $10,000 and $60,000, and the trial court
sentenced him to four years of probation. On appeal, the Defendant contends that the
evidence is insufficient to sustain his convictions. After review, we conclude that the
evidence is insufficient to sustain the Defendant’s conviction for filing a false insurance
claim, and we vacate the judgment and dismiss that charge. We affirm the Defendant’s
conviction for arson.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Vacated in Part and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, J., joined. JOHN EVERETT WILLIAMS, P.J., filed a separate opinion concurring
in part and dissenting in part.

Joshua Daniel Hedrick, Knoxville, Tennessee, for the appellant, Reuben Eugene
Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Katherine Casseley Redding,
Assistant Attorney General; Charme Prater Allen, District Attorney General; and William
Charles Bright and Andrea Andrews Kline, Assistant District Attorneys General, for the
appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

      This case arises from a fire that occurred on December 5, 2011, at a home where
the Defendant was living. In relation to this fire, a Knox County grand jury indicted the
Defendant on charges of arson and filing a false insurance claim valued over $60,000. At
a trial on the charges, the parties presented the following evidence: David Gray testified
that he was a fire adjuster for Allstate Insurance, and he would respond when a customer
had a fire in an attempt to determine its cause. The Defendant was one such customer,
and Mr. Gray met with the Defendant in in 2011 after receiving a call about a fire loss in
the home where the Defendant was living. The home was located on Holmouth Lane in
Knox County, Tennessee (“Holmouth House”).

       Mr. Gray identified several documents, one of which was an agreed order between
the Defendant and Bentley Street Christian Church (“BSCC”) entered into on October 26,
2011, which stated that the Holmouth House would be sold. The agreement articulated
that the Holmouth House had been the subject of litigation between the church and the
Defendant. As part of a settlement order, the house was to be sold after the parties agreed
on a realtor. The order also required that the Defendant immediately add BSCC as an
insured on the existing insurance policy and name BSCC as the mail recipient for any
checks collected under that policy. The order further contemplated that the Defendant
would pay $100 per month toward back property taxes and that he be permitted to reside
at the Holmouth House until it was sold, unless the property had not sold by April 30,
2012, at which time the Defendant would vacate the premises.

        The order further stated that, if the property did not sell by the April date, the
Clerk and Master would conduct a judicial sale. The proceeds from that sale would be
distributed as follows: All back taxes would be paid first; BSCC would be paid $35,000
plus $9,000 in legal fees for a total of $44,000; BSCC would be paid for any inspection
expenses or costs; David and Louise Moore would be paid the amount of their judgment
lien; the Defendant’s legal fees would be paid; and the remaining balance would go to the
Defendant.

       Mr. Gray identified the Defendant’s application for insurance with Allstate
Insurance for the Holmouth House. The Defendant applied for a homeowner’s policy
and requested that the policy be for the Defendant and Joyce Williams with no mention
of BSCC. The application also indicated that there were no dogs on the premises. The
application stated that the value of the house for insurance purposes was $173,854, the
outbuilding was to be insured for $17,385, and the personal property was to be insured
for $104,313. The premium on that policy was $2,026.79 per year, with an additional
$58 for liability coverage. The application indicated that the home had been purchased in
May 2009 for $150,000. The policy was to take effect November, 30, 2011, the same
day that the application had been made.

        Mr. Gray said that he responded to, on average, seventy calls per year regarding a
fire loss and that he generally met with the customer within forty-eight hours of their call
reporting the loss. Mr. Gray recalled that the Holmouth House was extensively damaged,
                                             2
which would have required gutting the living room back to the studs. Mr. Gray talked
with the Defendant who said that he had been living in the house and had a fire in the
fireplace. Shortly after starting the fire in the fireplace, he had to leave the house, which
was when the fire took place.

       Mr. Gray said he hired EFI Global, a company that specialized in determining the
cause and origin of fires. He said that Gary Young and Marvin Headrick from EFI
Global investigated this case, as they had many other fire cases in the past. Mr. Gray
stated that these investigators did not always determine that the cause of the fire was
arson.

        During cross-examination, Mr. Gray testified that an Allstate Agent would have
filled out the application for insurance and that the agent would have posed the relevant
questions to the Defendant. Mr. Gray was unsure who the agent was in this case, stating
that the application only listed the agent’s number and not their name. He further said
that the agent should have printed out the policy for the Defendant’s review. The
Defendant’s signature was not required on the policy because the Defendant also had an
automobile policy in place with Allstate.

        Mr. Gray agreed that, while the coverage for the house was $173,854, Allstate
would only pay the amount of the loss, not to exceed that amount. Allstate determined
that the replacement value of the home was $173,854 for insurance purposes.

        Mr. Gray testified that the policy required that the insured provide a signed and
sworn proof of loss within sixty days of the loss to be compensated pursuant to the
insurance policy. Mr. Gray said that he never personally received such a document. He
said that the file indicated that the Defendant received an advance payment of $1,000, but
this payment was not something that Mr. Gray was involved in. The documents indicated
that the advance was not considered a payment under any portion of the policy. Mr. Gray
said that, pursuant to the court order, the proceeds for a total loss would have been paid to
BSCC.

       During redirect examination, Mr. Gray testified that the application filed and
signed by the Defendant listed the Defendant as the beneficiary. According to Mr. Gray,
despite the court order, Allstate would have been contractually bound to pay the
Defendant, listed as the beneficiary, and not BSCC.

       Heather Stover testified that she was an insurance adjuster who handled large
losses. She investigated this case and explained that pursuant to the advance payment
agreement, her company offered people whom had suffered extensive fire damage to
their property an advance payment to cover immediate needs. In the Defendant’s case,
                                             3
the company began a cause and origin investigation, and it also determined that there
were no salvageable contents of his home. Ms. Stover met the Defendant at Walgreens,
his place of employment, on December 9, 2011, to give him the $1,000 advance payment.

       Ms. Stover testified that the case was transferred from her to the “Special
Investigations Unit” (“SIU”) for a more extensive investigation. Normally, a case would
be returned from SIU and the claim paid or denied. Ms. Stover said that, at this point,
everything had been done to start processing the insurance claim.

        During cross-examination, Ms. Stover agreed that the policy stated that the
advance payment was not a payment pursuant to any portion of the policy. She then
clarified that the payment was issued pursuant to the personal property coverage of the
Defendant’s policy, explaining “it’s an advance payment issued in good faith that
[Allstate] will pay the claim.” Ms. Stover agreed that Allstate created the form that said
that the payment was not considered a payment pursuant to the policy. She further
agreed that she never received any documentation from the Defendant, including a
signed, sworn proof of loss or a claim form.

       During redirect examination, Ms. Stover testified that the policy also read that, if
Allstate later determined that the claim was not valid, the insured would repay the
advance. She said that, had the claim been paid, Allstate would have transferred an
additional $29,000 to the Defendant.

        Marvin Wendell Headrick, an employee with EFI Global, testified that he assisted
in investigating fires by taking pictures, creating diagrams, and occasionally questioning
witnesses. Mr. Headrick recalled that, in 2010 and 2011, his boss, Mr. Young, was in
poor health. As a result of this, Mr. Headrick assisted Mr. Young and took a more active
role in investigations.

       Mr. Headrick recounted participating in the investigation in this case. He took
exterior photographs of the house to determine where the fire started, looked for signs of
forced entry, took a survey of the interior of the building, and attempted to reconstruct the
scene. Mr. Headrick said that he then cleared debris to determine the fire patterns in the
house and to determine the cause of the fire.

       Mr. Headrick identified Mr. Young’s official report on this fire, which the trial
court admitted into evidence. The report included an interview Mr. Young conducted
with the Defendant. During the interview, the Defendant told Mr. Young that the power
was off at the residence, so he started a fire in the fireplace with a starter log and then left
to go to his sister’s house, ensuring the house was locked before he left. The Defendant
said that the only people with keys to the residence were him, his girlfriend, and his
                                               4
sister. The Defendant said that there should have been no flammable liquids present in
the living area at the time of the fire. He reported that he was not a cigarette smoker and
that no smokers were in the residence before the fire. He said that his only enemies were
members of the church and that one of the deacons had previously been arrested for
breaking into the residence. The Defendant opined that a problem with the fireplace
caused the fire.

       Mr. Headrick said that Mr. Young’s report also included photographs. The trial
court admitted this report and the accompanying photographs into evidence. The
photographs showed that the living room suffered the most fire damage. Mr. Headrick
noted that the photographs showed that there was a couch in the living room that suffered
extensive fire damage and that sat in front of the fireplace, near which there was also
“deep charring” on the floor.

       Mr. Headrick identified a white substance on the walls near the fireplace. He said
the substance was soot from a “clean burn” and that it initially settled on the brick, and
then a high level of flames “impinged” the area so the flames burned the suet back off the
brick. This indicated that there was a large amount of flames in the area during the fire.
Mr. Headrick said that he found and photographed a “starter log” in the fireplace along
with other actual logs. He said that there was still bark on the logs in the fire and that
they were blackened from smoke but not heavily charred. The logs, which were
“naturally colored,” did not appear to have been burning for a sustained period of time or
impinged by flame. Some of the paper was still on the starter log, not having been
consumed by fire.

       Mr. Headrick identified photographs of a chair and ottoman that had been
positioned in the right hand corner of the living room. Near them, he also photographed a
heater that looked as if it had been plugged into the wall.

      Mr. Headrick took samples of wood and fabric, and placed them in cans to be sent
to Dennis Akin at AK Analytical for testing. Mr. Headrick created an “evidence
transmittal letter” as he was collecting the evidence to document where the evidence was
coming from.

      Mr. Headrick said he documented all the rooms in the house and that, while there
was smoke damage, the fire had not spread beyond the living room area. He noted fire
damage to the front door.

       During cross-examination, Mr. Headrick agreed that he only took one sample from
the floor and did not include samples from other parts of the home not involved in the
fire. Mr. Headrick agreed that the widely accepted fire guide, NFPA 921, said that
                                            5
comparison samples should be taken and were especially important in the collection of
material believed to contain a liquid or solid accelerant.

       Lance Newsome testified that he was a State Farm claim representative and that he
wrote estimates on repairs for structural damage, which are normally used to settle a
claim. Based upon his qualifications, the trial court declared him an expert for estimating
structural damage. Mr. Newsome said that there was a commercial policy on the
Holmouth House, which had been purchased and paid for by the BSCC, separate from
and unrelated to the Defendant’s Allstate insurance policy. His records indicated the
house suffered a loss on December 5, 2011, and Mr. Newsome inspected the house on
December 30, 2011. Mr. Newsome estimated the damage at $59,015.00 before materials,
tax, and contractor’s fee. With those amounts included, he estimated the total loss at
$72,356.85. Mr. Newsome said that the total amount State Farm paid on the claim was
$77,513.61. The amount paid the church was $58,015.00, because Mr. Newsome
withheld the $1,000 deductible in accordance with the policy.

        William Dennis McCain, a fire captain with the Knoxville Fire Department,
testified that he responded to the call about this fire and was first to the scene. He
recalled that the front door to the home was locked, so firefighters used a Halligan bar to
gain entry into the home. He confirmed that the heaviest part of the fire was inside the
home to the right of the front door. After extinguishing the fire, Captain McCain and
company searched for people and animals but found none.

        Darrell Whitaker, a Captain with the Knoxville Fire Department, testified that he
was an arson investigator and investigated this fire. He said that Captain Kincaid was the
first investigator on the scene and the lead investigator, but Captain Kincaid called for
assistance based upon the weather that evening. Captain Whitaker arrived at around 9:30
p.m., and fire department personnel were still present. They had extinguished the fire but
were ensuring that it stayed extinguished. Captain Kincaid and his K-9 officer were also
present.

        Captain Whitaker testified that he took photographs at the scene, including of the
wood in the fireplace, a portion of which was unburned. Captain Whitaker testified that,
while the hearth of the fireplace was warm to the touch, the firebrick surrounding the
wood portion of the fire was cool to the touch. The captain said that he found notable
that the back of the couch was severely damaged as a result of the fire while the front and
the arm of the couch were less damaged. This indicated that there was “a lot of fire” on
the back of the couch.

      Captain Whitaker said that he interviewed the Defendant on December 28, 2011,
provided him Miranda warnings, and audio recorded the interview. The Defendant told
                                            6
the captain that the church had given him the Holmouth House in exchange for work that
he had done on the church and another property. He began having problems with the
church’s deacons after the property value of the Holmouth House increased based upon
the work he had done on the house. The Defendant said he and his fiancé were seeking
financing so that he could make more improvements to the house and that, while he had
been turned down when applying alone, he was hopeful to get a loan with her as a co-
signatory. The Defendant said that two deacons broke into the house and took some of
his possessions, but the Defendant did not call the police because they returned his
possessions. After a second incident, however, where they took a realtor sign, the
deacons were charged with disturbing the peace. The Defendant told Captain Whitaker
that there was no power to the house because his power and water had been shut off in
mid-November for nonpayment. He explained that he had been paying his sister’s
utilities.

        During cross-examination, Captain Whitaker testified that the weather the night of
the fire was rainy. He further agreed that, while the Defendant had admitted that he was
struggling financially, a potential for profit was not proof in and of itself of arson.
Captain Whitaker agreed that, pursuant to the court order, the church would have only
received a total of $44,000. Because of the fire, the church received $59,000 in insurance
proceeds from State Farm, so the church received more than they would have if the house
had sold and not been damaged by fire. Captain Whitaker agreed that they had searched
the Defendant’s car and addresses associated with him, but he said that the search was not
related to the arson investigation and officers did not find anything that related to the
arson investigation.

        Captain Whitaker agreed that the neighbors called the fire department about this
fire at 9:30 p.m., but he was unsure how long the fire burned before the call came in. The
captain said that the fire burned to at least 800 degrees, as evidenced by the “calcination”
of the sheetrock in the home. The captain said that there was evidence that several areas
of the carpet were not burned during the fire. Captain Whitaker agreed that the backside
of the sofa facing the fireplace was more burned than the front of the sofa facing the
room. The captain identified pictures of the house, and he noted that there were two gas
cans depicted in a photograph of the garage. The captain agreed that the home was
furnished and that there were several televisions and other items in the home on the night
of the fire.

       During redirect examination, Captain Whitaker testified that law enforcement
seized the Defendant’s computer during one of their searches. He said that the
Defendant, who worked at Walgreens, did not have a reason to use his computer at work.
The captain said that, when he went through the Holmouth House, he found evidence that
pets lived there, such as dog food and batting for them to sleep on, but the dogs were
                                             7
chained up in the backyard.

        Dennis Akin, the owner of AK Analytical, testified as an expert in forensic
science, including the forensic chemistry of fire-related materials, that his company was a
forensic science consulting laboratory that mainly conducted the analysis of fire-related
substances. Mr. Akin testified that he received four, one-gallon metal cans from EFI
Global, who was investigating the fire in this case. The items in the containers included:
the baseboard under a window of the living room, fire debris and chair material, wood
from around the chair, wood flooring under the couch, and rug material. Mr. Akin
testified that he tested these items for an identifiable ignitable liquid. The sample of the
wood floor under the couch in front of the fireplace in the living room tested positive for
containing a highly aromatic medium petroleum distillate characteristic of paint thinners
and mineral spirits.

        During cross-examination, Mr. Akin agreed that floor stain contained mineral
spirits. He agreed that the identifiable ignitable liquid could have been consistent with
wood stain. He further agreed that there were no accelerants found on the chair, rug, or
baseboard.

       During redirect examination, Mr. Akin said that mineral spirits did not remain
indefinitely on a material and that the spirits would be present if the stain had been
applied a day or two earlier. He further stated that the entire floor, if stained at the same
time, would have the presence of mineral spirits and would burn at the same time.

       Ed Metts Hardy, with EFI Global, testified as an expert in the origin and cause of
fires. Mr. Hardy testified that originally he theorized that there could have been four
possible causes of this fire: electricity; anything associated with the space heater;
smoking; or an open flame and a flammable liquid like a mineral spirit. Mr. Hardy was
able to disprove electricity as the cause because there was no electricity to the house at
the time of the fire. He disproved the space heater as the cause because it was away from
the main source of the fire. He also disproved the fire being started by smoking because
the Defendant indicated he had not been smoking at the time of the fire. The remaining
theory was that the fire was set intentionally.

        Mr. Hardy tested this theory by examining the scene. He stated that the origin of
the fire was located between the fireplace and the back portion of the sofa. Based upon
the burn pattern, he determined that there was something that was “holding the flame
down on the floor.” He opined that this could have been the result of an ignitable fluid.
Mr. Hardy identified the irregular burn pattern documented in photographs and said that
an ignitable fluid could explain this pattern. He said that, therefore, he collected samples,
one of which returned as containing the ignitable fluid of “mineral spirits.” Mr. Hardy
                                             8
explained that mineral spirits were usually in liquid form and that the mineral spirits in
this case were in the area where the fire originated.

       Mr. Hardy testified that he examined the fireplace, which contained a kerosene
soaked log to be used as a fire starter. He said that the logs in the fireplace were not
burned. He said that the fire starter log was not burning at a high enough temperature to
bring the wood logs to “ignition temperature.” Mr. Hardy opined that it was not a spark
from the fireplace that caused the fire in this case.

       During cross-examination, Mr. Hardy testified that the industry of cause and
origin investigation was made more scientific with the advent of NFPA code, which was
the industry’s standard of care. Mr. Hardy explained the theory of “negative corpus,”
which included determining that a fire was set by arson when you can exclude accidental
causes, and he agreed that such a theory is rarely an acceptable theory. He expounded
that there are cases when “negative corpus” does not apply, such as when you can
formulate a hypothesis based upon the origin of the fire. Mr. Hardy agreed that he never
went to the scene of this fire, but based his findings on the evidence submitted to him.
He further agreed that the fire investigation did not occur until seven days after the fire.

        Mr. Hardy agreed that most of the area rug near the fire did not burn but that only
a portion near the back of the sofa burned. Mr. Hardy agreed that he could not be sure
that the mineral spirits were the first item to ignite in the house. He said that the mineral
spirits would have to be ignited by a fire source, such as an open flame, a lighter, or a
piece of paper on fire. Mr. Hardy agreed that the sample of the rug and baseboard did not
contain mineral spirits and that the floor was the only sample that did. He agreed that
mineral spirits is a substance consistent with wood stain for floors, but he explained that
mineral spirits usually “cure[] out” in about eight to sixteen hours. After the substance
was cured, ignitable vapors would not be present.

       Mr. Hardy testified that his investigation revealed that there were “trailers” in the
burn pattern, meaning points where an ignitable fluid went from point A to point B. He
said that there was also an irregular burn pattern. Both of these were consistent with an
intentionally set fire. Further consistent with an intentionally set fire was damage
inconsistent with the fuel load. He agreed that he did not find an incendiary device, such
as a match, but said that he did not expect to find it. He further noted that the finding of
an ignitable fluid supported the theory of an intentionally set fire. He agreed that there
were other indicators that did not favor an intentionally set fire, such as lack of excessive
fire growth, no sabotage to the structure, and no removal or replacement of contents
before the fire.

       Mr. Hardy agreed that there were no control samples taken of the floor. Mr.
                                             9
Hardy said that his information indicated that all the doors were locked when the fire
department arrived.

        During redirect examination, Mr. Hardy testified that during the Defendant’s
interview he told investigators that he, his girlfriend, and his sister were the only ones
with keys to the house. The Defendant further stated that he locked the home before he
left the evening of the fire. He further told investigators that there should have been no
flammable liquids present in the living room and that they all should have been in the
basement. The Defendant indicated that he was not a cigarette smoker and that no
cigarette smokers were in the residence before the fire. He said that his only enemies
were some of the church members from the BSCC and that one of the deacons there had
been arrested for breaking into his residence. The Defendant opined that the fire was
caused by a problem with the wood burning fireplace.

        Ruth Dover, the Defendant’s sister, testified that the Defendant helped her pay her
utilities, obtain her prescriptions, and supported her financially. She did not grasp the
financial repercussions of the Defendant’s assistance until she learned that his own
electricity had been shut off. Ms. Dover said that the Defendant had difficulties with the
church related to the house and was upset about losing his home. Ms. Dover agreed that
the Defendant loved his dogs and said that he would not have left them at a burning
house.

       The Defendant testified that he began living at the Holmouth House as part of an
agreement with the church that entailed that he would work on the church and the home
of one of the senior elders. At the time the Defendant took possession of the Holmouth
House, it was “a week away from being condemned” by the City and in need of repair.
The Defendant offered photographs of the Holmouth House before his repairs, saying
that he “completely gutted the house,” including removing dead animals, carcasses, and
feces. The Defendant said that he did all of the repairs himself, which included replacing
the drywall, replacing some of the subfloor, and scraping the popcorn ceilings. The
Defendant said that the last thing he did in the repairs was to refinish the floors. The
Defendant then offered photographs of the Holmouth House after his pre-fire repairs,
including before and after pictures of the kitchen repairs.

       The Defendant explained that he had put a lot of work and money into the house.
After the repairs were completed, he invited members of the church to see the finished
product. The church sold him the house for $35,000, and he estimated that it was worth
around $80,000 or $90,000 after the repairs were completed. After the church members
saw the Holmouth House repaired, they asked for the house back.

       The Defendant said that, based upon the church’s desire, litigation ensued. The
                                            10
parties came to an agreement under which the Holmouth House would be placed on the
market and that the first $44,000 would go to the church and any additional amount
would go to the Defendant. The Defendant said that he had expected to receive
approximately $36,000 upon the sale of the house. He said that there was another nearby
house for sale for $12,000, and he intended to purchase that house and similarly repair it
for resale.

        The Defendant said that he did not read the agreement or the court order. He
operated under the assumption that any money received under any insurance policy
would go to the church. The Defendant recounted that, according to the agreement, he
did not have to pay rent while he lived in the home, and he could stay in the home until it
sold or until April 2012. At the time of the fire, he still had four months left to live in the
home rent free. He further said that he was “[v]ery confident” that the house would sell
in that time frame.

       The Defendant testified that on November 30, 2011, he got a new insurance policy
with Allstate on the Holmouth House. The insurance policy that he had prior to the
Allstate policy was through Progressive Insurance. Under the Progressive policy, the
home was insured for $239,000, and under the Allstate policy the home was insured for
$173,000. The Defendant explained that he changed policies because the Allstate policy
was “way less expensive” than the Progressive policy.

       The Defendant testified about his sister’s health around the time of the fire. He
said that she had been diagnosed with a rare form of cancer which had a 5% survivability
rate. This diagnosis caused her both physical and financial difficulties. The Defendant,
who worked at Walgreens at the time, began assisting his sister financially which strained
him financially. He paid for her medication which caused him to get behind on his bills.
The electric company shut off the electricity to the Holmouth House.

       The Defendant explained that he used his fireplace to heat his home. Initially, he
had the sofa oriented to face the fireplace, then it would get too hot, so he turned the back
of the sofa to the fireplace and the temperature was “perfect.” He explained that he kept
the sofa close to the fireplace so that he could stay warm. The Defendant said he did not
live with his sister because of pride. He had kept from his sister that his electricity had
been shut off.

       The Defendant testified about the day of the fire, saying that he had worked at
Walgreens all day that day. When he got off of work, he got some kindling from a Pilot
gas station and a burger from Burger King. The Defendant then went and got jugs of
water and went to the Holmouth House. When he got to the house, he let the dogs out
and then he started a fire with the kindling and the fire starter log. He placed a “starter
                                              11
gel” on the fire to get it going. The Defendant said that he received a call from his niece
who was “hysterical.” She said that his sister was “not responding [and] didn’t seem to
be breathing.” The Defendant said he went into “panic mode,” and grabbed some wet
logs from the back porch and threw them into the fireplace and went out the door. The
wet logs appeared to put out the fire, so the Defendant got into his car and left the
Holmouth House.

        The Defendant said his routine included leaving the back door and the garage door
unlocked. The garage door had to be manually rolled up and down because of the lack of
electricity, so it was not locked. The Defendant said that he left the Holmouth House in a
hurry so he was unsure whether the fire was extinguished, the doors were locked, and he
left the dogs outside. The Defendant said he was still in his work clothing when he left
the house. He did not take anything with him. In his car was his laptop that he used for
school, which he took with him to work since he did not have electricity at home to
charge it.

       The Defendant said that, when he arrived at his sister’s house, the ambulance was
there. She was not responsive, and emergency personnel were putting an IV into her arm.
The Defendant said that he followed the ambulance to the hospital, and he did not leave
the hospital until the next morning. Doctors determined that the Defendant’s sister had
suffered an allergic reaction to some of the chemotherapy medicine.

       The Defendant said that he left the hospital and went home where he found the
windows burst out, the AC unit sitting on the driveway, and the burned furniture sitting
outside. At first, he thought that someone had broken into his home but then he realized
that there had been a fire, so he called the fire department. The Defendant said that he
did not set his house on fire and he did not fill out forms with Allstate claiming the loss.
The Defendant said that he had called Allstate to report that there had been a fire, but he
never filled out a sworn statement, filed a list of property that was lost, or initiated a
claim.

       During cross-examination, the Defendant testified that he began fixing the
Holmouth House in May 2009 and that it took approximately two-and-a-half to three
years to complete the renovations. During renovations, the Defendant was a tenant in the
house. The Defendant testified that, for a short period of time, between two and four
months, another tenant lived in the home.

      The Defendant said that he obtained an insurance policy through Progressive for
the Holmouth House in August 2011. He said that this was before he and the church
engaged in litigation and that, prior to that, the church carried the insurance on the house.
The Defendant said that he refinished the floors in November 2011 and that, while it was
                                             12
expensive, he obtained the materials from the Habitat for Humanity store.

       The Defendant agreed that he had tried unsuccessfully to get a loan to keep the
Holmouth House. He said the church had given him the house in exchange for work he
had done, and he did not think they were entitled to have the house back. The Defendant
said, however, he was happy with the agreement that he and the church entered into about
the house. The Defendant said that he was unaware that the lawyer representing him in
the civil case had filed a motion to withdraw as counsel based upon the Defendant’s not
paying him. The Defendant agreed that he was struggling financially at the time but that
he and the elders of the church came to an amicable agreement about selling the house.
The Defendant agreed that he did not comply with the agreement that required him to put
the church on the insurance policy. He explained that, after the parties entered into this
agreement, they went back to the church and had a meeting and prayed. During the
meeting, the elders told him that they already had a State Farm Insurance policy on the
house and that, since they knew the Defendant was struggling financially, that he did not
have to purchase another insurance policy.

       The Defendant said that the agreement also included that he would keep the home
in showable condition, and he said that this was the reason that he put the final coat of
finish on the floors. He listed the Holmouth House with his then fiancé, and then he
obtained an insurance policy through Allstate. He said that the new policy cost him
“[h]undreds of dollars” less than the Progressive policy.

        The Defendant testified that, after the fire, he called Allstate and informed them of
the fire and to report the loss. He said he did this with the intent to start the process of
filing a claim. The Defendant said Mr. Young called him and told him that he needed to
get the Defendant’s statement before Allstate filed a claim. The Defendant spoke with
him and gave him a statement. He recalled that someone from Allstate met with him and
gave him a check for $1,000.

       The Defendant said that the position of the couch in relation to the fireplace had
not caused him any concern. He said the couch had been in that position for some time,
as it was oriented to face the television, when the electricity was on. The Defendant said
that he put the final coat of polyurethane on the floors in November before this fire.

       The Defendant agreed that, after he got the call about his sister, he tried to put the
fire out with some wet logs. He said he did not put the fire screen in front of the fire, in
part because its legs were broken. The Defendant said that multiple people had keys to
the house, including members of the church. The Defendant agreed that he left the door
to his home unlocked, but he said that he had adopted a large, territorial dog, and he felt
that took care of the issue.
                                             13
        During redirect, the Defendant said that his lawyer’s motion to withdraw was
entered October 17, 2011, but that his lawyer still represented him at the October 26,
2011, mediation where the Defendant and the church entered into an agreement. The
agreement contemplated that they would have a meeting to discuss the purchase price of
the Holmouth House. It was at this meeting that he discussed the insurance policy with
the elders. The Defendant said that when he was asked about flammable liquids in the
living room he assumed the investigator meant gas or gas cans, which he kept downstairs.
He was thinking about actual liquids themselves and did not think about old floor stain.

        Based upon this evidence, the jury convicted the Defendant of arson and filing a
false insurance claim valued between $10,000 and $60,000, and the trial court sentenced
him to four years of probation. It is from this judgment that the Defendant now appeals.

                                      II. Analysis

       On appeal, the Defendant contends that the evidence is insufficient to sustain his
convictions. He first contends that there was no evidence that he filed a false or
fraudulent insurance claim because there was no proof that he filed a claim. He next
contends that the evidence is insufficient to prove that he committed arson because he
was not the only one who stood to gain from the fire, the burn pattern does not prove
arson, and the presence of wood stain in a hardwood floor is inconsequential without a
control sample.

       When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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) (emphasis in
original); see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
1990)). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313
S.W.2d 451, 457 (Tenn. 1958)). “The standard of review [for sufficiency of the
evidence] ‘is the same whether the conviction is based upon direct or circumstantial
                                           14
evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
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.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “‘A guilty verdict by the jury, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts in favor of the
theory of the State.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court
stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This court must afford the State the “‘strongest legitimate view
of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775
(quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt
against a defendant removes the presumption of innocence and raises a presumption of
guilt, the convicted criminal defendant bears the burden of showing that the evidence was
legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-
58 (Tenn. 2000).

                             A. Filing a False Insurance Claim

         The Defendant contends that the evidence is insufficient to sustain his conviction
for filing a false insurance claim valued between $10,000 and $60,000 because there was
insufficient proof that he filed a claim. He notes that, pursuant to the insurance policy, in
order to file a claim, Allstate required that he report the loss immediately, give a detailed
list of the damaged or destroyed property, and sign a sworn proof of loss statement within
                                             15
sixty days. The Defendant asserts that there was no proof that he gave a detailed list of
damaged or destroyed property and that there was no proof that he provided a signed,
sworn proof of loss within sixty days. The State counters that the evidence is sufficient
to support the conviction because everything was done to start the claims process before
it went to the SIU for investigation. It further notes that the Defendant accepted $1,000
pursuant to the insurance policy. We agree with the Defendant.

      The statute criminalizing insurance fraud reads:

             Any person who intentionally presents or causes to be presented a
      false or fraudulent claim, or any proof in support of such claim, for the
      payment of a loss, or other benefits, upon any contract of insurance
      coverage, or automobile comprehensive or collision insurance, or certificate
      of such insurance or prepares, makes or subscribes to a false or fraudulent
      account, certificate, affidavit or proof of loss, or other documents or
      writing, with intent that the same may be presented or used in support of
      such claim, is punished as in the case of theft.

T.C.A. § 39-14-133 (2014).

       The Defendant legally, and under the policy, did not initiate a claim because he
did not file the necessary and required documentation pursuant to the policy, including a
proof of loss, in the requisite time period. In past cases, the Tennessee Court of Appeals
has affirmed the denial of a claim where the insureds did not comply with the requisite
contractual agreements. That Court has stated:

             It is established that notice provisions of an insurance policy are
      valid conditions precedent to coverage, and in the absence of notice as
      required no coverage is afforded even though (1) the policy does not
      contain a forfeiture claim, and (2) the insurer had not been prejudiced by
      the delay in notice.

Tennessee Farmers Mut. Ins. Co. v. Nee, 643 S.W.2d 673, 675 (Tenn. Ct. App. 1982). In
fact, Allstate has relied upon these provisions to deny coverage to insureds who did not
comply with the notice provisions. Allstate Ins. Co. v. Wilson, 856 S.W.2d 706, 709
(Tenn. Ct. App. 1992).

      The insurance policy in the case under submission required:

      3. What You Must Do After a Loss
      In the event of a loss to any property that may be covered by this policy, you must:
                                           16
          a) immediately give us or our agent notice. . . . .
          ....

              g) within 60 days after the loss, give us a signed, sworn proof of the
       loss. This statement must include the following information:
              1) the date, time, location and cause of the loss;
              2) the interest insured persons and others have in the
              property, including any encumbrances;
              3) the actual cash value and amount of loss for each item
              damaged, destroyed or stolen;
              4) any other insurance that may cover the loss;
              5) any changes in title, use, occupancy or possession of the
              property that have occurred during the policy period;
              6) at our request, the specifications of any damaged building
              structure or other structure; . . . .

(emphasis in original). The policy goes on to state: “We have no duty to provide
coverage under this section if you, an insured person, or a representative of either fail to
comply with items a) through g) above, and this failure to comply is prejudicial to us.”

        We conclude that the Defendant in this case did not meet the conditions precedent
to filing a claim. While the Defendant made Allstate aware that there had been a fire, he
did not file any documentation to support his filing of a claim or for the initiation of a
claim. Further, he did not comply with the requirements for filing a claim because he did
not file a proof of loss. For the same reasons that Allstate could have denied the
Defendant coverage for not adequately filing a claim, we conclude that the evidence is
insufficient to support that he fraudulently filed an insurance claim against Allstate.

       Further, while it is true that Allstate advanced the Defendant $1,000 in good faith,
the agreement signed by both the parties clearly states that “if it is determined that any
part of the policy or the claim is not valid, and no payment is due, [the Defendant] will
repay the advance to [Allstate] in full.” By the plain language of the agreement the
$1,000 is an advance, and not part of the coverage pursuant to the policy. The contract
signed by the parties gives Allstate the right to pursue the return of the $1,000 in the
event that the Defendant is not entitled to coverage under the policy.

       Because we have determined that the evidence is insufficient to support the
Defendant’s conviction for false or fraudulent insurance claim, we reverse that conviction
and dismiss the charge. The trial court sentenced the Defendant to concurrent sentencing,
and thus his sentence of four years of probation is unchanged.

                                            17
                                          B. Arson

        The Defendant contends that the evidence is insufficient to sustain his conviction
for arson because he was not the only one who stood to gain from the fire, the burn
pattern did not prove arson, and the presence of mineral spirits on a portion of the
hardwood floor was inconsequential without a comparison sample. The State counters
that the record is sufficient to support his conviction. We agree with the State.

       As it relates to the present case, a person commits arson who “knowingly damages
any structure by means of a fire or explosion” and “[w]ithout the consent of the persons
who have a possessory, proprietary or security interest therein.” T.C.A. § 39-14-
301(a)(1).

        The evidence, viewed in the light most favorable to the State, proved that the
Defendant and the church had argued over possession of his home and had recently
entered into a agreement wherein the Defendant would have to sell the house and might
recover some profit depending on the amount received for the sale of the home.
Thereafter, the Defendant obtained an insurance policy which did not list the church as
the beneficiary as required by the settlement agreement. The Defendant went to the
Holmouth House after work on December 5, 2011. He placed wood, a fire starter, and a
fire starting gel in his fireplace. The Defendant placed his dogs, usually kept inside,
outside the home, locked both the front and the back doors, and left. Investigators found
the wood in the fireplace unburned and the firebox cool to the touch. Behind the
Defendant’s couch, investigators found a flammable liquid on the hardwood floor.
Experts testified that mineral spirits cured out of hardwood in hours after the wood was
treated. The flammable liquid created a burn pattern indicative of arson. Further, there
was deep charring on the floor by the fireplace and the back of the sofa indicating that the
area with the flammable liquid was where the fire originated. Investigators eliminated
electricity, smoking and weather as a cause of the ignition of the flammable liquid.
Based upon this evidence, a rational jury could conclude that the Defendant committed
arson.

                                     III. Conclusion

      In accordance with the foregoing reasoning and authorities, we vacate Defendant’s
conviction for filing a false insurance claim and dismiss that charge. We affirm the
Defendant’s conviction for arson.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE

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