       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1997


STATE OF TENNESSEE,    )
                                                           FILED
                               C.C.A. NO. 02C01-9608-CC-00289
                       )                              October 13, 1997
    Appellee,          )
                       )                                   Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
                       )       TIPTON COUNTY
VS.                    )
                       )       HON. JOE H. WALKER
JAMES EARL SOMERVILLE, )       JUDGE
                       )
    Appe llant.        )       (Arson and Presenting Fraudulent
                       )       Insurance Claim)


             ON APPEAL 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 General and Reporter
Memphis, TN 38103
                               DARYL J. BRAND
                               Assistant Attorney General
                               425 5th Avenu e 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
                                       OPINION

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

one count of p resenting a false or fraudulent insurance claim 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 in Covington, Tennessee. In the arson charge, it was

alleged that the D efenda nt burne d his hou se withou t the cons ent of the bank

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

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 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 insuffic ient to s uppo rt the find ing of g uilt beyon d a rea sona ble

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

conce rning rea sonab le doub t.




1
    Tenn. Code Ann. §§ 39-14-301; 39-14-133.

                                               -2-
        We first address the issue of the sufficiency of the convicting evidence.2



        When an ac cuse d cha llenge s the s ufficiency of the convicting evidence,

the standard is whether, after reviewing the evid ence in the ligh t mos t favora ble

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

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 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

reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).



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

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 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. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493

S.W.2d at 476.




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.

                                                   -3-
      A crime ma y be established by circumstantial evid ence a lone. State v.

Tharpe, 726 S.W .2d 896 , 899-90 0 (Ten n. 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 coge nt as to exclude e very

other reaso 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). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference

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

470 S.W .2d at 613 .



      The Defen dant’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 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 give her

some money from the insuranc e proce eds. 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 helpe d one B obby S mith 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 bu t that he wa s paid to

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

trial the De fendan t came to him an d aske d him to c hange his testim ony.




                                          -4-
       Pearllie Lois Hoover testified that she was a neighbor who lived near the

house that bu rned. E arly 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.



       Cap tain Tommy Dunavent, the arson investigator for the Covington,

Tennessee fire department, was qualified as an expe rt 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 De fendant filed a claim with his insurance

company showing a los s totaling thirty-five thousand o ne hundre d 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 o n the in suran ce claim

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

not been fo r some period o f time. He testified regarding other discrepancies

between the items listed on the insurance claim form and the items destro yed in

the fire. This witness also testified that the Defendan t told him som e 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 wh en he m ade tha t stateme nt.




                                          -5-
      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 convic ting evidence, the Defendant

prima rily argues that the evidence is not sufficient because the jury should not

have believed the testimony presented by the State’s witnesses and shou ld have

believed the testimony of the Defe ndant’s g irlfriend who “furnished a legitima te

and believable alibi for the A ppellant.” 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, w ere resolved b y the jury against th e Defe ndant. As we ha ve

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

done s o. W e conclude that the evidence is sufficient to support the findings 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 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 g uilty unless you find the
      Defendant procured someone else to commit arson.


      The Defendant argues that the underlined portion of the above charge

amou nts to a direct co mm ent on the evidenc e by the jud ge and thus violates



                                          -6-
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

eleme nts of the offense beyond a reasonab le doubt. The judge instructed the

jury that the State m ust 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. W e believe that the trial

judge recognized the apparen t contradiction resulting from these proper

instructions and that 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 regarding the

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

W e 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 fina l issue, th e Def enda nt argu es tha t the trial ju dge e rred 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
               necessa ry that the defen dant’s guilt be proven beyond
               all poss ible do ubt, as abso lute certainty of guilt is not
               demanded by the law to convict of any criminal charge.
               A reaso nable doub t is just tha t, a dou bt that is
               reaso nable after an examination of all the facts in the
               case. If you find the State has not proven every
               element of the offen se beyo nd a rea sonab le doub t,
               then you sho uld find the defend ant not guilty.




                                           -7-
      The Defendant argues that by including the “abs olute certainty” language,

the instruc tion co uld be cons trued a s the ju dge’s commenting upon the evidence

in the case and also dilutes the importance of the State’s burde n of pro ving gu ilt

beyond a reaso nable d oubt.



      W e note that the Defendant neither objected to this portion of the charge

nor requested additiona l instruc tions c once rning th e me aning of “reas onab le

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

identical charge concerning reasonable doubt.         While we expressed some

concerns regardin g the instru ction, we w ere una ble to con clude th at use of the

instruction constitute d reversib le 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 reasonab le doubt doe s not constitute reve rsible error.



      The judgment of the trial court is affirmed.




                                  ___________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE

                                         -8-
