           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                                  AT KNOXVILLE                    June 22, 1999

                                                                Cecil Crowson, Jr.
                             APRIL 1999 SESSION                Appellate C ourt
                                                                   Clerk



STATE OF TENNESSEE,                    )
                                       )    NO. 03C01-9707-CR-00290
      Appellee,                        )
                                       )    HAMILTON COUNTY
VS.                                    )
                                       )    HON. DOUGLAS A. MEYER,
WILLIAM E. GOTHARD III,                )    JUDGE
                                       )
      Appellant.                       )
                                       )    (Arson of Personal Property;
                                       )    Fraudulent Insurance Claim)



FOR THE APPELLANT:                          FOR THE APPELLEE:

ARDENA J. GARTH                             PAUL G. SUMMERS
(On Appeal)                                 Attorney General and Reporter
District Public Defender
                                            ERIK W. DAAB
DONNA ROBINSON MILLER                       Assistant Attorney General
(On Appeal)                                 Cordell Hull Building, 2nd Floor
Assistant Dist. Public Defender             425 Fifth Avenue North
701 Cherry Street, Ste. 300                 Nashville, TN 37243-0493
Chattanooga, TN 37402-1910
                                            WILLIAM H. COX III
A. CHRISTIAN LANIER III                     District Attorney General
(At Trial)
Lindsay Street, Ste. 150                    C. LELAND DAVIS
Chattanooga, TN 37403-3457                  CALDWELL HUCKABAY
                                            Assistant District Attorneys
                                            General
                                            600 Market Street, Ste. 310
                                            Chattanooga, TN 37402




OPINION FILED:



AFFIRMED IN PART; MODIFIED IN PART; REMANDED



JOE G. RILEY,
JUDGE
                                    OPINION


       Defendant, William E. Gothard III, was convicted by a Hamilton County jury of

the offenses of arson of personal property, a Class E felony, and filing a fraudulent

insurance claim over $10,000 in value, a Class C felony. He also pled nolo

contendere to the offense of failing to appear, a Class E felony. The trial court

sentenced the defendant to concurrent terms of one and four years for arson of

personal property and filing a fraudulent claim, respectively, and one year

consecutive for failure to appear. In this appeal the defendant presents the following

issues:

              1. whether the evidence is sufficient to support the
                 convictions;

              2. whether the trial court erred by excluding testimony
                 relating to an alleged bribe of a witness and other
                 impeachment testimony;

              3. whether the trial judge and prosecutor committed
                 misconduct so as to deprive the defendant of a fair
                 trial; and

              4. whether the defendant was properly sentenced.

After a careful review of the record, we conclude that the conviction for filing a

fraudulent insurance claim over $10,000 must be MODIFIED to filing a fraudulent

insurance claim over the value of $1,000 and the sentence reduced accordingly. The

case must also be REMANDED to correct a clerical error. In all other respects, the

judgment of the trial court is AFFIRMED.



                                       FACTS



       Defendant was the owner of a 1983 Bluebird school bus and was under

contract with Hamilton County to provide transportation services for students. On

September 29, 1995, the bus was extensively damaged as a result of a fire. The

defendant contended that the fire started as a result of a transmission fluid leak. He

filed an insurance claim with State Farm for the “value of bus.” A specific monetary

amount was not set forth on the affidavit relating to the vehicle fire.


                                           2
       The fire occurred while the bus was on a public road.       Representatives of the

fire department and Hamilton County Sheriff’s Department discovered a puddle of

transmission fluid approximately 100 feet from the location of the bus. Burned paper

debris was discovered near the fluid, indicating an intentional attempt to set fire to the

fluid. Two empty transmission fluid bottles were discovered just across a fence

approximately 25 feet from the fluid. Similar bottles of transmission fluid were found

in the bus.

       The fire department chief, arson investigator for the Sheriff’s Department, as

well as an independent fire investigator retained by State Farm, all reached the same

conclusion. The origin of the fire was in the front passenger compartment of the bus

at floor level. All three agreed the fire did not start within the engine compartment or

on the underside of the bus as contended by the defendant. The independent fire

investigator testified the fire was of “incendiary” origin, meaning that it was

intentionally set.   Photographs of the damaged school bus corroborate their

testimony.

       An investigator from State Farm testified that the defendant made a claim for

the value of the bus. The investigator further testified that the defendant “[i]n his

examination under oath, he -- I don’t have a copy of that at hand. He claimed

between [$25,000] and $30,000 I believe at one time.” The investigator further

testified that he determined the fair market value of the bus in good condition to be

just under $7,400. Due to the investigation indicating arson, State Farm made no

offer of payment on the claim.

       Several acquaintances of the defendant, including three fellow bus drivers,

testified on behalf of the defendant. Each indicated they had seen the bus emit

considerable smoke at some time prior to the fire. Two of the witnesses testified they

had also seen a flame or flash just prior to the fire. The defendant did not testify.

       Based upon the testimony, the jury convicted the defendant of arson of

personal property, a Class E felony, and filing a fraudulent insurance claim over the

value of $10,000, a Class C felony. This appeal followed.




                                            3
                         SUFFICIENCY OF THE EVIDENCE



       Defendant contends the evidence is insufficient to support the convictions.

Although we agree the evidence is insufficient to classify the fraudulent claim as

exceeding $10,000, we reject defendant’s contentions in all other respects.

       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts

in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may

be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Moreover, a guilty verdict removes the presumption of innocence which the appellant

enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate court is whether, after viewing the evidence in the light most favorable to

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

the crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v.

Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the

witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact.

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d

1, 19 (Tenn. Crim. App. 1996).

       This Court must review the evidence in a light most favorable to the state. The

state’s evidence was that the fire was intentionally set in the front passenger

compartment on the floor. The circumstantial evidence corroborated this theory.

Transmission fluid with burned paper debris was found near the bus. Two empty

bottles of transmission fluid were found nearby. A visual examination of the bus




                                           4
reveals that the fire was not on the underside of the bus.           The state further

established that the defendant filed an insurance claim based upon the fire.

       It was for the jury to determine the credibility of the witnesses. The jury

obviously determined that the defendant intentionally set the fire and sought

insurance benefits.     The evidence was more than sufficient to support this

determination.

       However, we conclude the evidence is not sufficient to support the

classification of the fraudulent insurance claim in an amount over $10,000. The filing

of a fraudulent insurance claim falls under the statutes relating to theft and “is

punished as in the case of theft.” Tenn. Code Ann. § 39-14-133. The classification

or seriousness of the penalty for theft depends upon the value of the property or

services. Tenn. Code Ann. § 39-14-105. If the value of the property is at least

$10,000 but less than $60,000, it is a Class C felony. Tenn. Code Ann. §39-14-

105(4). If the value of the property is at least $1,000 but less than $10,000, it is a

Class D felony. Tenn. Code Ann. § 39-14-105(3).

       The defendant’s affidavit of claim does not indicate a specific monetary

amount, but rather seeks the “value of bus.” The only testimony in the record giving

any support to the state’s theory is the testimony of the investigator for the insurance

company who stated, “I believe at one time” that defendant claimed between $25,000

and $30,000. The investigator further testified that the fair market value of the bus

was just under $7,400. See Tenn. Code Ann. § 39-11-106(a)(36)(A)(defining “value”

as the fair market value of the property at the time and place of the offense). We,

therefore, conclude that the evidence is insufficient to establish the Class C felony

amount of $10,000 or more. The proof does establish beyond a reasonable doubt

that the value of the property was over $1,000; therefore, we reduce the classification

of the offense to a Class D felony.




                                           5
                               BRIBERY OF WITNESS



       Defendant contends the trial court erred in disallowing two witnesses to testify

concerning their observations just outside the courtroom of an alleged payment by

one prosecution witness to another prosecution witness. Under the circumstances,

we conclude there was no reversible error.

       The state’s witnesses indicated that the battery was not on the bus after the

fire and had apparently been removed by the defendant prior to the fire. The wrecker

operator testified that he saw no one remove the battery at the scene or thereafter.

       In a jury-out hearing two witnesses indicated they observed the Sheriff’s

Department arson investigator give something to the wrecker operator just outside

the courtroom after the wrecker operator testified. One witness indicated it was

something “green” but could not say it was money. The other witness indicated that

it was, in fact, money.

       After an extended discussion, the trial judge advised defense counsel that the

testimony would not be allowed before the jury at that time; however, he might allow

it later in the trial. Subsequently, defense counsel advised the court that “we’re just

not going to go into that area.” Since the trial court had deferred a final ruling on this

issue and defendant chose not to attempt to present the testimony, defendant is

entitled to no relief. See Tenn. R. App. P. 36(a).



                            IMPEACHMENT TESTIMONY



       In a related issue defendant contends one of the above witnesses was also

prohibited from testifying that the insurance company investigator, while recording an

interview with her, would turn off the recorder and tell her to answer questions a

certain way. The trial court found the proposed testimony immaterial. Defendant

contends the testimony was proper to impeach the investigator who had testified.




                                            6
       Regardless of the propriety or impropriety of the ruling, defendant was not

prejudiced. The investigator primarily testified about the amount of the claim made

by the defendant. This Court has reduced the classification of the offense. Thus,

even if the trial court should have allowed such evidence, the error would, at most,

be harmless. See Tenn. R. App. P. 36(b).



                                     MISCONDUCT



       Defendant contends he was denied a fair trial as a result of the trial judge and

prosecuting attorney repeatedly advising certain witnesses in a jury-out hearing of the

possibility of perjury charges. Firstly, we note that this issue was not raised in the

written motion for new trial and is, therefore, waived. Tenn. R. App. P. 3(e).

Although counsel orally moved to amend his motion to include this issue, the record

does not contain a written request or order allowing the amendment. See Tenn. R.

Crim. P. 33(b). Nevertheless, we will address the issue on its merits.

       The trial court conducted an extensive jury-out hearing relating to the proposed

testimony of two defense witnesses. It is apparent that the trial judge and the

prosecuting attorney were unimpressed with the credibility of the allegations.

Defense counsel was admonished by the trial judge and the prosecuting attorney of

his ethical obligations not to present perjurious testimony. The two witnesses were

also at various times cautioned that they were under oath and/or advised of “the

potential if you should testify falsely.”

       In State v. Schafer, 973 S.W.2d 269, 278 (Tenn. Crim. App. 1997), this Court

found that multiple threats of prosecution for perjury by the state and trial court and

repeated declarations by the trial court that the witness was untruthful mandated a

new trial. This Court found prejudice to the defendant as the witness subsequently

changed his testimony. Id. Although a trial court may admonish a witness suspected

of untruthfulness of the significance of lying under oath, the trial court should not

declare its belief of untruthfulness and threaten the witness with prosecution to such




                                            7
a degree that the witness changes his or her testimony to the detriment of the

defendant. Id; see also State v. Dwight Miller, C.C.A. No. 02C01-9708-CC-00300,

Haywood County (Tenn. Crim. App. filed December 29, 1998, at Jackson).

       The facts and circumstances of the case at bar do not reach the magnitude

of Schafer and Dwight Miller. We also note the questioning and warnings did not

take place in the jury’s presence. However, the repeated questioning and warnings

by the trial court do appear to have crossed the line. Nevertheless, the defendant

has suffered no prejudice.      One of the witnesses testified before the jury in

confirmation of his earlier jury-out testimony. Although the other witness was not

called to testify before the jury, her jury-out testimony was of no real benefit to the

defendant. Therefore, defendant is entitled to no relief. See Tenn. R. App. P. 36(b).



                                   SENTENCING



       Defendant contends the trial court erred by enhancing the fraudulent insurance

claim sentence by one year above the minimum, erred in ordering consecutive

sentencing, and erred in denying alternative sentencing. Although we reduce the

fraudulent insurance claim conviction from a Class C felony to a Class D felony, we

also enhance the sentence by one year above the minimum.               We affirm the

imposition of consecutive sentences and affirm the denial of alternative sentencing.



                              A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances. State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the

statutory directives, there is no presumption of correctness and our review is de novo.

State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).




                                          8
       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d

803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.

1991). However, if such factors do exist, a trial court should start at the minimum

sentence, enhance the minimum sentence within the range for enhancement factors

and then reduce the sentence within the range for the mitigating factors. Tenn. Code

Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute,

as the weight given to each factor is left to the discretion of the trial court as long as

the trial court complies with the purposes and principles of the sentencing act and its

findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn.

1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v.

Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-

35-210 Sentencing Commission Comments.



                               B. Length of Sentence

       Defendant challenges his four-year sentence on the Class C felony of filing a

fraudulent insurance claim. Since we have reduced the offense to a Class D felony,

a new sentence must be determined. This Court will determine the sentence. See

Tenn. Code Ann. § 40-35-401(c)(2).

       The trial court applied the following mitigating factors: the crime did not cause

or threaten serious bodily injury, Tenn. Code Ann. § 40-35-113(1); the defendant was

suffering from a mental condition reducing his culpability, Tenn. Code Ann. §40-35-

113(8); and the defendant has rendered significant community and charitable service,

Tenn. Code Ann. § 40-35-113(13).

       The trial court noted that the defendant had a prior conviction for theft and has

failed to file income tax returns, thereby finding the defendant had a previous history

of criminal convictions or criminal behavior. Tenn. Code Ann. § 40-35-114(1). We

also note that defendant exhibited criminal behavior by willfully failing to appear at his

original sentencing hearing. A sentencing court can consider criminal behavior which



                                            9
occurred prior to the sentencing hearing, regardless of whether the criminal behavior

occurred before or after the commission of the offense under consideration. State

v. Burl Jarrett, C.C.A. No. 02C01-9710-CC-00418, Hardeman County (Tenn. Crim.

App. filed August 21, 1998, at Jackson).

       The range of punishment for a Range I standard offender for a Class D felony

is from two to four years. See Tenn. Code Ann. § 40-35-112(a)(4). Just as did the

trial court, we enhance the sentence one year above the minimum. Therefore, the

sentence shall be three years for filing a fraudulent insurance claim over $1,000.



                           C. Consecutive Sentencing

       Defendant contends the trial court erred in ordering his one-year sentence for

failure to appear to run consecutively to the other two sentences.         The state

concedes that none of the statutory factors set forth in Tenn. Code Ann. § 40-35-115

applies and confesses error. We respectfully disagree with both the defendant and

the state.

       Although the trial court erroneously noted that Tenn. Code Ann. § 40-35-

115(b)(6) applied, the Assistant District Attorney General reminded the trial court of

the applicability of Tenn. Code Ann. § 39-16-609. This statute specifically provides

that a sentence for failure to appear “may be ordered to be served consecutively to

any sentence received for the offense for which the defendant failed to appear.”

Tenn. Code Ann. § 39-16-609(f). The trial court did not abuse its discretion in

ordering this sentence to be served consecutively. See State v. Scotty Ray Haynes,

C.C.A. No. 01C01-9706-CC-00227, Bedford County (Tenn. Crim. App. filed March

27, 1998, at Nashville); State v. John David Rankin, Jr., C.C.A. No. 03C01-9511-CC-

00369, Sullivan County (Tenn. Crim. App. filed August 19, 1996, at Knoxville).



                            D. Alternative Sentencing

       Defendant contends the trial court erred in denying alternative sentencing.

Again, we disagree.




                                           10
       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6).

       A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d

435, 438 (Tenn. Crim. App. 1996).         Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.

       The trial court noted the defendant’s persistent untruthfulness and failure to

accept responsibility for his criminal act. The defendant exhibited no remorse. We

also note defendant’s prior criminal behavior.

       In determining a defendant’s suitability for total probation, the trial court may

properly consider credibility, remorse, and candor as they reflect upon potential for

rehabilitation. See Tenn. Code Ann. § 40-35-103(5); State v. Bunch, 646 S.W.2d

158, 160 (Tenn. 1983); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.

1994). The trial court is in a better position than this Court to determine defendant’s

credibility and remorse. Considering these factors as well as defendant’s prior

criminal behavior, we are unable to conclude that the trial court erred in its denial of

alternative sentencing.

       This issue is without merit.



                          CLERICAL ERROR IN JUDGMENT



       We note that the judgment of conviction for the offense of arson of personal

property contains a clerical error in that the judgment indicates the offense is a Class




                                          11
D felony. Upon remand, the trial court shall enter an amended judgment reflecting

this offense to be a Class E felony rather than a Class D felony.



                                    CONCLUSION



       The conviction for filing a fraudulent insurance claim over $10,000 shall be

modified to filing a fraudulent insurance claim over $1,000, a Class D felony, with a

sentence of three years in the Department of Correction. The trial court shall enter

an amended judgment. The trial court shall also enter an amended judgment

reflecting that arson of personal property is a Class E felony rather than a Class D

felony. In all other respects, the judgment of the trial court is affirmed.



                                                  ____________________________
                                                  JOE G. RILEY, JUDGE




CONCUR:


____________________________
JERRY L. SMITH, JUDGE



____________________________
NORMA McGEE OGLE, JUDGE




                                          12
