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State v. Tubbs

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

STATE OF LOUISIANA Appellee
v.
ANTHONY SCOTT TUBBS Appellant

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 209, 089 Honorable Parker Self, Judge.

          FLOWERS, LONG & HATCH, LLP By: Christopher Hatch Counsel for Appellant

          J. SCHUYLER MARVIN District Attorney JOHN MICHAEL LAWRENCE Assistant District Attorney Counsel for Appellee

          Before PITMAN, GARRETT, and STEPHENS, JJ.

          GARRETT, J.

         The defendant, Anthony Scott Tubbs, was convicted of insurance fraud. He was ordered to serve five years at hard labor, with all but one year suspended. He was placed on four years' active, supervised probation and ordered to pay a fine of $1, 500, along with restitution. He appeals his conviction and sentence. For the following reasons, we affirm.

         FACTS

         Tubbs operated ASAP Appliances ("ASAP") in Bossier City, Louisiana. The business sold and repaired used appliances. Richard Hayden was an employee. On Saturday, May 12, 2012, the vehicles driven by Hayden and Tubbs were parked in a lot behind the business. As Hayden was leaving, he backed his Ford Expedition into a Dodge Ram 3500 truck which was being used that day by Tubbs.[1] Tubbs told the police officers who responded to the accident that he was getting into his vehicle when the accident occurred. Hayden later delivered a typed and signed statement to the police taking full responsibility for the accident and stating that Tubbs was entering his vehicle when the accident occurred.

         At the scene, Tubbs said he was not injured, but asked for paramedics to check him out because he had recently had a medical procedure. Tubbs later claimed that he was seriously injured in the accident and filed a civil lawsuit against Hayden, State Farm and USAA. State Farm later settled the claim with Tubbs for $8, 500. Tubbs also claimed to have been involved in separate, unrelated accidents with other drivers on May 28, 2012, and June 29, 2012, and received settlements from State Farm in those cases as well. According to hospital records, the accident on May 28, 2012, occurred when Tubbs was traveling in his truck at a low rate of speed and was impacted on the passenger side by another vehicle. The accident on June 29, 2012, occurred when Tubbs claimed he was rear-ended in traffic by another vehicle. Tubbs settled the second and third accidents with State Farm for $10, 494.18 and $10, 592.04, respectively.

         Tubbs's insurance claims were eventually investigated by the insurance fraud and auto theft unit of the Louisiana State Police. Hayden changed his version of the events concerning the May 12 accident and said that Tubbs was actually inside the business at the time the collision occurred. In early 2015, Tubbs was charged with one count of insurance fraud in connection with this accident. He was tried by a six-person jury. On March 21, 2017, Tubbs was found guilty as charged. He filed motions for new trial and for post verdict judgment of acquittal, which were denied by the trial court on October 17, 2017.

         On November 21, 2017, Tubbs was sentenced to serve five years at hard labor, with all but one year suspended. He was given credit for time served. He was placed on four years' active, supervised probation and ordered to pay a fine of $1, 500, along with restitution to State Farm in the amount of $8, 500. Tubbs stated his intent to appeal.

         After some procedural maneuvering, Tubbs filed a second motion for new trial and sought an evidentiary hearing to supplement the record. The trial court denied the second motion for new trial as untimely. Tubbs now appeals, claiming there was insufficient evidence to support his conviction, the trial court erred when it denied his first motion for new trial, and the sentence imposed was excessive.[2]

         SUFFICIENCY OF THE EVIDENCE

         Tubbs argues that the evidence adduced at trial was insufficient to support his conviction for insurance fraud. This argument is without merit.

         Legal Principles

         The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Hughes, 2018-0006 (La. 6/26/19), ____ So.3d ____, 2019 WL 2750945; State v. Turner, 52, 510 (La.App. 2 Cir. 4/10/19), 267 So.3d 1202, writ denied, 2019-00873 (La. 9/24/19), ____ So.3d ____, 2019 WL 4884059. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297; State v. Turner, supra.

         The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Turner, supra; State v. Wooten, 51, 738 (La.App. 2 Cir. 2/13/18), 244 So.3d 1216. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Turner, supra.

         Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Turner, supra; State v. Walker, 51, 217 (La.App. 2 Cir. 5/17/17), 221 So.3d 951, writ denied, 2017-1101 (La. 6/1/18), 243 So.3d 1064.

         Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Turner, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Turner, supra. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, supra; State v. Payne, 52, 310 (La.App. 2 Cir. 1/16/19), 262 So.3d 498.

         Regarding automobile insurance policies, La. R.S. 22:1925 states, in part:

A. (1) Any person who with an intent to injure, defraud, or deceive any insurance company commits any of the acts specified in Paragraph (2) of this Subsection is guilty of a felony and shall be subjected to a term of imprisonment, with or without hard labor, not to exceed five years or a fine not to exceed five thousand dollars, or both, and payment of restitution to the victim company of any insurance payments to the defendant that the court determines were not owed and the costs incurred by the victim company associated with the evaluation and defense of the fraudulent claim, including but not limited to the investigative costs, attorney fees, and court costs. However, mere possession of a fraudulent proof of insurance card or document shall be punishable by a fine of five hundred dollars, imprisonment for not more than six months, or both.
(2) The following acts shall be punishable as provided in Paragraph (1) of this Subsection:
. . . .
(c) Engaging in any of the actions or activities described in R.S. 22:1924, relative to insurance policies in general.

         Regarding insurance policies in general, La. R.S. 22:1924 (A)(2)(c) provides, in relevant part:

(2) The following acts shall be punishable as provided in Paragraph (1) of this Subsection:
. . . .
(c) Assisting, abetting, soliciting, or conspiring with another to prepare or make any written or oral statement that is intended to be presented to any insurance company, insured, the Department of Insurance, or other party in interest or third-party claimant in connection with, or in support of or denial, or any claim for payment of other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or fraudulent information concerning any fact or thing material to such claim or insurance policy.

         Testimony and Evidence

         At trial, the jury heard live testimony from six witnesses. Numerous exhibits were introduced, which included the dash camera video depicting the scene after the police responded; a demand letter sent on June 4, 2012, on Tubbs's behalf to State Farm; the typed statement signed by Hayden; the police department private property accident report; the petition for damages that Tubbs filed against USAA, Hayden, and State Farm; the receipt and release form regarding the settlement with State Farm; and medical records.

         The first witness was Senior Trooper Lawrence Hartsfield of the Louisiana State Police. Trooper Hartsfield is an investigator with the insurance fraud and automobile theft unit. He began investigating this matter in April 2013. He examined the police report, the police dash camera video, and the statement signed by Hayden. Trooper Hartsfield also examined the records from USAA and State Farm and took a statement from Hayden. The record shows that Tubbs claimed to have been involved in automobile accidents, with bodily injury, on May 12, 2012, as well as May 28, 2012, and June 29, 2012. Trooper Hartsfield noted that the police dash camera video taken at the scene shortly after the accident in this matter showed a minor, low impact collision with minor damage to the rear of both vehicles caused by a backing maneuver. In spite of the minor nature of the accident, Tubbs claimed to have been seriously injured. Trooper Hartsfield examined the statement submitted to the police by Hayden and noted that on February 14, 2013, Tubbs filed a civil lawsuit against Hayden, USAA, and State Farm arising from this accident. In the suit, Tubbs claimed he was on the running board, getting into his vehicle when Hayden backed into his vehicle at a high rate of speed. He claimed that he suffered serious, painful, and permanent injury requiring medical treatment. State Farm settled with Tubbs for $8, 500 on October 29, 2014. Trooper Hartsfield turned the matter over to the district attorney's office in December 2014.

         Detective Tina Smith of the Bossier City Police Department testified that she was a patrol officer in 2012, and responded to the scene of this accident. The dash camera in her vehicle was activated and recording when she responded to the scene. The dash camera video was submitted into evidence. It shows very minor damage to the rear of both vehicles. Tubbs is seen on the video and can be heard telling the officers that he was not injured, but stated he wanted to be "checked out" because he had recently had some medical issues.

         Hayden testified that he is an electrician and was working for Tubbs at the time of the accident. He repaired appliances and made deliveries. Hayden admitted that he had prior criminal convictions for misdemeanor carnal knowledge of a juvenile, possession of Schedule IV controlled dangerous substances, and burglary.

         Hayden said that Tubbs would occasionally do some manual labor and that he complained about his back on a daily basis. According to Hayden, on the date of the accident, he was leaving the business in his girlfriend's vehicle when he rear-ended Tubbs's vehicle. Hayden stated that Tubbs was inside the business at the time the accident occurred. Hayden went inside and told Tubbs about hitting the vehicle; they went outside to inspect the damage. Hayden testified that Tubbs gave him two options. The first was to "go with the story." The second was to find a new job. When the police arrived, Hayden told them he rear-ended Tubbs's vehicle. Hayden could not remember if he said that Tubbs was in the vehicle at the time of the collision. Hayden also said that, at one point, Tubbs offered him several thousand dollars to provide the false statement.

         Hayden identified the typewritten letter he signed and submitted to the Bossier City Police Department.[3] Hayden said he did not write the letter. He claimed it was written by Tubbs. Hayden stated that he cannot type and does not own a typewriter. Hayden was asked to read the letter in court. He had difficulty reading and pronouncing some of the words. At the point in the letter in which Tubbs's low hemoglobin was discussed, Hayden could not pronounce the word "hemoglobin" and stated that he did not know what that was. Hayden acknowledged that he signed and dated the letter and delivered it to the police department. Hayden only worked for Tubbs for a short time after the accident. Tubbs filed a civil lawsuit against Hayden based upon the accident.

         In connection with the civil lawsuit, Hayden said he gave a deposition in which he stated that Tubbs was not in the vehicle at the time the accident occurred. He claimed that his deposition testimony and his trial testimony in this case contained the true version of the accident. Hayden stated that he had not been offered any deal, compensation, or plea bargain by the district attorney's office in exchange for his testimony.

         At the time of the trial, Hayden was 28 years old and had a tenth-grade education. He did not remember if he went to the Tubbs residence the evening of the accident to apologize to Mrs. Tubbs. Hayden did not recall who called the police after the accident. He also stated that he did not know whether Tubbs had undergone a medical procedure prior to the accident. Hayden stopped working for Tubbs several months after the accident because they had an argument and a "falling out." Hayden admitted that he gave two versions of how the accident occurred, but stated that his trial testimony was the true version.

         Officer Stephen Boothe of the Bossier City Police Department made a Private Property Accident Report in this matter. The document was prepared for insurance purposes. If there had been a report of injuries, Officer Boothe would have prepared an Accident Report form. Officer Boothe stated that he got the information for the report from Hayden. The time on the report is 1914, which would be 7:14 p.m. Hayden told him that he backed into Tubbs's vehicle, but that both drivers were okay. The officer observed minor damage to the rear of both vehicles. ...


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