# FILED January 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00226 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK JOHNNY LEE BOWMAN, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l-Agg ravat ed P erju ry)

FOR THE APPELLANT : FOR THE APPELLEE : RAYMOND C. CONK IN, J R. JOHN KNOX WALKUP 320 Cherokee St., Suite B Attorney Generaland Reporter Kingsport, TN 37660 ELIZABETH T. RYAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 DOUGLAS DIMOND Legal Assistant GREELEY W ELLS Distri ct Attorney General EDWARD WILSON Assistant Attorney General P. O. Box 526 Blountvi lle, TN 37617
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

Appellant Joh nny Lee Bowman appeals from a j ury verdi ct rendered on September 12, 1995 in the Sullivan County Crimi nal Court f inding hi m guilty of aggravated per

jury. As a Range III per sistent offender, Appellant r eceived a sentence of ten years confi nement in the Tennessee Depart ment of Correction. Appellant presents two issues for consi deration on this di rect appeal: (1)whether clai med memory loss constit utes a retr action of

perjured testimony within the meani ng of Tenn. Code Ann. § 39- 16-704; and (2) whether the ev idence is suf ficien t to sustain Appellant's convic tion for aggravated perjury.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL

BACKGROUND The proof shows that on December 22, 1987, Appell ant gave a si gned and sworn statement to Officer Bil l Smith of the City of Bristol Pol ice Dep artme nt. In this statem ent, Ap pellan t implic ated M ichae l Scott a nd him self in the November 9, 1987 burglary of a vehicl e. Appellant stated th at he served as a lookout while Scott burglarized the car and stole a suitcase conta ining w ome n's clot hing, a purse , and a pair of s hoes . At Ap pellan t's trial, Officer Smit h testified that when Appellant gav e his December 22, 1987 statement, Appel lant didnot appear to be under the i nfluence of either al cohol or drugs . Moreov er, Officer S mith exp lained tha t, during his emplo ymen t with the Bristol PoliceDepartment, Smithhad known Appellant quite wel l and had-3-

never known Appell ant to use ei ther drugs or alcohol. On January 20, 1989, Appellant pl eaded guilt y in the Sul livan Count y Criminal Court to t he automobile burglary and to petit l arceny. I n his plea, Appellant agr eed under oath that the facts o f the burglary set out in h is Decem ber 22 statem ent were true and corr

ect. Appell ant decli ned to supplement hi s statement i n any respec t and also declined to mak e any ad ditional state ment.
On December 12, 1994, MichaelScott was fi nally t ried for his rol e in the burglary, a s the auth orities had failed to loca te Scott p rior to this time
. See State v. M ichael Sc ott , No. 228 48-850 , (Sullivan C ounty, D ecem ber 12, 1 994). Appe llant was c alled as a prosec ution witne ss in the S cott trial. At the S cott trial , Appellant

initi ally testifi ed on direct examination that he alone bur glarized the vehicl e and denied ever h aving served as a lookout f or Scott. He then stated that

he could not r

emember whether or not any one else had participate d in the co mm ission of the burglary. A ppellant c ontinue d, "I honestly do not remember 1987. That' s been seven years ago. There's been an extremely

lot of things happen i n my life s ince then, so, I coul dn't giv e you an honest answer. " Appellant then test ified that he did not remember giving a statement to Officer Smith. When asked to ident ify hi s signature on the statement al legedly given by him to Officer Smith, Appellant r esponded, "Tha t's my w riting." H e then stated , "Tha t don't re ally look like it now , but it could have been seven years ago, I guess." Appel lant then stated that he could no t positively say whethe r or not the signature on the sta temen t was his. Finally , Appellant

flatly denied that

the handwrit ing on the December 22, 1987 statement was hi s. Appella nt then reiterated, "I don't remember a whole lot about seven years ago." W hen aske d whether h e recognize d the signature-4-

on the "Advice, Waiver of Rights" f orm, Appellant responded, "That looks a little mo re like it, s ir." App ellant th en tes tified, "I do n't reca ll ever se eing th is paper before i n my entire l ife, si r." When again asked whet her or not t he signature on the form was hi s, Appellant replied that "It

could be" but

that he could no t say positive ly that the sign ature wa s his.

On cr oss-e xamin ation, A ppella nt expla ined th at the re ason for his inabilit y to remember 1987 is because he was an alcoholic and a drug addict at that t ime. Furthermore, Appellant admitted t hat he was "hi gh" much of the time and that

he used alcohol, marijuana, and cocaine.
At Appellant 's tri al for aggr avated perj ury, th e State int roduced redacted transc ripts of A ppella nt's Ja nuary 20, 19 89 ple a hea ring an d of Ap pellan t's testimon y given du ring the S cott trial. At the c lose of the State's pr oof, Appe llant m oved fo r a judg men t of acq uittal, bu t the trial c ourt de nied th is motion . The ca se wen t to the jury wh ich convic ted App ellant.

II.CLAIMED MEMORY LOSS AS RETRACTI ON OF PERJURED TESTIMONY Appellant’s fi rst contention i s that his all eged memory loss constitutes a “retrac tion” of his perj ured testi mony. Tennessee Code Annotated Sect ion 39- 16-704 provides:

It is a defense to pro secution for agg ravated perjury that the person retracted the false sta tement be fore completion of

the testi mony at the off icialproceeding during which the aggravated perjury was committed.1 At the ti me of the Vesich decision,18 U.S.C. Section 1623 provided : Where, in the same continuous cour t or grand j ury proceedi ng in which a declaration is made, the per son making the declara tion admits such dec laratio n to b e fals e, su ch ad mis sion shall b ar pro sec ution unde r this section if, at the time the admissi on is made, the decl aration has not substanti ally

affected t he proceeding,or it h as not become manifest that such falsity has been or willbe exposed. Vesich , 724 F.2 d 451, 46 0. -5- The question of whet her claimed l oss of memory consti tutes a ret raction and th erefor e a de fense to agg ravate d perju ry is an is sue o f first imp ressio n in Tenn essee . Indeed, w e have fo und on ly one cas e which directly dea ls with this quest ion. In United States v. Veisch , 724 F.2d 451 (5t h cir. 1984 ); the defendant, an attorney, appeared before a g rand jury and denied that

he had ever instru cted an yone to lie b efore a g rand jury. Id . at 458.
However, unknown to Vesi ch, the pros ecution possess ed a tape recordin g of a con versation which V esich ha d had w ith an imp risoned client. Id. at 459 n. 16. In this co nversation, Ves ich urged his client “to g et a story straight for when you do go [ before the gr and jury] ” and informed his client that the gran d jury cou ld not prov e that his c lient was lying
. Id. at 459 n.1 6. Following Vesi ch’s denialthat he had ever urged any individual to lie before a grand jury , Vesich repeatedly responded t o questions per

taining to the recorde d conve rsation by professin g his inab ility to recall certain statem ents made by him d uring tha t convers ation. Id . At 460. The Fi fth Circuit Court of Appeals held i n Vesich that the defendant’s claimed memory loss was insuffi cient to

establi sh the defense of recantati on under 18 U.S.C. § 1623(d) 1

. Vesich , 724 F.2d 451, 460.-6- It is clear that T enne ssee Code Anno tated S ection 39-16 -704 is designed to pr

ovide an incentive to the perjur er to tel l the truth before t he falsity ca n do a ny har m. If ha ving lied the pe rjurer k nows he ca n avoid prosecutionby recanti ng, the theor y is he wil l have more reason t o tell the truth t hen if reca ntation woul d gain him nothi ng. This poli cy is hardly served by a claim of memory loss. Indeed, a cl aim of memory loss makes the search for tr uth more difficult.We agree with the Veisch court that memory loss does not establ ish a recantation defens e.

III . SUFFI CIENCY OF T HE EVIDENCE Appe llant als o cha llenge s the s ufficien cy of the eviden ce to s ustain his convic tion for a ggrav ated p erjury. W e find th at the e videnc e is con stitution ally sufficient.

This Court is

obliged to review chal lenges to t he suffi ciency of the convicti ng evidence accor ding to cer

tain well -settl ed princi ples. A ver dict of guilty by the jur

y, approved by the trial j udge, accredi ts the testimony of t he State's wi tnesses and resolves all conflic ts in t he testi mony in favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused i s origina lly cl oaked with a presumpti on of innocence, a jury verdict r emoves this pres umption and replace s it with one of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). H ence, o n appe al, the burd en of pro of rests with Appella nt to demo nstrate the insufficienc y of the con victing evide nce. Id. On appeal, "t he [S]tate is entitle d to the strong est leg itimate view of th e evide nce a s well a s all
reason able an d legitima te inferenc es that m ay be dra wn there from." Id. (citi ng-7-

State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evi dence is contested on appeal, t he relevant question for the rev iewing court is wh ether an y rational trier o f fact could have fou nd the a ccused guilty of every ele ment o f the offens e beyon d a reas onable doubt. Harris , 839 S.W .2d 54, 75 ; Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) . In conduct ing our eval uation of the convict ing evidence, t his Court i s precluded f rom reweighing or reconsideri ng the evidenc e. State v. Morgan , 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ); State v . Matt hews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). Moreover, this Court

may not substi tute it

s own inferences "for t hose drawn by the t rier of fact from circums tantial evide nce." Matthews , 805 S.W .2d 776, 779 . Finally, T ENN
. R. A PP
. P. 13(e) provides, "Fi ndings of gui lt in criminal actions whet her by the trial co urt or jury sha ll be set asid e if the evide nce is insu fficient to suppo rt the finding s by the trier o f fact of guilt be yond a re asona ble dou bt." See also Mat

thews , 805 S.W.2d 776, 780.

We stated in Matthewsthat "A criminal of fense may be establ ished exclusiv ely by ci rcumstantialevidence. However, befor e an accused may be convicted of

a criminaloffense based upon c ircumstanti al evidence alone, the facts and circum stances `m ust be so stron g and cog ent as to exclude every other reasonabl e hypothesis save the gui lt of t he defendant.' " 805 S.W.2d 776, 779-80 (quot ing State v. Crawfo rd , 470 S.W .2d 610, 612 (Tenn. 197 1)).

T ENN
. R. C RIM
. P. 29(a) p rovides in p art, "The court on motion of a defendan t. . . shall order the entry of judgm ent of acquittal of one or more offenses char

ged in the i ndictment or informati on after t he evidence on ei ther-8-

side is closed if

the evidence is insuf ficient to sustain a convicti on of such offense or offense s." Id. Furthermore, in deali ng with a moti on for judgment of acq uittal, bo th the tria l court a nd this Cour t are ob ligated to con sider o nly all of the evide nce introd uced b y the State

. State v. Hall , 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). Final ly, when r esolving a motion for j udgment of acquittal , the trial court's sole conce rn is the legal suf ficien cy of the evidence, and the trial court is pre cluded from rew eighing th e eviden ce. State v . Ad ams , 916 S.W .2d 471 , 473 (T enn. C rim. App . 1995); Hall , 656 S.W.2d 60, 61.
Tenn. Code Ann. § 39-16-702(a)(1) provides that "(a) A pers on commits [perj ury] who, with intent to decei ve: (1) Mak es a false statem ent, und er oath." Id. Tenn. Code Ann. § 39- 16-703 (a) provide s, "(a) A pe rson co mm its [aggrava ted perju ry] who, with intent t o deceive: (1) Commits perj ury as defi ned in § 39-16-702 ; (2) The fals e statement i s made during or i n connection wi th an offi cial proceeding; a nd (3) The false state ment is m aterial." Id. To sustain a conv iction , the State was requi red to prove each and every el ement of the of fense beyond a
reason able do ubt.
Viewing the evide nce in light o f the abov e-stated criteria, we h old that a rationaltrier

of fact could have concl uded beyond a reasonabl e doubt that Appe llant co mm itted ag grava ted pe rjury. W e furthe r hold th at the e videnc e is suffic ient to warrant the t rial cour t's deni al of Appell ant's moti on for judgment of acq uittal.-9- The p rosecu tion called O fficer Sm ith as its only w itness. O fficer Sm ith testifi ed that on December 2, 1987, he took Appellant's statement in which Appellant al leged that Michael Scott had burglari zed an automobile and had taken a suitcase, a purse, and a pair of shoes while Appellant serv ed as a lookou t. Additiona lly, Officer Sm ith testified tha t Appella nt did not a ppear to be under the i nfluence of either drugs or alcoholat the ti me Appellant gave t he statement. Officer Smit h also stated that he knew Appel lant qui te well an d that he ha d never k nown A ppellant to use dru gs or alco hol.
The jury next

heard the Assi stant Dist rict At torney Generalread portion s of the transc ript of A ppella nt's Ja nuary 20, 19 89 gu ilty plea h earing in which App ellant pleaded g uilty to the Novem ber 9, 1987 b urglary and sw ore that the sta temen t given to O fficer Sm ith was true and co rrect.
The jury next

heard porti ons of the testimony giv en by Appellant

in the Scott trial. In his testimony, Appel lant cont radicted hi s earlier statement and testified that he alone had b urglar ized th e vehic le. App ellant th en ch ange d his testimon y, stating tha t he could not rem embe r whethe r or not Mic hael Sc ott participate d in the co mm ission of the offense. A dditionally, A ppellant s tated, "I honestly do not remember 1987." Appel lant als o claimed that he could not remember giving a st atement to Off icer Smith. After i dentify ing the handwriti ng on the statement as his, Appel lant then contended that the hand writing d id not re sem ble his hand writing a t the tim e of the Scott tr ial in 1994 b ut that it "could have be en [his ha ndwriting ] seven ye ars ago ." Appellant next asserted t hat the signature on the " Advice, Waiver of Rights" form more closel y resembled his handwriti ng than did t he signature on the-10-

statem ent. Finally, on cross-e xamina tion, App ellant attribute d his inab ility to
remem ber 198 7 to his alleg ed add iction to dru gs and alcohol.
It was the jury's prerogative t o reject Appellant' s claim of memory loss and to convic t him o f aggra vated perjury . In light o f the fac t that Ap pellan t's testim ony at th e Sco tt trial was both in ternally incon sisten t and d irectly contra dictory of his ea rlier swo rn testim ony tha t the sta teme nt given by him was accurate, the tri al court pr operly deni ed Appellant' s motion for judgment of acquit

tal. Mor eover, t he verdict

was amply supported by the evi dence.
Finding no meri t in ei ther of t he two issues pr esented by Appell ant on this direct ap peal, we , therefore , affirm the ju dgme nt of the trial co urt.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ CHRIS C RAFT, SPECI AL JUDGE