FILED

January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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

)

Appellant. ) (Direct Appeal-Aggravated Perjury)

FOR THE APPELLANT: FOR THE APPELLEE:

RAYMOND C. CONKIN, JR. JOHN KNOX WALKUP

320 Cherokee St., Suite B Attorney General and Reporter

Kingsport, TN 37660

ELIZABETH T. RYAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

DOUGLAS DIMOND

Legal Assistant

GREELEY WELLS

District Attorney General

EDWARD WILSON

Assistant Attorney General

P. O. Box 526

Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Johnny Lee Bowman appeals from a jury verdict rendered on

September 12, 1995 in the Sullivan County Criminal Court finding him guilty of

aggravated perjury. As a Range III persistent offender, Appellant received a

sentence of ten years confinement in the Tennessee Department of

Correction. Appellant presents two issues for consideration on this direct

appeal: (1) whether claimed memory loss constitutes a retraction of perjured

testimony within the meaning of Tenn. Code Ann. § 39-16-704; and (2)

whether the evidence is sufficient to sustain Appellant's conviction for

aggravated perjury.

After a review of the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

The proof shows that on December 22, 1987, Appellant gave a signed

and sworn statement to Officer Bill Smith of the City of Bristol Police

Department. In this statement, Appellant implicated Michael Scott and himself

in the November 9, 1987 burglary of a vehicle. Appellant stated that he

served as a lookout while Scott burglarized the car and stole a suitcase

containing women's clothing, a purse, and a pair of shoes. At Appellant's trial,

Officer Smith testified that when Appellant gave his December 22, 1987

statement, Appellant did not appear to be under the influence of either alcohol

or drugs. Moreover, Officer Smith explained that, during his employment with

the Bristol Police Department, Smith had known Appellant quite well and had
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never known Appellant to use either drugs or alcohol. On January 20, 1989,

Appellant pleaded guilty in the Sullivan County Criminal Court to the

automobile burglary and to petit larceny. In his plea, Appellant agreed under

oath that the facts of the burglary set out in his December 22 statement were

true and correct. Appellant declined to supplement his statement in any

respect and also declined to make any additional statement.

On December 12, 1994, Michael Scott was finally tried for his role in the

burglary, as the authorities had failed to locate Scott prior to this time. See

State v. Michael Scott, No. 22848-850, (Sullivan County, December 12, 1994). 

Appellant was called as a prosecution witness in the Scott trial. At the Scott

trial, Appellant initially testified on direct examination that he alone burglarized

the vehicle and denied ever having served as a lookout for Scott. He then

stated that he could not remember whether or not anyone else had

participated in the commission of the burglary. Appellant continued, "I

honestly do not remember 1987. That's been seven years ago. There's been

an extremely lot of things happen in my life since then, so, I couldn't give you

an honest answer." Appellant then testified that he did not remember giving

a statement to Officer Smith. When asked to identify his signature on the

statement allegedly given by him to Officer Smith, Appellant responded,

"That's my writing." He then stated, "That don't really look like it now, but it

could have been seven years ago, I guess." Appellant then stated that he

could not positively say whether or not the signature on the statement was his. 

Finally, Appellant flatly denied that the handwriting on the December 22, 1987

statement was his. Appellant then reiterated, "I don't remember a whole lot

about seven years ago." When asked whether he recognized the signature
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on the "Advice, Waiver of Rights" form, Appellant responded, "That looks a

little more like it, sir." Appellant then testified, "I don't recall ever seeing this

paper before in my entire life, sir." When again asked whether or not the

signature on the form was his, Appellant replied that "It could be" but that he

could not say positively that the signature was his. 

On cross-examination, Appellant explained that the reason for his

inability to remember 1987 is because he was an alcoholic and a drug addict

at that time. Furthermore, Appellant admitted that he was "high" much of the

time and that he used alcohol, marijuana, and cocaine.

At Appellant's trial for aggravated perjury, the State introduced redacted

transcripts of Appellant's January 20, 1989 plea hearing and of Appellant's

testimony given during the Scott trial. At the close of the State's proof,

Appellant moved for a judgment of acquittal, but the trial court denied this

motion. The case went to the jury which convicted Appellant.

II. CLAIMED MEMORY LOSS AS RETRACTION OF PERJURED

TESTIMONY

Appellant’s first contention is that his alleged memory loss constitutes a

“retraction” of his perjured testimony. Tennessee Code Annotated Section 39-

16-704 provides:

It is a defense to prosecution for aggravated perjury

that the person retracted the false statement before

completion of the testimony at the official proceeding

during which the aggravated perjury was committed.
 

1

At the time of the Vesich decision, 18 U.S.C. Section 1623 provided:

Where, in the same continuous court or grand jury proceeding in which a

declaration is made, the person making the declaration admits such

dec laratio n to be fals e, such ad mis sion shall b ar pro secution unde r this

section if, at the time the admission is made, the declaration has not

substantially affected the proceeding, or it has not become manifest that

such falsity has been or will be exposed.

Vesich, 724 F.2 d 451, 46 0. 

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The question of whether claimed loss of memory constitutes a retraction

and therefore a defense to aggravated perjury is an issue of first impression in

Tennessee. Indeed, we have found only one case which directly deals with

this question. In United States v. Veisch, 724 F.2d 451 (5th cir. 1984); the

defendant, an attorney, appeared before a grand jury and denied that he had

ever instructed anyone to lie before a grand jury. Id. at 458.

However, unknown to Vesich, the prosecution possessed a tape

recording of a conversation which Vesich had had with an imprisoned client. 

Id. at 459 n. 16. In this conversation, Vesich urged his client “to get a story

straight for when you do go [before the grand jury]” and informed his client that

the grand jury could not prove that his client was lying. Id. at 459 n.16. 

Following Vesich’s denial that he had ever urged any individual to lie before a

grand jury, Vesich repeatedly responded to questions pertaining to the

recorded conversation by professing his inability to recall certain statements

made by him during that conversation. Id. At 460. The Fifth Circuit Court of

Appeals held in Vesich that the defendant’s claimed memory loss was

insufficient to establish the defense of recantation under 18 U.S.C. § 1623(d)1. 

Vesich, 724 F.2d 451, 460.
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It is clear that Tennessee Code Annotated Section 39-16-704 is

designed to provide an incentive to the perjurer to tell the truth before the

falsity can do any harm. If having lied the perjurer knows he can avoid

prosecution by recanting, the theory is he will have more reason to tell the

truth then if recantation would gain him nothing. This policy is hardly served

by a claim of memory loss. Indeed, a claim of memory loss makes the search

for truth more difficult. We agree with the Veisch court that memory loss does

not establish a recantation defense.

III. SUFFICIENCY OF THE EVIDENCE

Appellant also challenges the sufficiency of the evidence to sustain his

conviction for aggravated perjury. W e find that the evidence is constitutionally

sufficient.

This Court is obliged to review challenges to the sufficiency of the

convicting evidence according to certain well-settled principles. A verdict of

guilty by the jury, approved by the trial judge, accredits the testimony of the

State's witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 1994); State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked

with a presumption of innocence, a jury verdict removes this presumption and

replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence, on appeal, the burden of proof rests with Appellant to

demonstrate the insufficiency of the convicting evidence. Id. On appeal, "the

[S]tate is entitled to the strongest legitimate view of the evidence as well as all

reasonable and legitimate inferences that may be drawn therefrom." Id. (citing
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State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency

of the evidence is contested on appeal, the relevant question for the reviewing

court is whether any rational trier of fact could have found the accused guilty

of every element of the offense beyond a reasonable doubt. Harris, 839

S.W.2d 54, 75; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979). In conducting our evaluation of the convicting

evidence, this Court is precluded from reweighing or reconsidering the

evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996);

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover,

this Court may not substitute its own inferences "for those drawn by the trier of

fact from circumstantial evidence." Matthews, 805 S.W.2d 776, 779. Finally,

TENN. R. APP. P. 13(e) provides, "Findings of guilt in criminal actions whether

by the trial court or jury shall be set aside if the evidence is insufficient to

support the findings by the trier of fact of guilt beyond a reasonable doubt." 

See also Matthews, 805 S.W.2d 776, 780.

We stated in Matthews that "A criminal offense may be established

exclusively by circumstantial evidence. However, before an accused may be

convicted of a criminal offense based upon circumstantial evidence alone, the

facts and circum stances `must be so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant.'" 805 S.W.2d

776, 779-80 (quoting State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)).

TENN. R. CRIM. P. 29(a) provides in part, "The court on motion of a

defendant. . . shall order the entry of judgment of acquittal of one or more

offenses charged in the indictment or information after the evidence on either
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side is closed if the evidence is insufficient to sustain a conviction of such

offense or offenses." Id. Furthermore, in dealing with a motion for judgment

of acquittal, both the trial court and this Court are obligated to consider only all

of the evidence introduced by the State. State v. Hall, 656 S.W.2d 60, 61

(Tenn. Crim. App. 1983). Finally, when resolving a motion for judgment of

acquittal, the trial court's sole concern is the legal sufficiency of the evidence,

and the trial court is precluded from reweighing the evidence. State v. Adams,

916 S.W .2d 471, 473 (Tenn. Crim. App. 1995); Hall, 656 S.W.2d 60, 61.

Tenn. Code Ann. § 39-16-702(a)(1) provides that "(a) A person

commits [perjury] who, with intent to deceive:

(1) Makes a false statement, under oath." Id. Tenn. Code Ann. § 39-

16-703(a) provides, "(a) A person commits [aggravated perjury] who, with

intent to deceive:

(1) Commits perjury as defined in § 39-16-702;

(2) The false statement is made during or in connection with an official

proceeding; and

(3) The false statement is m aterial." Id. To sustain a conviction, the

State was required to prove each and every element of the offense beyond a

reasonable doubt.

Viewing the evidence in light of the above-stated criteria, we hold that a

rational trier of fact could have concluded beyond a reasonable doubt that

Appellant committed aggravated perjury. We further hold that the evidence is

sufficient to warrant the trial court's denial of Appellant's motion for judgment

of acquittal.
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The prosecution called Officer Smith as its only witness. Officer Smith

testified that on December 2, 1987, he took Appellant's statement in which

Appellant alleged that Michael Scott had burglarized an automobile and had

taken a suitcase, a purse, and a pair of shoes while Appellant served as a

lookout. Additionally, Officer Smith testified that Appellant did not appear to

be under the influence of either drugs or alcohol at the time Appellant gave the

statement. Officer Smith also stated that he knew Appellant quite well and

that he had never known Appellant to use drugs or alcohol. 

 The jury next heard the Assistant District Attorney General read

portions of the transcript of Appellant's January 20, 1989 guilty plea hearing in

which Appellant pleaded guilty to the November 9, 1987 burglary and swore

that the statement given to Officer Smith was true and correct. 

The jury next heard portions of the testimony given by Appellant in the

Scott trial. In his testimony, Appellant contradicted his earlier statement and

testified that he alone had burglarized the vehicle. Appellant then changed his

testimony, stating that he could not remember whether or not Michael Scott

participated in the commission of the offense. Additionally, Appellant stated, "I

honestly do not remember 1987." Appellant also claimed that he could not

remember giving a statement to Officer Smith. After identifying the

handwriting on the statement as his, Appellant then contended that the

handwriting did not resemble his handwriting at the time of the Scott trial in

1994 but that it "could have been [his handwriting] seven years ago." 

Appellant next asserted that the signature on the "Advice, Waiver of Rights"

form more closely resembled his handwriting than did the signature on the
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statement. Finally, on cross-examination, Appellant attributed his inability to

remem ber 1987 to his alleged addiction to drugs and alcohol. 

It was the jury's prerogative to reject Appellant's claim of memory loss

and to convict him of aggravated perjury. In light of the fact that Appellant's

testimony at the Scott trial was both internally inconsistent and directly

contradictory of his earlier sworn testim ony that the statement given by him

was accurate, the trial court properly denied Appellant's motion for judgment

of acquittal. Moreover, the verdict was amply supported by the evidence.

Finding no merit in either of the two issues presented by Appellant on

this direct appeal, we, therefore, affirm the judgment of the trial court.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

CHRIS CRAFT, SPECIAL JUDGE