# FILED September 28, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1999 SESS ION

STATE OF TENN ESSEE , * C.C.A. NO. 03C01-9805-CR -00167 Appellee, * WASHINGTON COUN TY
v. * Hon. Lynn W . Brown, Judge TIMOTHY V. BOWLING , * (Arson) Appellant. *

For Appellant : For Appellee : James T. Bowman John Knox Walkup 128 E. Market St. Attorney General and Repor ter Jonesborough, TN 37659 450 James Robertson Parkwa y Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Joe C. Crumley Assistant District Attorney General P.O. Box 38 Jonesborough, TN 37659 OPINION FILED: ____________________

AFFIRMED

NORMA MCGEE OGLE, JUD GE1 The appellant was origi nally

tried on January 30 and 31,1995. That trial re sulted i n a mis trial.
2 Price also t estifie d tha t in 198 8 the appe llant int imid ated her in to fals ifying a n aut om obile acciden t report in ord er to obtain the insura nce m oney. 2 OPINION On March 21, 1995, the appellant,Timothy V. Bowling,was convicted by a jury in th e Was hington C ounty Crim inal Cour t of arso n, a class C Felony. 1 On June 2, 1995, the trial court sentenced the appellant as a Rang e II multiple offender to an effective sentence of ten year s incarceration in the Tennes see Department of Correction.
In this appeal as of right, the appellant presents the follow ing issues for our re view:

(I) Whether the evidence is sufficient to sustain the appellant’s conviction

of arson; and (II) Whether the trial court erred by ruling that the appellant’s prior conv

ictions of felony nonsupport, stalking, and secreting personal property were admissible for impeachment purposes. Following a rev

iew of the record and the par ties’ briefs, we affirm the j udgment of the trial court.
I. Factual Background

The conviction at issue i n this case occurred as a result of a fire on May 23, 1994, at 603 Davi s Street in Johnson City , Tennessee, the residence of Sonya Price. The record r eflects that, prior to the fire , the appellant and Price, although never marr ied, had a sporadi c twelve-yea r relation ship that produce d two children. In 1990, the relationship between the appellant and Price had deteriorated to the point that Price soug ht an order of protection agai nst the appellant. 2 During the next several y

ears, the appellant and Price maintained separate residences , and3 The appellant subsequ ently admitted to writing the let ter. 3 their relationship became mor e volatile.

Price testified on behalf of the State th at in April 1994, after she and one of their children testified against him, the appellant pled g uilty in the Washington County Criminal Cou rt to two counts of felony nonsup port and one co unt of stalkin g. The trial court ordered the appellant placed on probatio n. Almost immediately thereafter, P rice began to have ser

ious proble ms with the

appellant. The problems primarily consisted

of numerous threatening phone call s to Price. She testified that the appellant not only threat ened her, but also their chi ldren. Because she was afraid the appellant wou ld harm the children, Pr ice took the m to her mother ’s home in Illinoi s. Moreover , Price sta ted that she was af raid to st ay alone a t her own residence because she feared that th e appellant would harm her.As a result, at night Price stayed w

ith friends and at a Salvati on Army Shelter. The appellant continued to try to contact Price by calling

her residence and leavi ng messages on her answering machine.

On the afternoon of May 22, 1994, Pri ce went to her home between 3:00 p.m. and 5:00 p.m. to obtain her cl othes so that she could spend the ni ght with her friend, Rose Dunlap. She di d not return to her home until the morning of May 23, 1994, after receiving a call from fire and arson inv estigators who adv

ised her that her house had burned. When Price arriv ed at her residence, she w as told that three of her four cats had died in th e fire. Moreover, her bedroom was in disarray and her clothes had been “cut up.” Price also discovered writing on an interior wall which read “U R DEAD.” That same morning, Price received a letter with the return address marked “H. Brow n.” H. Brown is one of Price’s former boyfriends. Upon inspection of the letter, she re cognized is as being t he appellant’ s handwriting. 3 The4 letter contained the following message: “For now I am the teacher, and I am the preacher. When I am done with your mind you will know what you have lear

ned. You will know what it means to be fucking burnt.”

Addition ally, Price testifie d that he r telepho ne bills sh owed that two telephone calls had been made from her r esidence at 1:54 a.m. and 1:55 a.m. on May 23, 1994. The calls w ere made to the residence of her br other, David Vaught, in Bloomington, Illinois . Price testified that she had not made the calls, but that she had left her brother’s telephone number on a note pad next to the tel ephone.
Finally, Price r

ecalled an incident at the Bl ack and Tan Club, which occ ured in April 1994, approximat ely one month before the fire. Pri ce testified that she went to the club with her br

others, David Vaught and Ricky Vaught. While at the club, an altercation ensued between he r brothers and the appellant. At the conclusion of the fight, Price heard the appell ant state, “I’ve got a bullet for your sister.” She did not hear the appellant make any r emarks about her residence.
David Vaught, testified o n behalf of the State. Vaught testified that in May 1994, sometime after midnight centr al time, he received tw

o telephone calls. When he answered the first call , no one responded. Howev er, upon answering the second call, Vaught recogniz

ed the caller’s voic

e as belonging to the appell ant. The appellant told Vaught, “y our sister is in a w

orld of hurt,” and then hung up the telephone.
Vaught further testified that pr ior to the telephone call, i n April 1994, he had visited with family

and friends in Johnson City . During his vi sit, he accompanied Price and his brother, R icky Vaught, to the Bl ack and Tan Club in Johnson Cit y.5 While there, he and his brother were i nvolved in a fight w ith the appellant.
Next, the State introduced the testimony of Robert George, a taxi cab driver, who stated that on May 23 , 1994, between midnight and 1: 00 a.m., he observed the appellant outside Nashvi lle Sound, a local nightc lub. During a brief conv ersation, the appellant told George that he was going to visit friends on Boone Street, which is also in the direction of Price’s house. Approximately thirty to forty minutes later, George observed the appell ant walking back tow ard the Nashville Sound parking lot.
The State produced two additional witnesses to the altercation at the Black and Tan Club. Debra Buford, the bart ender at the Club, testified that after the fight, she heard the appellant say that he, “would burn Dav is street down.” ln

addition, Otis Robinson, the owner of the club, testified that after the fig ht between the appellant and David Vaught and Ricky Vaught, he heard the appellant repeat edly say that he was goi ng to “burn Davis S treet down.”
Additionally, the State p roduced the testimony of Dr. Larry Miller, a questioned documents expert, who stated that he had comp ared known exemplars of the defendant’s handwriting to the letter that Price r eceived the morning after the fire, and also the writing on the wall of Price’s residence. Dr. Miller positively identified the handwriting of the letter as matching the known handwriting exemplars of the appellant. However, because the “U R DEAD” writing on the w

all contained a small number of letters, all o f which were capital ized, he was unable to mak e a conclusive match as to that writing. Nev

ertheless, because there w ere no significant disimilarities between the wall writing and the appellant’s known exemplars, he could not rule out the defendant as the source of the writing.6 Regarding the investigation of the fire, the State produced the expert testimony of Steve Shell and George Leonard, the Johnson Ci ty Fire Marshall s who investigated the fire at Price’s residence. Leonar d arrived at the scene on May 23, 1994, at appro ximately 5:30 a.m . After investigat ing the residence and conductin g a reconstruction of the position of the furniture in the basement, he conc luded that the fire originated on a bed in the basement of the home. Although he w as unable to determine when the fire started, Leonard concluded that the fire was intentionally set and assigned the follow up investigation to Steve Shell.

Shell testified that he arri ved at 603 Davis Str

eet on May 23, 1994, at approximately 6:00 a.m. Shell first examined the ex terior of the house and noted minimal damage. However, upon entering the residence, he observed smoke damage and also noted the phrase “ U R DEAD” writ ten on an interior wall . Based upon his investgation, Shell was able to determi ne that the fire originated i n an area around a bed in the basement. Shell testified that he did not detect the use of accelerants and was unable to pinpoint an exact time when the fire started be cause of the manner in which it had bu rned. However, Shel l estimated that the fire start ed no more than eight to nine hours before its discovery

at approximately 5:00 a. m. Based upon his investig ation of the house, including an examination of wiring and electrical boxes, She ll determined that the fire w as intentionally set.
Additionally, Shell i nvestigated the possibi lity that the fire wa s caused by the owner for insurance purpos es. However, he noted that the residence appeared to be occupied. Also, personal property was damaged and pets were killed as a result of the fire. Based on these observ ations, Shell concluded that there was nothing to indicate that the owner had set the fire in order to obtain insurance proce eds.7 In defense, the appellant off ered the testimony of his sister, Joyce Dixon. Dixon rec

alled that the appellant and Pri ce had lived together in 1992. She testified that, when she obser ved the appellant and Price together, Price did not appear to be afraid of the appellant.

Robin Tatem, whose daughter i s the appellant’s niece, tes tified that the appellant and Price liv ed together in December 1992. Specifically, she remembered a party at Pric e’s residence in January 1993 at which time the appellant and Price were living together. Tate also testified that she heard Price complain that the appellant w as deliquent in his chi ld support payments. Accor ding to Tate, Price stated that she “ would get him in jail

one way or another.”
The appellant also offered the testimony of Rex Campbell, a former inmate who had been in jail at the same time as the appellant. Campbell testified that he wrote the poem containi ng the line, “You w ill know what it

means to be fucking burnt.” Campbell r ecalled that he had writt en the phrase about a relationship in whic

h he was mistreated. Fur ther, Campbell testified that, a fter the appellant read the poem in jail , he asked Campbell if he could c opy the poem. On cross-examination, Campbel l testified that he recalled the defendant stating that he would “get even” with Price.
Additionally, the appellant offered proof in support of an alibi defense. Philip Bowling, the appellant’ s brother, testified that the appe llant came home around 2:00 a.m. on May 23, 1994, and fell asl eep on the couch. He next saw the appellant at approximately 9:00 a.m. as the appellant was leaving for work.
Arthur Welch, a friend of the appellant’s, testi fied that on May 23, 1994, he8 was at the home shared by the appellant and Phillip Bow ling. Welch testified that the appellant came home at approxi mately 2:00 a.m. and fell asleep on the couch. He did not notice anything unusual about the appellants behav ior. Walter Brady, the appellant’s step-father, also testified that he observed the appellant asleep on the couch at the appellant’s resi dence at approximately 5: 00 a.m. on the morning of May 23, 1994.
Finally, Percel Fa in, the appellant’s brother in-law, testified that he lives in the vicinity of Davi s Street and that the Nashvi lle Sound night club is an eight to ten minute walk from Davis Street.
II. Analy

sis A. Motion for New Trial

As a preliminary matter, we must first determine w hether the issues raised have been waiv

ed by the untimely filings of the appellant’s motion for new trial and notice of appeal.

A motion for new trial must be filed “within thirt y days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). Thi s is a mandatory filing period which cannot be ex tended. Tenn. R. Crim. P. 45(b) . The trial court does not possess jurisdiction ov er an untimely filed motion for new trial. State .v Martin , 940 S.W.2d 567, 569 (Tenn. 1997) (citations omitted).“The trial judge’s er roneous consideration [and] ruling on a motion for new trial no t timely filed . . . does not validate the motion.” Id. (citing State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989)). An untimely fil ed motion for new trial “n ot only results in the appellant losing the right to h ave a hearing on the motion,but it also deprives the appellant of the opportunity to argue on appeal any issues that w ere or should have been9 presented in the motion for new trial.” Id. (citations omitted). O n appeal, waiver of these issues occurs pursuant to Tenn. R. App. P. 3(e), which states:

[I]n all cases tried by

a jury, no issue pres

ented for review shall be pr

edicated upon error in the admi ssion or exclusion of evidence, j ury instructions g ranted or refused, misconduct of jurors, par ties, or counsel, or other action committed or occur ring during the tri al of the case, or other ground upon w hich a new trial is

sought, unless the same was specifically stated in a motion for new trial; otherw

ise such issues wil l be treated as waived. However, this cour

t may address issues w hich would result in outright dismissal of the prosecution, such as the sufficiency of evi dence. See Dodson , 780 S.W.2d at 780; State v. Willia ms , 675 S.W.2d 499, 501 (Tenn. Crim. App. 1984). In addition, this court may review the record for plain errors when necessary to do substantial justice. Tenn. R. Crim. P. 52(b).

In the instant case, the tria l court entered the order of sentence on June 2, 1995 and the appellant filed a mo tion for new trial on July 10, 1995, more than 30 days after sentencing . This court lacks the author ity to waive the

timely filing of a motion for new trial. See State v. Seyler , N o. 01 C0 1- 98 01 -C R- 00 05 0, 19 99WL 357348, at *2 (Tenn. Crim. App. at N ashville, June 4, 1999); State v. Willia ms , No. 02C01-9710-CR-00388, 1999 WL 2848, at *6 (Tenn. Cr im. App. at Jackson, January 5, 1999); State v. Wallace , No. 01C01-9711-CC-00526, 1998 WL 670627, at *4 (Tenn. Crim. App. at Nas hville, September 30, 1998); State v. Brannan , No. 01C01-9704-CC-00148, 1998 WL 242453, at *3 (Tenn. Cr im. App. at Nashville, May 15, 1998). Furthermore, this court has consistently held that counsel’s untim ely filing of a motion for new tri al is imputed to the appellant for the purpose of waiver. See Dodson , 780 S.W.2d at 780; Williams , 675 S.W.2d at 501. Therefore, the issue concerning the trial court’s admission of prior convictions, which could only result in the granting

of a new trial and not dismi ssal of the prosecution, is w aived10 and the only issue that remai ns for our consideration is the sufficiency of the evidence.
In addressing the appellant’ s sufficiency issue, w e are faced with another problem stemming from the fa ilure to file a motion for new trial in a timely manner. A notice of appeal is required to be filed with the clerk of the trial cou rt within thirty days after the date of entry of the judgment or order from which relief is sought. Tenn. R. App. P. 4(a) . Timely filing of a motion for new trial tolls thi s period until the entry of the order denying the motion for new trial. Tenn. R. App. P. 4(c ). See also State v. Lock , 839 S.W.2d 436, 440-41 (Tenn. Crim. App. 1992).

In the present case, because the untimely motion f or new trial was a nullity, it did not to ll the thirty-day period for filing a notice of appeal. See State v. Davis , 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). As stated previously , the trial court entered the or der of sentence on June 2, 1995, and the appel lant filed an untimely motion for new tr ial on July 10, 1995. After the appointment of new counsel, the appellant filed a sec ond motion for new trial on October 9, 1996. The trial court conducted a hear ing and subsequently d enied the motion on August 6, 1997. The notice of appeal was filed on September 3, 1997.

Of course, Tenn. R. App. P. 4(a) p rovides that the notice of appeal document is not jurisdicti onal and that timely filing may therefore be waiv ed in the interest of justice. See also State v. Bilbrey , 816 S.W.2d 71, 75 (Tenn. Crim. App. 1991); Williams , No. 02C01-9710-CR-00388, 1999 WL 2848, at *6. We find that this is an appropriate cas e to waive the timely

filing requirement for th e notice of appeal. Accordingly , we will addres s the sufficiency of evidence issue.11 B. Sufficiency

of the Evidence The appellant contends that the record conta ins insufficient evidence to sustain his conviction of arson. Specifically, the appellant argues that the St ate’s proof is entirely cir

cumstantial and does not raise more than a suspicion that the appellant may have been res ponsible for the offense.

In Tennessee, appellate courts acc ord considerable weig ht to the verdict of a jury i n a criminal trial. In essence, a jury conv

iction removes the presumption of the defendant’s innocence and replaces it with one of g uilt, so that the appellant carries the burden of demonstrat ing to this court why the evidence will not support the jury’s findings. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that “no reasonable trier of fact” coul d have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); T enn R. App. P. 13(e).

Accordingly, on appeal , the State is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich may be drawn there from. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). In other word s, questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

factual issues raised by the evidence, are resol ved by the trier of fact, and not the appellate courts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990).
Although the evidence of the appellant’s guilt is circumstantial in nature, a criminal offense may be es tablished by circumstantial evidence alone. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958); State v. Lequire , 634 S.W.2d 608, 614 (Tenn. Crim.12 App. 1987). However, before an accused may be convicted of a criminal off ense based upon circumstantial evidence alone, the fact s and circumstances “must be so strong and cogent as to ex clude every other r

easonable hypothesis sav e the guilt of the defendant.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). In other words, “[a] web of g uilt must be woven aro und the defendant from which he cannot escape and from which facts and ci rcumstances the jury co uld draw no other reasonable inference save the guilt of the defen dant beyond a reasonable doubt.” Id. at 613.
While following the above guidel ines, this court must remember that the jury decides the w

eight to be given to c

ircumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent t o which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury.” Marable v. State , 313 S.W.2d at 457; see also State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State , 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).

With respect to the appellan t’s conviction of arson, the applicable statute provides:

(a) A person commits an offense who knowingly damages any structure by means of fire or explosion: (1) Without the consent of all persons wh o have a possessory, pr

oprietary, or securi

ty interest therein;. . . . Tenn. Code Ann. § 39-14-301(a)(1) (1997). In this case, the jury convicted the appellant of arson pursuant to an indictment charging that the appellant “did unlawfully and knowi ngly damage a house locat ed at 603 Davis Street . .. without the consent of all persons who had a possessory, proprietary, or security interest13 therein. . . .”
We conclude that the State adduced ample evidence to convict the appellant of arson. Although the appellant contended that he had also been a resident at the Davis S treet house, there was ampl e evidence to the contrary. The State presented proof that, after the appellant’s convictions of felony nonsupport and stalking in April

1994, the appellant began to thr eaten Price and one of her children, who had testified against him in those cases . Moreover, shortly after the appellant’s release from custod y, the appellant was i nvolved in an alterc ation with Price’s brothers. Immediately following the altercation, the appellant repeate dly threatened to “burn Davis Street down” and also said that he had “one bullet lef t in his gun,” referring to Price.

Additionally, the State pr esented the testimony of Robert G eorge, who observed the appellant w ithin walking dis

tance of Price’s residence be tween midnight and 1:00 a.m. on the nig ht of May 22 and the early morning hours of May 23, 1994. Furthermore, Dav id Vaught’s testimony, along with Price’ s testimony and telephone records, establis hed that the appellant made two tel ephone calls from Price’s residence to David Vaught’s residence in Illinois in the early morning hours of May 23, 19 94, thus placing the appe llant at the scene of the fi re at a time consistent with the star t of the fire. Shell’s testimony established that the fire bega n no more than eight to nine hours before its discovery

at 5:00 a.m.
Furthermore, the expert t estimony of the fire and arson in vestigators, George Leonard and Steve Shel l, established that the fire i n Price’s residence had been intentionally set. They also opined that the evidenc e showed no indications that the fire was caused by the owner for insurance pur poses.14 Finally, the questi oned document expert, Dr. Lar ry Miller concl uded that the appellant wrote the letter containing the li ne, “you will kno w what it means to be fucking burnt.” Dr. M iller’s testimony al so confirmed that there were no significant dissimilarities between the appellant’s handwriting and the “U R DEAD” writing on the inter

ior wall of Price’s

residence.

We conclude that the evidence in this cas e is sufficient to sustain the appellant’s conviction

for arson.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Norma McGee Ogle, Judge
CONCUR:

______________________________ Gary R. Wad e, Presiding Judge

_______________________________ Cornelia A. Clark, Special Judge