IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2017

STATE OF TENNESSEE v. TAVIS BOWERS

 Appeal from the Circuit Court for Madison County

No. 11-152 Roy B. Morgan, Jr., Judge

No. W2016-01007-CCA-R3-CD

The defendant, Tavis Bowers, was convicted by a Madison County jury of two counts of 

assault by offensive or provocative touching, a Class B misdemeanor, and one count of 

resisting arrest, also a Class B misdemeanor. He was sentenced by the trial court to

concurrent six-month sentences for the assault convictions, to be served consecutively to 

a six-month sentence for the resisting arrest conviction. On appeal, he challenges the 

sufficiency of the convicting evidence and argues that the trial court committed plain 

error by not instructing the jury on self-defense. Following our review, we affirm the 

judgments of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender; Jeremy B. Epperson, Assistant Public 

Defender (on appeal); and David W. Camp, Jackson, Tennessee (at trial), for the 

appellant, Tavis Bowers.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; 

James G. (Jerry) Woodall, District Attorney General; and Rolf G. S. Hazlehurst, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

According to the State’s proof at trial, in the very early morning hours of January 

14, 2011, uniformed officers from the Jackson Police Department responded to a 

03/02/2017
-2-

disturbance call at the home of Vanessa Robertson, the defendant’s girlfriend, who 

informed the officers that the defendant was inside intoxicated and refused to leave her 

home. The officers entered the home, announced themselves, and located the defendant 

lying on a bed in a back bedroom. They identified themselves to him as police officers 

and asked him to get up to talk to them. When the defendant failed to respond, one of the 

officers took hold of his arm to shake it. The defendant pulled his arm away and swung 

his other arm at one of the officers, striking him in the torso. A struggle ensued, during 

which the defendant shoved another officer into a dresser as all three officers wrestled to 

restrain him and place him under arrest. 

Two of the three responding police officers testified against the defendant at his 

August 2011 trial. Officer Michael Byrd testified that an upset Ms. Robertson, who met 

the officers outside her residence, informed them that the defendant, a visitor to her 

home, “was inside highly intoxicated and refused to leave.” He said he, Officer Valdes, 

and Officer Washburn entered the home announcing “Jackson Police Department” and 

walked down a hallway to a back bedroom, where they found the defendant lying at the 

foot of a bed. He testified that both he and Officer Valdes told the defendant to get up 

because they needed to talk to him, but the defendant did not respond. He recalled that 

he identified himself as a police officer before asking the defendant to get up.

Officer Byrd testified that when the defendant failed to respond to their second 

request for him to get up, Officer Valdes reached down, grabbed his left arm, and started 

to shake it. The defendant “yanked” his arm away and “reached up and hit [Officer 

Byrd] in [his] left torso” with his right hand. Officer Byrd said he was stunned and 

stepped back, only to have the defendant “come up off the bed at [him].” He stated that 

Officer Washburn came across the room to his defense and that Officer Washburn and 

the defendant “locked up” before the defendant threw Officer Washburn against a 

dresser. The defendant started toward Officer Washburn, who had ended up on the floor, 

and Officer Byrd responded by jumping on the defendant’s back. The struggle continued 

with all three officers and the defendant “slung to the bed,” where Officer Byrd was 

eventually able to handcuff the defendant. 

Officer Byrd testified that as he was trying to handcuff the defendant, he and his 

fellow uniformed officers identified themselves as police officers and repeatedly 

instructed the defendant that he was under arrest and to put his hands behind his back. 

Officer Byrd said he was aware of Officer Washburn’s having used his chemical spray on 

the defendant during the struggle. In addition, he recalled that Officer Valdes “stated 

afterwards he had to use his Ast baton.” He testified that after the defendant was taken 

into custody, he was transported to the emergency room of Jackson-Madison County 

General Hospital. 
-3-

The defendant’s hospital medical records, which reflected that he was treated for 

three lacerations to the head, were admitted by stipulation. On cross-examination, 

Officer Byrd testified that he did not smell any alcohol on the defendant, but he did not 

get “close enough to his breath.” He said he recalled having said “Jackson Police 

Department two times” -- once as he was walking down the hall and again in the 

bedroom. He stated that he and his fellow officers initially were interested only in getting 

the defendant’s side of the story in the domestic dispute; they had no intent to arrest him

until after he struck Officer Byrd. He was not aware of Officer Valdes’ use of his baton 

until later, but he was aware of Officer Washburn’s use of mace, or “Freeze Plus,” during 

the struggle. Officer Byrd denied ever striking the defendant with his flashlight.

Officer Daniel Washburn’s testimony essentially corroborated that of Officer 

Byrd, with the added details that Ms. Robertson warned the officers to “be careful, he is 

going to fight you” and that the defendant flung him first into a dresser, where he struck 

his hand, before tossing him into the corner of the room. He also testified that Officer 

Valdes “deployed his Ast baton trying to strike [the defendant’s] arms” as the defendant 

resisted their efforts to handcuff him. He stated that “[n]othing seemed to be working” 

until he deployed his chemical agent to the defendant’s face. He believed that Officer 

Valdes used his chemical agent on the defendant as well. 

Officer Washburn further testified that he repeatedly told the defendant to “[s]top 

resisting arrest.” He said that he was treated at the emergency room for a sprained wrist, 

which caused him to miss two or three days of work. On cross-examination, he denied 

that Officer Byrd struck the defendant with a flashlight or that the officers were angry at 

the defendant for not responding to their requests to get up to talk to them. He testified 

that they initially had no intention to arrest the defendant, but after he struck Officer 

Byrd, “there was no question he was under arrest at that time.” 

Officer Brad York of the Jackson Police Department testified that he responded to 

the Jackson-Madison County General Hospital Emergency Room at approximately 2:25 

a.m. on January 14, 2011 “to . . . guard [the defendant].” He said that as he was standing 

in the doorway of the treatment room, the defendant volunteered to himself and to Officer 

Allen that “he heard what the officers were telling him” and “just disregarded the 

commands and stuff due to the way the officers were talking to him.” On crossexamination, Officer York acknowledged that the defendant also stated that the officers 

jumped on him when he ignored their commands. 

Officer Joe Allen of the Jackson Police Department testified that as he was 

guarding the defendant at the hospital, the defendant stated that “the officers had jumped 

on him.” He said the defendant told him that he had been lying in bed and had heard the 

officers but did not respond because he did not like what they were saying to him. 
-4-

The defendant’s self-described “off and on” girlfriend, Vanessa Robertson, called 

as a witness for the defense, testified that she followed the three officers into the house 

and down the hall and heard them call the defendant by name and ask him to get up. She 

said that the defendant answered, “[F]or what?” and Officer Byrd then struck him on his 

leg with a flashlight. At that point, she turned and walked away from the bedroom. On 

cross-examination, she testified that her current relationship status with the defendant was 

“on.” She denied that she told the responding police officers that the defendant was 

intoxicated, testifying that she instead said that he might be drunk. She also denied 

warning the officers that the defendant would fight them. Finally, she testified that the 

officers never announced themselves to the defendant as police officers. 

The defendant, who said he was living with Ms. Robertson at the time of the 

incident, testified that the two had “bicker[ed]” over something minor and Ms. 

Robertson, who had “a bad tendency of quickly getting upset about . . . any little thing[,]” 

told him that she had called the police. He said he was in the kitchen when the officers 

arrived but turned and went to lie down on the bed in the back bedroom. According to 

his testimony, the officers never announced themselves. Instead, Officer Valdes came 

into the room and struck him on the leg without warning. The defendant testified he 

asked the officer what the problem was, but instead of answering, one of the officers 

sprayed him with freeze spray, which burned his eyes and choked him. Because he could 

not breathe, he jumped up off the bed to get away from that area. He next remembered 

being kicked in the face and struck in the head and the officers’ ordering him to get 

down. 

The defendant denied that he ever struck an officer or that he did anything wrong, 

other than “trying to beg to see and breathe.” He said the officers sprayed him once or 

twice more in the bedroom and again after he was handcuffed and sitting in the back of 

the squad car. In his opinion, the officers came into the house with “a bit of an attitude.” 

The defendant testified that he had been drinking earlier in the evening but denied that he 

was drunk when the officers arrived. 

On cross-examination, the defendant reiterated that he was attacked by the officers 

without warning or provocation and denied that he knew the officers were trying to place 

him under arrest.

ANALYSIS

I. Sufficiency of the Evidence
-5-

The defendant first contends that the evidence at trial was insufficient to sustain 

his convictions. In support, he cites his medical records of his “numerous head injuries” 

to argue that the testimony of the officers was inconsistent with the physical proof at trial. 

He also argues that the proof showed that the officers lacked “just cause to enter the 

residence to conduct an interview.” The State responds by arguing that the evidence, 

viewed in the light most favorable to the State, established that the defendant assaulted 

Officer Byrd by punching him, assaulted Officer Washburn by throwing him against a 

dresser, and resisted arrest by continuing to fight after the officers told him he was under 

arrest. We agree with the State. 

In considering this issue, we apply the rule that where sufficiency of the 

convicting evidence is challenged, the relevant question of the reviewing 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 beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. 

App. P. 13(e) (“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.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). 

All questions involving the credibility of witnesses, the weight and value to be 

given the evidence, and all factual issues are resolved by the trier of fact. See State v.

Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, 

approved by the trial judge, accredits the testimony of the witnesses for the State and 

resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 

476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the 

jury see the witnesses face to face, hear their testimony and observe their 

demeanor on the stand. Thus the trial judge and jury are the primary 

instrumentality of justice to determine the weight and credibility to be 

given to the testimony of witnesses. In the trial forum alone is there human 

atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 

Tenn. 464, 370 S.W.2d 523 (1963)). 

“A jury conviction removes the presumption of innocence with which a defendant 

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted 
-6-

defendant has the burden of demonstrating that the evidence is insufficient.” State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

This is a classic case involving credibility determinations by the jury. The 

officers’ testimony describing the incident was more than sufficient to establish the 

elements of assault and resisting arrest. See Tenn. Code Ann. §§ 39-13-101(a)(3), 39-16-

602(a). By its verdicts, the jury obviously accredited the testimony of the officers over 

that of the defendant and Ms. Robertson, as was its right. We, therefore, conclude that 

the evidence is sufficient to sustain the defendant’s convictions. 

II. Omitted Jury Instruction on Self-Defense

The defendant also contends that the trial court committed plain error by not sua 

sponte instructing the jury on self-defense, which, the defendant argues, was fairly raised 

by the evidence. The State argues that the defendant cannot establish that the trial court 

committed plain error by not giving the instruction. We, again, agree with the State. 

Because the defendant failed to request a jury instruction on self-defense, he is 

limited to plain error review. The doctrine of plain error provides that where necessary to 

do substantial justice, an appellate court may take notice of a “plain error” not raised at 

trial if it affected a substantial right of the defendant. Tenn. R. Crim. P. 36(b). In order 

for us to find plain error: (a) the record must clearly establish what occurred in the trial 

court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial 

right of the accused must have been adversely affected; (d) the accused did not waive the 

issue for tactical reasons; and (e) consideration of the error is “‘necessary to do 

substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v.

Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five 

factors must be established by the record before we will recognize the existence of plain 

error, and complete consideration of all the factors is not necessary when it is clear from 

the record that at least one factor cannot be established. Id. at 283.

We agree with the State that the defendant cannot show plain error in the trial 

court’s not issuing an instruction on self-defense. “It is well-settled in Tennessee that a 

defendant has a right to a correct and complete charge of the law so that each issue of fact 

raised by the evidence will be submitted to the jury on proper instructions.” State v.

Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 432 

(Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial 

courts have the duty to give “a complete charge of the law applicable to the facts of the 

case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. 

Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). The trial court has no duty, however, to 

instruct the jury on self-defense when the proof does not fairly raise that defense. In 
-7-

deciding whether a defense instruction is warranted, the trial court “must examine the 

evidence in the light most favorable to the defendant to determine whether there is 

evidence that reasonable minds could accept as to that defense.” State v. Sims, 45 

S.W.3d 1, 9 (Tenn. 2001).

We agree with the State that the proof did not support a self-defense instruction. 

Our self-defense statute provides in pertinent part that:

a person who is not engaged in unlawful activity and is in a place where the 

person has a right to be has no duty to retreat before threatening or using 

force against another person when and to the degree the person reasonably 

believes the force is immediately necessary to protect against the other’s 

use or attempted use of unlawful force. 

Tenn. Code Ann. § 39-11-611(b)(1) (emphasis added). Moreover, the statute expressly 

provides that the presumption that a person using force intended or likely to cause death 

or serious injury within a residence was operating under a reasonable belief of imminent 

death or serious bodily injury does not apply when the “person against whom force is 

used is a law enforcement officer . . . who enters . . . in the performance of the officer’s 

official duties” and the defendant “knew or reasonably should have known that the 

person . . . was a law enforcement officer.” Id. § 39-11-611(d)(4). 

Regardless of whether or not the officers announced themselves, the defendant, by 

his own admission, knew that they were police officers who had responded to his 

girlfriend’s call. Thus, the evidence did not fairly raise the defense of self-defense. The 

defendant is not, therefore, entitled to plain error relief on the basis of this issue. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the 

trial court. 

_________________________________ 

ALAN E. GLENN, JUDGE