        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE             FILED
                        APRIL SESSION, 1997          January 21, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
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. 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 W ELLS
                                District Attorney General

                                EDWARD WILSON
                                Assistant Attorney General
                                P. O. Box 526
                                Blountville, TN 37617



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     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 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, Appellant gave a signed

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

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 vehicle. Appellant stated that 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 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 . Moreov er, Officer S mith exp lained tha t, during his emplo ymen t 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 o f the burglary set out in h is Decem ber 22 statem ent were

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

respec t and also declined to mak e any ad ditional state ment.



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

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 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,

"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." Appellant 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 handwriting on the December 22, 1987

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

about seven years ago." W hen aske d whether h e recognize d the signature

                                            -3-
on the "Advice, Waiver of Rights" form, 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 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 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

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

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 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 pro secution for agg ravated perjury
               that the person retracted the false sta tement be fore
               completion of the testimony at the official proceeding
               during which the aggravated perjury was committed.


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          The question of whether claimed loss of memory constitutes a retraction

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 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 instru cted an yone to lie b efore a g rand jury. Id. at 458.



          However, unknown to Vesich, the prosecution possessed 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 grand 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 Vesich’s denial that he had ever urged any individual to lie before a

grand jury, Vesich repeatedly responded to questions pertaining 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 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.




   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 b e fals e, su ch ad mis sion shall b ar pro sec ution 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.

                                                        -5-
       It is clear that T enne ssee Code Anno tated S ection 39-16 -704 is

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

falsity ca n do a ny har m. If ha ving lied the pe rjurer k nows he ca n 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

       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 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 (T enn. 19 94); 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

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, "the

[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. (citing

                                            -6-
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 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 conducting our evaluation of the convicting

evidence, this Court is precluded from reweighing or reconsidering the

evidenc e. 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 circums tantial evide nce." Matthews, 805 S.W .2d 776, 779 . Finally,

T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal actions whether

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 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 `m ust be so stron g and cog ent as to exclude every

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

776, 779-80 (quoting 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 charged in the indictment or information after the evidence on either

                                            -7-
side is closed if the evidence is insufficient to sustain a conviction of such

offense or offense s." Id. Furthermore, in dealing with a motion 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). 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 pre cluded from rew eighing th e eviden ce. State v. Adams,

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 person

commits [perjury] who, with intent to deceive:

       (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 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 state ment is m aterial." Id. To sustain a conviction, the

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

reason able do ubt.



       Viewing the evide nce in light o f the abov e-stated criteria, we h old that a

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

Appe llant co mm itted ag grava ted pe rjury. W e furthe r hold th at the e videnc e is

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

of acq uittal.

                                            -8-
       The p rosecu tion called O fficer Sm ith as its only w itness. O fficer Sm ith

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

lookou t. Additiona lly, Officer Sm ith testified tha t Appella nt did not a ppear 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 ha d never k nown A ppellant to use dru gs or alco hol.



       The jury next heard the Assistant District Attorney General read

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 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 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." 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

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 that the signature on the "Advice, Waiver of Rights"

form more closely resembled his handwriting than did the signature on the

                                           -9-
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 to 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 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 ap peal, we , therefore , affirm the ju dgme nt of the trial co urt.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
CHRIS CRAFT, SPECIAL JUDGE




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