             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           DECEMBER 1997 SESSION          FILED
                                                          January 29, 1998

STATE OF TENNESSEE,                  )                   Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                                     )
                     APPELLEE,       )
                                     )          No. 02-C-01-9705-CR-00173
                                     )
                                     )          Shelby County
v.                                   )
                                     )          Carolyn Wade Blackett, Judge
                                     )
                                     )          (Aggravated Robbery and
                                     )           Aggravated Assault)
DEMARCO BOWDERY AND                  )
ANTHONY L. WELLS,                    )
                                     )
                   APPELLANTS.       )



FOR THE APPELLANTS:                       FOR THE APPELLEE:

Charles E. Waldman                        John Knox Walkup
Attorney at Law                           Attorney General & Reporter
147 Jefferson Avenue, Suite 1102          500 Charlotte Avenue
Memphis, TN 38103                         Nashville, TN 37243-0497
(Counsel for Bowdery)
                                          Deborah A. Tullis
Joseph S. Ozment                          Assistant Attorney General
Attorney at Law                           450 James Robertson Parkway
217 Exchange Avenue                       Nashville, TN 37243-0493
Memphis, TN 38103
(Counsel for Wells)                       William L. Gibbons
                                          District Attorney General
                                          201 Poplar Avenue, Suite 3-01
                                          Memphis, TN 38103

                                          Reginald Henderson
                                          Assistant District Attorney General
                                          201 Poplar Avenue, Suite 3-01
                                          Memphis, TN 38103




OPINION FILED:_________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellants, Demarco Bowdery and Anthony L. Wells (defendants), were

convicted of aggravated robbery, a Class B felony, and aggravated assault, a Class C

felony, by a jury of their peers. The trial court, finding the defendants were standard

offenders, imposed the following Range I sentences as to both defendants: (a) a fine of

$500 and confinement for eight (8) years in the Department of Correction for aggravated

robbery, and (b) a fine of $500 and confinement for three (3) years in the Department of

Correction for aggravated assault. The sentences are to be served concurrently. One

issue is presented for review. The defendants contend the evidence contained in the

record is insufficient, as a matter of law, to support a finding by a rational trier of fact that

they are guilty of these offenses beyond a reasonable doubt. After a thorough review of

the record, the briefs submitted by the parties, and the law governing this issue, this court

is of the opinion the judgment of the trial court should be affirmed.

       On November 14, 1995, at approximately 9:30 p.m., Michael L. Johnson took Marie

Gillespie to her mother’s residence. Ms. Gillespie’s intention was to obtain her motor

vehicle.

       After dropping Ms. Gillespie off at her mother’s house, Mr. Johnson started to exit

the driveway. A light colored van pulled into the driveway. This prevented Mr. Johnson

from leaving. Two of a total of four men initially approached his Nissan Pathfinder with

shotguns. One of the perpetrators approached the driver’s side of the vehicle, tapped on

the glass window with the shotgun, and aimed the gun at his face. Mr. Johnson was

ordered to exit the vehicle. He complied with this direction, and he gave the gunman his

car keys. The gunman also asked for his money. Mr. Johnson gave him his wallet

containing $160.

       Ms. Gillespie was on the front porch of her mother’s residence. A gunman ordered

her to approach the Pathfinder. He told Ms. Gillespie he would kill Mr. Johnson if she did

not follow his direction. When she complied, the gunman told her if anyone came to the

front door, he would have to kill both Mr. Johnson and herself.

       At least one of the four men entered the Pathfinder and started it. The Pathfinder


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left the driveway in tandem with the van.

       Officer Hawkins, a Memphis police officer, heard the broadcast regarding the

crimes. He also heard another police officer broadcast a description of the vehicle taken

and a description of those responsible for the crimes. While driving through a nearby

neighborhood, he saw a Pathfinder matching the description of the stolen vehicle. It was

parked in an odd position. He did not stop. Instead, he drove around the block. As he

was approaching the location of the Pathfinder a second time, he saw a gray Oldsmobile

Cutlass in front of him. The Cutlass slowed when it neared the Pathfinder and pulled to

the opposite side of the street. The occupants of the Cutlass apparently saw Officer

Hawkins’s police cruiser behind them because they did not stop. When another police

officer arrived, Officer Hawkins stopped the Cutlass. The vehicle was occupied by the

driver and owner of the vehicle, Alonzo Woods, and three passengers, Bowdery, Wells,

and Wells’s brother, Eric W ells.

       A police officer took Mr. Johnson and Ms. Gillespie to view the occupants of the

Cutlass. Ms. Gillespie identified the defendants and Eric Wells as three of the people who

had taken Johnson’s wallet and vehicle. Ms. Gillespie and Mr. Johnson made courtroom

identifications of the defendants.

       Bowdery and Woods testified in support of Bowdery’s defense. Both witnesses

testified Woods, Bowdery, and the Wells brothers had been together since 2:30 p.m. They

played cards and listened to music at the residence of a woman named Cynthia. Neither

knew Cynthia’s last name. She apparently was a friend of Woods’s girlfriend. Woods was

taking Bowdery and the Wellses home when Officer Hawkins stopped Woods’s vehicle.

       One or more of the perpetrators of the crimes in question was described as having

gold teeth. The defense established that neither Woods nor Anthony L. Wells had gold

capped teeth. However, the assistant district attorney general established the defendant

Demarco Bowdery did have teeth with gold caps. The defendants were wearing dark

clothing -- coats -- and one of them was wearing a plaid shirt, which Johnson and Gillespie

had described to the police.

       No physical evidence linking the defendants to the crimes in question was

introduced into evidence. It appears the guns and the skull caps worn by the perpetrators



                                            3
were not found. Also, the light colored van was never found.

       When an accused challenges the sufficiency of the convicting evidence, this court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this court does not reweigh

or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.),

per. app. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn

by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286

S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the

contrary, this court is required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "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."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.

       Before the defendants could be convicted of aggravated robbery, the State of



                                                  4
Tennessee was required to prove beyond a reasonable doubt the defendants (a)

committed the offense of robbery as defined in Tenn. Code Ann. § 39-13-401 (1991 Repl.),

and (b) accomplished the robbery with a deadly weapon. Tenn. Code Ann. §§ 39-13-

402(a)(1) (1991 Repl.). The evidence contained in the record establishes the State of

Tennessee established the elements of this offense and the identity of the defendants as

participants in this crime beyond a reasonable doubt. A reasonable trier of fact could

reasonably conclude from the evidence the defendants were guilty of aggravated robbery

beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      Before the defendants could be convicted of aggravated assault, the State of

Tennessee was required to prove beyond a reasonable doubt the defendants (a)

intentionally or knowingly committed an assault within the meaning of Tenn. Code Ann.

§ 39-13-101, and (b) used or displayed a deadly weapon. Tenn. Code Ann. § 39-13-

102(a)(1)(B) (1991 Repl.). The evidence contained in the record establishes the State of

Tennessee proved the elements of this offense and the identity of the defendants as

participants in this crime beyond a reasonable doubt. Again, a reasonable trier of fact

could reasonably conclude from the evidence the defendants were guilty of aggravated

assault beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, supra.




                                 ____________________________________________
                                        JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
        JERRY L. SMITH, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




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