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
2 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
Free access — add to your briefcase to read the full text and ask questions with AI
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
2 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