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State v. Bowers

Court of Criminal Appeals of Tennessee, Jackson

March 2, 2017

STATE OF TENNESSEE
v.
TAVIS BOWERS

          Assigned on Briefs January 5, 2017

         Appeal from the Circuit Court for Madison County No. 11-152 Roy B. Morgan, Jr., Judge.

         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.

          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.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         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 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.

         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, ...


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