State of Tennessee v. Billy Joe Nelson ( 2017 )


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  •                                                                                                        10/16/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs September 13, 2017
    STATE OF TENNESSEE v. BILLY JOE NELSON
    Appeal from the Circuit Court for Coffee County
    No. 40156 Paul G. Summers, Senior Judge
    ___________________________________
    No. M2016-00010-CCA-R3-CD
    ___________________________________
    Following a trial, a Coffee County jury found the Defendant, Billy Joe Nelson, guilty of
    aggravated rape, carjacking, robbery, and two counts of aggravated kidnapping. The trial
    court sentenced the Defendant to a total effective sentence of thirty years in the
    Department of Correction. On appeal, the Defendant challenges whether the State
    sufficiently proved his identity as the perpetrator of the offenses. Upon review, we affirm
    the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
    EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Jeremy W. Parham, Nashville, Tennessee, for the appellant, Billy Joe Nelson.
    Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
    Attorney General; Craig Northcott, District Attorney General; Kristy K. West and Jason
    Michael Ponder, Assistant District Attorneys General, for the appellee, State of
    Tennessee.
    OPINION
    Factual and Procedural History
    On December 31, 2012, the victim1 celebrated New Year’s Eve at the 41 South
    Sports Bar and Grill (“41 South”) in Manchester where her husband and his band were
    1
    We will not use the name of the victim in this opinion as it is the policy of this court not to
    reveal the identity of victims of sexual assault.
    performing for patrons of the bar. After their show ended, sometime between 12:30 a.m.
    and 1:00 a.m. on January 1, the victim’s husband needed to help the band take down
    equipment and load it onto a trailer. The victim was tired and wanted to go to sleep, so
    her husband escorted her to their car, which was parked in a well-lit parking lot beside
    the bar, so that she could sleep in the car while he loaded the equipment. Because it was
    cold outside, the victim started the car and turned on the heat. She reclined in the
    passenger seat, pulled a coat up over her lap, and fell asleep. Sometime later, the victim
    awoke to find that the car was “in motion,” and a man was talking. When she turned
    over, the victim discovered that the Defendant was driving her car down Highway 55
    towards Tullahoma. The victim did not know the Defendant and had never seen him
    before. The Defendant asked her, “Where did you think you were going, b****, you’ve
    been flirting with me all night, did you think you would get away from me[?]” The
    Defendant then said, “[C]ome here, b****, and suck my d***[.]” The Defendant, whose
    blue jeans were opened, grabbed the back of the victim’s head and forced her mouth onto
    his penis. As he continued to drive, the Defendant forced the victim to perform oral sex.
    The Defendant pulled into a dark parking lot near Manchester High School. When
    the car stopped, the victim opened her car door and attempted to get out, but the
    Defendant grabbed her by the hair and pulled her towards him, saying, “[W]here are you
    going, b****, I’m not through with you, you’re a rich b****, I’m going to rape you up
    the a**, do you understand that[?]” He pulled out clumps of the victim’s hair and bit her
    face under her left eye, causing her to let go of the car door. The Defendant also told the
    victim that he had a gun as he pulled her back into the car. He then made the victim pull
    down her pants, and he penetrated her vagina with his finger as he drove back onto
    Highway 55.
    The victim later explained that she had “never felt pain like that before” and that
    she eventually “just gave in.” The Defendant told her to pull up her sweater, and she did.
    He then pulled up her bra and “pinched [her] nipple.” The Defendant asked her several
    times if she wanted to see his gun, but she “kept saying no[.]” The Defendant referred to
    the victim several times as “rich b****,” so the victim asked the Defendant if he wanted
    money. The victim grabbed her purse from the backseat and told the Defendant that she
    could give him money. She retrieved her wallet, took out credit cards and gift cards, and
    attempted to give them to the Defendant. At the same time, the victim realized that she
    had her cell phone in the purse, and she called 911. When the dispatcher answered the
    call, however, it could be heard over the car’s speakers because the cell phone was
    connected to the car through Bluetooth technology. The call to 911 was disconnected,
    but moments later, the victim’s husband called her cell phone. The Defendant was angry
    that the victim was using her cell phone, and the victim’s husband heard the victim
    saying, “[P]lease, don’t shoot me.” The victim’s husband then hung up and called 911.
    -2-
    The victim begged the Defendant to take her to her credit union, which was in a
    well-traveled part of town. Instead, the Defendant drove to the ATM at Citizens Tri-
    County Bank, where he demanded the victim’s ATM card. When she could not find the
    card in her wallet, she again requested that they go to the credit union. The Defendant
    backed out of the parking lot and drove towards the credit union. However, the
    Defendant made a U-turn and “started flying” down the road. Eventually, the Defendant
    stopped the car and opened the driver’s side door. The lights came on inside the car, and
    the victim saw that her credit cards and business cards were “everywhere” in the car. The
    Defendant leaned over and picked up cards off the floorboard. He then demanded the
    victim’s jewelry, and she gave him her wedding ring and an heirloom diamond ring. The
    Defendant told her, “I know where you live, b****, . . . don’t move your head for ten
    minutes[,] or I will f***ing blow it off.”
    When the Defendant got out of the car, the victim locked the doors and “just sat
    there.” The victim’s husband called again and asked the victim where she was, but she
    was “hysterical” and said she had “no idea[.]” Her husband convinced her to get in the
    driver’s seat and leave the area. The victim noticed a dumpster in front of her car that
    said “Dossett use only.” She then told her husband that she was at Dossett Apartments in
    Tullahoma. The victim called 911 a second time as she was driving to the police station.
    She told the 911 dispatcher that she felt “out of control and shaky” and like she “should
    not be driving.” Officers intercepted the victim’s car, and she was taken by ambulance to
    Harton Regional Medical Center. The victim was “very upset . . . [and] terrified.” At the
    hospital, the victim was treated for her injuries, including an abrasion on her scalp and
    the bite mark on her face. An emergency room physician also performed a rape kit,
    which was then turned over to investigators with the Manchester Police Department.
    The victim provided the investigators a description of the Defendant and stated
    that he was wearing a black hoodie and blue jeans. She stated that the lights were on
    inside the car and that she saw the Defendant’s face when she handed him the rings and
    as he instructed her to not to move for ten minutes. In describing the sexual assault, the
    victim stated that, when she was forced to perform oral sex, the Defendant’s black hoodie
    rubbed against her cheek. She said that she was unsure if the Defendant ejaculated
    during the assault.
    The victim’s car was processed at the Manchester Police Department’s impound
    lot. Investigators swabbed multiple surfaces in the car for “touch DNA” and dusted for
    latent fingerprints inside the car. Investigators also went to 41 South, where they
    reviewed video surveillance footage from the New Year’s Eve party during the timeframe
    that the victim had been at the bar. On the video surveillance footage, investigators saw
    two men wearing black hoodies. Manchester Police Department Investigator Billy Butler
    recognized one of the men as someone he knew. Investigator Butler later spoke to
    -3-
    Shirley Cooley, who had been at 41 South for the New Year’s Eve party, and she was
    able to identify the second man in a black hoodie on the video surveillance footage. On
    the morning after the victim’s kidnapping, Ms. Cooley learned about the crime when she
    received a phone call from a friend. During the conversation, Ms. Cooley learned that the
    assailant had worn “a black hoodie sweatshirt.” Ms. Cooley recalled that, while at 41
    South the night before, a man wearing a black hoodie “kept coming up to [her] table,”
    saying that he wanted to go to Mickey’s Bar and Grill. The man asked Ms. Cooley if she
    wanted to go with him, but she refused. He told Ms. Cooley that his name was Billy
    Nelson and that he was from Indiana. Ms. Cooley contacted investigators, and when
    shown the video surveillance footage from 41 South, she was able to identify the
    Defendant as the second man in the black hoodie. Investigators then showed the victim
    the video surveillance footage, and the victim immediately identified the second man in
    the black hoodie as the man that had assaulted her.
    Later that day, the Defendant called Investigator Butler and asked if investigators
    were looking for him. The Defendant wanted to talk over the phone, but Investigator
    Butler insisted that the Defendant come to the police department. The Defendant claimed
    that he had been in Alabama since December 28, 2012, working at a construction job.
    Although the Defendant agreed to meet Investigator Butler at the police department the
    following day, the Defendant did not show up. Investigator Butler later located the
    Defendant at a residence in Cannon County. Investigator Butler transported the
    Defendant back to Manchester, where he interviewed the Defendant after the Defendant
    waived his Miranda rights. The Defendant told Investigator Butler:
    I was at a party . . . from 6:00 p.m. to 2:00 a.m. Jeremy and Adrian
    Robertson was [sic] having a party. I left at Jeremy’s at about 2:00 a.m. I
    went to 41 then went to Mickey’s. I was wearing a pair of blue jeans and a
    Carhartt jacket, light brown, black and gray Nikes.
    We went in the front door at the 41 South Sports Bar. We then went
    straight to Mickey’s, and I spoke to Mickey and talked about the DJ [sic]
    could I sing a karaoke song. . . . Mickey said shut it down. . . . I left here
    yesterday morning and went to Tuscaloosa, Alabama, turned around and
    came back at 4:00 a.m.
    Investigators subsequently obtained a search warrant to search the Cannon County
    residence, where the Defendant lived with his girlfriend and her mother. During the
    execution of the search warrant, investigators found a black hoodie in the laundry room
    and collected it as evidence.
    -4-
    Investigators also visited the Defendant’s friend, Derek Carver, at his home on
    East Grundy Street in Tullahoma. Mr. Carver’s home was within walking distance of
    Dossett Apartments. Mr. Carver told investigators that sometime in the early morning of
    January 1, 2013, the Defendant entered his residence carrying a car amplifier. Mr. Carver
    stated that it was unusual for the Defendant to show up unannounced that early in the
    morning. The Defendant told Mr. Carver that “he got robbed” and needed to use Mr.
    Carver’s phone to call his girlfriend for a ride home. The Defendant left “a stack of
    cards” at Mr. Carver’s residence, which Mr. Carver later threw into a trashcan. When
    Mr. Carter retrieved the cards for investigators, they found that the cards belonged to the
    victim and included her driver’s license, credit cards, and personalized business cards.
    The Manchester Police Department submitted all items of evidence collected to
    the Tennessee Bureau of Investigation crime lab, including buccal swabs from the
    Defendant and the victim. Special Agent Chad Johnson, a forensic scientist with the
    crime lab, tested a stain on the front pocket near the waistline of the Defendant’s black
    hoodie. He swabbed the area of the stain, and subsequent testing revealed that there was
    a mixture on the hoodie of spermatozoa and alpha-amylase, which was indicative of
    saliva. DNA testing showed that there was a mixture of DNA on the hoodie; the “sperm
    component” matched the Defendant’s DNA profile, and the “non-sperm component”
    matched the victim’s DNA profile.
    Following the investigation, the Coffee County Grand Jury indicted the Defendant
    for aggravated rape, carjacking, robbery, and two counts of aggravated kidnapping.2
    Following a trial, the Defendant was convicted as charged. The trial court merged the
    convictions for aggravated kidnapping into a single conviction and sentenced the
    Defendant, as a Range I standard offender, to twenty years with a 100% release eligibility
    for aggravated rape; ten years with a thirty percent release eligibility for carjacking; six
    years with a thirty percent release eligibility for robbery; and ten years with a 100%
    release eligibility for aggravated kidnapping. The trial court ordered all sentences to run
    concurrently with each other, except for the twenty-year sentence for aggravated rape,
    which the trial court ordered to run consecutively to the sentence for aggravated
    kidnapping, for a total effective sentence of thirty years at 100% in the Department of
    Correction.
    The Defendant filed a timely motion for new trial, which was denied by the trial
    court after a hearing. This timely appeal follows.
    2
    The dual counts of aggravated kidnapping were based on two different theories of the
    commission of the offense: (1) that the victim suffered bodily injury; and (2) that the Defendant was in
    possession of a deadly weapon or threatened the use of a deadly weapon. See Tenn. Code Ann. § 39-13-
    304(a)(4)-(5) (2010).
    -5-
    Analysis
    On appeal, the Defendant contends that the evidence presented at trial was
    insufficient to support his convictions because the State did not prove beyond a
    reasonable doubt his identity as the perpetrator of the offenses. The State responds that
    the jury heard sufficient evidence to prove that the Defendant was the perpetrator and that
    his convictions should be affirmed. We agree with the State.
    Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
    App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
    are resolved by the fact-finder. State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997). This
    court will not reweigh the evidence. 
    Id. Our standard
    of review “is the same whether the
    conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011) (quoting State v. Hanson, 
    279 S.W.3d 265
    , 275 (Tenn.
    2009)) (internal quotation marks omitted).
    A guilty verdict removes the presumption of innocence, replacing it with a
    presumption of guilt. 
    Bland, 958 S.W.2d at 659
    ; State v. Tuggle, 
    639 S.W.2d 913
    , 914
    (Tenn. 1982). The defendant bears the burden of proving why the evidence was
    insufficient to support the conviction. 
    Bland, 958 S.W.2d at 659
    ; 
    Tuggle, 639 S.W.2d at 914
    . On appeal, the “State must be afforded the strongest legitimate view of the evidence
    and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 
    221 S.W.3d 514
    , 521 (Tenn. 2007).
    The identity of the perpetrator is “an essential element of any crime.” State v.
    Rice, 
    184 S.W.3d 646
    , 662 (Tenn. 2006). Identity may be established with circumstantial
    evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
    and [t]he inferences to be drawn from such evidence . . . .” 
    Id. (internal quotation
    marks
    omitted). The question of identity is a question of fact left to the trier of fact to resolve.
    State v. Crawford, 
    635 S.W.2d 704
    , 705 (Tenn. Crim. App. 1982). “The credible
    testimony of one identification witness is sufficient to support a conviction if the witness
    viewed the accused under such circumstances as would permit a positive identification to
    be made.” State v. Koffman, 
    207 S.W.3d 309
    , 322 (Tenn. Crim. App. 2006) (citing State
    v. Radley, 
    29 S.W.3d 532
    , 536 (Tenn. Crim. App. 1999)). “The reliability of an in-court
    identification depends on the totality of the circumstances, ‘including the opportunity of
    the witness to view the offender at the time of the crime, the witness’s degree of
    attention, the accuracy of the prior description of the offender, the level of certainty of the
    -6-
    witness at the confrontation, and the length of time between the crime, and the
    confrontation.’” 
    Id. (quoting State
    v. Beal, 
    614 S.W.2d 77
    , 82 (Tenn. Crim. App. 1981)).
    In this case, the victim identified the Defendant at trial as the man who kidnapped,
    raped, and robbed her. She testified that she was in the car beside the Defendant for an
    extended period of time before he left her in her car at Dossett Apartments. She stated
    that she could see the Defendant’s face in profile as he drove and that, when the
    Defendant was getting out of the car, the interior lights of the car came on, and she could
    see his whole face as he stole her rings and ordered her not to move for ten minutes. The
    victim testified that she had “no doubt” about the Defendant’s identification. Following
    the attack, the victim provided investigators with a physical description of the assailant
    and recalled that the Defendant wore a black hoodie. When she watched the video
    surveillance footage from 41 South, the victim immediately recognized the Defendant
    and his black hooded sweatshirt on the video. Because the victim viewed the Defendant
    under such circumstances that would permit a positive identification to be made, her
    testimony alone would be sufficient, if credited by the jury, to support the Defendant’s
    convictions.
    The State, however, presented additional evidence confirming the victim’s
    identification. Ms. Cooley testified at trial that she met the Defendant at 41 South on the
    night of the attack. She recalled that the Defendant was wearing a black hoodie and that
    he wanted her to accompany him to another bar. The Defendant introduced himself by
    name to Ms. Cooley, as Billy Nelson, and she later recognized the Defendant as the
    second man in the black hoodie seen on the video surveillance footage. Additionally, Mr.
    Carver testified that, in the early morning of January 1, the Defendant unexpectedly
    entered his residence, which was within walking distance of Dossett Apartments. The
    Defendant left the victim’s credit cards, driver’s license, and business cards, which he
    had just stolen from the victim, at Mr. Carver’s residence. Clearly, Ms. Cooley’s and Mr.
    Carter’s testimony provided further proof of the accuracy of the victim’s identification of
    the Defendant.
    Additionally, forensic evidence supports the victim’s identification of the
    Defendant. Agent Johnson testified that he found a DNA mixture consisting of the
    Defendant’s sperm and alpha-amylase (indicative of saliva) belonging to the victim on
    the black hoodie found in the laundry room of the Defendant’s residence. Finding
    evidence of the victim’s saliva on the front of the hoodie would be consistent with the
    victim’s testimony that the Defendant forced her to perform oral sex while he drove her
    car. Based on this evidence, a rational juror could conclude that the State had proven the
    Defendant’s identity as the perpetrator beyond a reasonable doubt.
    -7-
    In his brief, the Defendant argues that victim’s identification “is suspect” because
    she had been drinking and was tired. Although the victim testified that she had five
    drinks over about six hours on the night of December 31, 2012, she stated that she never
    felt any effects from the alcohol. The victim’s husband also testified that he did not see
    any signs that the victim was intoxicated. Based on the verdict, the jury accredited the
    testimony of the victim and the victim’s husband in this regard. As previously noted,
    questions of fact, the credibility of witnesses, and the weight of the evidence are resolved
    by the fact-finder. 
    Bland, 958 S.W.2d at 659
    . The Defendant also argues that Mr.
    Carver’s testimony was somehow influenced by the manner in which investigators
    questioned Mr. Carver about the Defendant. He contends that officers surrounded Mr.
    Carver’s home during his interaction with investigators. However, the Defendant’s
    argument amounts to mere speculation as to Mr. Carter’s motive for speaking with
    investigators and turning over the cards left by the Defendant. As noted by the State,
    such an argument goes to the weight of the evidence, which is determined by the jury and
    not this court. 
    Id. Finally, the
    Defendant argues that, despite the fact that the victim and
    the Defendant did not know one another, the DNA evidence was insufficient to support
    his convictions because Agent Johnson could not testify that the Defendant’s semen and
    the victim’s saliva were deposited on the same location of the black hoodie and at the
    same time. However, it was for the jury to decide the weight to be given to
    circumstantial evidence, as well as the inferences to be drawn from such evidence. 
    Rice, 184 S.W.3d at 662
    .
    Conclusion
    When viewed in the light most favorable to the State, the evidence is sufficient to
    support the jury’s finding that the Defendant committed the offenses of aggravated rape,
    carjacking, robbery, and aggravated kidnapping against the victim. Accordingly, the
    judgments of the trial court are affirmed.
    ____________________________________
    ROBERT L. HOLLOWAY, JR., JUDGE
    -8-
    

Document Info

Docket Number: M2016-00010-CCA-R3-CD

Judges: Judge Robert L. Holloway, Jr.

Filed Date: 10/16/2017

Precedential Status: Precedential

Modified Date: 10/16/2017