State of Tennessee v. Billy Joe Nelson

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

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No. M2016-00010-CCA-R3-CD

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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.

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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

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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.

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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).

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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

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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.

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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.

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ROBERT L. HOLLOWAY, JR., JUDGE

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