State of Tennessee v. Billy Joe Harrah

09/24/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 26, 2018

STATE OF TENNESSEE v. BILLY JOE HARRAH

Appeal from the Criminal Court for Sullivan County

No. S65955 James F. Goodwin, Judge

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No. E2017-01869-CCA-R3-CD

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The Defendant-Appellant, Billy Joe Harrah, was convicted by a Sullivan County jury of

rape of a child, aggravated sexual battery, and incest, for which he received an effective

sentence of forty years’ confinement. On appeal, he argues (1) the evidence was

insufficient to support each of his convictions; and (2) the trial court improperly

instructed the jury regarding flight. Upon our review, we affirm the judgments of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

William A. Kennedy, Assistant Public Defender, for the Defendant-Appellant, Billy Joe

Harrah.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Barry P. Staubus, District Attorney General; and William B. Harper, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On November 2, 2015, after coming home from school, the eleven-year-old victim

was forced to engage in oral sex upon her grandfather, the Defendant. A few days later

the victim reported the abuse to her mother, who in turn immediately reported it to the

police. On January 5, 2016, a Sullivan County Grand Jury returned a presentment against

the Defendant charging rape of a child, aggravated sexual battery, and incest. The

following proof was adduced at the February 6, 2017 trial.

The victim, C.R.,1 of Bristol, Tennessee, testified that her date of birth was in May

2004. On November 2, 2015, she came home from school and her “pap-paw,” the

Defendant, was the only person there. Although the Defendant did not live with her

family, he watched her and her brother while her parents were at school and work. Once

home, the victim changed for basketball practice and began watching television with the

Defendant. At some point, the victim got up to use the bathroom, and when she came

out, the Defendant was standing at the bathroom door. She said her “back was up against

the wall and [the Defendant] was trying to kiss [her] . . . on [the] mouth.” The victim did

not kiss him back and tried to push him off of her. The Defendant then took her by the

hand and led her down to the basement. They went into a “little room” downstairs, and

the Defendant told her to “take down his pants.”

The victim removed the Defendant’s pants and underwear, and he told her to “put

his penis in [her] mouth.” The victim complied, so she would not get “in trouble.” She

said the Defendant started to move his hips back and forth and groaned for about ten

minutes, all while holding the back of her head. He stopped when he ejaculated in her

mouth and forced her to swallow the semen. The victim testified that when she pulled

the Defendant’s pants down, she noticed a brown, oval-shaped mole on his hip closer to

his thigh. She did not tell anyone about the abuse until the next Monday when she sent

her mom a text message. The victim acknowledged that after she told her mom, she

provided an interview at the Children’s Advocacy Center. She admitted that she did not

tell them that the Defendant tried to kiss her. The victim also admitted that during the

interview, she said the Defendant told her “you’re going to suck my d**k until I come in

your mouth and you’re going to swallow it” instead of “put my penis in your mouth.”

A.R., the victim’s mother, testified that the Defendant was her father. On

November 9, 2015, while riding the bus home from school, the victim sent her a text

message stating, “your dad has been raping me.” A.R. panicked and called the victim,

who was crying. A.R. called her husband and told him to “go get [the victim] away from

[the Defendant] until we can figure out what’s going on.” She said although the

Defendant was at their house that day, no one confronted him about the abuse. A.R.

testified that once her husband got home, he took the victim to her brother’s wrestling

practice, and the Defendant went with them. A.R. met them at the wrestling club and

took the victim back home. The Defendant rode with A.R. and the victim back home.

Once they arrived home, the Defendant said he had some errands to run and

“disappeared.” A.R. did not speak to him again and called the police that night. She

testified that it was very strange that she did not speak to the Defendant since he was still

receiving mail at her house. In the following weeks, the Defendant did not show up for

his grandson’s scheduled wrestling match or family Thanksgiving.

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It is the policy of this court to refer to minor victims and their family members by their initials.

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James Sanders, an over-the-road truck driver, testified that during November

2015, the Defendant lived with him and his fiancé. Because of his job, Sanders and his

fiancé were away from home several weeks at a time. Around October 2015, Sanders

arranged for the Defendant to move into their home, rent free, in exchange for taking care

of their house and dogs while they were traveling. Sanders recalled an incident in

November 2015 when his truck was broken down in California. Sanders spoke with the

Defendant on a Monday, and the Defendant advised him that everything was fine.

Sanders said he had planned to talk to the Defendant the next day; however, he was

unable to reach him for several days. Sanders explained that this was unusual because

they would normally talk every other day. Sanders had other people to check on the

Defendant and the house, but the Defendant was nowhere to be found. The Defendant

never returned to the house for his medication, clothes, or any of his property.

Cody Waller, Sanders’ cousin, testified and explained that Sanders was more akin

to a father-figure to him. Waller confirmed that the Defendant lived with Sanders in

November 2015. Although Waller had previously spent time with the Defendant, all

contact ceased at some point in November 2015. During that same time, Waller received

a phone call from Sanders asking him to check on their home “because the dogs [were]

left out and it was just a mess.” Waller said he went to the home, found it in disarray,

and cleaned it and the dogs. While doing so, he noticed that the Defendant’s medication

and other belongings remained at the home. Waller said “everybody was trying to call

[the Defendant] just to . . . make sure he was okay.”

The Defendant’s brother and the victim’s uncle, Richard Harrah, testified that in

November 2015, he lived in Pensacola, Florida. At that time, the Defendant lived in

Bristol, Tennessee. Asked if the Defendant ever visited Florida, Richard Harrah could

not recall and opined that the Defendant may have visited once during a five-year period.

For the Thanksgiving holiday in 2015, the Harrah family met in Bristol, Tennessee, but

the Defendant was not present. During this family gathering, Richard Harrah became

aware of the sexual allegations against the Defendant. When he returned to Florida, he

discovered the Defendant was in Mt. Richards, approximately 19 miles from Richard

Harrah’s home. The Defendant was staying at their father’s home, which Richard Harrah

believed was unusual. Richard Harrah went to his father’s house and asked the

Defendant, “So what I’ve heard is it true.” In response, the Defendant nodded his head

and said, “Yeah.” Richard Harrah also testified that the Defendant told him that the

victim was “his only and his first.” On cross-examination, Richard Harrah confirmed

that when he confronted the Defendant, he did not discuss “what they had said.”

Detective Danielle Eller of the Bristol Tennessee Police Department testified that

she was assigned to the Defendant’s case as a child abuse investigator on November 10,

2015. She provided a timeline of her investigation as follows: the offense date was

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November 2; offense reported to police on November 9; and victim interviews provided

on November 12 and 17. Officer Eller attempted to contact the Defendant at his last

known address on November 18; however, no one was home. She was contacted by the

Defendant’s family and another couple concerning the Defendant’s absence. She did not

speak with the Defendant until December 21, 2015. She learned through Richard Harrah

that the Defendant was staying in Florida, but when she called his cell phone, he did not

answer. Based on the victim’s forensic interview, Detective Eller obtained a search

warrant for the body of the Defendant in order to photograph the mole or birthmark

described by the victim. She subsequently obtained a photograph, admitted into

evidence, confirming a mole or birthmark, “on the very top upper part of [the

Defendant’s] left thigh right below the brief underwear, where it [is] at the leg opening.”

The Defendant testified and denied committing the charged offenses. He said the

victim suffered from “some emotional problems” and had a tendency to “fly off the

handle.” He recalled a dispute between him and the victim the week preceding the

allegations. He asked the victim to clean her room and told her “you’re dad’s going to be

getting onto you if you don’t.” A few days later, the Defendant learned that the victim’s

father had “whipped” her for not having her room clean. He believed the victim blamed

him for getting her into trouble. The victim told the Defendant that she was going to “tell

some things on [him]” if he did not quit making her life miserable. The next Monday,

November 9, the Defendant said his family seemed very “unusual.” The Defendant said

that night, he went to run some errands, and when he drove back by the house, he noticed

the police were there, so he “knew that [the victim] had made good on her allegations that

she was going to tell some stuff on me.” The police presence “terrified” him, and he

explained, “We don’t live in a vacuum. We all know what happens to sex offenders in

this country. We don’t tolerate them especially when they touch children.” The same

night, the Defendant left and went to Florida. When he arrived in Florida, he said he tried

to get mental health treatment.

On cross-examination, the Defendant said when he saw the police, he thought the

victim had made sexual allegations against him. He admitted he assumed she had since

he did not know what the victim said. He said he “knew that the situation was not good”

and “that [his] freedom was in danger.” The Defendant explained that he lost contact

with people while he was in Florida because his cell phone battery went dead, and he did

not have a way to charge it. In addition, “[he] didn’t feel that it would be in [his] best

interest to let anybody know where [he] was[.]” When asked if he admitted the abuse to

Richard Harrah, the Defendant said, “No, I never said that.” He said Richard Harrah was

mistaken. The Defendant also denied confessing the abuse to his mother and father. The

Defendant confirmed that he had a birthmark on his thigh, but he said the birthmark was

“common knowledge” to anyone who had ever seen him swim and expose his legs during

the summer.

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At the conclusion of proof and over the Defendant’s objection, the trial court gave

the following jury instruction regarding flight:

The flight of a person accused of a crime is a circumstance which when

considered with all the facts of the case may justify an inference of guilt.

Flight is the voluntary withdrawal of oneself for the purpose of evading

arrest or prosecution for the crime charged. Whether the evidence

presented proves beyond a reasonable doubt that the defendant fled is a

question for your determination.

The law makes no precise distinction as to the manner or method of flight,

it may be open or it may be a hurried or concealed departure or it may be a

concealment within the jurisdiction. However, it takes both a leaving the

scene of the difficulty and a subsequent hiding out, evasion or concealment

in the community or a leaving of the community for parts unknown to

constitute flight.

If flight is proved the fact of flight alone does not allow you to find that the

defendant is guilty of the crime charged. However, since flight by a

defendant may be caused by a consciousness of guilt you may consider the

fact of flight if flight is so proven together with all of the other evidence

when you decide the guilt or innocence of the defendant. On the other hand

an entirely innocent person may take flight and such flight may be

explained by proof offered or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reasons for it and the weight

to be given to it are questions for your determination.

Following deliberations, the jury returned a verdict of guilty on all counts and

fixed a fine of $50,000.00 for Count 1 (rape of a child), $25,000.00 for Count 2

(aggravated sexual battery), and $15,000.00 for Count 3 (incest).

At the June 8, 2017 sentencing hearing, the trial court imposed the fines and

sentenced the Defendant to forty years for Count 1, twelve years for Count 2, and six

years for Count 3, to be served concurrently for a total effective sentence of forty years as

a Range II, multiple offender. The trial court merged Count 2 with Count 1. The

Defendant filed a motion for new trial on June 15, 2017, and an amended motion for new

trial on September 6, 2017, which the trial court denied on September 11, 2017. The

Defendant filed his notice of appeal on September 21, 2017.

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ANALYSIS

In his brief on appeal, the Defendant argues that the evidence presented at trial

was insufficient to convict him of the offenses2 and that the trial court erred in charging

the jury on flight. In response, the State contends that the evidence was sufficient for

each conviction and that the trial court properly instructed the jury. After a thorough

review of the law, briefs, and record, we agree with the State.

I. Sufficiency of the Evidence. Rather than challenging any of the evidence

establishing the elements of the offense, the Defendant attacks the victim’s credibility.

He asserts that the offenses were based solely on the victim’s testimony, which was

inconsistent with her Children’s Advocacy Center interview and concocted out of

revenge.

In resolving this issue, we apply the following well-established legal framework.

When addressing issues regarding sufficiency of the evidence on appeal, the State is

entitled to the strongest legitimate view of the evidence and all reasonable inferences

which may be drawn from that evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997). When a defendant challenges the sufficiency of the evidence, the standard of

review applied by the appellate court is “whether, after reviewing 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). The trier of fact must evaluate the credibility of the witnesses,

determine the weight given to witnesses’ testimony, and must reconcile all conflicts in

the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing issues

regarding the sufficiency of the evidence, an appellate court shall not “reweigh or

reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). The

Tennessee Supreme Court has stated that “[a] guilty verdict by the jury, approved by the

trial court, accredits the testimony of the witnesses for the State and resolves all conflicts

in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citing State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973)).

To convict a defendant for rape of a child, the State is required to prove the

“unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if

2

In his motion for new trial and in the issues presented in his brief, the Defendant raises three

separate claims regarding sufficiency of the evidence. He asserts, “the evidence was insufficient as a

matter of law to support a conviction,” that “the verdict of the jury was contrary to the law and the

evidence,” and that “the evidence in the trial preponderates against the guilt of the defendant and in favor

of his innocence.” However, in the argument section of his brief, the Defendant collectively addresses the

issues, citing to sufficiency of the evidence law. We will address these issues under one sufficiency of the

evidence claim.

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the victim is more than three (3) years of age but less than thirteen (13) years of age.”

T.C.A. §35-13-522(a). Sexual penetration means “sexual intercourse, cunnilingus,

fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

body or of any object into the genital or anal openings of the victim’s, the defendant’s, or

any other person’s body[.]” T.C.A. §39-13-501(7). Aggravated sexual battery, as

relevant here, is “unlawful sexual contact with a victim by the defendant or the defendant

by a victim” and the victim is less than thirteen years of age. T.C.A. § 39-13-504.

Aggravated sexual battery is a lesser-included offense to rape of a child. State v.

Howard, 504 S.W.3d 260, 274-75 (Tenn. 2016). A person commits incest who engages

in sexual penetration with a person, knowing the person to be, without regard to

legitimacy, the person’s natural grandchild. T.C.A. § 39-15-302.

Viewing the evidence in the light most favorable to the State, the eleven-year-old

victim testified that she was forced to perform fellatio on her grandfather, the Defendant.

She recalled the abuse in detail, was unequivocal in her testimony, and identified a

unique birthmark on the Defendant’s upper thigh. On appeal, the Defendant urges this

court to reverse his convictions based on the victim’s credibility, an issue which is within

the sole province of the jury. The jury, as was their prerogative, rejected the Defendant’s

denial of the offenses in favor of the victim’s unwavering testimony. Moreover, the

“inconsistencies” pointed to by the Defendant involve the victim’s terminology of

sexually explicit terms, and were in no way material to the elements of the offense.

Accordingly, we conclude that any rational juror could have found the Defendant guilty

of the offenses as charged in the presentment beyond a reasonable doubt. He is not

entitled to relief on this issue.

II. Jury Instruction on Flight. The Defendant argues that the trial court’s

instruction on flight was inappropriate and prejudicial. He asserts that although he left

the state, he did not take flight. He explains that his lack of communication was the

result of mental health treatment and no phone charger.

“It is well-settled in Tennessee that a defendant has a right to a correct and

complete charge of the law so that each issue of fact raised by the evidence will be

submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.

2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793

S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have a duty to give “‘a

complete charge of the law applicable to the facts of a case.’” State v. James, 315

S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986)). “‘An instruction should be considered prejudicially erroneous only if the jury

charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as

to the applicable law.’” State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010) (quoting

State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)); see State v. Hodges, 944 S.W.2d

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346, 352 (Tenn. 1997) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

1995); Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)). Because questions

regarding the propriety of jury instructions are a mixed question of law and fact, the

standard of review is de novo with no presumption of correctness. State v. Smiley, 38

S.W.3d 521, 524 (Tenn. 2001).

“In order for a trial court to charge the jury on flight as an inference of guilt, there

must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549,

588 (Tenn. 2004). Sufficient evidence exists supporting a jury instruction on flight where

there is evidence of “both a leaving the scene of the difficulty and a subsequent hiding

out, evasion, or concealment in the community, or a leaving of the community for parts

unknown.” State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (internal quotation,

emphasis, and citation omitted). The State may satisfy the subsequent hiding out,

evasion, or concealment requirement by presenting proof from which a jury might infer

that the defendant committed such acts. State v. Terrance Wilks, No. W1999-00279-

CCA-R3-CD, 1999 WL 1097832, at *4 (Tenn. Crim. App. Nov. 22, 1999) (citing Payton,

782 S.W.2d at 498; Rogers v. State, 455 S.W.2d 182, 186-87 (Tenn. Crim. App. 1970)).

The evidence presented at trial established that after the Defendant saw the police

at the victim’s home, he assumed the victim had accused him of sexual abuse. He then

drove from Tennessee to Florida, and he did not make contact with his family in

Tennessee again. He left the Sanders’ home abruptly, leaving his medication and

belongings. Moreover, the Defendant testified to his fear of how he would be treated

upon being labeled a child sex offender. These facts more than support an inference that

the Defendant fled the scene to hide in Florida. The jury instruction on flight was

therefore proper, and the Defendant is not entitled to relief.

CONCLUSION

Based on the above reasoning and analysis, the judgments of the trial court are

affirmed.

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CAMILLE R. MCMULLEN, JUDGE

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