                                                                                                       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-
