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District attorney requests Harris' dismissal motion be denied

June 10th, 2013 10:15 pm by Brad Hicks

District attorney requests Harris' dismissal motion be denied

Former Unicoi County sheriff Kent Harris and attorney Jim Bowman listen as District Attorney General Tony Clark conveys his wishes to retry Harris on the theft charge he was on trial for in this August 2012 file photo.

ERWIN — District Attorney General Tony Clark has filed an answer to a motion filed last week by former Unicoi County sheriff Kent Harris’ defense attorney, Jim Bowman, seeking the dismissal of the charges his client is set to be tried on next month.

In his response, which was filed Monday afternoon in Unicoi County Criminal Court, Clark requests that Bowman’s motion seeking dismissal of the six official misconduct charges Harris is set to be tried on beginning July 8 be denied. 

According to Bowman’s motion, which was filed Wednesday in Criminal Court, the state is barred from prosecuting the official misconduct charge because, under state law, they should be considered misdemeanors and fall outside the state’s one-year statute of limitations to prosecute misdemeanors.

In his motion, Bowman cites Tennessee Code Annotated 41-3-106, which said: “No sheriff, jailer or other person responsible for the care and custody of inmates housed in a county or municipal jail or workhouse may employ, require or otherwise use any inmate housed in the jail or workhouse to perform labor that will or may result directly or indirectly in the sheriff’s, jailer’s or other person’s personal gain, profit or benefit or in gain, profit or benefit to a business partially or wholly owned by the sheriff, jail or other person.”

The official misconduct charges are six of the 10 felonies Harris was indicted on in October 2011. It is alleged the then-sheriff committed the offenses on various dates between June 23, 2010, and July 19, 2010, by having county inmates work on property he owned at 604 N. Mohawk Drive in Erwin.

According to Bowman’s motion, Tennessee code states those convicted of violating TCA 41-3-106 for the first time have committed a misdemeanor. The motion further said that because of this, prosecution of Harris’ alleged charges is barred by the state’s one-year statute of limitations to prosecute misdemeanors. 

In his response, Clark said Harris was charged with the official misconduct counts under TCA 39-16-402, not the TCA statute cited by Bowman in his motion. 

TCA 39-16-402 is an official misconduct charge and pertains to public servants who commit an offense for benefit or to harm others. Clark said in his answer that charges under this TCA are classified as Class E felonies. 

“The State in the instant case elected to proceed with charges under 39-16-402, not 41-3-106, that election was made by the District Attorney,” Clark’s answer said. “Further, pursuant to T.C.A. 39-11-109, the State is not precluded from proceeding under 39-16-402, being that neither statute precludes prosecution of the other.

“Therefore, defendant’s argument that counts 1-6 should be dismissed on the basis that the alleged offenses are barred by the statute of limitation, is without merit, and not applicable to these counts.”

A motions hearing for the case has not yet been scheduled. 

Harris was originally slated to begin trial on a single count of official misconduct July 8. Harris was indicted on this charge in February 2012, and it is alleged that in November 2011, then-sheriff Harris directed an employee of the Unicoi County Sheriff’s Department to use departmental supplies and equipment to prepare a letter soliciting funds to pay his defense attorneys’ fees during the employee’s working hours.

Both Clark and Bowman recently discussed trying Harris on other charges prior to trying him on the single official misconduct charge. Clark previously said the office of Senior Judge Jon Kerry Blackwood, who was previously appointed to oversee Harris’ criminal court proceedings, advised the attorneys this could be done as long as Harris was tried on the same offense. 

Both of Harris’ previous trials — the first on charges of theft over $1,000 and criminal simulation, and the second a retrial of the theft charge — ended with hung juries as jurors in both trials failed to reach unanimous verdicts. 

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