                                                                                         02/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

            STATE OF TENNESSEE v. LONNY LAVAR BARDIN

                  Appeal from the Circuit Court for Obion County
                    No. CC-16-CR-150 Jeff Parham, Judge
                     ___________________________________

                           No. W2017-02506-CCA-R3-CD
                       ___________________________________

Lonny Lavar Bardin, Defendant, was convicted following a jury trial of Class B felony
rape and Class E felony sexual battery and sentenced to eight years’ incarceration.
Defendant claims that there was insufficient evidence to support his convictions. After a
thorough review of the facts and applicable case law, 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 ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joshua B. Dougan, Tennessee, for the appellant, Lonny Lavar Bardin.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Tommy A. Thomas, District Attorney General; and James T. Cannon,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                            Factual and Procedural History

       Defendant was indicted by the Obion County Grand Jury for one count of rape and
one count of sexual battery. The indictment stated that the offenses occurred between
June 14, 2016, and August 9, 2016, that the offenses occurred without the consent of the
victim, and that Defendant knew or had reason to know that the victim had not consented.

       At trial, Christeena Kingston testified that, during the summer of 2016, she and her
three daughters were living with Defendant in a duplex in Union City. Defendant was
about thirty-seven years old and was married to another woman. Christeena’s1 father,
John Kingston; her stepmother, Jeannie Kingston; and her thirteen-year-old stepsister,
A.F.; moved into the other side of the duplex around the middle of June of 2016. The
side of the duplex where the A.F. and her parents lived was in poor condition due to
damage from a previous fire and a large amount of debris and clutter.

       According to A.F., after moving into the duplex, she slept for a couple of weeks in
her parents’ bedroom. She then slept for a short time in a hallway before moving into her
own bedroom. The closet in A.F.’s bedroom shared a wall with the closet of the bedroom
on the other side of the duplex where Christeena’s three girls slept. A portion of this
common wall had been removed for ease of access between the two sides of the duplex,
and people going from one side of the duplex to the other usually passed through the
closets. Both closets had a door that could be closed but not locked from their respective
bedrooms.

       The first incident involving A.F. and Defendant occurred on her parents’
anniversary, June 25, 2016, when Defendant attempted to kiss A.F. John testified that he
saw Defendant “pull away from” A.F. with his lips puckered. John confronted Defendant
and “slapped him around a few times.” Defendant testified that as he was kissing his
three daughters goodnight on their foreheads, his youngest daughter said “what about
A.F.,” so he tried to kiss her on the forehead but she moved, and he kissed her on the
bridge of her nose. A.F. initially told John that Defendant kissed her on the chin. At trial
A.F. testified that Defendant “tried to kiss” her but “kind of missed.” Defendant said
John had been “drinking Todka Vodka, like, a half[-]gallon of it” and attacked him.

       At some point, Defendant installed a latch on the closet door in Christeena’s
daughters’ bedroom to stop A.F. from visiting so much. Defendant claimed that A.F. had
come to their side of the duplex when she was not supposed to be there and that John had
“come over throwing a fit about it.” When the door was latched, no one could enter
Christeena’s side of the duplex through A.F.’s bedroom closet.

       A.F. claimed that, after she moved into the new bedroom, Defendant made a habit
of coming into her room at night. A.F. testified that, a few days after the incident
involving John slapping Defendant around, Defendant kissed her on the lips and grabbed
her bottom when she came out of the restroom. She said that, on another occasion,
Defendant woke her by calling her name and asked her to come into the closet (“the
closet incident”). She was wearing only a bra and underwear, which was her customary

        1
          Because several witnesses have the same last name, Kingston, we will refer to them by their
first name. We will refer to the minor victim by her initials, A.F., as is the policy of this court. We intend
no disrespect.
                                                    -2-
sleeping attire. According to A.F., once she was in the closet, Defendant pulled down his
pants, grabbed A.F.’s hand, and put her hand on his erect penis. She claimed Defendant
then pulled down her underwear, got down on his hands and knees, and licked her vagina
“several” times. After A.F. pulled up her underwear, Defendant told her that this was
their “little secret,” kissed her, and grabbed her buttocks. A.F said what happened next
was a little blurry because she was “half asleep.” She said she went back to bed. After
this incident, A.F. said she would no longer go to the closet when Defendant called to
her. She also stated that this incident occurred before she started school.

       A.F. then testified about incidents where Defendant threw her nieces’ stuffed
animals at her while she was sleeping. Initially on cross- examination, A.F. testified that
Defendant only threw stuffed animals at her one time. When asked if she was sure that it
only occurred once, she answered “yes.” When allowed to refresh her memory with her
statement to the investigator, A.F. said it happened two times. She said after the first
incident, the stuffed animals were gone when A.F. awoke, but that Jeannie saw about
twenty stuffed animals laying around A.F.’s bed on the morning after the second stuffed
animal incident (“the second incident”). A.F. also said her Chihuahua was in her room
during the second incident and the dog barked and growled when Defendant came to her
bedroom and whispered to her. Jeannie testified that, during the night when the second
incident occurred, she heard their Chihuahua, which was sleeping in A.F.’s room,
barking. Jeannie stated that the second incident occurred in August after the school year
started. After the second incident, John questioned A.F., who initially stated that she did
not know how the stuffed animals got there. She later claimed Defendant tossed them at
her to get her attention. John questioned Defendant, who denied any involvement. John
then inserted a screw in the doorframe of A.F.’s bedroom closet to prevent anyone from
coming into A.F.’s bedroom through the closet.

       On cross-examination, A.F. admitted that she took several medications due to her
ADHD and bipolar conditions. Jeannie also stated that A.F. was autistic. A.F. told the
jury about her imaginary friend “Jim.” A.F. said “Jim” visited her when bad things
happened and whenever Defendant was “doing these things.” A.F. initially testified that
she told her homeroom teacher “the next day” about what had happened to her during the
closet incident. Later, A.F. testified that it was on the morning after the second stuffed
animal incident that she told her homeroom teacher what had occurred. A.F. said she told
her teacher shortly after the school year had started. Her teacher contacted the police,
and Investigator Susan Andrews came to school to interview A.F. that afternoon.
Defendant was arrested later that day. On redirect examination, A.F. said the first person
she told about the closet incident was Susan Andrews.

      Defendant testified at trial and denied that he sexually assaulted or raped A.F.
Defendant claimed that, on the night before the second incident, he was sitting in the
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duplex with John and a friend, Charles Tanser. He said Christeena should have been, but
was not, home from work by 11:30 p.m. He claimed that Christeena had previously
cheated on him and that he told John, “You know, I’m sorry, but if I catch her cheating
again, after she’s done let me think that three kids were mine and only one of them was, .
. . [y]’all are going to have to go.” Defendant said that, when Christeena finally got home
around 2 a.m., he went to her car to get a cigarette and found an identification card for
Matt Growski, a coworker of Christeena. Christeena claimed that she “just gave Matt a
ride home.” Defendant claimed that he was arrested the “very next day” and that Matt
moved into the duplex with Christeena that same day. He claimed that Christeena moved
in with Matt a few days later and that she currently lived with Matt in his trailer.
Defendant claimed that John had three dogs, a Chihuahua and two Pit Bulls. He claimed
the Chihuahua and one of the Pit Bulls, which was kept in a cage, slept in A.F.’s
bedroom. He said the dog would growl and bite at the cage whenever he came around.

       Defendant called Investigator Susan Andrews as a witness. Investigator Andrews
agreed that A.F. told her that “she had been made to go into the closet wearing her pink
bra and her Batman underwear” and that Defendant molested her. Concerning when the
“sexual contact” occurred, Investigator Andrews read the following from her report:

      Sexual contact happened on the second night she was at the residence of
      808 North Ury Street. [A.F.] advised [she] move[d] to Union City about
      two weeks after school ended, which was on the 31st of May, 2016.

Investigator Andrews agreed that “[A.F.] told you on August 11th that the closet
[incident] happened [on] the second night she was [at the residence].” On cross
examination by the State, Investigator Andrews said that she went to the residence on
August 17th and that she saw “a screw hole” in the door frame.

        At the conclusion of the proof, the State elected to proceed with the act of
cunnilingus for the charge of rape and with the act where Defendant “took [A.F.’s] hand
and placed it upon his exposed penis” for the charge of sexual battery. The jury
convicted Defendant of both offenses. After the denial of Defendant’s motion for new
trial, Defendant now timely appeals.

                                        Analysis

       In this appeal, Defendant contends that the evidence presented at trial        was
insufficient to sustain his convictions for rape and sexual battery. As to the        rape
conviction, Defendant specifically claims there was no evidence of penetration.       The
State argues that there was sufficient evidence to sustain the convictions and         that

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penetration is not required for the act of cunnilingus to constitute rape. We agree with
the State.

                                    Standard of Review

        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). “A jury verdict approved by the trial judge accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the State’s
theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

                                           Rape

       As relevant to this case, “[r]ape is unlawful sexual penetration of a victim by the
defendant” where “[t]he sexual penetration is accomplished without the consent of the
victim and the defendant knows or has reason to know at the time of the penetration that
the victim did not consent[.]” Tenn. Code Ann. § 39-13-503(a)(2) (2016). “Sexual
penetration” is defined as “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 alleged victim’s, the defendant’s, or any other person’s
body, but emission of semen is not required[.]” Tenn. Code Ann. § 39-13-501(7) (2016).
“Cunnilingus” means a sex act accomplished by “placing the mouth or tongue on or in
the vagina of another.” See State v. Hoyt, 928 S.W.2d 935, 942 (Tenn. Crim. App. 1995)
(internal quotation marks omitted), overruled on other grounds by Spicer v. State, 12
S.W.3d 438 (Tenn. 2000). Penetration of the vagina by the mouth or tongue is not
required for a sexual act to constitute cunnilingus. See State v. Karl E. Vanderbilt, No.
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70, 1992 WL 69650, at *3 (Tenn. Crim. App. Apr. 8, 1992), perm. app. denied (Tenn.
July 6, 1992), overruled on other grounds by Spicer v. State, 12 S.W.3d 438 (Tenn.
2000); see also State v. John Ray Thompson, No. M2003-00487-CCA-R3-CD, 2004 WL
2964704, at *13 (Tenn. Crim. App. Dec. 20, 2004), no perm. app. filed.

        In challenging the sufficiency of the evidence for the rape conviction, Defendant
points to the victim’s testimony denying penetration. However, as previously stated,
penetration is not required for cunnilingus to constitute rape. Because the statutory
definition of “sexual penetration” includes cunnilingus, a defendant can be guilty of rape
whether or not the defendant penetrates the victim’s vagina during cunnilingus. State v.
Michael Warren Evans, No. 02C01-9306-CC-00124, 1994 WL 59452, at *3 (Tenn. Crim.
App. Mar. 1, 1994), perm. app. denied (Tenn. Aug. 1, 1994); see also Tenn. Code Ann. §
39-13-501(7) (2016).

        A.F. testified that Defendant pulled down her underwear, got down on his hands
and knees, and licked her vagina “several” times. Defendant denied doing so. Because
this is a case of incompatible accounts, the jury had to make a credibility assessment
between Defendant and A.F. Based on the verdict, the jury determined A.F. was a more
credible witness than Defendant, and this court “does not reweigh or reevaluate the
evidence.” Bland, 958 S.W.2d at 659. A.F. testified that Defendant called her to the
closet, pulled her underwear down, and “licked” her vagina. This testimony was
sufficient to establish that the Defendant performed cunnilingus on the thirteen-year-old
victim. Further, the jury could have inferred that the rape occurred without A.F.’s
consent and that Defendant knew or had reason to know that the victim did not consent
because Defendant pulled A.F.’s underwear down. Considering the record in the light
most favorable to the State, we conclude that the evidence was sufficient to establish that
Defendant committed rape when he performed cunnilingus on A.F.

                                       Sexual Battery

       As relevant to this case, sexual battery “is unlawful sexual contact with a victim by
the defendant or the defendant by a victim . . . accomplished without the consent of the
victim and the defendant knows or has reason to know at the time of the contact that the
victim did not consent[.]” Tenn. Code Ann. § 39-13-505(a)(2) (2016). ‘“Sexual Contact’
includes the intentional touching of the victim’s, the defendant’s, or any other person’s
intimate parts . . . if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification[.]” Tenn. Code Ann. § 39-13-501(6) (2016).

      A.F. testified that Defendant pulled down his pants, grabbed her hand, and put her
hand on his erect penis. Defendant denied doing so. Again, because this is a case of
incompatible accounts, the jury had to make a credibility assessment between Defendant
                                            -6-
and A.F. The jury believed A.F. and not Defendant. Considering the record in the light
most favorable to the State, we conclude that the evidence was sufficient to establish that
Defendant caused the intentional touching of his intimate part by A.F. by putting A.F.’s
hand on his penis. Further, we conclude that the evidence was sufficient to establish that
the intentional touching of Defendant’s intimate part was accomplished without A.F.’s
consent and Defendant knew or had reason to know that A.F. did not consent because
Defendant pulled down his pants and grabbed A.F.’s hand to initiate the sexual contact.
Lastly, the evidence is sufficient to establish that the intentional touching of Defendant’s
intimate part “c[ould] be reasonable construed as being for the purpose of sexual arousal
or gratification” because Defendant’s penis was erect during the offense. Tenn. Code
Ann. § 39-13-501(6) (2016); see also State v. Howard, 504 S.W.3d 260, 274 (Tenn.
2016).

                                       Conclusion

       Based on the foregoing analysis, we affirm the judgments of the trial court.



                                          ____________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE




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