        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2016

                  STATE OF TENNESSEE v. MARIO JONES

                 Appeal from the Criminal Court for Shelby County
                   No. 12-06405      John W. Campbell, Judge




             No. W2015-01646-CCA-R3-CD - Filed December 28, 2016




Following a jury trial, the Defendant, Mario Jones, was convicted of two counts of rape
of a child involving two different victims. He now appeals as of right from those
convictions challenging the sufficiency of the evidence, noting that there was no forensic
evidence to bolster the victims‟ narratives and asserting that those narratives lacked
credibility. Following our review, we conclude that the evidence was sufficient to
support the Defendant‟s convictions. Therefore, the trial court‟s judgments are affirmed.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Joseph S. Ozment (on appeal), and Larry E. Fitzgerald (at trial), Memphis, Tennessee, for
the appellant, Mario Jones.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Abby Wallace and Will Cranford,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

      For events occurring between August 1, 2009, and October 8, 2009, the Shelby
County Grand Jury charged the Defendant with one count of rape of a child regarding
L.J.1 and one count of rape of child regarding D.J. See Tenn. Code Ann. § 39-13-522.
L.J. and D.J. were siblings, and the Defendant was the son of the victims‟ mother‟s then-
boyfriend. The Defendant resided in the home with the victims during this timeframe
and cared for the victims sometimes while their mother worked.

        At the Defendant‟s June 2015 trial, the following facts were adduced. L.J.
testified that she had four siblings: D.J., who was older than her, and two younger sisters.
The youngest child and the Defendant had the same father.

       L.J. testified that she was four years old when the Defendant lived with them. L.J.
said that, one afternoon, she was sitting on the living room couch with her siblings
watching television. During this time, the Defendant touched her “private part”
underneath her clothes and “then licked his hands[,]” according to L.J. L.J. further
explained that the Defendant “moved his hand” while he was touching her on the
“[o]utside” of her body and that he instructed her not tell her mother or the Defendant‟s
father about this.

        L.J. continued, stating that the Defendant also asked her to touch his “private part”
with her hand “[u]p inside his pants” while on the couch. She did not comply, so he
forced her to put “his private part” in her mouth for about a minute, L.J. said. According
to L.J., the Defendant‟s “private part” “was just still” while inside her mouth, and she
was “[s]itting up” and he was “[s]itting down.” She further explained: “[H]e tried to
make me put it up in my mouth, but I didn‟t do it, and then he had put it and sticked [sic]
it up in my mouth.” She said that she told her siblings to tell their mother.

       According to L.J., her brother first talked with their mother when she came home
from work that evening, and then L.J. informed her mother about the incident. She was
“nervous” to tell her mother “[b]ecause [she] thought that [the Defendant was] going to
put his hands on [her].”

        D.J. turned seven years of age during the August the Defendant lived with the
family. According to D.J., the Defendant slept on the couch; D.J.‟s sisters shared a room;
but he had a room of his own. D.J. described one occasion when he was in the bathroom
urinating and the Defendant came in and touched him on his penis. On a separate
occasion, he was lying on his bed on his stomach about to go to sleep when the
Defendant entered his bedroom. According to D.J., the Defendant pulled D.J.‟s clothes
down and then “pulled his [own] clothes off and . . . got a condom and put it on his d--k
and put his d--k in [D.J.‟s] butt.” D.J. described that the condom came inside “[a] little
square package” and that both the package and condom were yellow in color. D.J. said
that it hurt and that he screamed when the Defendant did this to him, but his sisters were
asleep in their bedroom. D.J. also testified that one time the Defendant forced him to

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   It is the policy of this court to refer to the victims of sexual assault and minors by their initials. To
further protect the victims‟ anonymity, we will refer to their relatives by their initials as well.
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suck the Defendant‟s penis, saying that he had to “[s]uck it or [he] would get a
whupping.”

      D.J. said that he told his mother about the abuse “right away[.]” However, he was
“nervous” when he told his mother about the incidents, explaining, “Well, me and my
mom never had like a good relationship because she was always at work and so one day
when she wasn‟t at work I told her.” After he told, D.J. found out that something had
been happening to his sister as well, although he maintained that he never saw any abuse.

       On cross-examination, D.J. stated that, when the Defendant stuck his penis in
D.J.‟s anus, it was painful. According to D.J., the Defendant put his penis “all the way
in[.]” D.J. confirmed that, after he told his mother about “these things,” he received
“plenty” of her attention.

       The victims‟ mother testified that the Defendant lived with the family for about
two months in 2009 and that the Defendant was twenty or twenty-one years old at that
time. She confirmed that all of the girls slept in one bedroom and D.J. in another. She
stated that she trusted the Defendant to care for her children while she worked. On
October 10, 2009, D.J. came to her, saying that they “need[ed] to tell [her] something[,]”
so she went and got L.J and T.J. and brought them into her bedroom. L.J. and D.J. then
proceeded to tell her about the sexual abuse at the hands of the Defendant, who had
moved out of the home two days before. She called the police, who arrived at the house
immediately to investigate the allegations of abuse. At the request of the police, she took
the children to the Child Advocacy Center for interviews, and she later accompanied
them to the hospital for a forensic examination. The victims‟ mother acknowledged on
cross-examination that none of her children ever expressed that they did not want to be
around the Defendant.

       Dr. Karen Lakin, testifying as an expert in the area of pediatric sexual assault and
sexual assault examinations, stated that neither of the forensic evaluations performed on
the victims revealed any abnormal injuries. Dr. Lakin explained that this was not
unusual, however:

       Most of the time, in most of the studies that even look at sort of the
       percentages of times when we would even see physical findings in pediatric
       sexual assault cases, it‟s usually not more than three to five percent of the
       cases because pediatric . . . sexual assault is very different. The disclosures
       most often are very delayed in terms of when it‟s discovered an incident
       has occurred, which allows for time for injuries to heal by the time the
       children are examined. And then the second part of it is . . . related to when
       someone just says penetration or sexual assault, you have to be much more
       specific about what you‟re talking about, what actually happened. And



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       most of the time, the children cannot verbalize specifically what actually
       happened.

Accordingly, her examinations of the victims neither confirmed nor discounted sexual
assault, in her opinion.

       The Defendant testified on his own behalf. He confirmed that he lived in the
residence during the relevant time period, but he denied ever touching the victims.
According to the Defendant, he saw L.J. at a family reunion in 2010 and then saw all four
of the children at a Christmas dinner in 2011. He said that the victims came up to him
and hugged him at the dinner in 2011.

        The jury convicted the Defendant as charged. He was sentenced to concurrent
terms of twenty-five years for each Class A felony conviction. The Defendant perfected
a timely appeal.

                                       ANALYSIS

       On appeal, the Defendant argues only that the evidence is insufficient to sustain
his convictions. Specifically, he contends that, because there was no forensic evidence of
the rapes and the victims‟ accounts lacked credibility, his convictions must be reversed.
The State responds that credibility determinations are the province of the jury, and the
Defendant, therefore, cannot prevail in his challenge to the sufficiency of the evidence.

       An appellate court‟s standard of review when a defendant questions the
sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of [both] direct and circumstantial
evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The
standard of proof is the same, whether the evidence is direct or circumstantial. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

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convicting evidence “is the same whether the conviction is based upon direct or
circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The duty of this court “on appeal of a conviction is not to contemplate all
plausible inferences in the [d]efendant‟s favor, but to draw all reasonable inferences from
the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       The Defendant was found guilty of violating Tennessee Code Annotated section
39-13-522, which defines rape of a child as “the unlawful sexual penetration of a victim
by the defendant or the defendant by a victim, if the victim is more than three (3) years of
age but less than thirteen (13) years of age.” 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 opening of the
victim‟s . . . body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-
501(7).

       The State cited the following facts to support each count:

              In Count One, the [S]tate has elected to submit for your
       consideration the alleged act of the intrusion of the Defendant‟s penis into
       the anal opening of [D.J.] occurring in [D.J.‟s] bedroom when he was six
       years old.

             In Count Two, the [S]tate has elected to submit for your
       consideration the alleged act of the intrusion of the Defendant‟s penis into
       the mouth of [L.J.] occurring in the living room when [L.J.] was four years
       old.

Review of the record reveals sufficient evidence to support the convictions. L.J. testified
she was on the couch in the living room watching television when the Defendant forced
her to put “his private part” in her mouth for about a minute. She explained that, during
this time, the Defendant‟s “private part” “was just still.” Furthermore, the Defendant had
previously instructed her not to tell anyone, and L.J. said that she was “nervous” to tell
her mother “[b]ecause [she] thought that [the Defendant was] going to put his hands on
[her].” L.J. was four years old at the time. D.J., who turned seven in August 2009,
testified that he was lying on his stomach in his bedroom one evening when the
Defendant undressed them both and then stuck the Defendant‟s penis in D.J.‟s anus. D.J.
said it was painful and he screamed.

       The Defendant‟s argument that the evidence is insufficient centers on his reliance
upon the following facts: (1) L.J. testified that her siblings were present when the
Defendant forced his penis into her mouth, but D.J. said he did not witness the incident;
(2) the other children present in the house would have heard D.J.‟s scream when the
Defendant put his penis in D.J.‟s anus, but “no such corroboration was offered by the

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State”; and (3) the forensic examinations did not reveal any injuries to the victims‟ body.
However, these credibility challenges to the victims‟ testimony do not entitle him to
relief.

        The fact that there was no forensic evidence of the sexual assaults does not entitle
the Defendant to relief. First, forensic evidence is not required to establish proof of rape,
as evidence may be sufficient to sustain a conviction for rape of a child when the only
evidence is the testimony of the victim. See State v. Ed Loyde, No. W2014-01055-CCA-
R3-CD, 2015 WL 1598121, at *3 (Tenn. Crim. App. Apr. 6, 2015) (citing State v.
Collier, 411 S.W.3d 886, 891-92 (Tenn. 2013); State v. Smith, 42 S.W.3d 101, 106
(Tenn. Crim. App. 2000)), perm. app denied (Tenn. July 21, 2015). Second, the record
reflects that at least several days had passed between the rapes and victims‟ disclosure to
their mother. Their mother testified that the Defendant had moved out of the family‟s
house in the preceding days. The victims were also very young children at the time of the
rapes. Moreover, according to Dr. Lakin, the vast majority of pediatric sexual assault
cases did not yield forensic evidence. See Loyde, 2015 WL 1598121, at *3. Finally,
these inconsistencies pointed out by the Defendant were not “„so improbable or
unsatisfactory as to create a reasonable doubt of the [Defendant‟s] guilt.‟” State v.
Elkins, 102 S.W.3d 578, 583 (Tenn. 2003) (quoting State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999)). As the final arbiter of credibility, the jury chose to resolve
any discrepancies in victims‟ testimony in the State‟s favor. See Loyde, 2015 WL
1598121, at *4. Accordingly, we conclude that the evidence is sufficient to sustain the
Defendant‟s two convictions for a rape of a child.

                                      CONCLUSION

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



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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