            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                               Assigned on Briefs August 2, 2011

                STATE OF TENNESSEE v. MICHAEL D. JOHNSON

                 Direct Appeal from the Circuit Court for Hardin County
                         No. 9171    C. Creed McGinley, Judge


                No. W2010-02315-CCA-R3-CD - Filed November 22, 2011


Defendant-Appellant, Michael D. Johnson, was convicted by a Hardin County jury of rape
of a child, a Class A felony, and aggravated sexual battery, a Class B felony. Johnson was
sentenced to twenty-five years in the Department of Correction for rape of a child and ten
years for aggravated sexual battery, to be served concurrently. On appeal, he argues that the
evidence was insufficient to support his convictions. Upon review, we affirm the judgment
of the trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Guy T. Wilkinson, District Public Defender and Richard W. DeBerry, Assistant District
Public Defender, Camden, Tennessee for the Defendant-Appellant, Michael D. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Hansel J. McCadams, District Attorney General; and Ed. N. McDaniel, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

       Trial. At trial, I.E.,1 the victim in this case, testified that he was nine years old on
December 3, 2009. On that date, he, along with his brother and cousin, were spending the
night at the apartment of his grandmother, Brenda Rainey. Johnson was married to Rainey,
and lived at the apartment with her. I.E. described their usual sleeping arrangements when


        1
        For sexual abuse cases, the policy of this court is to refer to the victim and the victim’s immediate
family members by their initials.
they all would stay the night in the apartment. His brother and cousin would share one room,
and I.E. would go to bed with Rainey. When Johnson was ready to go to sleep, he would
move I.E. from the bed to the couch in the living room. I.E. would then sleep on the couch
and Johnson would sleep in the bed with Rainey.

       On the night in question, I.E. went to bed with Rainey, and a couple hours later
Johnson moved him to the couch. However, Johnson remained in the living room with I.E.
watching television. Eventually, Johnson turned the television off and then went to where
I.E. was on the couch. Johnson began moving up and down on I.E.’s body repeatedly. I.E.
described what happened next:

       [H]e pulled down the covers down to my underwear because I was going to
       sleep. Then he started pulling down my underwear. When I tried to pull them
       back up he took his elbows and held me down . . . . And he held my arms there
       and put my wee-wee in his mouth.

I.E. described what Johnson was doing with his mouth: “[H]e was trying to like lick it. He
was like putting it in his mouth and then keeping it in there for a long time. It was like when
you drinking with a straw and he would let go then do it again.” Johnson stopped briefly to
adjust the temperature in the room then returned to I.E. and continued performing fellatio.
Johnson, who was in his underwear at this point, also started “playing with [himself].”
Johnson told I.E. to touch Johnson’s penis, and I.E. refused. Johnson again stopped to adjust
the temperature in the room. I.E. said that when Johnson returned, I.E. “tried to give him a
hug to make him leave me alone. Then he put his hand in my butt crack to touch my wee-
wee.” Before Johnson left the living room, he gave I.E. a Pop Tart and turned on the
television. Johnson said to I.E., “[D]on’t tell on papa because he be in real big trouble.”
Johnson then went to bed.

        During these events, I.E. felt scared and “kind of weird.” He thought maybe he was
dreaming, but he knew he was not. The next afternoon, I.E. told his father what had
happened, and his father reported the incident to the police. I.E. testified that no one told him
to say these things.

      M.E., I.E.’s father, testified that he called the police after I.E. told him about what had
happened.

       Brenda Rainey testified that Johnson and I.E.’s cousin were living with her in
December 2009. On this particular night, she put I.E. to bed with her around 9:00 or 9:30
p.m. She did not move I.E. to the couch in the living room. When she gave a statement to
Officer King, she told him that she had seen Johnson “playing with himself” before.

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       Officer Tim King of the City of Savannah Police Department testified that, during the
investigation of this case, he interviewed Johnson. Johnson told him that I.E. slept on the
couch by himself. Johnson said Rainey put him there when Johnson went to bed.

        Johnson testified that when I.E. would spend the night, Rainey would usually move
him to the couch when Johnson went to bed. Rainey did so on the night in question, and
Johnson denied doing the acts of which I.E. accused him. Johnson believed that I.E. was told
to allege these offenses to “get [I.E.’s cousin] out of the house.”

      The following three witnesses testified to Johnson’s good reputation for truthfulness:
Monty Boney, who had known Johnson for five or six years through marriage and as a
neighbor; Christy Gilmore, who had known Johnson for eight and a half years; and Doris
Williams, who had known Johnson for twelve years as her brother-in-law.

       After the evidence at trial, the jury convicted Johnson as charged for the rape of a
child and aggravated sexual battery. This timely appeal followed.

        Analysis. Johnson argues that the evidence did not support his convictions. He
asserts that I.E.’s testimony was not credible because I.E. was told to allege these offenses
and because he thought the events were a dream. The State responds that the jury resolved
these credibility issues by its guilty verdicts and that the evidence was sufficient to support
the convictions. We agree with the State.

       The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from the evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
this court must decide “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). Similarly, Rule
13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support a finding by the trier of fact of guilt beyond a reasonable doubt.”

       A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt; therefore, a defendant on appeal has the burden of showing that the
evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d

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at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the
credibility of witnesses, the weight and value of the evidence, and all factual issues raised
by the evidence are resolved by the jury as the trier of fact, and this court does not reweigh
or reevaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded by statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218
(Tenn. 1993)).

        Regarding Johnson’s conviction for rape of a child, the State was required to prove
“the unlawful sexual penetration of a victim by the defendant or the defendant by a victim”
and that the victim was “more than three (3) years of age but less than thirteen (13) years of
age.” T.C.A. § 39-13-522(a) (Supp. 2007). “Sexual penetration” is defined to include
fellatio. Id. § 39-13-501(7) (2006).

        Here the evidence supported the conviction of rape of a child. I.E. testified that he
was nine years old at the time of the offense. He was lying on the couch in his grandmother’s
living room when Johnson removed I.E.’s underwear. I.E. attempted to resist, but Johnson
held him down and performed fellatio. Under the relevant statutes, these events constituted
sexual penetration of the defendant by the victim and therefore the rape of a child.

        Johnson was also convicted of aggravated sexual battery. This offense required the
State to prove the “unlawful sexual contact with a victim by the defendant,” accompanied by
one of a number of circumstances, including “[t]he victim is less than thirteen (13) years of
age.” T.C.A. § 39-13-504(a)(4) (2006). “Sexual contact” is defined to include:

       the intentional touching of the victim’s, the defendant’s, or any other person’s
       intimate parts, or the intentional touching of the clothing covering the
       immediate area 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[.]

Id. § 39-13-501(6) (2006). “Intimate parts” is defined to include “the primary genital area,
groin, inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).

        In this case, the evidence supported the conviction for aggravated sexual battery. I.E.
testified that after Johnson stopped performing fellatio on him, he hugged Johnson so
Johnson would leave him alone. Johnson then placed his hand between I.E.’s buttocks to
touch I.E.’s penis. This evidence was sufficient to prove aggravated sexual battery.

       The focus of Johnson’s argument on appeal is that the evidence is insufficient because
I.E. was not a credible witness. He emphasizes I.E.’s possible motive to falsely accuse him

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so that another child would be removed from Johnson’s residence. Johnson also argues that
the events occurred only in I.E.’s dreams, a possibility I.E. suggested and also denied during
his testimony. Johnson contrasts I.E.’s lack of truthfulness with his own good reputation for
truthfulness, attested to by three witnesses. These arguments are unavailing, however, as we
cannot override the jury’s credibility determination. By convicting Johnson of these
offenses, the jury clearly rejected his testimony in favor of I.E.’s. The jury is entrusted with
judging witness credibility, and we are not permitted to second-guess its decisions. See
Bland, 958 S.W.2d at 659. Johnson is not entitled to relief.

                                       CONCLUSION

       Upon review, we affirm the judgment of the trial court.

                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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