           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned on Briefs October 5, 2010

                     STATE OF TENNESSEE v. O’NEAL JOHNSON

                   Direct Appeal from the Criminal Court for Shelby County
                             No. 08-05474     Chris Craft, Judge


                  No. W2010-00405-CCA-R3-CD - Filed November 19, 2010


The defendant, O’Neal Johnson, was convicted by a Shelby County Criminal Court jury of
rape of a child, a Class A felony, and was sentenced to twenty-five years in the Department
of Correction at 100% as a violent offender. On appeal, the defendant challenges the
sufficiency of the convicting evidence. After review, we affirm the judgment of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.

Robert Wilson Jones, District Public Defender; Barry W. Kuhn (on appeal) and Trent Hall
and Timothy J. Albers (at trial), Assistant Public Defenders, for the appellant, O’Neal
Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and J. Robert Carter, Jr. and Scot
A. Bearup, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                    OPINION

                                                     FACTS

      In December 2007, the twelve-year-old victim, M.T.,1 discovered that she was
pregnant as a result of the defendant’s sexually penetrating her during the months of April

       1
           It is the policy of this court to refer to minors by their initials only.
to October 2007. For his actions, the defendant was indicted on one count of rape of a child.

                                        State’s Proof

        At trial, the victim testified that the defendant lived with her and her mother, her
younger sister, and her two younger brothers during the period of April to October 2007.
The victim recalled that during that time period, when they were residing at a house on
McCrory Avenue and later Appian Cove, the defendant “touch[ed] [her] in the wrong spot.”
She elaborated that the defendant touched her “[i]n [her] private parts” or vagina, and he did
so on more than ten occasions. The victim shared a bedroom with her sister, and the
defendant picked her up out of bed, took her to the living room or kitchen, laid her on the
floor, and “pull[ed] [her] pants down.” Once the defendant took the victim’s pants off, he
had the victim get on her hands and knees and stuck his penis “[i]n the back.” The victim
clarified that the defendant put his penis in her vagina. The victim said that to the best of
her knowledge, the defendant’s penis did not go into any other part of her body. She said
that “[i]t hurt[] . . . [e]verywhere below [her] waist” when the defendant did this to her. The
victim said that she never struggled with or told the defendant “no” because “he said if [she]
ever t[old] he would threaten to kill [her] and [her] momma,” which made her feel sad and
scared. The defendant never threatened to harm himself.

       The victim testified that up until October 1, 2007, the defendant was the only person
who had ever touched her vagina with a penis. In December 2007, the victim was visiting
with her aunt and cousin when they “noticed that [her] stomach was starting [to] get[] big.”
After taking a pregnancy test, the victim admitted that the defendant had touched her, but
her mother did not believe her. The victim gave birth to a full-term baby on March 31,
2008.

        On cross-examination, the victim testified that she recalled giving a statement at the
Child Advocacy Center on January 2, 2008, in which she said that the defendant’s penis
went in her “butt.” However, she said that she told the interviewer that the defendant had
put his penis in her vagina, but she did not think the interviewer wrote that down. She also
acknowledged that she told the Child Advocacy Center that the defendant had threatened
to kill himself, not her or her mother, if she told.

       The victim’s sister, A.H., testified that she was currently thirteen years old. During
the time period of April 1 to October 1, 2007, the defendant was her mother’s boyfriend and
resided with their family. On an occasion when the group was living in a house on Appian
Cove and her mother was at work, A.H. and her two brothers were watching a movie in her
mother’s bedroom, when A.H. walked toward the kitchen and “saw [the victim] on her
hands and knees.” The victim had her school uniform on, but her pants and underwear were

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down below her knees. Someone was holding his hand over the victim’s mouth and using
his other hand to pull back the victim’s hair. A.H. assumed that the hands belonged to the
defendant “[b]ecause he was the only man in [their] house” at the time. The victim buttoned
and zipped her pants and the man zipped his pants, and A.H. asked the victim what was
going on. A voice A.H. recognized as the defendant’s said, “Nothing.” A.H. asked the
victim to start another movie for them, and the victim told the defendant “to go put on
another movie” and he did. A.H. said that she had seen the defendant with a gun “[m]any
times” and that he kept it in a drawer in her mother’s bedroom. A.H. stated that she was
scared of the defendant.

       The victim’s older cousin testified that in December 2007, she noticed that the
victim’s stomach “looked a little big . . . for her age.” Holmes and her mother purchased a
pregnancy test and assisted the victim in taking it, and it returned a positive result. The
victim admitted to her cousin that the defendant had been touching her.

        Eddie Scallions, an investigator with the district attorney’s office, explained the
process for collecting specimens for a “rape kit” and testified that he collected buccal swabs
of the defendant’s DNA and turned them over to Larry Eaves, another investigator in the
district attorney’s office.

      Thomas Shouse, an investigator with the district attorney’s office, obtained buccal
swabs of the victim’s DNA and turned them over to Larry Eaves.

       Larry Eaves testified that he collected buccal swabs of the DNA of the victim’s baby
and transported the swabs, as well as the swabs collected by the other investigators, to
Orchid Cell Mark Laboratory for testing.

        Dr. Deborah Cutter, laboratory director of Orchid Cell Mark Laboratory in Nashville,
was accepted as an expert in microbiology and DNA. Dr. Cutter explained that individuals
receive a combination of DNA from their mother and father, and she described the process
for establishing paternity. Dr. Cutter testified that she analyzed the samples obtained in this
case, and the defendant could not be excluded as the baby’s father. Moreover, she
determined that the “probability of paternity” was 99.99 percent, “which is [their] highest
reportable probability.”

                                     Defendant’s Proof

        The defendant, via undirected narrative, testified that he started living with the
victim’s mother and her children in 2005, and they were romantically involved. Over the
years, they resided in an apartment and three different houses together, moving first to “get

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[the children] in a better environment” and then to get the children in a better school. The
defendant recalled an incident when the victim’s mother allowed her uncle to babysit the
children when the victim was twelve years old. The defendant was concerned because the
uncle was “drunk and talking out of his head,” but the victim’s mother believed the children
would be all right. The defendant and the victim’s mother went to a movie and returned
home around 11:30 p.m. to find the uncle asleep on the sofa and the children asleep on the
floor in front of the sofa.

       The defendant testified that he and the victim’s mother walked to their bedroom, and
then he returned to the living room to find the victim lying on the couch next to the uncle
with “her whole shirt . . . off, breast exposed” and the uncle “was playing asleep.” After
having the uncle leave, the defendant talked to the children about inappropriate touching,
and he and the victim’s mother decided to keep the uncle away from their house. However,
the uncle periodically came by to bring items to the victim, so they moved again to get
further away from the victim’s mother’s family.

       The defendant testified that they later “decided to upgrade” and moved to a house in
the county. In mid-December 2007, the defendant was arrested for an unrelated incident
and, while incarcerated, received notification that he had been indicted for the sexual child
abuse of the victim. Several months later, the defendant was released from jail, and he
relayed the normal events in the household, including caring for the victim’s new baby, until
the children were removed from their home. He was later arrested on the indictment in this
case. The defendant denied having sexual relations with the victim.

       Upon the conclusion of the proof, the jury convicted the defendant as charged of rape
of a child. After a sentencing hearing, the defendant was sentenced to twenty-five years at
100% as a violent offender.

                                         ANALYSIS

        The defendant challenges the sufficiency of the convicting evidence, arguing that
“[t]he evidence in this case consists essentially of the uncorroborated testimony of the twelve
year old child victim.” In considering this issue, we apply the rule that where sufficiency of
the convicting evidence is challenged, the relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e)
(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.

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Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies
whether the finding of guilt is predicated upon direct evidence, circumstantial evidence, or
a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

       All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this
rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Rape of a child is defined 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.” Tenn. Code Ann. § 39-13-522(a) (2006). “Sexual
penetration” is “sexual 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 victim’s . . . body.”
Id. § 39-13-501(7).

         In the light most favorable to the State, the evidence was more than sufficient for a
rational trier of fact to convict the defendant of rape of a child. The victim testified that
during the months of April to October 2007, when she was twelve years old, the defendant
penetrated her vagina with his penis on more than ten occasions in the family’s living room
or kitchen. She recalled an instance where the defendant had her on all fours as he penetrated
her vagina from behind. The victim’s sister, A.H., recalled an instance when she saw the
victim with her pants and underwear pulled down and on all fours in the family’s kitchen,
while someone was behind the victim holding a hand over her mouth and also holding her
hair back. The victim’s sister said that the defendant was the only adult male in the house
at the time, and she recognized the defendant’s voice when he said that “nothing” was going

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on. The victim said that the defendant was the only one who had penetrated her vagina with
a penis. A paternity test was offered into evidence, establishing that there was a 99.99%
probability that the child born to the victim on March 31, 2008 was fathered by the
defendant. Any issues concerning the credibility of the witnesses were resolved by the jury
as the trier of fact. The defendant is not entitled to relief on this issue.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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