State of Tennessee v. Gary Rollins

Gary Rollins, Defendant, was charged with one count of rape of a child and two counts of aggravated sexual battery in September of 2020.  At the conclusion of the first trial, the jury found Defendant not guilty of rape of a child but could not reach a verdict on the lesser-included offenses of rape of a child.  The jury could not reach a verdict on either count of aggravated sexual battery.  The trial court granted a mistrial for the remaining lesser-included offenses of rape of a child and the two counts of aggravated sexual battery.  In a second trial on the same presentment, Defendant was again tried for rape of a child.  The jury found Defendant guilty of rape of a child and two counts of aggravated sexual battery.  At sentencing, Defendant challenged the rape of a child conviction for the first time on the basis that it violated double jeopardy.  The trial court agreed, entering a judgment for the lesser-included offense of attempted rape of a child.  The trial court sentenced Defendant to twenty years for the attempted rape of a child conviction and fifteen years for each aggravated sexual battery conviction.  The trial court ordered the sentences to run consecutively, for a total effective sentence of fifty years. On appeal, Defendant argues that the trial court abused its discretion by allowing the State to introduce evidence of a prior bad act in violation of Tennessee Rule of Evidence 404(b), that his second trial for rape of a child violated his right against double jeopardy, and that the trial court had no authority to modify the conviction on the jeopardy-barred offense to attempted rape of a child.  Because the Defendant failed to demonstrate a reasonable probability that he would not have been convicted of the attempted rape of a child absent the presence of the charge of rape of a child and because the trial court did not abuse its discretion by allowing the State to introduce evidence of a prior bad act, we affirm the convictions.