State of Tennessee v. David Alan Corbitt

A Benton County jury convicted the Defendant of one count of rape of a child and one count of aggravated sexual battery as a lesser-included offense of a second count of rape of a child. The trial court sentenced him to thirty-five years, to be served at 100%, for the rape of a child conviction and to a concurrent sentence of ten years for the aggravated sexual battery conviction. On appeal, the Defendant contended that: (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred when it instructed the jury that aggravated sexual battery was a lesser-included offense of rape of a child; and (3) the trial court erred when it sentenced him. After review, we concluded that aggravated sexual battery was not a lesser-included offense of rape of a child. State v. David Alan Corbitt, No. W2015-01834-CCA-R3-CD, 2016 WL 3952017 (Tenn. Crim. App., at Jackson, July 19, 2016), Tenn. R. App. P. 11 application granted (Tenn. Oct. 20, 2016) . As such, we held that the trial court erred when it instructed the jury. We, therefore, vacated the Defendant's conviction for aggravated sexual battery but affirmed his conviction and sentence for rape of a child. On October 20, 2016, the Tennessee Supreme Court granted Defendant's application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court's recent opinion in State v. Howard, No. E2014-01510-SC-R11-CD, __ S.W.3d __, 2016 WL 5933430 (Tenn. Oct. 12, 2016). Upon reconsideration in light of Howard, we conclude that aggravated sexual battery is a lesser-included offense of rape of a child and that the trial court did not err when it so instructed the jury. Accordingly, we reinstate and affirm the Defendant's conviction and sentence for aggravated sexual battery.