State of Tennessee v. Frank M. Green

The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.