APPELLATE COURT OPINIONS

Because I have no difficulty concluding that the trial court’s failure to instruct the jury on sexual battery constitutes harmless error according to the standard enunciated in State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), I must respectfully dissent from the majority’s reversal of the appellant’s convictions of rape. As acknowledged by the majority, our supreme court emphasized in Allen that, “[w]hen a lesser-included offense instruction is improperly omitted, . . . the harmless error inquiry is the same as for other constitutional errors” and entails an examination of both the evidence adduced at trial and the defendant’s theory of defense. Id. As also acknowledged by the majority, RB unequivocally testified at trial that the appellant’s sexual assault upon her included three separate acts of sexual penetration, and her testimony was uncontradicted with the exception of the appellant’s statements to the police denying any sexual activity whatsoever between himself and RB. In other words, the appellant’s defense in this case did not hinge upon the nature of the sexual activity between himself and RB but rather upon whether any sexual activity occurred. Accordingly, with respect to the evidence underlying each count of rape, the appellant was either guilty of the charged offense or entirely innocent. Under these circumstances, the trial court’s failure to instruct the jury on sexual battery should not afford the appellant relief.

The opinion and judgment entered June 24, 2002, are hereby VACATED and WITHDRAWN. A corrected opinion and judgment will be filed in due course.

The defendant, Patsy Webster, appeals the Henry County Circuit Court's ordering her to serve one year of her effective two-year sentence in continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only a two-year sentence for release after serving thirty percent of her sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing.

The appellant, Herman Holston, was convicted after a trial by jury of sale of cocaine, a Class C felony, and was sentenced as a Range II offender to eight years and six months confinement in the Department of Correction. On appeal, Holston raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict, and (2) whether his sentence was proper. After a review of the record, we find that Holston's issues are without merit. Accordingly, the judgment of the Shelby County Criminal Court is affirmed.

The defendant was indicted for first degree murder and convicted by the jury of second degree murder. He filed a petition for post-conviction relief, and was permitted to make a delayed motion for a new trial, which ultimately was denied by the trial court. The defendant appeals the denial, arguing that the evidence at trial was insufficient to support his conviction for second degree murder. After a review of the record, we conclude that there was sufficient evidence to convict the defendant of second degree murder and that the trial court properly denied the defendant's motion for judgment of acquittal and a new trial.