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Posted by: Tanja Trezise on Jul 30, 2014

Court: TN Court of Criminal Appeals

Attorneys 1:

R. Todd Mosley, Memphis, Tennessee, (on appeal); Kim Sims and Larry Sims, Memphis, Tennessee, (at trial), for the appellant, Charles Sharp.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; Kirby May and Jennifer Nichols, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge(s): WOODALL

Defendant, Charles Sharp, was originally indicted for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, one count of statutory rape, and one count of vandalism under $500. Defendant was acquitted of all charges except especially aggravated sexual exploitation of a minor, on which the jury was hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App. 2010). Defendant was tried again on the charge of especially aggravated sexual exploitation of a minor and convicted. Id. This court reversed Defendant’s conviction and remanded for a new trial based on the State’s having read a witness’s testimony from a prior trial into evidence without having shown the witness’s unavailability. Id. at 709-712. Defendant was tried twice more on the charge of especially aggravated sexual exploitation of a minor, and the juries were unable to reach a verdict. In the case sub judice, Defendant was tried and convicted again on the same charge and sentenced to 12 years of incarceration. Defendant now appeals his conviction and sentence and asserts the following: 1) the trial court erred by not dismissing the indictment pursuant to our supreme court’s holding in State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978); 2) the trial court erred by allowing into evidence testimony of prior bad acts; and 3) the trial court’s imposition of a 12-year sentence was presumptively vindictive. After a careful review of the record and the briefs of the parties, we affirm Defendant’s conviction; however, we conclude that Defendant’s sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore, we modify Defendant’s sentence from twelve years to nine years.