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Posted by: Stacey Shrader Joslin on Jul 19, 2016

Court: TN Court of Criminal Appeals

Attorneys 1:

Guy T. Wilkinson, District Public Defender; Gary J. Swayne, Assistant Public Defender, Camden, Tennessee, for the appellant, David Alan Corbitt.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Senior Counsel; Matthew F. Stowe, District Attorney General; and Bruce I. Griffey, Assistant District Attorney General, for the appellee, State of Tennessee.


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 contends that: (1) the evidence is 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 conclude that aggravated sexual battery is not a lesser-included offense of rape of a child. State v. John J. Ortega, Jr., No. M2014-01042-CCA-R3-CD, 2015 WL 1870095, at *10 (Tenn. Crim. App., at Nashville, Apr. 23, 2015), no perm. app. filed. As such, the trial court erred when it instructed the jury. The Defendant?s conviction for aggravated sexual battery is vacated. His conviction and sentence for rape of a child is affirmed.