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Posted by: Landry Butler on Nov 3, 2017

Court: TN Court of Criminal Appeals

Attorneys 1:

Richard Lewis Tennent and Jodie A. Bell (on appeal); and Bernard F. McEvoy and Jessica Van Dyke (at trial), Nashville, Tennessee, for the appellant, Zachary Michael Johnson.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Deputy Attorney General; Glenn R. Funk, District Attorney General; and Megan M. King and Leandra J. Varney, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): GLENN

The Defendant, Zachary Michael Johnson, was indicted for five counts of rape by force or coercion, a Class B felony, all involving the same victim and occurring over a short period of time. The jury convicted him of the lesser offense of sexual battery, a Class E felony, in two counts of the indictment and acquitted him of the remaining three counts of the indictment. The trial court subsequently sentenced him as Range I, standard offender to concurrent terms of two years for each conviction, suspended to three years of supervised probation. On appeal, the Defendant challenges the sufficiency of the convicting evidence and argues that the trial court committed plain error by not instructing the jury on the lesser-included offense of assault by extremely offensive or provocative physical contact. Following our review, we conclude that the evidence is sufficient to sustain the convictions but that the trial court erred in not instructing the jury as to the lesser-included offense. Accordingly, we reverse the judgments of conviction and remand for a new trial.