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State v. Corbitt

Court of Criminal Appeals of Tennessee, Jackson

January 23, 2017

STATE OF TENNESSEE
v.
DAVID ALAN CORBITT

          Assigned on Briefs June 7, 2016

          Remanded by the Supreme Court, October 20, 2016.

         Appeal from the Circuit Court for Benton County No. 14-CR-67 C. Creed McGinley, Judge

         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 contended that: (1) the evidence was 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 concluded that aggravated sexual battery was not a lesser-included offense of rape of a child. State v. David Alan Corbitt, No. W2015-01834-CCA-R3-CD, 2016 WL 3952017 (Tenn. Crim. App., at Jackson, July 19, 2016), Tenn. R. App. P. 11 application granted (Tenn. Oct. 20, 2016) . As such, we held that the trial court erred when it instructed the jury. We, therefore, vacated the Defendant's conviction for aggravated sexual battery but affirmed his conviction and sentence for rape of a child. On October 20, 2016, the Tennessee Supreme Court granted Defendant's application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court's recent opinion in State v. Howard, No. E2014-01510-SC-R11-CD, S.W.3d, 2016 WL 5933430 (Tenn. Oct. 12, 2016). Upon reconsideration in light of Howard, we conclude that aggravated sexual battery is a lesser-included offense of rape of a child and that the trial court did not err when it so instructed the jury. Accordingly, we reinstate and affirm the Defendant's conviction and sentence for aggravated sexual battery.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

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

          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.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION ON REMAND

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         A. Trial

         This case arises from allegations that the Defendant molested his then five-year-old daughter, M.C.[1] A Benton County grand jury indicted the Defendant for two counts of rape of a child. At his trial on these charges, the parties presented the following evidence: M.C., who was six years old at the time of trial, testified that her father, the Defendant, did something he was not supposed to do "a long time ago" but that she could not remember what happened. M.C. eventually agreed that, when she was five years old, the Defendant had touched her in a way that he was not supposed to touch her while they were in their house. M.C. recalled that she was in her bed "in trouble" when the Defendant called her into his bedroom. He touched his penis to her vagina on one occasion, and, on another occasion, he put her mouth on his penis.

         Shauna Rich, an investigator for the Department of Children's Services ("DCS") in Carroll and Benton Counties, testified that she began the investigation of this case after someone called a child abuse hotline with concerns about the victim. After her office received the referral about the concern on June 24, 2014, her co-worker went and interviewed the Defendant and the victim. The original referral concerned domestic abuse between the Defendant and his "paramour, " and there was a specific allegation of abuse between the two on June 26, 2014, when Ms. Rich became involved in the case. On June 27, 2014, Ms. Rich placed M.C. into State custody.

         Ms. Rich said that she met with the family to discuss their concerns about M.C. Shortly thereafter, another investigator from her office, Mr. Allen, attended M.C.'s forensic interview at the Carl Perkins Center, where a certified forensic interviewer interviewed M.C. about the sexual abuse allegations. The interview was set up with the forensic interviewer asking questions, and Ms. Rich and Mr. Allen watching from another room. The interview was video recorded. During this interview, M.C. ran around the room and could not stay focused, so they concluded the interview. Ms. Rich said that she gave M.C. time to settle in with her foster family and be medically assessed, and then she attempted the interview again.

         Ms. Rich said that during the second interview, conducted the following month, M.C. could again not stay focused, so the interview was concluded. At that point, Mr. Allen and Ms. Rich interviewed M.C. M.C. disclosed that her father had put his "no-no, " which she identified as his penis, into her mouth in the bathroom on the same day that he had also shaved the hair from her head. Ms. Rich said that she filed a "no contact" order for the Defendant and M.C.

         Ms. Rich testified that she interviewed the Defendant, who told her that M.C. had molested him. The Defendant's girlfriend, Charity, accompanied him during the interview. The Defendant said that, on two occasions, M.C. had touched him. He described one incident saying that he awoke to find M.C.'s hand in his underwear and M.C. masturbating him. The Defendant described a second occasion, saying that he woke up in the middle of the night to find M.C. performing oral sex on him. He said that he called Charity at work and told her to come home, so he could talk to her about M.C. performing oral sex on him.

         Ms. Rich said that she had never before in over 1, 500 cases had a case where a five-year-old girl molested a grown man while he slept. Ms. Rich identified a video recording of the Defendant's interview, which the State played for the jury. In the video, the Defendant told Ms. Rich that M.C. took the covers off of him twice while he was sleeping. The first time she manipulated his penis with her hands, and the second time she placed his penis in her mouth. He said that he felt his penis go inside her mouth, and he woke up and stopped her. He then punished her for this behavior.

         Ms. Rich said that the first time that the Defendant made allegations that his daughter had molested him was in a meeting on July 2, 2014, to discuss M.C.'s needs shortly after M.C. was taken into State custody. During the meeting, attended by fifteen to twenty people, the Defendant said that M.C. needed "help because she had been touching [the Defendant] inappropriately."

         Ms. Rich identified a picture that she and Mr. Allen used when speaking with M.C. in August. Using that picture, M.C. made the disclosure that the Defendant had touched her genitals. Using another picture, M.C. stated that the Defendant touched her mouth with his penis. This interview occurred after the Defendant's July disclosure. After the Defendant's disclosure, Ms. Rich contacted the DCS attorney who filed for a "no contact" order.

         During cross-examination, Ms. Rich testified that the Defendant sought and obtained counseling services for M.C., who was in foster care. Ms. Rich said that the Defendant had never admitted to inappropriately touching M.C. Ms. Rich said that DCS had been involved in M.C.'s life for an extended period of time and that the ...


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