Assigned on Briefs June 7, 2016
Remanded by the Supreme Court, October 20, 2016.
from the Circuit Court for Benton County No. 14-CR-67 C.
Creed McGinley, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
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
W. Wedemeyer, J., delivered the opinion of the Court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
OPINION ON REMAND
W. WEDEMEYER, JUDGE.
case arises from allegations that the Defendant molested his
then five-year-old daughter, M.C. 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.
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
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
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
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.
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.
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
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.
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 ...