Failure to instruct on lesser-included offense leads to reversal of sexual assault convictions

The Tennessee Court of Criminal Appeals just reversed sexual battery convictions in a Davidson County case because 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.  To establish plain error, the following are all required: (1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of the accused must have been adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice.  State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quotation omitted).  Moreover, the “‘plain error’ must be of such a great magnitude that it probably changed the outcome of the trial.”  State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

To prevail on a claim that the trial court committed plain error by not instructing on a lesser-included offense, “the defendant must show a reasonable probability that a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense.”  State v. Martin, 505 S.W.3d 492, 505 (Tenn. 2016).  In analyzing whether there is a reasonable probability that a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense, the reviewing court should examine (1) the evidence presented at trial, focusing on the distinguishing element between the greater and lesser offense; (2) the strength of the evidence of the distinguishing element, and the existence of contradicting evidence of the distinguishing element.  Id. 

In the case at hand, the distinguishing elements between sexual battery and assault by extremely offensive or provocative contact are (1) whether the defendant used force or coercion to accomplish the touching and (2) whether the contact was for sexual gratification.  Given the facts of the case, there was no debate over whether the touching was for sexual gratification.  However, it was debatable whether there was force or coercion.  In reaching its decision, the appellate court first pointed to the defense’s “unreliable narrator” theory, i.e., that the alleged victim’s actions throughout the night were inconsistent with someone who had been repeatedly sexually assaulted.  Second, the court noted that the jury acquitted the defendant of three of the indicted offenses and convicted him of the lesser-included offense of sexual battery on two of the counts.

Personally, I agree with the court of criminal appeals that the defendant met his burden of showing that there was a reasonable probability that the jury would have convicted him of assault by extremely offensive or provocative contact if the jury had been instructed on that offense by the trial court.  As the appellate court noted, the fact that the jury acquitted the defendant on most counts and convicted him of lesser included offenses on other counts indicates that the jury found much of the victim’s testimony as less than credible.

With that said, the defense’s unreliable narrator theory may have partially convinced the jury, but it has not convinced me.  Reading the facts of the case, the victim testified that she repeatedly told the defendant “no.”  Once, after sternly telling the defendant “no,” the defendant said, “Oh, we’re going to f*** tonight.”  On a phone call, when asked why he did not stop when she asked him to stop, the defendant stated:

“I don’t know, I don’t know, I was f***ed up, I was like f***ed up all day long and that is not excuse at all, but with everything going on in my life, I just like f***ing snapped and just couldn’t give a f*** and thought that was an okay thing to do, which it was not at all.  I am so sorry.

There were times when the victim acted somewhat differently toward the defendant.  They exchanged sexual messages and she sent him a topless photo and a video of her masturbating.  They kissed while clothed on a bed together.  After the defendant had already begun to assault her, she offered to give him oral sex as a way to try to keep from getting raped.  She also recalled being on top of the defendant when the rape stopped.  Finally, she had trouble remembering the penile-vaginal rape.  For me, this isn’t enough to be an unconvincing witness in a rape case.

However, I’m not on the jury and neither is the appellate court.  At the appellate level, the question isn’t so much whether the victim was convincing as it is whether the victim convinced the jury.  And, the acquittals and the lesser-included convictions indicate that they were less than convinced.

If anything, this shows the power of good lawyering.  This guy could have easily been convicted of multiple Class B Felonies and sent away for most or all of his life.  At trial, his counsel – Bernard F. McEvoy and Jessica Van Dyke – successfully made a mountain out of a molehill and then his appellate counsel – Richard Lewis Tennent and Jodie A. Bell – did similar.  The one question I do have of his counsel is this -> does this guy really need another trial?  If he’s tried again, another jury may not be so skeptical and convict him of rape.  If I were in the defendant’s shoes, I would use this appellate win to shave some time off of my sentence, but I don’t think I would roll the dice with another jury.

State v. Johnson, No. M2016-01479-CCA-R3-CD (Tenn. Crim. App. Nov. 3, 2017)

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