State of Tennessee v. Zachary Michael Johnson, M2016-01479-CCA-R3-CD

Background

Defendant Zachary Michael Johnson was indicted on five counts of rape by force or coercion arising from a single May 27–28, 2014 encounter with the victim (met via Tinder). Jury convicted on two counts of the lesser offense, sexual battery, and acquitted on three counts. Trial court sentenced to concurrent 2-year terms, suspended to probation.
Victim testified to a progression from consensual kissing to nonconsensual digital and penile penetration, repeated refusals, physical restraint (bruised wrists), biting/bruising, and being struck in the head. She reported the incident the same night; corroborating medical exam, photographs, and partial male DNA on vaginal/vulvar swabs were introduced.
Defense contended the victim’s testimony was unreliable and that, even if sexual acts occurred, they were not accomplished by the force or coercion required for rape; defense sought a jury instruction on assault by extremely offensive or provocative physical contact as a lesser-included offense.
Trial court declined to instruct on that misdemeanor lesser-included offense; defense did not file written request, so appellate review limited to plain error.
Court of Criminal Appeals held the evidence nevertheless sufficient for sexual battery but concluded the trial court plain-errored by failing to instruct on assault by extremely offensive or provocative physical contact and remanded for a new trial.

Issues

Issue	State's Argument	Johnson's Argument	Held
Whether trial court erred by not instructing jury on assault by extremely offensive or provocative physical contact as a lesser-included offense of rape by force or coercion	Instruction unnecessary because evidence supported force/coercion; also dispute whether Burns part (b) remained good law at trial	Requested instruction was warranted because reasonable jurors could find contact offensive but not rise to force/coercion required for rape	Court found plain error: instruction should have been given; reversed convictions and remanded for new trial
Whether plain-error review applies given written-request statutory requirement	State: defendant limited by failure to file written request and cannot show clear legal breach	Johnson: made oral request at trial and parties proceeded as if the lesser offense applied; plain error review appropriate	Court applied plain-error framework and found first prong (record clear) satisfied and ultimately met all necessary factors
Whether evidence was sufficient to support convictions for sexual battery (force or coercion element)	Evidence (victim’s testimony of restraint, repeated refusals, physical injuries) supported force used to accomplish the sexual contact	Argued force occurred after the contact and thus was insufficient to prove sexual battery	Court held evidence was sufficient to sustain sexual-battery convictions if retried; however convictions reversed for instructional error
Prejudice: whether omission probably changed outcome	State: defendant’s defense was credibility-based so no reasonable probability jury would have convicted only of lesser offense	Johnson: defense theory (‘‘unreliable narrator,’’) created reasonable probability jury might have convicted only of lesser offense	Court agreed with Johnson that reasonable probability existed that jury would have convicted of the lesser assault offense and thus plain error warranted reversal

Key Cases Cited

Burns v. State, 6 S.W.3d 453 (Tenn. 1999) (establishes multi-part test for lesser-included offenses)
State v. Howard, 504 S.W.3d 260 (Tenn. 2016) (affirms continued applicability of Burns part (b) to lesser-included-offense analysis)
Martin v. State, 505 S.W.3d 492 (Tenn. 2016) (plain-error review requires reasonable probability a jury would have convicted of lesser offense)
Moore v. State, 485 S.W.3d 411 (Tenn. 2016) (framework for reviewing omission of lesser-included instruction when jury given no lesser option)
Swindle v. State, 30 S.W.3d 289 (Tenn. 2000) (discusses relationship between unlawful sexual contact and extremely offensive or provocative contact)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)