# FILED
May 5, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9708-CC-00371

) ) Blount County v. ) ) Honorable D. Kelly Thomas, Jr., Judge ) JIMMY DAVIS, ) (Delivery of more th an one-half gram of ) cocaine -- two counts) ) Appellant. )
For the Appellant : For the Appellee : Mack Garner John Knox Walkup District Public Defender Attorney General of Tennessee 421 High Street and Maryville, TN 378

04 Todd R. Kelley (AT TRIAL AND ON APPEAL) Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Gerald L. Gulley, Jr. Nashville, TN 37243-0493 P.O. Box 1708 Knoxville, TN 37901-170 8 Michael L. Flynn (ON APPEAL) District Attorney General and Philip Morton Assistant District A

ttorney General Blount County Courthouse 363 Court Street Maryville, TN 378

04 OPINION FILED:____________________ CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING Joseph M. Tipton Judge2 O P I N I O N
The defendant, Jimmy Davis, appeal s as of right following his convictions by a jury in the Bl ount County Circuit C ourt for two counts of delivering more than onehalf gram of cocaine, a Class B felony. He was sentenced for each con viction as a Range I, standard offender to nine y ears confinement in the Department of Co rrection, to be served concurrentl y. He received a fifty

-thousand-dollar fine for each c onviction. The def endant p resents t he follo wing issues for our re view:

(1) whether the evidence is sufficient to support his convictions; (2) whe ther the trial court erred by refusing to allow cro ss examination regarding a confidential informant’s use of drugs while on probation; (3) whether the tr ial court erred by allow ing the jury, duri ng deliberations, to listen to an audiotape of the drug transaction; and (4) whether the tri al court e rred by imp osing an e xcessive sentence and by

failing tosentence the defendant to probation or community corrections. We aff irm the conviction s but remand th e case for resen tencing.

At trial, Cheryl Denise Androws testified th at she contacted the Blount Metro Narcotics Unit (BMNU) in 1996 because she was using cocaine and needed help with treatment. She said that she had convictions for burglary and for writing worthless checks. She said she wanted to do undercover wor k for the BMNU because she needed money. She said the BMNU employed her to purchase drugs, which she did eight or nine times. She s aid that she was paid fifty dollars for each transactio n. She said she received drug treatment at Cornerstone and i s drug-free.

Ms. Androws testified that she knew the defendant by the name Sam and had seen him about sixty times. She said that on September 6,1996, she called a house on Howe Street and spok e to the defendant. She said she asked the defendant3

if she could buy cocaine from hi m, and she arranged to meet him at the house. She said she then called the BMN U and spoke with Agent Scott Johnson. She said she went to the BMNU office w here she was wired

with an electronic aud iotape recorder. She testified that agents searc hed both her and her car before she w as wired. She said she received one hundr ed dollars with w

hich to purchase the drugs . She explained that the agents foll owed her to the house on How e Street, and she went inside the house.

Ms. Androws testified that once inside the house, she tal ked to the defendant for a while because she w anted to get his full name, and she said the defendant told her his last name w as Davis. She said she gave him one hundred dollars, and he gave her five packages of cocaine. S he said another man whom she did not know was pres

ent during the transaction . She said she then drove t o a predetermined location to meet w ith the agents, and she gav e them the drugs. She said that the agents searched both her and her car again.She testified that she was absolutely certain that the defendant was the man who sold her the dru gs. She said she later learned that the audi otape had malfunctioned, and the transacti on was not recorded. She stated that after the first transaction, she w ent to the BMNU office and identified a photograph of the defendant.

Ms. Androws testified that on September 17, 1996, she participated in another drug transaction w ith the defendant. She testified that she went through the same process that she had gone through for the first transact ion. She testified that while she was at the

house on Howe Street purc hasing the drugs from the defendant, someone handed her a marijuana cig arette. She testified that after the transaction, she met with the agents and tur ned over the marijuana cigarette and the cocaine. She testified that the second transac tion was successfully

recorded, and a tape of the transact ion was pla yed for th e jury.4 On cross-examination, M s. Androws testified that she had been involved with cocaine for six

or seven years but that at the time of the trial, she ha d not used cocaine for almost one year. She said she stopped using c ocaine in August 1996 when she started treatment. She admitted that she had more than five worthless check convictions. She also admitted that she was conv icted of burglary in M arch 1994 and pled guilty to forger

y in May 1995. She st

ated that she made about nine transact ions for the BMNU and that she earned about four hundred and fifty dollars.She testified that she did not have a reg ular job during the peri od in which she wor ked for the BMNU. She admitted that she was char ged on July 31, 1996 with stealing money from CostCutters and that she was arrest ed and ch arged i n Novem ber wi th burg lary a nd theft from Wal-Mart while she was on community corrections for a prior conviction. She said the charges were dismissed upon her agreement to pay restitution, which she paid in full. She denied that the Wal-Mart charges were dismissed as par t of her agreement with the BMNU. She s tated that she did not use cocaine after she began working with the BMNU.
Eric Gutridge testified that he is an officer with the BMNU. He stated that he knew the defendant in September 1996 and that he helped set up the first transaction between the defendant and Ms. Androws. He sai d that although the audiotape recorder malfunctioned, he listened to the transaction as it was happening. He said that during the tr ansaction, Ms. Androws talked to a man she called Sam, and the man told her that his last name was Davis. Officer Gutridge said Ms. Androws bought cocaine from the man and then met hi m and other officers to turn over the drugs. Officer Gutridge stated that he had previousl y seen the defendant’s car at the house on Howe Street, and after the first transaction, he showed the defendant’s picture to Ms. Androw

s who identified him immediatel y as the man she knew as Sam. He testified that on November 4, 1996, after the second transacti on, he obtained a warrant and searched the ho use at Howe Street. He said he found a document from the Tennessee Department of Saf ety bearing the name Jimmy Davis.5 On cross-examination, O fficer Gutridge testified that h e was present when Ms. Androws came to the BMNU office and volunteered her services. He said Ms. Androws said that she needed money for drug treatment and that she wanted to purchase drugs for them. He s aid Ms. Androws did not tell them that she had felony convictions. He sai d that during the first tr ansaction, Ms. Androws was in the house no longer than five minutes. He stated that the BMNU did not agree to do anything for Ms. Androws except pay

her for her work.

Scott Johnson testified that he is a narcotics agent wi

th the Blount County Sheriff’s Department. He said he spoke to Ms. Androws w hen she first called the BMNU to volunteer her services. He said he obtained Ms. Androws’ criminal history and found it to be minimal compared to oth er informants. He said that nei ther he nor anyone acting on behalf of the BMN U had any deal with M s. Androws, other than to pay her for each transaction. With respect to the first transaction, he said he told Ms. Androws to try to g et Sam to tell her his last name.

The defendant testified tha t he did not sell or deliver cocaine to Ms. Androws. He stated that h e was at work on the days of the transactions. H e admitted that he had seen Ms. Androws before at the house on Howe Str eet. He said that he lived with his mother but that he would go to the house on Howe Street to watch cable television. He said he would go to the house thr ee or four times per week, a nd a lot of people were alway

s there. He testified that he w orked for Fawn Industrial from 8:00 a.m. to 4:00 p.m. and that he usually went home after work. H e said he did not remember going to the Howe Street house or seeing Ms. Androws on September 6. He said he might have gone to the hous e on the evening of September 17 to watch boxing, but he did not remember seeing M s. Androws that night.He said that the voice on the audiotape was not his and that Ms. Androws was talking to two men named Gene and Duke. He said he did not r ecognize the voices

on the audiotape.6 On cross-examination, the defendant admitte d that he might lose his job if convicted. He said he di d not bring to court any documents verifying that he worked on the days of the transactions. He said the Department of Safety document probably fell out of his pocket when he w as watching telev

ision at the house. He admitted that sometimes people call him Sam. H e said he does not drink or us e drugs.

In rebuttal, the state called Scott Johnson. Agent Johnson t estified that the September 6 transaction bega n at 4:58 p.m., and the September 17 trans action began at 5:55 p.m.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his convictions because Ms. Androws, who has an extensive criminal history, was the only person to testify that the defendant w as the person from whom she purc hased drugs. The state argues that the evi dence is sufficient. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Viewed in this lig ht, the evidence is sufficient . Ms. Androws testified that she purchased drugs from the defendant o n September 6 and 17. She stated that s he was positive she pur

chased the drugs from the defendant. She identified a photograph7

of the defendant after she made the first purchase . She testified that she had seen the defendant several times before the tr ansactions and that she knew the defendant as Sam. The tape-recorded conversation of the secon d transaction reveals that Ms. Androws called the pers on from whom she bought the drugs Sam. The defendant admitted that people called him Sam. Despite Ms. Androws’ criminal history, of which the jury was apprised, the jury convicted the defendant. The evidence suff iciently supports those convicti ons.

II. CROSS- EXAMIN ATION OF AND ROWS The defendant contends that the trial cour t erred by not allow

ing him to impeach the credibility

of Ms. Androws during cross-examination. Specifically, he argues that he should have been allowed to cross-examine Ms. Androws about the fact that she used drugs whi le she was on probation bec ause the fact that she violated the terms of her probation relates to her credibility.He further argues that the error was not harmless in light of the fact that Ms. Androws was the state’s key witness and the only witness who could identify the defendant. The state argues that th e trial court properly limited the cross-exa mination because Ms. Androw s had already admitted to usi ng drugs, and the fact that she w as on probation when she did so was not probative of her credibili ty.

Pursuant to Rule 401, Tenn. R. Ev id., evidence is rele

vant if it has “any tendency to make the exist ence of any fact that is of consequenc e to the determination of the action more probable or less probable than it would be without the evidence.” Furthermore, relevant evidence may be excluded if its probative value “is substantially outweighed by the dang er of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid. 403. The trial cour t has discretion in determi ning whether evidence meets the test for rel evancy. State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). Assessing the probative value and danger of unfair prejudice8

regarding the evid ence also falls within the trial court’s disc retion. State v. Burlison , 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). This court will only reverse a trial court’s decision if the trial cour t abused its discretion. State v. Williamson , 919 S.W.2d 69, 78(Tenn. Crim. App. 1995). Furthermore, the trial court has discretion to limit crossexamination. State v. Dishman , 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). “Appellate courts may not disturb limits on cross -examination except w

hen there has been an unreasonable restriction on the right.” State v. Fowler , 213 Tenn. 239, 253, 373 S.W.2d 460, 46 6 (1963).

The record shows that the tr ial court found that Ms. Androw s had admitted to using drugs. The cour t determined that the fact that Ms. Androws was on probat ion when she used drugs did not relate to her credibility. However, we believe that Ms. Androws’ inability

to obey the law as a c ondition of her probation is pr obative of her ability to obey the l aw and tell the truth on th e witness stand. See Tenn. R. Evid. 608 (b) (stating that specific conduct used to impeach a witness must relate to that witness’s character for truthfulness or untruthfulne ss). The evidence is relevant to Ms. Androws’ truthfulness and would assi st the jury in assess ing her credibility

.

To deny the defendant his right to an effe ctive cross-examination is “constitutional error of the first magnitude” and may violate the def endant’s right to a fair trial. State v. Hill , 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980). How ever, in the present case, we do not bel ieve that the exclusi on of that particular information w as harmful given the other evidence presented. Ms. Androws was candid with the jury about her extensive cr

iminal background, whi ch included crimes inv olving dishonesty such as theft, forgery and bur glary. Furthermor

e, she admitted that she was c harged with stealing money from Cost-Cutters and pled guilty to burglary and theft from W alMart while she was on community corrections for another conviction. Thus, the jury was apprised of Ms. Androws’ inability to obey the law and her propensity to engage in9

dishone st behavio r even aft er agreein g to abide by the law as a conditi on of alt ernative sentencing. The information the defendant sought to elicit, althoug h relevant and admissible, would hav

e been cumulative. Under th ese facts, we have no doubt th at the trial court’s limit

ation of cross-examination did not deprive the defendant of a fair trial.

III. USE OF AUDIOTAPE IN JURY DELIBERA TIONS The defendant contends that the trial cour t erred by allowi ng the jury, at the jury’s request , to listen to the audiotape recording of the September 17 drug transaction during its deliberations. He argues that documentary evidence should only be allowed into the jury room with the consent of both par ties. See State v. Braden , 867 S.W.2d 750, 750 (Tenn. Crim. App. 1993). The state ar gues that the jury w

as entitled to listen to the audi otape pursuant to Tenn. R. Crim. P. 30.01.

Rule 30.01, Tenn. R. Crim. P. , effective July 1, 1995, cont rols the determination of this issue and provides that “the jury shall take to the jury room all exhibits and writ ings which have been received in eviden ce, except depositions, for their examination during deliberations, unless the court for good cause, determines that an exhibit should not be tak en to the jury room.” The defendant contends that the audiota pe was the functio nal equiva lent of a depositi on and, a s such, sh ould not have been taken to the jury room. We disagree.

This court has considered w hether a tape-recorded statement, in which a defendant admitted to the police that his actions caused the death of a vi ctim, is the functional equivalent of a depos ition such that it should not be allowed in the jury

room during deliberations pur suant to Rule 30.01. State v. James Clayton Young, Jr. , No. 01C01-9605-CC-00208, Ruther ford County (Tenn. Crim. App. May 22, 1998). In Young , the defendant argued that his tape- recorded statement was jus t like a10

deposition and should not have been sent to the jury room. This court concluded otherwise, statin g:

We are not co nvi nced by the defendant’s contention that a tape-recorded statement is the equival ent of a deposition for the purposes of this rule. Depositions are transcripts of sworn testimony

given with the as

sistance of counsel an d in the presence of a court reporter. When a deposition is ent ered into evidence, it becomes part of the body of te stimon y as though it had been presented at trial . If the depositi on were taken to the juryroom during deliberatio ns, a danger exists that the jury might place too great an emphasis on this one portion of the testimony. A tape-rec orded statement

is more akin to a videotape of a crime scene. The rule requires its presence in the jury room duri ng deli beration unless the trial judge has good cause for excluding it. James Clayton Young , slip op. at 35.

We believe the same reasoning applies ev en more to the present case. If anything, the audiotape of the dr ug transaction in the pres ent case is less like a deposition than the audiotaped statement to authorities at issue i n Young and more like a videotape of a crime scene. In fact, it is simply an audiotape of a crime as it is
occurr ing. We do n ot belie

ve that the audi otape is

the funct ional eq uivale nt of a deposition such that it shoul d be excluded from the jury room pursuant to Rule 30.01.

IV. SENTENCING The def endant c ontends that the trial cour t impose d an exces sive sentence and that he should have r eceived probation or community corrections. The state argues that the sentence is not excessive and that the defendant is not eligi ble for probation, although it conc edes that the trial court er roneously considered the defendant ineligible for community corrections based on the le ngth of his sentence. Both the defendant and the state urge thi s court to remand the case to the trial court for consideration of whether the defendant should receive community corrections. Because the record indicates that the trial court err

oneously determined that the defendant was ineligible for community corrections because of the length of his11

sentence, we conclude that the case should be remanded for the tri al court to determine whether the defendant should receive comm unity corrections.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. Tenn. Code Ann. § 40-35- 401(d). As the Sentencing Commission Comments to this section n ote, the burden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due co nsideration and proper w eight to the factors and principles tha t are relevant to sentenci ng under the 1989 Sentencing Act, we may not distur

b the sentence even if a different res ult were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect,for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencing decisi on, iden tify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been evaluated and balanced in determining the sentence.T.C.A. § 40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the12

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class B felon y is presumptively the mini mum in the range when there are no enhancement or mitigati ng factors present. Tenn. Code Ann. § 40- 35-210(c). Procedurall y, the trial court i s to increase the sentence within the range based upon the ex istence of enhancement factors and then reduce the sentence a s appropriate for any miti gating factors. Tenn. Code Ann. § 40-35-210(d) and ( e). The weight to be afforded an ex isting factor is left to the trial court's disc retion so long as it co mplies with the purposes and principles of the 1989 Sentencing Act and its findi ngs are adequately su pported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The defendant testified at the sentencing hearing that he had work ed at Fawn Industrial for thr

ee years and that he liv ed with his mother. He stated that he previo usly w

orked at ALCOA fo r seven

teen years but that he l ost his job beca use of a misdemeanor marijuana convic tion. He testified that he is a high school graduate a nd completed six months of technica l training in the 1960's . He said that he had no previous felony conv

ictions. He stated that he ha d three grown childr

en and one minor child for whom he paid chil d support. He stated that w hen he lost his job at ALCOA, he fell behind in his child sup port payments. He said that Fawn Industrial conduc ted several drug tests on him which were al l negative. He said that he had not used marijuana or cocaine in three years and that he gave up alcohol fifteen years ago. He said that if he were relea sed from jail, he would li ve with his mother and abide by any probation requirements. He maintained that he did not com mit the offenses for which he was convicted in the present case.13 A presentence report was introduced into evidence.It reflects that the then fifty-three-year-old defendant had convictions f or driving on a revoked license in 1996, marijuana possession in 1994 and 1981 , unlawful use of drug paraphernalia in 1994, assault in 1985, driv ing under the influence in 1976, and speeding in 1973. The report also reflects that the defendant received substance abus e treatment in 1994 and is five thousand dollars in arrears on child support payments.

The trial court sentenced the defendant to nine years confinement in the Department of Correction for each conviction, to be serv ed concurrently. As an enhancement factor, the trial cour t gave considerable w

eight to the fact that the defendant “has a previous hist ory of criminal convi ctions or criminal behav ior in addition to those necessary to estab lish the appropriate rang e.” Tenn. Code Ann. § 40-35- 114(1). The trial court al so considered, as mitigat ing factors, the fact that the defendant’s conduct neither caused nor thre atened serious bodily injury and the fact that no firearm was used duri ng the offense. Tenn. Code Ann. §§ 40-35-113 (1), (13).

A. LENGTH OF SENTENCE The defendant contends that a nine-year sentence is excessiv

e. Specifically, he argue

s that the trial court abus ed its discretion by giving more we ight to the one enhancement factor than it gav e to the two mitigating

factors. He also argues that the trial court err

ed by not considering i n mitigation the fact that the defendant had a stable work histor

y, supported his minor c hild, and successfully c ompleted a substance abuse treatment progr am. SeeTenn. Code Ann. § 40-35-113(13). The state contends that a nine-y ear sentence is supported by the record. We agree.
The weight to be afforded an enhancement or mitigating factor is left to the trial court's disc retion so long as it co mplies with the purposes and principles of the 1989 Sentencing Act and its findi ngs are adequately su pported by the record. Tenn.14

Code Ann. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169. Thus, the trial court w as entitled to give g reater weight to the enhancement factor than to the two mitigati ng factors. Although the defendant complains that the trial c ourt did not consider his stable work history and child support, we note th at the defendant was fired from his empl oyment with ALCOA because of a drug conviction, and he is five thousand dollars in arrears on his child support payments. The trial court did not abuse its discretion by not considering these factors in mitigation, nor has the defendant shown how the trial court abused its discretion by failing to consider his completion of a drug treatment program in mitigation. We believe the record s upports a nine-year sente nce.

B. PROBATIO N Next, the defendant contends that the trial court erred by not granting him probation. However,the defendant received a nine-y ear sentence and is, therefore, statutorily inelig ible for probation. Tenn. Code Ann. § 40-35-303(a). The defendant argues that the trial court sentenced him to nine years to prevent him from bein g eligible for prob ation. T he defe ndant of fers no s upport f or this con tention and beca use we have concluded that the record supports the nine-year sentence, we conclude th at this issue is without meri

t.

C. COMMUNITY CORRECTIONS Finally, the defendant contends that the trial court err ed by not sentencing him to community correcti ons. He argues that the tr ial court erroneously

concluded that because he received a nine-year sentence and was ineligible for probation, he was also ineligible for community corrections. The state conc edes that the trial court er red by not considering community corrections.15 The legislature has determi ned that an offender who meets the follow ing minimum criteria shall be considered eligible for community corrections:

(1) Persons who, without this option, would be incarc erated in a correctional institut ion; (2) Persons who are conv icted of . . . drug

/alcohol -related felony offenses . . . .; (3) Persons who are convicted of nonviolent felony offenses; (4) Persons who

are convicted of felony offenses in w hich the use or possession of a weapon w as not involved; (5) Persons who do not demonstrat e a present or

past pattern of behavior indicating v iolence; (6) Persons who do not dem onstrate a pattern of committing violent offenses; and Persons who are sen tenced to incarceration or on escape at the time of consideration wi ll not be eligible. Tenn. Code Ann. § 40-36-106(a).

The record reveals that i n sentencing the defendant, the tri al court stated as follows: I think he probably is an appropriate candidate to serve a time in jail and the r est of it on Community Corr ections, but according to these cases that I read, State vs. Keel and the State vs. Henry Smith , recent cases, and they seem to say that he’s not, that the legislatur e has already ruled that that’s not a possibi lity. So, I’m not going to order it in the face of these higher court decisions saying you can’t do it. I’m not goin g t o do it.

. . . . But the way these read, it’s pretty cl ear to me. I don’t think there’s anything else to do. But as far as the number of years, I just -- looking at this case and the eviden ce that I’ve heard and the enhancing factors, I don’t think an argument c

a n be made that’s it [sic] a minimum e ight-year sentence.

The record shows that the tr ial court believed the defendant to be ineligible for community corrections based upon the l ength of the defendant’s sentence. As the defendant argues and the state concedes, this is incorr ect. Unlike the probation16

statute, subsection (a) of Tenn. C ode Ann. § 40-36-106 does not specify a maximum sentence length over w hich a defendant would be precl uded from receiving community corrections. See also , State v. L anny Crowe , No. 01C01-9503-CC-00064, Wayne County, slip op. at 2 (

Tenn. Crim. App. July 6, 1995) (“An accused who meets th e minimum criteria set forth in subsection (a) of Tenn. Code Ann. § 40-36-106 is eligible for sentencing pursuant to the A ct regardless of the leng th of the sentence imposed by the trial court. Neither the Act nor any other statute makes the length of the accused’s sentence a criteria for eli gibility”). Because the trial court er roneously believed th e defendant to be ineligible for communi ty corrections, w

e remand the case to the trial court for a determination of whether the defendant should receive community
correc tions, c onfinement, or a c

ombinati on thereof.
In consideration of the foregoing and the record as a whole , we affirm the convictions and the nine- year sentences. We remand the case to the tr ial court for consideration of whether the defendant sho uld receive community corrections.

__________________________ Joseph M. Tipto n, Judge CONCUR:

_________________________ John H. Peay, Jud ge

_________________________ David G. Hayes, Ju dge