IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 27, 2012

STATE OF TENNESSEE v. RICHARD TIPTON

Appeal from the Criminal Court for Greene County

No. 10-CR-409 John F. Dugger, Jr., Judge

No. E2011-02354-CCA-R3-CD - Filed November 7, 2012

The Defendant, Richard Tipton, was convicted of driving under the influence (DUI), fourth

offense, a Class E felony; driving on a revoked license, third offense, a Class A

misdemeanor; violation of the seatbelt law, a Class C misdemeanor; and failure to provide

evidence of financial responsibility, a Class C misdemeanor. See Tenn. Code Ann. §§ 55-10-

401(a)(2), 55-50-504, 55-9-603(a)(1), and 55-12-139. The trial court sentenced the

Defendant to serve one year and six months in the county jail. In this appeal as of right, the

Defendant contends (1) that the evidence is insufficient to support his convictions and (2)

that the trial court failed to consider the eight-year span of time in which the Defendant

committed no crimes when determining his sentence, showing a lack of consideration of

other sentencing factors. Following our review, we remand this case to the trial court for

correction of the judgments because the Defendant was sentenced to the county jail instead

of the Department of Corrections (DOC), as required by statute. In all other respects, we

affirm the judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed; Case Remanded.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR. and NORMA MCGEE OGLE, JJ., joined.

John S. Anderson, Rogersville, Tennessee, for the appellant, Richard Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; C. Berkeley Bell, District Attorney General; and David Baker, Assistant

District Attorney General, for the appellee, State of Tennessee.
OPINION

FACTUAL BACKGROUND

The Defendant was indicted on November 22, 2010, for the following offenses:

Count 1, DUI; Count 2, driving on a revoked license; Count 3, violation of the seatbelt law;

Count 4, failure to provide evidence of financial responsibility; Count 5, driving on a revoked

license, third offense; Count 6, DUI, fourth offense. A trial was set for September 28, 2011.

Prior to trial, the Defendant stipulated that he had previous convictions for DUI and driving

on a revoked license in exchange for receiving the minimum fine for each offense; therefore,

only Counts 1 through 4 were submitted to the jury for consideration at trial.

At trial, the State presented two witnesses: the arresting officer, Lee Cutshall, and an

investigator from the Tennessee Bureau of Investigation (TBI), Dave Ferguson. Officer

Cutshall testified that he was on patrol around midnight on September 7, 2010, when he

noticed that the Defendant was not wearing a seatbelt; he activated his blue lights. The

Defendant pulled over at a Shell station and immediately got out of the car. Officer Cutshall

approached the Defendant, explained the reason for the stop, and asked the Defendant for his

driver’s licence. The Defendant told Officer Cutshall that he could not provide one. Instead,

the Defendant gave Officer Cutshall an identification card. Officer Cutshall testified that he

could smell a strong odor of an intoxicant when the Defendant was talking to him. The

Defendant had bloodshot, watery eyes and was unsteady on his feet. The Defendant admitted

that he had been drinking during the day on September 6 and stated that he had come to the

store to buy cigarettes.

Officer Cutshall testified that he administered five field sobriety tests: the horizontal

gaze nystagmus (HGN), the walk and turn, the one leg stand, the finger to nose, and the

finger count tests. The officer described the last four tests and the Defendant’s performance

on them in detail and testified that the Defendant performed poorly on all tests. Officer

Cutshall testified that, at this point, he placed the Defendant under arrest and read him the

Miranda rights. At approximately 1:00 a.m., the Defendant executed an implied consent

form. Officer Cutshall testified that he gave the Defendant a breathalyzer, which required

him to observe the Defendant for twenty minutes prior to administering the test. Officer

Cutshall further testified that the Defendant did not throw up or have anything in his mouth

during the twenty-minute observation period prior to his administration of the blood alcohol

test. The breathalyzer results showed that the Defendant had a blood alcohol content (BAC)

of .10 at 1:53 a.m.

On cross-examination, Officer Cutshall admitted that the Defendant did pass one of

the five field sobriety tests he administered. However, he was unable to expound on the

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particulars of this test because, according to the trial court, the law states that officers can

administer an HGN test but are not allowed to testify about or discuss it in court unless they

qualify as an expert in ophthalmology or optometry.

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Investigator Ferguson testified that he was “over” the East Tennessee area breath and

alcohol program and that he maintained and certified the breath alcohol instruments.

Investigator Ferguson testified that he also taught at several police academies and that he

trained and certified law enforcement officers in East Tennessee “on the intox E.R.C.2, as

well as being an expert in breath alcohol analysis.” Investigator Ferguson explained that an

E.R.C.2 was the blood alcohol instrument used by the TBI. According to Investigator

Ferguson, the TBI has standards that each instrument must meet, and the E.R.C.2 has the

standards built into the instrument. He explained that the blood alcohol test instruments are

identified by a unique serial number and are regularly certified to ensure that they are within

the TBI standards. The TBI requires each instrument to have a .005 accuracy differential, and

Investigator Ferguson’s job is to certify that the instruments maintain a .005 accuracy

differential. Investigator Ferguson testified that he issued a certificate for the instrument

used to test the Defendant’s BAC because it met the TBI standards. He further testified that

the instrument used to test the Defendant’s BAC was working properly because he had

recently inspected the instrument and found that it met the TBI standards prior to the

Defendant’s arrest. Investigator Ferguson explained that the instrument was previously

inspected on June 10, 2010, which was done by running an alcohol solution of a known

percentage through the instrument. He further explained that the solution contained .08

percent of alcohol and that the instrument tested at .075, which was within the .005

differential, so no calibration was needed. That same instrument was inspected again on

September 20, 2010, thirteen days after the Defendant’s arrest; it had a .003 differential, so

again, no calibration was needed.

On cross-examination, Investigator Ferguson testified that alcohol has to absorb into

the blood stream before it registers on a BAC test and that alcohol will not really affect a

person until it has been absorbed into the bloodstream. Investigator Ferguson explained that

many factors dictate how quickly alcohol may be absorbed into the blood stream but that it

will not register immediately after consumption.

After the State rested its case-in-chief, the Defendant moved for judgment of acquittal,

which the court denied.

The Defendant then testified in his own defense. He admitted that he was driving on

a revoked license and explained that he was eligible for reinstatement at the time of his

Although not specifically stated, the record evinces that Officer Cutshall was referring to the HGN test.

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arrest, but he did not have the money to complete the process. The Defendant testified that

he was wearing his seatbelt when Officer Cutshall pulled him over. He further testified that

he had consumed, at most, two beers that night while watching a movie and that he had gone

to the store to get cigarettes when Officer Cutshall pulled him over. The Defendant

maintained that his driving was not impaired and that he did not feel he was a danger to other

drivers, explaining that there was no traffic on the road. The Defendant testified that he had

physical problems, his neck had been broken and his lower back “tore out,” and that these

injuries prevented him from standing on one leg. He also testified that Officer Cutshall never

asked him about his injuries. The Defendant further testified that Officer Cutshall initially

took him to the jail for a breathalyzer, but because the machine did not work, he was taken

to “the work house.”

On cross-examination, the Defendantstated that he had been laying blocks at his home

earlier that day. He admitted that he may have had a beer at that time but maintained that he

only consumed two beers that evening. The Defendant also admitted that he did not take any

medication for his physical injuries but stated that was because he did not have medical

insurance and could not see a doctor. The Defendant insisted that the car he was driving was

insured but that he could not locate the proof of insurance at the time of his arrest. However,

the Defendant admitted that he did not bring proof of insurance to trial despite Officer

Cutshall’s statement that the charge would be dismissed if he presented proof of insurance

in court.

The jury found the Defendant guilty of Counts 1 through 4 and set the Defendant’s

fines for each conviction: Count 1, DUI, $1,500; Count 2, driving without a license, $1,000;

Count 3, violation of the seatbelt law, $50; and Count 4, failure to provide proof of financial

responsibility, $100. After the jury announced its verdict, the trial court set the Defendant’s

fines for Counts 5 and 6, noting his pretrial stipulation that he would receive the minimum

fines for DUI and driving on a revoked license. The fine for Count 5 was set at $3,010, the

minimum fine for DUI, fourth offense. The trial court stated that the fine for Count 6,

driving on a revoked license, third offense, would remain at $1,000, the amount originally

set by the jury on Count 2, because it was already set at the minimum. The trial court found

that no mitigating factors applied and that two enhancement factors applied: the Defendant

had a history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range and that the Defendant had no hesitation about committing

a crime where the risk of human life was high. After considering the principles of sentencing

and finding that the Defendant lacked the potential for rehabilitation, the trial courtsentenced

the Defendant as a Range I, standard offender and ordered him to serve one year and six

months in the county jail with release eligibility after service of thirty percent. Pursuant to

Tennessee Code Annotated section 55-10-403(a)(1)(A)(i), the Defendant’s licence was also

revoked for five years. Finally, the trial court noted that on the facts of the case, it would

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have been justified in giving the Defendant a two-year sentence but explained that it decided

to grant leniency considering that over the last eight years the Defendant has “done a lot

better . . . in [his] life . . . compared to the last twenty before that.”

The Defendant’s motion for a new trial was overruled, and he perfected this timely

appeal.

ANALYSIS

The Defendant challenges the sufficiency of the convicting evidence, the sentence

imposed by the trial court, and the trial court’s determination that he had the requisite number

of prior DUI convictions to support a conviction for DUI, fourth offense. The State responds

that the prosecution produced sufficient evidence for a rational trier of fact to conclude that

the Defendant drove under the influence, fourth offense; without the use of a seatbelt;

without proof of fiscal responsibility; and on a revoked driver’s license, third offense. The

State also responds that the Defendant stipulated to being a multiple offender in connection

with Counts 5 (DUI, fourth offense) and 6 (driving on a revoked license, third offense) in

exchange for reduced fines and that his stipulation is a valid waiver of submitting those

counts to a jury. The State further responds that the trial court properly exercised its

discretion when determining the length of the Defendant’s sentence.

A. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his convictions

and that the trial court erred by not granting his motion for judgment of acquittal. The State

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responds that the Defendant has waived review of his convictions on Counts 2, 3, and 4

because he failed to cite to the record or make any argument in his brief regarding the

sufficiency of the evidence as to those counts. The State further responds that the evidence

was sufficient for a rational jury to find that the Defendant was driving under the influence

at the time of the traffic stop.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

However, the Defendant never addressed the motion for judgment of acquittal issue in the argumentsection 2

of his brief. Accordingly, appellate review of this issue has been waived. See Tenn. Ct. Crim. App. R. 10(b)

(“Issues which are not supported by argument, citation to authorities, or appropriate references to the record

will be treated as waived in this court.”).

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crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the state. See

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the

weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of [both] direct and

circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999). The standard of proof is the same, whether the evidence is direct or circumstantial.

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The duty of this court “on appeal of a conviction is not to contemplate all plausible

inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence

in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

1. Waiver of Appellate Review of Counts 2, 3,

and 4 and Other Issues Raised in the

Defendant’s Brief

As previously noted, the State argues that the Defendant has waived appellate review

of driving on a revoked licence (Counts 2), violation of the seatbelt law (Count 3), and

failure to provide proof of financial responsibility (Count 4) because he “states generally in

his brief that the evidence for his convictions . . . was insufficient[,] . . . however, [he] makes

no argument, and fails to cite to the record, in support of his contention that this Court should

reverse the convictions for these Counts.” We agree with the State that these issues have

been waived. Rule 10 of the Rules of the Court of Criminal Appeals of Tennessee addresses

inadequate briefs. It states, in relevant part, “Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this

court.” Tenn. Ct. Crim. App. R. 10(b). The Defendant simply states in the issue portion of

his brief that the evidence is insufficient to support his convictions for DUI, driving on a

revoked licence, violation of the seatbelt law, and failure to provide proof of financial

responsibility; however, the actual argument portion of the brief solely addresses the DUI

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conviction. Therefore, the Defendant is not entitled to review of his convictions for driving

on a revoked licence, violation of the seatbelt law, and failure to provide proof of financial

responsibility.

2. Sufficiency of DUI Evidence

Addressing the Defendant’s remaining contention that the evidence presented at trial

was insufficient to support his conviction for DUI, the Defendant was convicted of DUI, as

indicted, in violation of Tennessee Code Annotated section 55-10-401. The statute states,

in pertinent part:

(a) It is unlawful for any person to drive or to be in physical control of any

automobile or other motor driven vehicle on any of the public roads and

highways of the state, or on any streets or alleys, or while on the premises of

any shopping center, trailer park or any apartment house complex, or any other

premises that is generally frequented by the public at large, while:

(2) The alcohol concentration in the person’s blood or breath is

eight-hundredths of one percent (.08 %) or more.

Tenn. Code Ann. §55-10-401(a)(2). For the State to prove the Defendant’s guilt, the

evidence must establish beyond a reasonable doubt that at the time of the Defendant’s driving

his car on a public road, his blood alcohol content was .08 percent or greater. See id.

In the instant case, the jury had sufficient evidence from which to reasonably conclude

that the Defendant had committed the offense of DUI by operating a motor vehicle with a

BAC of .08 or more. Officer Cutshall testified that he pulled the Defendant over because he

noticed that the Defendant was not wearing his seatbelt. The Defendant immediately exited

the car, and as Officer Cutshall was explaining the reason for the stop, he smelled a strong

odor of an intoxicant when the Defendant was talking to him. Officer Cutshall testified that

the Defendant had bloodshot, watery eyes and was unsteady on his feet. Officer Cutshall

testified that the Defendant failed four of the five field sobriety tests he administered and that

he placed the Defendant under arrest. At approximately 1:00 a.m., the Defendant signed an

implied consent form, and Officer Cutshall transported him to jail to administer a blood

alcohol test. The evidence also showed that Officer Cutshall properly administered the

Defendant’s BAC test, observing the Defendant for twenty minutes prior to the test and

ensuring that the Defendant neither ingested nor regurgitated anything during that time. The

testimony of Investigator Ferguson evinced that the BAC instrument that Officer Cutshall

used to administer the Defendant’s BAC test had been certified to be within TBI standards,

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a .05 differential, both before and less than thirteen days after the Defendant’s test was

administered, and was working properly. The blood alcohol test results showed that the

Defendant had a BAC of .10 at 1:53 a.m., .02 over the legal limit of .08.

An officer’s belief that a defendant is intoxicated and a defendant’s failing field

sobriety tests is generally relevant to the issue of blood alcohol content. State v. Stacy R.

Dowell, E2002-01918-CCA-R3-CD, 2003 WL 402815, at *5 (Tenn. Crim. App. Feb. 24,

2003); see, e.g., State v. Alan Leonard Smith, No. E2000-01891-CCA-R3-CD, Anderson

County, slip op. at 6 (Tenn. Crim. App. Oct. 19, 2001) (holding evidence of the defendant’s

intoxication and a blood alcohol concentration of .17 percent four hours later supported the

inference that his blood alcohol content was .10 or greater at the time he was driving); State

v. Michael G. Waldrum, No. M1999-01924-CCA-R3-CD, Williamson County, slip op. at 4

(Tenn. Crim. App. Dec. 8, 2000) (holding evidence of defendant’s slurred speech, bloodshot

eyes, poor performance on field sobriety tests, and admission that he had been drinking along

with a blood alcohol concentration of .21 percent one and one-half hours after driving was

sufficient to support jury’s inference that defendant was driving with a blood alcohol content

of .10 or more); State v. Lester Arnold Clouse, No. 01C01-9802-CR-00069, White County,

slip op. at 7-8 (Tenn. Crim. App. Mar. 31, 1999), app. denied (Tenn. July 6, 1999) (holding

evidence that defendant showed signs of intoxication when officer arrived on scene and

failed field sobriety tests along with blood alcohol concentration of .14 percent one hour after

driving was sufficient). Therefore, the jury could properly use the officer’s testimony that

he observed various signs of intoxication on the part of the Defendant at the time of arrest,

including failing four field sobriety tests, and the BAC test results to conclude that the

Defendant had been driving his car on a public road with a blood alcohol content of .08 or

greater.

Although the Defendant contends that the test was not “administered at a reasonable

time after the Defendant had been driving[,]” the record reflects that the Defendant did not

object to the admission of the BAC test at trial, nor did he raise it as an issue in the motion

for new trial. Rule 36(a) states that appellate relief is generally unavailable when a party has

“failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of any error.” Tenn. R. App. P. 36(a); see also Tenn. R. Evid. 103(a)(1) (requiring a

timely objection as a prerequisite to a finding of error based on the trial court’s admission of

evidence); State v. Smith, 24 S.W.3d 274, 279-80 (Tenn. 2000) (holding that a failure to

object to otherwise inadmissible evidence renders the evidence admissible). Therefore, we

decline to address any arguments challenging the admissibility of the BAC test or the

reasonableness of the delay in Officer Cutshall’s administration of the BAC test. See Tenn.

Ct. Crim. App. R. 10(b). The Defendant has failed to show that the evidence presented at

trial was insufficient to support his DUI conviction.

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B. Sentencing

The Defendant challenges the length of his sentence and contends that the trial court

improperly weighed the mitigating factors. The State responds that the Defendant has

offered no proof that the trial court sentenced him improperly nor has he shown how the trial

court failed to consider the sentencing principles and all relevant facts and circumstances.

We agree with the State.

Before a trial court imposes a sentence upon a convicted criminal defendant, it must

consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the

nature and characteristics of the criminal conduct involved; (e) evidence and information

offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts asto Tennessee sentencing practicesforsimilar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical

that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated

section 40-35-210(e)” and articulate in the record its reasons for imposing the specific

sentence. See State v. Susan Renee Bise, -- S.W.3d --, No. E2011-00005-SC-R11-CD, 2012

WL 4380564, at *20 n.41 (Tenn. Sept 26, 2012).

The 2005 amendments to the Sentencing Act “served to increase the discretionary

authority of trial courts in sentencing.” Id. at *18. Currently, upon a challenge to the

sentence imposed, it is the duty of this court to analyze the issues under “an abuse of

discretion standard of review, granting a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” Id. at *17. Those purposes and principles include “the imposition of a

sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code

Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote

respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration of

a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code

Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The

burden of showing that a sentence is improper is upon the appealing party. See Tenn. Code

Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257

(Tenn. 2001).

Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254

S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to provide as

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follows:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114.

(d) The sentence length within the range should be consistent with the

purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).

“[T]he 2005 amendmentsrendered advisory the manner in which the trial courtselects

a sentence within the appropriate range, allowing the trial court to be guided by—but not

bound by—any applicable enhancement or mitigating factors when adjusting the length of

a sentence.” Bise, 2012 WL 4380564, at *17. In accordance with the broad discretion now

afforded our trial court’s sentencing decisions,

misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as

amended in 2005. So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence

imposed by the trial court within the appropriate range should be upheld.

Id.

In the instant case, the transcript illustrates that the trial court considered all the

sentencing factors and the relevant facts and circumstances of the case. Even the Defendant

in his appellate brief acknowledges that “[t]he court considered the sentencing guidelines of

T[ennessee] C[ode] A[nnotated] 40-35-101, et seq.” Therefore, the Defendant’s sole

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sentencing challenge is to the weight that the trial court gave to the eight-year span of time

in which the Defendant committed no criminal activity, i.e., that this fact was not given

sufficient weight in determining the length of the Defendant’s sentence. However, as stated

above, the 2005 amendments to the Sentencing Act deleted appellate review of the weighing

of mitigating and enhancement factors, so this issue is not appropriate to raise on appeal.

Nevertheless, we note that the trial court did consider during sentencing that the Defendant

had abstained from criminal activity for eight years and explicitly stated that its consideration

of that fact was why it sentenced the Defendant to serve one year and six months instead of

the two-year sentence supported by the record. The Defendant was convicted by a jury of all

four counts submitted for their deliberation, and he had previously stipulated to multiple,

prior convictions for DUI and driving on a revoked license. The jury convictions, coupled

with the pretrialstipulations, effectively secured his convictionsin the remaining two counts:

DUI, fourth offense, and driving on a revoked license, third offense. The trial court stated

as much and sentenced him within the applicable range for his convictions, noting that it was

granting leniency due to the Defendant’s eight-year hiatus from criminal activity despite his

thirty-year history of criminal activity. Therefore, we cannot conclude that the trial court

abused its discretion by sentencing the Defendant to serve one year and six months.

However, we remand this case to the trial court for correction of the judgments

because the Defendant was sentenced to the county jail instead of the DOC, as required by

statute. See Tenn. Code Ann. § 40-35-314 (a).

CONCLUSION

This case isremanded for correction of the judgmentsin accordance with this opinion.

In all other respects, the judgments of the trial court are affirmed.

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D. KELLY THOMAS, JR., JUDGE

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