                                                                                        11/21/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 6, 2017

                  STATE OF TENNESSEE v. ELVIS HESTER

                 Appeal from the Criminal Court for Shelby County
                   No. 15-05357      John W. Campbell, Judge
                     ___________________________________

                           No. W2016-01822-CCA-R3-CD
                       ___________________________________


A Shelby County Criminal Court Jury found the Appellant guilty of possession of
marijuana, and the trial court imposed a sentence of six years. On appeal, the Appellant
challenges the sufficiency of the evidence sustaining his conviction and the trial court’s
sentencing him for a Class E felony instead of a Class A misdemeanor as was required by
the recent amendment to Tennessee Code Annotated section 39-17-418(e). Upon review,
we conclude that the evidence was sufficient to sustain the Appellant’s conviction. We
further conclude that the trial court erred by sentencing the Appellant for a Class E
felony, and we remand to the trial court for entry of a corrected judgment reflecting that
the conviction is a Class A misdemeanor and that the accompanying sentence is eleven
months and twenty-nine days.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                     Part; Reversed in Part; Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Lauren Pasley, Memphis, Tennessee, for the Appellant, Elvis Hester.

Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway and Caitlin
Smith, Assistant Attorneys General; Amy P. Weirich, District Attorney General; and Jose
Leon, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background
        A Shelby County Grand Jury returned an indictment charging the Appellant with
possession of contraband in a penal institution, introducing contraband into a penal
institution, and possession of a controlled substance, namely marijuana.

       At trial, Quintin Parks testified that he was a corrections officer with the Shelby
County Division of Corrections. On June 25, 2014, he was assigned to the penal farm.
That afternoon, the Appellant was escorted from where he was housed in the main
building to the visitation room in the F building because he had a female visitor.

        Officer Parks estimated that twenty to twenty-five inmates were in the visitation
room, but he could not estimate how many visitors were present. Near the end of the
scheduled visitation period, after the Appellant’s visitor had left, Officer Parks was
patrolling the visitation room when he noticed a “strong odor” of marijuana coming from
the area where the Appellant was sitting. The closest person to the Appellant was sitting
approximately three feet away. Officer Parks recalled that the Appellant had not smelled
of marijuana when he first entered the visitation room. Officer Parks told Officer
Beasley about the smell of marijuana, and the officers ushered the remaining visitors out
of the room.

       When only officers and inmates remained in the room, Officers Parks and Beasley
approached the Appellant. The officers asked to see the bag of potato chips and the bag
of candy the Appellant was holding. The officers looked inside the bags and found
nothing, but they continued to smell marijuana. Officer Beasley then asked the Appellant
to open his mouth. The Appellant refused and made a noise that sounded like “[r]rrnn.”
Officer Parks again asked the Appellant to open his mouth, and the Appellant again
refused and repeated the noise. Officer Parks said that the Appellant “had his mouth
puckered up” and that he realized the Appellant had something in his mouth. Officers
Parks and Beasley handcuffed the Appellant. Thereafter, Officers Beasley and Coleman
took the Appellant to the family room, which was next door to the visitation room.

        On cross-examination, Officer Parks said that Officers Beasley, Bridgeforth, and
Braxton were the other officers in the visitation room that day and that the visitation
period lasted from 6:30 p.m. to 8:00 p.m. During visitation, each inmate was allowed
visits from a maximum of three adults and four children. The visitors were each allowed
“one hug and a peck once” the inmate entered the room, but no further touching was
allowed. The visitors were permitted to obtain snacks or drinks from the vending
machines for the inmates. Officer Parks said that around the time that he and Officer
Beasley were handcuffing the Appellant, Officer Coleman was returning from a smoke
break. When Officer Coleman helped Officer Beasley take the Appellant to the family
room, Officer Parks’s involvement with the Appellant ended.


                                          -2-
      Officer Parks acknowledged that the visitation room was monitored by security
cameras but that he had not reviewed any video from the day in question.

       Officer Phillip Beasley testified that he did not smell marijuana when the
Appellant entered the visitation room. At the end of the visitation period, the Appellant
was sitting in an “isolated” area. The officers were doing “routine security checks” when
Officer Beasley noticed the odor of marijuana coming from the Appellant.

       Officers Beasley and Parks approached the Appellant and asked to look into the
bag of potato chips and the bag of candy he was holding. Finding nothing in the bags,
Officer Beasley asked the Appellant to open his mouth. The Appellant said nothing but
made a noise that sounded like “[h]uh.” He appeared to have “a bulge in his – like in his
throat like as he – it looked like he was trying to swallow something.” When the
Appellant was again asked to open his mouth, he refused and became “hostile.” Officers
Beasley and Parks restrained the Appellant, and he was taken to the family room. Officer
Coleman came to the family room then escorted the Appellant to the penal farm’s
medical facility. Officer Beasley explained, “That’s just a procedure like if – if there’s a
use of force, then we have to escort them to medical to be seen.”

       On cross-examination, Officer Beasley testified that Officers Braxton,
Bridgeforth, and Parks were also in the visitation room with approximately twenty-five or
twenty-six inmates. Officer Beasley recalled that Officer Parks smelled marijuana
around the Appellant and that he told Officer Beasley about the odor. Officer Beasley
then approached the Appellant and smelled marijuana. The Appellant twice refused the
officers’ requests to open his mouth, and he appeared to be trying to swallow something.
The officers got the Appellant out of his chair, handcuffed him, and escorted him out of
the visitation room and into the family room. Officer Beasley stayed with the Appellant
in the family room for five or six minutes until Officer Coleman arrived to escort the
Appellant to the medical facility. Officer Beasley said that he considered the Appellant’s
refusal “to deliver whatever he had in his mouth” to be a confrontation and that inmates
were required to be taken to the medical facility following a confrontation. Officer
Beasley said that the Appellant also was taken to the medical facility because “he had a
bulge in his throat and he was trying to swallow, but it wouldn’t go down, whatever it
was.”

        Officer Beasley acknowledged that security cameras were in the visitation room.
He had reviewed the video from the day in question but did not see the Appellant’s
visitor give the Appellant the contraband.

      On redirect examination, Officer Beasley said that no security cameras were in the
bathrooms in the visitation room. He agreed that the Appellant’s visitor could have

                                           -3-
gotten a bag of potato chips and a bag of candy from the vending machines and then
walked into the bathrooms.

       Officer Letravis Coleman testified that during the visitation period on June 25,
2014, he was smoking at a staff break area located outside the visitation room. He looked
inside the visitation room and noticed that Officers Parks and Beasley were having a
“small tussle” with the Appellant and went inside to assist. Officers Parks and Beasley
told Officer Coleman that they had smelled marijuana on the Appellant and believed he
had the contraband in his mouth. The Appellant refused to speak, and Officer Coleman
could “see a bulge in his mouth.” Officer Coleman handcuffed the Appellant and took
him to the family room.

       Thereafter, a supervisor instructed Officer Coleman and another officer to escort
the Appellant to the medical facility in the main building. En route, they encountered
Sergeant Gray and Lieutenant Jackson. Lieutenant Jackson told Officer Coleman to strip
search the Appellant before taking him to the medical facility. Officer Coleman and the
other officer took the Appellant to the processing room and told him, “‘Don’t make any
sudden moves. If you have any contraband, go ahead and give it up now.’” Officer
Coleman said that the Appellant was compliant and talking and that he assumed the
contraband in the Appellant’s mouth was gone.

       Officer Coleman said that the officers in the processing room were Officer Sutton,
Officer Lauderdale, Sergeant Gray, and Lieutenant Jackson. The officers instructed the
Appellant to remove his clothing. Officer Coleman said that when the Appellant was
standing in his underwear and socks, he noticed a small bulge in the Appellant’s sock.
The Appellant made a “sudden movement” towards his sock, and Officer Coleman saw
the Appellant grab the bulge from the sock and try to put it in his mouth. Officer
Coleman described the “bulge” as a “black ball” that “wasn’t too big. It was something
[the Appellant] could get down his throat.” Officer Coleman sprayed a chemical agent in
the Appellant’s face to “prevent him from swallowing what was in the black unknown
substance.” However, the chemical agent did not subdue the Appellant, and Officer
Coleman and another officer forced the Appellant to the floor. The black ball rolled
away from the Appellant and was confiscated by a third officer. The officers restrained
the Appellant and took him to the medical facility for evaluation.

       On cross-examination, Officer Coleman said that the Appellant sat on a bench
outside of the medical facility for less than fifteen to twenty seconds before being taken
to the processing room. While the Appellant was on the bench, Officer Coleman did not
see anything in the Appellant’s mouth or throat. The Appellant was “compliant” and was
talking with the officers. The Appellant’s hands were cuffed behind his back. The
handcuffs were removed when the Appellant was taken to processing and strip searched.

                                          -4-
       Officer Coleman said that he thought most of the penal farm, with the exception of
the medical facility, was monitored by security cameras. However, he had not reviewed
any security camera video, and he did not know whether the cameras were operating on
the day of the incident.

        When defense counsel asked if the object from the Appellant’s sock was the size
of an egg, Officer Coleman responded, “I don’t recall the actual size to say it was an egg.
I just know it was about that big. It was a small bulge. A normal sized bulge.” When
defense counsel asked Officer Coleman to describe the size for the record, Officer
Coleman stated that it was the size of “a medium egg.” Officer Coleman opined that the
object was small enough to be easily swallowed “[i]f it’s mushy . . . .”

       Officer Christopher Sutton testified that he joined Officer Coleman outside of the
F building to help escort the Appellant to the medical facility. Before the Appellant
could be seen by medical staff, the shift commander determined that the Appellant should
be strip searched. Officer Sutton said that the Appellant did not talk while outside the
medical facility. However, once the officers and the Appellant arrived at the processing
room for the strip search, the Appellant started talking.

       Officer Sutton said that during the strip search, the Appellant was supposed to wait
to undress until Officer Coleman told him which article of clothing to remove. When the
Appellant had removed everything but his socks, underwear, and shirt, Officer Coleman
instructed the Appellant to remove his shirt. Instead, the Appellant reached for his sock
and threw the sock at Officer Coleman while he simultaneously “went to his mouth with
his hand.” Officer Sutton said that the Appellant’s hand had been clenched in a fist and
that he had not been able to see what was in the Appellant’s hand. Officer Coleman
attempted to take what had been in the Appellant’s hand from the Appellant’s mouth, and
the Appellant “became combative to try to keep us from getting what he had in his
mouth.”

        Officer Sutton said that Officer Coleman sprayed the Appellant with “Freeze +P.
It’s basically pepper spray.” The spray did not subdue the Appellant, and the officers had
to force him to the floor. Officer Sutton said that the “force of [the Appellant’s] hitting
the ground and the officer laying on top of him popped the ball out of his mouth and it hit
my – and it hit me in the right boot.” Officer Sutton described the object as a “black . . .
electrical tape-wrapped ball.” Officer Sutton picked up the ball to prevent the Appellant
from retrieving it. Officer Sutton said the ball smelled like marijuana. Afterward, a
Shelby County Sheriff’s deputy came to the penal farm, retrieved the ball, and took it to
the evidence room.

       On cross-examination, Officer Sutton said that Sergeant Gray removed the black
tape from the ball shortly after Officer Sutton retrieved the ball. Officer Sutton
                                           -5-
acknowledged that he did not see the ball in the Appellant’s sock but explained that the
ball must have been hidden in the sock “because it wasn’t in his hand and it wasn’t in any
other part of his body.” Officer Sutton said the ball was not in the Appellant’s mouth
“because he was talking up to that point.”

       Officer Sutton said that after Officer Coleman sprayed the Appellant with pepper
spray, Officer Coleman and Officer Lauderdale forced the Appellant to the floor. Officer
Sutton estimated that the altercation lasted only one or two minutes. Thereafter, the
Appellant was taken to the medical facility. Officer Sutton did not think the Appellant
suffered any injuries as a result of the altercation.

       Officer Sutton said that no video of the incident existed “because we strip search
inmates in [the processing] area and it’s illegal to put inmates on camera when they are
nude.” He explained, “There’s a camera in the processing room, but it points towards
where the inmates who are fully clothed sit. It doesn’t point towards where we’re strip
searching the inmates.”

        When defense counsel asked about the size of the ball, Officer Sutton stated that
the ball was “a little bit smaller than a baseball.” Officer Sutton saw the Appellant put
the ball in his mouth, and it “popped out of his mouth when he went to the ground after
he was – after he was taken down by Officer[s] Coleman and Lauderdale.” The ball
rolled to Officer Sutton’s feet, and Officer Sutton took the ball to “the sergeant’s office.”
Officer Sutton said that the ball smelled like marijuana and that “it was a tightly wrapped
black ball of tape . . . black electrical tape.”

      Tennessee Bureau of Investigation (TBI) special agent forensic scientist Lela
Jackson testified that she tested the substance in the ball, discovered the substance was
marijuana, and prepared a report on the results. The report reflected that the marijuana
weighed 11.84 grams.

       William Spears, the Deputy Administrative Security Operations Director/Interim
Administrator of the Shelby County Division of Corrections, testified that the security
video system in the penal farm “has a backup capacity of just 30 days.”

       On cross-examination, Director Spears said that the penal farm had security
cameras but that the cameras “don’t cover everything.” He acknowledged that the
cameras covered “[c]ertain angles” in the visitation room. Director Spears stated, “I
don’t know what happens to [the video] after 30 days, but the system will only retain it
for 30 days.” He did not know if a copy of a video could be made.

       The Appellant chose not to testify or put on proof.

                                            -6-
        The jury found the Appellant not guilty of possession of contraband in a penal
institution and introducing contraband into a penal institution but found him guilty of
possession of marijuana. The Appellant waived his right to have the jury determine
whether the Appellant had prior convictions, and at the sentencing hearing, the trial court
determined that the conviction was the Appellant’s fourth conviction of possession of a
controlled substance. The court then determined the conviction should be a Class E
felony, not a Class A misdemeanor, and sentenced the Appellant as a career offender to
six years.

      On appeal, the Appellant challenges the sufficiency of the evidence sustaining his
conviction and the trial court’s sentencing him for a Class E felony instead of a Class A
misdemeanor.

                                       II. Analysis

                              A. Sufficiency of the Evidence

        On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating
to this court why the evidence will not support the jury’s findings. See State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier
of fact could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the
appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).

      In order to sustain the Appellant’s conviction, the State needed to prove that the
Appellant possessed a controlled substance, namely marijuana. Tenn. Code Ann. § 39-
17-418(a). In the light most favorable to the State, the proof adduced at trial revealed that
                                            -7-
on June 25, 2014, the Appellant met a visitor in the visitation room of the penal farm. At
the end of the visitation period, Officer Parks patrolled the visitation room and noticed
the smell of marijuana coming from the area where the Appellant was sitting. Officer
Parks notified Officer Beasley of the smell, and the officers ushered the remaining
visitors from the room. The officers then approached the Appellant and looked into the
bag of potato chips and the bag of candy the Appellant was holding but found nothing.
The officers continued to smell marijuana and noticed that the Appellant appeared to
have something in his mouth. The officers repeatedly asked the Appellant to open his
mouth, but he refused and became “hostile.” During a search of the Appellant, he made a
“sudden move” toward a bulge in his sock. The Appellant tried to put the bulge in his
mouth. Officer Coleman sprayed the Appellant with a chemical agent. The chemical
agent did not subdue the Appellant, and Officer Coleman and another officer forced the
Appellant to the floor. The impact jarred the object from the Appellant’s mouth, and the
object rolled against Officer Sutton’s boot. Officer Sutton retrieved the object, which
was a ball of black electrical tape wrapped tightly around some marijuana, which
weighed 11.84 grams.

        On appeal, the Appellant’s complaints regarding the sufficiency of the evidence
are based primarily on inconsistencies in the testimonies of the officers. Specifically, the
Appellant maintains that Officer Parks testified the Appellant refused to open his mouth,
which implied the Appellant had something in his mouth, and that Officer Beasley
testified the Appellant had a bulge in his throat which appeared to be something the
Appellant was trying to swallow. In contrast, Officer Coleman testified that the
Appellant did not have anything in his mouth and was talking. The Appellant further
notes that Officer Coleman testified the Appellant’s handcuffs had not been removed
after they were placed on him in the visitation room and that he did not testify the
Appellant made a move toward his sock before the strip search. The Appellant notes
Officer Sutton testified that the Appellant threw his sock at Officer Coleman but that
Officer Coleman did not mention the Appellant’s throwing the sock at him.

        The Appellant’s complaint is essentially a challenge to the credibility of the
State’s witnesses. However, as our supreme court has stated, “The jury, as the trier of
fact, is empowered to assess the credibility of the witnesses, to address the weight to be
given their testimony, and to reconcile any conflicts in the proof.” State v. Echols, 382
S.W.3d 266, 282 (Tenn. 2012) (citing State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008)). The jury heard the proof and clearly resolved the issue of credibility in the
State’s favor. We may not now reconsider the jury’s credibility assessment. See State v.
Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000).

      The Appellant next contends that “an acquittal for [the] possessing contraband to-
wit marijuana in a penal facility count logically excludes a finding of guilt on the count of
simple possession of marijuana.” In other words, he contends that his conviction of
                                            -8-
possession of marijuana was legally inconsistent with the jury’s acquittal on the charge of
possessing contraband in a penal facility.

       Our supreme court has examined whether inconsistent verdicts entitle a defendant
to relief and concluded that “‘the overwhelming authority supports the rule that
consistency between verdicts on separate counts of an indictment is not necessary.’”
State v. Davis, 466 S.W.3d 49, 76 (Tenn. 2015) (citing Wiggins v. State, 498 S.W.2d 92,
93 (Tenn. 1973)). The court reasoned that inconsistent verdicts may be allowed to stand
because

              “[t]he most that can be said in such cases is that the verdict
              shows that either in the acquittal or conviction the jury did not
              speak their real conclusions, but that does not show that they
              were not convinced of the defendant’s guilt. . . .

                     ....

                     That the verdict may have been the result of
              compromise, or of a mistake on the part of the jury, is
              possible. But verdicts cannot be upset by speculation or
              inquiry into such matters.”

Id. (quoting Wiggins, 498 S.W.2d at 93). Therefore, the court held that “‘[c]onsistency in
verdicts for multiple count indictments is unnecessary. . . . This [c]ourt will not upset a
seemingly inconsistent verdict by speculating as to the jury’s reasoning if we are satisfied
that the evidence establishes guilt of the offense upon which the conviction was
returned.’” Id. (quoting Wiggins, 498 S.W.2d at 93-94). Our supreme court emphasized
that “‘[t]he validity accorded to [inconsistent] verdicts recognizes the sanctity of the
jury’s deliberations and the strong policy against probing into its logic or reasoning,
which would open the door to interminable speculation.’” Id. (quoting United States v.
Zane, 495 F.2d 683, 690 (2nd Cir. 1974)). We conclude that any inconsistencies in the
verdicts do not affect the sufficiency of the evidence of the Appellant’s conviction.

        In a related issue, the Appellant maintains that the evidence relating to the charge
of possessing marijuana in a penal facility essentially was the same as the evidence
relating to the charge of simple possession of marijuana. The Appellant asserts, however,
that “[i]t appears inconsistent with the evidence that the jury could have decided that [the]
Appellant was not in a penal facility at the time of the incident. Rather, the issue for the
jury to decide . . . was most likely whether he was in possession of marijuana.”
Accordingly, the Appellant contends “that the facts of this case present yet another hybrid
of the multi-sided issue of inconsistent verdicts,” namely that the jury returned “mutually
exclusive verdicts.” The State responds that in Davis, our supreme court refused to adopt
                                            -9-
the mutually exclusive verdicts doctrine and that the Appellant is not entitled to relief on
that basis. We agree with the State.

       In Davis, our supreme court noted that many state courts were confused regarding
the “‘difference between inconsistent verdicts and mutually exclusive verdicts.’” 466
S.W.3d at 74 (quoting Heard v. State, 999 So.2d 992, 1000 (Ala. 2007)). The court
suggested the following definition:

              “[M]utually exclusive verdicts are the result of two positive
              findings of fact that cannot logically coexist. In other words,
              it is legally impossible for the State to prove the elements of
              both crimes. In order to determine whether the guilty verdicts
              are mutually exclusive as a matter of law, the alleged
              underlying offenses or acts must be carefully scrutinized.
              The two guilty verdicts are not mutually exclusive if no
              element of one crime necessarily negates an element of the
              other.”

Id. (quoting Heard, 999 So.2d at 1004-05). The court observed that “[r]egardless of how
courts label inconsistent verdicts, only a few state courts will grant relief to criminal
defendants on that basis.” Id. at 75. Our supreme court “agree[d] with the significant
majority of jurisdictions that inconsistent jury verdicts are not a basis for relief.” Id. at
76. Further, the court stated that “the few jurisdictions that grant relief on the basis of
‘mutually exclusive’ verdicts appear to struggle with both defining and applying the
concept. We are disinclined to open the door to the increased confusion and increased
litigation that arises from trying to parse a jury’s inconsistent verdicts.” Id. at 77.
Therefore, we conclude that the Appellant is not entitled to relief on this basis.

       Finally, the Appellant complains that the State “failed to present the videos that
were supposed to record the incident in question.” However, the record reflects that
Officer Sutton testified that no video of the incident existed because the security cameras
did not record in the area where strip searches were performed. Moreover, “[t]here is no
requirement that the [S]tate introduce all proof at its disposal. The [S]tate may properly
introduce only enough evidence that it believes will satisfy its burden of proof, provided
it does not withhold exculpatory evidence.” State v. Augusta Thomas Robinson, No.
03C01-9709-CR-00405, 1998 WL 283090, at *2 (Tenn. Crim. App. at Knoxville, June 3,
1998) (emphasis removed). We conclude that, even without the security video, the State
adduced sufficient proof to sustain the Appellant’s conviction of possession of marijuana.

                                  II. Class of Conviction


                                           - 10 -
       As his final issue, the Appellant asserts that the trial court erred by finding the
Appellant guilty of possession of a controlled substance, third or subsequent offense. At
the time of the offense and trial, Tennessee Code Annotated section 39-17-418(e) (2014)
provided that “[a] violation under this section is a Class E felony where the person has
two (2) or more prior convictions under this section.” However, Tennessee Code
Annotated section 39-17-418(e) was amended with an effective date of July 1, 2016, the
day of the Appellant’s sentencing hearing, to provide that “[a] violation under this section
is a Class E felony where the person has two (2) or more prior convictions under this
section and the current violation involves a Schedule I controlled substance classified as
heroin.” The trial court found that the amended statute did not apply retroactively to the
Appellant’s case.

       On appeal, the Appellant argues, and the State concedes, that the trial court
incorrectly sentenced the Appellant for a Class E felony instead of a Class A
misdemeanor. We agree. We note that Tennessee Code Annotated section 39-11-112
provides that

              [w]hen a penal statute or penal legislative act of the state is
              repealed or amended by a subsequent legislative act, the
              offense, as defined by the statute or act being repealed or
              amended, committed while the statute or act was in full force
              and effect shall be prosecuted under the act or statute in effect
              at the time of the commission of the offense. Except as
              provided under § 40-35-117, in the event the subsequent act
              provides for a lesser penalty, any punishment imposed shall
              be in accordance with the subsequent act.

In State v. Thomas R. Davis, No. E2016-01622-CCA-R3-CD, 2017 WL 1483319, at *3-4
(Tenn. Crim. App. at Knoxville, Apr. 24, 2017), this court stated that

                     [b]ecause Tennessee Code Annotated section 39-17-
              418(e) addresses enhanced punishment, the amendment
              applies to the [Appellant] if its application results in a “lesser
              penalty.” See [Tenn. Code Ann.] § 39-11-112. The
              [Appellant] was charged in the indictment with simple
              possession of marijuana. Because the [Appellant’s] current
              violation did not involve heroin, he was not subject to
              enhanced punishment for this conviction as a Class E felony
              pursuant to the amendment to section 39-17-418(e).
              Accordingly, the amendment resulted in a “lesser penalty,”
              and the trial court erred in declining to apply the amendment

                                            - 11 -
              and in sentencing the [Appellant] to simple possession of a
              controlled substance as a Class E felony.

                     Although the [Appellant] was charged and tried under
              prior law, section 39-17-418(e) had been amended by the
              time of the [Appellant’s] sentencing hearing and resulted in a
              “lesser penalty” for the [Appellant]. As a result, the
              amendment applied, and the [Appellant] was no longer
              subject to sentencing for the offense of simple possession of a
              controlled substance as a felony. The trial court erred in
              holding otherwise.

       We conclude that the sentencing issue in the instant case is identical to the one in
Thomas R. Davis. Accordingly, the trial court’s imposition of a sentence for a Class E
felony must be reversed and the case remanded for the imposition of a sentence of eleven
months and twenty-nine days for a Class A misdemeanor.

                                     III. Conclusion

       In sum, we conclude that the evidence is sufficient to sustain the Appellant’s
conviction. However, we reverse the enhancement of the Appellant’s conviction to a
Class E felony and remand to the trial court for entry of a corrected judgment reflecting
that the conviction is a Class A misdemeanor with an accompanying sentence of eleven
months and twenty-nine days.


                                          ____________________________________
                                          NORMA MCGEE OGLE, JUDGE




                                          - 12 -
