State of Tennessee v. Benjamin Barton ( 2021 )


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  •                                                                                            11/04/2021
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    August 4, 2021 Session
    STATE OF TENNESSEE v. BENJAMIN BARTON
    Appeal from the Criminal Court for Shelby County
    No. 17-02023      James M. Lammey, Judge
    ___________________________________
    No. W2020-01273-CCA-R3-CD
    ___________________________________
    A jury convicted the Defendant, Benjamin Barton, of driving under the influence of an
    intoxicant (“DUI”), driving with a blood alcohol level in excess of 0.08 percent (“DUI
    per se”), and reckless driving. The trial court sentenced him to an effective sentence of
    eleven months and twenty-nine days, with six months to be served in confinement. The
    Defendant moved for a new trial and for the trial court to reconsider his sentence under
    Tennessee Rule of Criminal Procedure 35, and the motions were denied. On appeal, the
    Defendant asserts that the evidence is insufficient to sustain the verdicts, that he is
    entitled to a mistrial due to a discovery violation regarding expert testimony on
    retrograde extrapolation, that the trial court abused its discretion in failing suspend his
    sentence due to his health, and that there are errors on the judgment forms. We conclude
    that the Defendant is not entitled to relief on his convictions but that the sentencing forms
    are in conflict with the trial court’s oral judgments, and we remand for the trial court to
    correct the forms.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;
    Case Remanded
    JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY
    THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.
    Joshua Turner (on appeal and at trial) (pro hac vice), Oxford, Mississippi; and Janet
    Davis Lamana (on appeal), Memphis Tennessee, for the appellant, Benjamin Barton.
    Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
    Attorney General; Amy P. Weirich, District Attorney General; and Vanessa Murtaugh,
    Kenya Smith, and Glenn Baity, Assistant District Attorneys General, for the appellee,
    State of Tennessee.
    OPINION
    FACTUAL AND PROCEDURAL HISTORY
    The Defendant was charged with DUI, DUI per se, and reckless driving after he
    collided with a cable barrier and law enforcement discovered him, intoxicated and in
    possession of half a bottle of tequila, by the side of the road. The Defendant testified at
    trial that he did not consume any alcohol until after the collision.
    During opening statements, defense counsel told the jury that the proof would
    show that the Defendant collided with the cable barrier only after hitting some debris in
    the road and that he did not open the bottle of tequila until after the accident, when his
    truck was no longer operational. The State responded that the proof would establish the
    elements of the offenses charged.
    Officer Michael Hillin of the Collierville Police Department received a call from
    dispatch about a red truck driving erratically on State Route 385 at “approximately
    1:30-ish in the afternoon” on May 2, 2016. Officer Hillin stated that he was located near
    an entrance ramp and that he found the Defendant on the side of the road approximately
    three minutes after he received the call from dispatch. The Defendant’s truck had
    damage to the driver’s side, and both tires on the driver’s side were flat. The Defendant
    was assembling a jack to try to replace one of the flat tires. He displayed signs of
    intoxication, including watery and bloodshot eyes, swaying, unsteadiness, confusion, and
    disorientation. He smelled of alcohol. Officer Hillin inventoried the Defendant’s vehicle
    at the conclusion of the traffic stop, and he found a half of a bottle of tequila. He also
    found a Yeti cup full of a beverage that smelled of alcohol. The State introduced videos
    of the traffic stop, but these videos are not part of the appellate record.
    On cross-examination, Officer Hillin testified that the Defendant’s vehicle was
    inoperable after the accident and that the vehicle was so damaged that it would be a crime
    to drive it. He could not testify regarding how the Defendant came to collide with the
    guardrail, and he agreed that hitting an object in the road could cause loss of control. He
    stated he could not contradict the assertion that the Defendant hit a railroad tie in the
    road. Officer Hillin also acknowledged that he could not testify regarding whether the
    Defendant displayed signs of intoxication at the time he was actually driving or whether
    the Defendant was drinking alcohol while driving the vehicle. He agreed he had no proof
    regarding when the Defendant started drinking.
    On redirect examination, Officer Hillin testified that he did not see any debris in
    the roadway and that the Defendant did not say the accident was caused by debris in the
    -2-
    road. Officer Hillin asked the Defendant if he had hit the cable barrier, and at first the
    Defendant said nothing but later admitted to hitting it.
    Collierville Police Officer Aaron Pitman was the second officer on the scene and
    arrived at approximately 2:10 p.m., or a little earlier. The Defendant exhibited signs of
    intoxication, including slurred speech and unsteadiness on his feet. Officer Pitman
    conducted field sobriety tests, which the Defendant failed. The Defendant consented to a
    blood draw, and Officer Pitman was present for the blood draw and sealed the sample for
    analysis. He did not recall the Defendant saying that there was debris in the road.
    On cross-examination, Officer Pitman testified that the Defendant’s vehicle was
    damaged and that Officer Pitman was not sure it was operable. He agreed he did not
    witness the Defendant driving or hitting the guardrail and that his testimony could not
    establish that the Defendant did not hit a railroad tie. Officer Pitman also could not
    testify that the Defendant was drinking while he was operating the vehicle. Defense
    counsel asked Officer Pitman if he could testify regarding what the Defendant’s blood
    alcohol level was while the Defendant was driving, and Officer Pitman responded that he
    could not.
    Officer Edgar Morris, a crash reconstructionist for the Collierville Police
    Department, was responding to another accident when he received the initial call about
    the erratic vehicle, and he arrived at the scene approximately fifteen to thirty minutes
    later. En route to the location of the truck, he saw the area where the cable barrier had
    been damaged, and the damage to the Defendant’s vehicle was consistent with having
    struck the barrier. He testified that there was some debris on the shoulder of the road
    near the impact site but that the roadway itself was free of any debris or hazards. The
    Defendant did not mention any debris in the roadway and acknowledged having struck
    the barrier. The Defendant had bloodshot eyes and “mush-mouth” speech, and he
    smelled of alcohol.
    On cross-examination, Officer Morris agreed that the vehicle had flat tires and
    damage and that driving the vehicle would be a safety hazard. He agreed he could not
    swear that the Defendant did not hit a piece of debris. He did not witness the Defendant
    driving and accordingly could not say whether the Defendant displayed signs of
    intoxication while he was driving or whether the Defendant was drinking while he was
    driving.
    Special Agent Julian Conyers of the Tennessee Bureau of Investigation testified as
    an expert in the field of forensic toxicology. The Defendant’s blood was collected at 3:13
    p.m., and the alcohol content was 0.175 gram percent. Special Agent Conyers stated that
    -3-
    the consumption of alcohol increases reaction time, slows processing, and interferes with
    judgment.
    The prosecutor asked Special Agent Conyers if he could say what the Defendant’s
    blood alcohol content would have been at 1:49 p.m., and the defense objected to
    retrograde extrapolation of the blood alcohol content, noting that the defense had
    received no notice or discovery regarding the testimony. The State responded that it had
    no written report regarding the proposed testimony and that there was accordingly
    nothing to provide in discovery. The trial court overruled the objection, observing that
    such a question could have been reasonably anticipated. The defense asked for a mistrial,
    which was denied. Special Agent Conyers testified that the accepted elimination rate is
    0.01 gram percent to 0.02 gram percent per hour and that the range of alcohol in the
    Defendant’s blood would have been between 0.185 and 0.205 gram percent at 1:49 p.m.
    On cross-examination, Special Agent Conyers stated that his testimony did not
    constitute retrograde extrapolation because “there are several variables that are not
    known to perform a retrograde extrapolation.” Instead, his testimony had concerned
    “elimination rate,” which was a range and was not specific to an individual. Elimination
    rate among individuals did not vary by weight but did vary by metabolism. Special
    Agent Conyers stated that while there might be outliers, “pretty much most people”
    would fall within the range. He agreed that he did not conduct a physical examination of
    the Defendant and stated, “I don’t know anything prior to this sample was taken – taken
    in – in my possession.” He testified that the range he gave for the Defendant’s blood
    alcohol level was based on the assumption that the Defendant did not consume any
    alcohol after being stopped by the police, and he agreed that evidence of continued
    consumption of alcohol could affect his estimate. He also agreed that information
    regarding whether the Defendant had eaten could affect his estimate. On redirect
    examination, he clarified that the range he had given would account for different
    metabolisms.
    The Defendant testified that he managed a company which provided electrical
    services. On May 2, 2016, the Defendant encountered severe stressors at work, including
    a contractor who caused a chemical fire underneath an occupied scissor lift. The
    Defendant responded by leaving work early, shortly after 1:00 p.m. He stopped by a
    liquor store and bought a bottle of tequila, intending to drink it at his home. The
    Defendant testified that he had not consumed any alcohol at the time he was driving
    down the highway. He stated he was driving behind a delivery truck in the left lane and
    could not see past the truck. At one point, the truck moved to the right, and he saw a
    piece of wood that he believed to be a railroad tie in the roadway. He did not have time
    to avoid hitting the piece of wood, and that collision caused him to veer off the roadway
    -4-
    and hit the cable barrier. He then moved his truck to the right side of the road and came
    to a stop.
    The Defendant testified that the truck was inoperable, with two damaged tires and
    what turned out to be $11,000 total damage. When the truck came to a stop, he
    experienced chest pain and felt hot. Because the Defendant’s mother had died of a heart
    attack and because his brother had died of a heart attack in a truck at the side of the road,
    the Defendant feared that he, too, was having a heart attack. He removed the keys from
    the truck and proceeded to drink “quite a bit” of tequila. He then got out to evaluate the
    damage. The Defendant, hoping to find a ride, sent a text message to a friend identified
    at trial as “Shawn.” The text message, which was sent at 1:46 p.m. and introduced as an
    exhibit at trial, asked Shawn how far he was from the Defendant’s location and stated, “I
    had [a] flat and hi[t] the cable and truck not drivable. I’m ok. Ask DAVE who to call.”
    The Defendant testified he tried to call a tow truck, but the company with which he was
    familiar had closed, so he tried to contact his friend Mr. David Patterson to ask for a
    recommendation for a towing company. The Defendant testified that he had been on the
    side of the road for four or five minutes when he sent the text message to Shawn. The
    police arrived three minutes later.
    The Defendant stated that he had not consumed any alcohol at the time he was
    driving. He had his first drink on the side of the road, after his vehicle had been rendered
    inoperable. He testified that he was changing his tire not because he intended to drive
    further but to prevent damage to the rear wheel during towing. He agreed that by the
    time the police arrived, he had consumed alcohol.
    On cross-examination, the Defendant stated he did not mention to police that he
    had only begun to drink after the collision because he was already intoxicated when
    police arrived. Likewise, he did not mention the railroad tie or heart attack because he
    was intoxicated. When asked why he replied in the negative when police asked him if he
    had been drinking, the Defendant stated he thought they asked if he had been drinking
    while driving. He agreed that he initially lied to police when he told them he did not hit
    the guardrail.
    The Defendant described opening the tequila and said he “turned it up and drank
    quite a bit of it.” He stated he drank half a bottle of tequila in three minutes. When asked
    about the alcohol in the Yeti cup, he said, “I actually poured some into Coke or Diet
    Coke, whatever I was drinking that day, at the same time that I was drinking it.” He
    agreed he told Officer Pitman he was taking Xanax, and he stated that he understood the
    ramifications of taking Xanax and drinking but explained that he was trying to stop a
    heart attack. He did not call 911 to report a potential heart attack because his cell phone
    had fallen to the floor, and by the time he retrieved it, he felt better.
    -5-
    On redirect examination, the Defendant testified that he took three separate
    medications for his heart condition. He was never asked by law enforcement if there was
    an obstruction in the road or if he had a heart condition. He stated he denied hitting the
    guardrail because his intoxication caused him to misunderstand the question.
    The Defendant’s friend Mr. David Patterson confirmed that the Defendant
    contacted him on the day of the accident seeking a tow truck recommendation. He
    acknowledged he was not present at the collision and could not testify about the accident.
    The jury convicted the Defendant as charged. At the February 2020 sentencing
    hearing, the State argued that the Defendant had a history of previous criminal behavior.
    It particularly noted that, three years before the offense at issue, the Defendant had been
    convicted of DUI after he drove off the road and into a fire hydrant and attempted to
    leave the scene of the accident. It also noted a prior period of treatment for cocaine
    addiction. The defense argued that the Defendant was the manager of a company with
    twenty-two employees and that the entire company would be negatively impacted by his
    incarceration. The Defendant introduced medical records establishing that he had been
    diagnosed with HIV, which necessitated medication costing $4,000 each month, and that
    he suffered from a heart condition. Noting the crime was nonviolent and that the public
    would have to bear the cost of his medical treatment if incarcerated, he asked for
    probation or house arrest. The Defendant gave an allocution, asserting that he was not
    drinking and driving at the time he hit the cable barrier. He stated he was the only one
    who knew how to run the business he managed and that the twenty-two employees of the
    business would suffer if he had to be imprisoned.
    The trial court did not credit the Defendant’s statement that he did not drink until
    after the collision, noting that the assertion was a “bunch of fooey” and the Defendant
    would “have to think that I fell off the load of turnip[s]” to believe the statement. The
    court noted the importance of candor in sentencing. It merged the DUI and DUI per se
    convictions and sentenced the Defendant to eleven months and twenty-nine days, with six
    months to be served in confinement and the remainder of the sentence suspended. The
    trial court imposed a concurrent six-month sentence for the reckless driving conviction,
    and the judgment form reflects that this sentence was suspended.
    The Defendant moved for a new trial, asserting that the evidence was insufficient,
    arguing that the State committed a discovery violation entitling him to a mistrial, and
    challenging the sentencing decision. After the advent of the COVID-19 pandemic, the
    Defendant filed an additional motion under Tennessee Rule of Criminal Procedure 35,
    asking the trial court to modify his sentence to probation or house arrest given his
    particular vulnerability to the virus due to his health conditions.
    -6-
    The trial court heard the motions on August 20, 2020. The trial court expressed
    interest in whether the virus was more or less prevalent in jail, and defense counsel
    responded only that the Defendant was particularly vulnerable. At the hearing, the
    Defendant testified that the electrical company had twenty-one employees most of whom
    worked “in the field.” The Defendant stated that he worked out of an office on the site of
    a large warehouse, and only two other employees were regularly present at the warehouse
    site. He said he was isolating himself from these employees, working in part on
    weekends. He lived alone, used grocery delivery, and avoided all in-person social
    contact. He testified that his heart was currently operating at forty-four percent and that
    he was HIV positive. The Defendant stated that his employees would not be able to work
    without him managing the business. The prosecutor questioned the Defendant regarding
    whether he sanitized his groceries or pumped his own gas. The prosecutor argued the
    Defendant was “safer going into incarceration than he is going to Wal-Mart.” The trial
    court continued the Rule 35 motion to allow the parties time to research whether the court
    had discretion to suspend the sentence.
    In asking for a new trial, the defense argued that the evidence was insufficient in
    part because the Defendant’s car was inoperable by the time he was intoxicated.
    Regarding the expert testimony, the defense argued that the prosecution only provided in
    discovery a one-page report which established the Defendant’s blood alcohol content at
    the time the blood was drawn. Defense counsel asserted it was a discovery violation that
    the State did not provide the expert’s anticipated testimony regarding retrograde
    extrapolation. The prosecutor asserted that she was unaware until the trial started that the
    Defendant intended to introduce proof that he consumed the tequila after the collision.
    Defense counsel told the court he did not recall if he had alerted the State to the theory of
    the defense. According to the prosecutor, the State “had to scramble” and reassess the
    toxicologist’s testimony due to “this new theory” that the State was “just now learning
    about.” The trial court denied the motion for a new trial, noting that the evidence was
    sufficient, that the State could not have anticipated the Defendant’s assertion that he only
    began drinking after the collision, and that the State was entitled to respond to the
    defense’s theory.
    The court noted at the continued hearing that it had confirmed by reviewing
    opening arguments that the defense raised the issue regarding the timing of the alcohol
    consumption at the beginning of trial. Regarding the Rule 35 motion, the court
    concluded that the Defendant was required by statute to serve forty-five days at one
    hundred percent day-for-day, and ordered the forty-five days to be served
    “uninterrupted.” It stated that, in order to provide some relief to the Defendant’s
    business, it would order the remainder of the sentence of confinement to be served on
    weekends while the Defendant was on probation. The State clarified whether the
    -7-
    Defendant “has to do the 45 days on the weekend,” and the court responded in the
    affirmative. The court then said, “The length of the sentence is…going to be the same,
    only it’s going to be on weekends.” The trial court also stated that the sentence was
    eleven months and twenty-nine days, and that the Defendant “shall be confined for a
    period of 6 months…with the balance suspended and placed on probation for a period of
    10 months and 14 days…” Regarding the Defendant’s medical vulnerability, the court
    noted that “[h]opefully,” by the time the Defendant’s appeal was concluded, a vaccine
    would be available.
    ANALYSIS
    The Defendant appeals, asserting that the evidence is insufficient to support the
    convictions, that the State committed a discovery violation entitling him to a mistrial, that
    the trial court erred in ordering incarceration, and that the judgment forms are in conflict
    with the court’s judgment. The State agrees that there is an error in the judgment forms
    but otherwise asserts that the Defendant is not entitled to relief.
    I. Sufficiency of the Evidence
    This court must set aside a finding of guilt if the evidence is insufficient to support
    the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.
    13(e). The question before the appellate court is whether, after viewing the evidence in
    the light most favorable to the State, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt. State v. Pope, 
    427 S.W.3d 363
    , 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it
    may not substitute its inferences drawn from circumstantial evidence for those drawn by
    the trier of fact. State v. Smith, 
    436 S.W.3d 751
    , 764 (Tenn. 2014). The jury’s guilty
    verdict, approved by the trial judge, accredits the State’s witnesses and resolves all
    conflicts in favor of the prosecution. State v. Reid, 
    91 S.W.3d 247
    , 277 (Tenn. 2002).
    The trier of fact is entrusted with determinations concerning witness credibility, factual
    findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing
    the sufficiency of the evidence, we afford the State the strongest legitimate view of the
    evidence and all reasonable inferences that can be drawn from the evidence. State v.
    Hawkins, 
    406 S.W.3d 121
    , 131 (Tenn. 2013). “A verdict of guilt 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
    verdict rendered by the jury.” Reid, 
    91 S.W.3d at 277
    . “Circumstantial evidence alone is
    sufficient to support a conviction, and the circumstantial evidence need not exclude every
    reasonable hypothesis except that of guilt.” State v. Wagner, 
    382 S.W.3d 289
    , 297
    (Tenn. 2012).
    -8-
    The DUI statute makes it “unlawful for any person to drive or to be in physical
    control of any automobile … on any of the public roads and highways of the state” while
    “[u]nder the influence of any intoxicant … that impairs the driver’s ability to safely
    operate a motor vehicle by depriving the driver of the clearness of mind and control of
    oneself that the driver would otherwise possess.” T.C.A. § 55-10-401(1). DUI per se
    prohibits the same acts while “[t]he alcohol concentration in the person’s blood or breath
    is eight-hundredths of one percent (0.08%) or more.” T.C.A. § 55-10-401(2).
    The Defendant challenges his DUI convictions by arguing that witnesses did not
    see him actually driving while he was intoxicated and that the factors necessary to
    establish the alternate prong of “physical control” were not demonstrated by the State.
    See State v. Carter, 
    889 S.W.2d 231
    , 233 (Tenn. Crim. App. 1994) (citing State v.
    Lawrence, 
    849 S.W.2d 761
    , 765 (Tenn. 1993)). The Defendant conducts an analysis of
    the Carter factors regarding physical control by applying them to his circumstances after
    his vehicle was brought to a halt and rendered inoperable by the collision. This analysis
    is not pertinent to the theory under which he was convicted. The Defendant was not
    charged with DUI under the theory that, having innocently collided with the cable barrier,
    he drank half a bottle of tequila on the roadside and was subsequently in physical control
    of the vehicle. Instead, as the prosecutor explained during closing argument, the State
    was proceeding under the theory that the Defendant drove on State Route 385 while
    intoxicated, hit the cable barrier and damaged his vehicle as a result of his intoxication,
    and then lied under oath regarding the timing of his alcohol consumption. Whether the
    Defendant was in physical control of the vehicle after the collision is immaterial under
    the State’s theory of the proof as it was presented to the jury at trial and in closing
    argument.
    The proof at trial was uncontroverted that the Defendant was driving on the
    highway, that he hit the cable barrier, and that he was intoxicated when the police arrived.
    The only element in dispute was whether he was intoxicated at the time he was driving or
    whether he became intoxicated between the collision and the arrival of police. The
    Defendant presented testimony that he was not intoxicated while driving, that the
    collision was caused by debris in the road, and that he drank half a bottle of tequila after
    his vehicle came to a stop, causing him to be intoxicated at the time police arrived.
    However, the jury clearly rejected this testimony, relying instead on evidence which
    supports the inference that the Defendant was intoxicated while driving. This evidence
    includes the fact of the collision, the absence of debris from the roadway, the Defendant’s
    statements to the police at the scene that he had not been drinking and did not collide
    with the cable barrier, the presence in the vehicle of both half a bottle of tequila and a
    Yeti cup with an alcoholic drink, the extent of the Defendant’s intoxication at the time the
    police arrived, and the testimony regarding the very short interval between the collision
    and the arrival of police, which by the Defendant’s own testimony was approximately
    -9-
    seven to eight minutes. We conclude that a rational trier of fact could have inferred that
    the Defendant was intoxicated prior to the collision.
    The Defendant also asserts that evidence of his blood alcohol content, which was
    0.175 gram percent at 3:13 p.m., approximately one and a half hours after the collision,
    was insufficient to support the conviction for DUI per se. He submits that a finding
    regarding his blood alcohol level at the time he was driving is speculation. The State
    cites to State v. Greenwood, in which the defendant argued that the State had failed to
    prove his blood alcohol content at the time he drove because it did not provide retrograde
    extrapolation testimony regarding his blood alcohol level. 
    115 S.W.3d 527
    , 531 (Tenn.
    Crim. App. 2003). The Greenwood court concluded that “a proper blood alcohol test
    administered at a reasonable time after the defendant has been driving, which reflects a
    blood alcohol content of [the statutory limit] or higher, constitutes circumstantial
    evidence upon which the trier of fact may, but is not required to, convict the defendant of
    DUI.” 
    Id. at 532-33
    . The Greenwood court further noted that the delay in testing and
    other factors may be introduced at trial by the defendant to attempt to establish that the
    test did not reflect the blood alcohol content at the time of the offense. 
    Id. at 533
    . In
    Greenwood, this court concluded that a delay of fifty-five minutes for a blood draw was
    reasonable and that the jury could infer from the 0.12 percent result that the defendant’s
    blood alcohol level was above 0.10 percent at the time he was driving. 
    Id.
     Under
    Greenwood, we conclude that a rational trier of fact could have inferred that the
    Defendant’s blood alcohol content was above 0.08 percent approximately one and one-
    half hours prior to the time his blood alcohol content was measured to be 0.175 percent.
    The Defendant also challenges the sufficiency of the evidence to support the
    reckless driving conviction. “Any person who drives any vehicle in willful or wanton
    disregard for the safety of persons or property commits reckless driving.” T.C.A. § 55-
    10-205. Willful or wanton conduct “‘exceeds negligence in that the actor willfully
    breaches a duty,’” and the jury is entrusted with the determination of whether conduct
    was willful and wanton. State v. Frederick John Schmitz, Jr., No. M2019-01254-CCA-
    R3-CD, 
    2021 WL 529360
    , at *4 (Tenn. Crim. App. Feb. 12, 2021), no perm. app. filed
    (quoting State v. Wilkins, 
    654 S.W.2d 678
    , 680 (Tenn. 1983)). The Defendant submits
    that there was no evidence to support the finding that he acted with a willful or wanton
    disregard for safety. The State responds that the act of driving while intoxicated is itself
    reckless. See State v. Lawrence, 
    995 S.W.2d 142
    , 145 (Tenn. Crim. App. 1998)
    (analyzing double jeopardy claim for DUI and reckless driving and concluding that
    “[t]hese offenses fail to meet the Blockburger test to qualify as the ‘same offense’ for
    double jeopardy purposes”); see also State v. Watkins, 
    362 S.W.3d 530
    , 556 (Tenn. 2012)
    (holding that double jeopardy claims should be analyzed under the Blockburger test).
    Here, there was evidence from which the jury could have inferred that the Defendant
    decided to drive after having consumed a half of a bottle of tequila; that he was extremely
    - 10 -
    intoxicated, with a blood alcohol content over twice the legal limit when it was measured
    one and a half hours later; that the roadway on which he was driving in the middle of the
    afternoon was clear of obstructions; and that he drove in such a manner that he veered off
    the clear roadway and collided with the cable barrier dividing his lane from opposing
    traffic. See State v. Timothy Dean Martin, No. 01-C-01-9609-CC-00393, 
    1998 WL 74351
    , at *5-6 (Tenn. Crim. App. Feb. 23, 1998) (blood alcohol content and alcohol
    consumption were pertinent to evaluating mens rea of recklessness under vehicular
    homicide statute). We conclude that, viewed in the light most favorable to the
    prosecution, the evidence is sufficient to support the conviction.
    II. Expert Testimony
    The Defendant asserts that the trial court erred in permitting Special Agent
    Conyers to testify regarding elimination rate in order to approximate the Defendant’s
    blood alcohol content at the time of the collision. He argues that the failure to provide
    discovery documents or notice regarding the elimination rate testimony was a discovery
    violation entitling him to a mistrial. The State responds that there was no discovery
    violation because Special Agent Conyers had not prepared a report on elimination rate,
    and it also argues that any error was harmless. The Defendant replies that the testimony
    was also inadmissible because it was speculative.
    A. Discovery
    Tennessee Rule of Criminal Procedure 16 requires the disclosure of certain
    information, including “books, papers, documents, photographs, tangible objects,
    buildings, or places, or copies or portions thereof” within the State’s possession, custody,
    or control, when those items are material to preparing the defense, intended to be used in
    the case-in-chief, or were obtained from or belong to the defendant. Tenn. R. Crim. P.
    16(a)(1)(F). Furthermore, the State must disclose certain scientific reports:
    (G) Reports of Examinations and Tests. Upon a defendant’s request, the
    state shall permit the defendant to inspect and copy or photograph the
    results or reports of physical or mental examinations, and of scientific tests
    or experiments if:
    (i) the item is within the state’s possession, custody, or control;
    (ii) the district attorney general knows--or through due diligence
    could know--that the item exists; and
    (iii) the item is material to preparing the defense or the state intends
    to use the item in its case-in-chief at trial.
    - 11 -
    Tenn. R. Crim. P. 16(a)(1)(G). The State is under a continuing duty to disclose
    discoverable evidence. Tenn. R. Crim. P. 16(c).
    On the other hand, “pretrial notice of expert testimony is not required by Rule 16.”
    State v. Lenardo DeWayne Spencer, et. al., No. M2016-01219-CCA-R3-CD, 
    2017 WL 2800147
    , at *8 (Tenn. Crim. App. June 28, 2017); compare Stanfield v. Neblett, 
    339 S.W.3d 22
    , 30 (Tenn. Ct. App. 2010) (requirements for disclosure under the Tennessee
    Rules of Civil Procedure); Tenn. R. Civ. P. 26.02(4) (requiring disclosure of an expert’s
    anticipated testimony). In this case, the Defendant cannot point to an item discoverable
    under Rule 16 which the State did not disclose. It is undisputed that there were no
    tangible objects withheld from the defense and that the testimony at issue is not the result
    of a report or scientific test. This court has previously held that “if an expert may testify
    to information made known to them at trial, it logically follows that an expert may
    properly testify outside the exact contents of their Rule 16 report.” State v. Missy
    Daniella Lane, No. E2017-01907-CCA-R3-CD, 
    2019 WL 4568053
    , at *24 (Tenn. Crim.
    App. Sept. 20, 2019), perm. app. denied (Tenn. Feb. 19, 2020). While a party may not
    seek to evade discovery by intentionally circumventing the creation of a report, State v.
    Nichols, 
    877 S.W.2d 722
    , 730 (Tenn. 1994), we do not think that the State here violated
    Rule 16.
    The Defendant asserts that his due process rights were violated by the failure to
    disclose. Compare Lavar R. Jernigan v. State, No. M2019-00182-CCA-R3-PC, 
    2020 WL 4728117
    , at *9-11 (Tenn. Crim. App. Aug. 14, 2020) (the State’s use of an
    undisclosed notebook was “unduly surprising and deprived trial counsel of an
    opportunity to prepare a defense”), no perm. app. filed; with State v. Gilford E. Williams,
    No. W1999-01556-CCA-R3-CD, 
    2001 WL 43176
    , at *3-5 (Tenn. Crim. App. Jan. 17,
    2001) (rejecting the defendant’s claim that due process was violated when the expert’s
    reports did not contain his conclusions about whether the defendant’s brakes were
    functional and the defendant was surprised at trial by the testimony and concluding in
    addition that any error was harmless). However, a defendant is generally not entitled to
    discovery of expert testimony which is introduced only to rebut prior evidence. State v.
    Dellinger, 
    79 S.W.3d 458
    , 489 (Tenn. 2002); State v. Andrew Neal Davis, No. M2002-
    02375-CCA-R3-CD, 
    2004 WL 1562544
    , at *16 (Tenn. Crim. App. July 9, 2004)
    (concluding that expert testimony was properly admitted without notice to rebut the
    defendant’s testimony because “[i]n general, a defendant’s request to discover the names
    of the State’s witnesses does not apply to rebuttal witnesses”); State v. Aucoin, 
    756 S.W.2d 705
    , 714 (Tenn. Crim. App. 1988). This court has permitted expert testimony
    offered in the State’s case-in-chief when the purpose of the evidence was to rebut
    evidence raise in the cross-examination of one of the State’s witnesses, even though the
    defendant had no notice of the testimony. Lenardo DeWayne Spencer, et. al., 2017 WL
    - 12 -
    2800147, at *8 (expert testimony was properly offered in response to the cross-
    examination of a witness, even though the State had not provided notice).
    The prosecutor asserted at the hearing on the motion for a new trial that she was
    not aware until trial that the Defendant would try to establish that he only consumed the
    alcohol after the collision. She stated that the State “had to scramble” and decided to
    expand the toxicologist’s testimony “because of this new theory” that the State was “just
    … learning about.” Defense counsel did not contest the assertion that the prosecution
    was not made aware of the theory of the defense prior to trial. In opening statements,
    defense counsel told the jury that the defense anticipated proof that the Defendant did not
    open the bottle of tequila until after the collision, when his truck was no longer
    operational. During trial and prior to the expert’s testimony, defense counsel asked
    Officer Pitman if he could testify regarding what the Defendant’s blood alcohol level was
    while the Defendant was driving, and Officer Pitman stated that he could not.
    We conclude that, because the Defendant questioned Officer Pitman about this
    exact topic – whether Officer Pitman could testify about the Defendant’s blood alcohol
    level at the time he was driving – the testimony was, regardless of notice, properly
    admissible to rebut evidence raised by the Defendant. See Lenardo DeWayne Spencer,
    et. al., 
    2017 WL 2800147
    , at *8.
    B. Admissibility
    The Defendant also asserts that the testimony was merely speculative and should
    be deemed inadmissible due to a lack of reliability. Expert testimony must satisfy certain
    prerequisites to be admissible. See State v. Phillip Michael Martinez, No. W2019-02033-
    CCA-R3-CD, 
    2021 WL 2949514
    , at *11 (Tenn. Crim. App. July 14, 2021) (noting that
    the defense may have opened the door to the subject matter of proof regarding the
    victim’s credibility, but concluding that the expert testimony offered on the subject must
    nevertheless be analyzed under the rules governing the admissibility of expert testimony).
    The trial court’s rulings regarding the qualifications, admissibility, relevance, and
    competence of expert testimony are reviewed for abuse of discretion. State v. Davidson,
    
    509 S.W.3d 156
    , 208 (Tenn. 2016). “A trial court abuses its discretion when it applies
    incorrect legal standards, reaches an illogical conclusion, bases its decision on a clearly
    erroneous assessment of the evidence, or employs reasoning that causes an injustice to
    the complaining party.” State v. Scott, 
    275 S.W.3d 395
    , 404-05 (Tenn. 2009) (citing
    Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 
    249 S.W.3d 346
    , 358 (Tenn.
    2008)).
    As part of its gatekeeping function, the trial court must make sure that the basis of
    an expert’s opinion supports the expert’s conclusions and that there is no “analytical gap”
    - 13 -
    between the expert’s opinion and the data upon which the opinion is based. Scott, 
    275 S.W.3d at 402
    ; State v. Stevens, 
    78 S.W.3d 817
    , 834 (Tenn. 2002). However, in the case
    before us, we conclude that the Defendant’s argument regarding the admissibility of the
    evidence based on the assertion that it is speculative has been waived. At trial, Special
    Agent Conyers stated he had training regarding the rate at which alcohol metabolizes
    from the body, but he did not elaborate on the training he had received. The defense
    immediately objected to a failure to provide notice of the testimony regarding retrograde
    extrapolation and the failure to provide any discovery, and the State responded that there
    was no discovery which could have been provided. The Defendant moved for a mistrial
    on the basis of unfair surprise, and the trial court overruled the objection and denied the
    motion. Special Agent Conyers testified that, using the accepted elimination rate, he
    could give a range of between 0.185 and 0.205 for the Defendant’s blood alcohol content
    at 1:49 p.m. He testified that the Defendant’s blood alcohol level would have been
    higher prior to the blood draw, based on the assumption that the Defendant had not
    consumed alcohol after being put into custody and that he accordingly would be in the
    elimination phase. On cross-examination, he stated that he was not testifying to
    retrograde analysis but to elimination rate. According to Special Agent Conyers,
    elimination rate would depend on metabolism, but there were very few people who would
    fall outside the range he had estimated. He agreed he had never examined the Defendant
    and that he was not given anything related to the case other than a blood vial. Asked if he
    would agree that he had no knowledge of the Defendant’s blood alcohol level when the
    Defendant was driving, Special Agent Conyers stated, “I don’t know anything prior to
    this sample was taken – taken in – in my possession.” He agreed that he did not know if
    the Defendant had had anything to drink after he was stopped by law enforcement and
    that he did not know if the Defendant had had anything to eat, and he agreed that these
    facts would affect his analysis. He did not know if certain heart medications would affect
    the analysis. He stated that he was present to testify to the blood alcohol content at the
    time the blood was drawn.
    Accordingly, it appears that the Defendant only objected to the discovery issue at
    trial and did not challenge the admissibility of the testimony based on the analytical gap
    between the data, as it related to whether the Defendant’s blood alcohol had peaked and
    he was in the elimination phase, and the expert’s conclusions regarding the blood alcohol
    level. Absent an objection at trial, the issue is waived. See Tenn. R. App. P. 36(a)
    (“Nothing in this rule shall be construed as requiring relief be granted to a party
    responsible for an error or who failed to take whatever action was reasonably available to
    prevent or nullify the harmful effect of an error.”). Furthermore, the motion for a new
    trial only challenged the alleged discovery violation and asserted that the witness was not
    tendered as an expert in retrograde extrapolation. State v. Johnson, 
    970 S.W.2d 500
    , 508
    (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are considered
    waived.”). In any event, the Defendant was able to elicit on cross-examination that
    - 14 -
    Special Agent Conyers could not testify to the Defendant’s blood alcohol level while the
    Defendant was driving and that Special Agent Conyers’s testimony had not taken into
    account variables which would affect the estimate, including the time the Defendant
    stopped drinking or whether he had eaten. Considering that one and a half hours after the
    collision, the Defendant’s blood alcohol level, at 0.175 percent, was more than twice the
    legal limit of 0.08 percent, any error in admitting the testimony would have been
    harmless. Tenn. R. App. P. 36(b); State v. Rodriguez, 
    254 S.W.3d 361
    , 372 (Tenn.
    2008).
    III. Sentencing
    The Defendant requests sentencing relief, citing to his pre-existing health
    conditions, the global pandemic, and the nonviolent nature of his offenses. The
    Defendant requests a sentence which does not involve incarceration in a penal facility.
    The State argues that the Defendant has waived this argument for failure to cite to
    authority and that the sentence was proper. The Defendant replies that the circumstance
    of a global pandemic is unprecedented and that there is accordingly no precedent to cite.
    We conclude that, under the record before us, the Defendant is not entitled to relief.
    At the initial sentencing hearing, which took place prior to the arrival of the
    pandemic, the Defendant introduced proof that he was HIV-positive and suffered from a
    heart condition. The Defendant testified at the hearing on the Rule 35 motion regarding
    the precautions he was taking to avoid becoming ill with COVID-19. After initially
    sentencing the Defendant to serve six months in jail, the trial court reevaluated its
    sentence in light of the Defendant’s supervisory role at his work, and sentenced the
    Defendant to serve forty-five contiguous days and the remainder of the six months on
    weekends. The court noted the Defendant’s argument regarding COVID-19, but
    observed that the appellate process could be lengthy and “[h]opefully by the end they’ll
    have a vaccine and things of that nature.”
    We agree with the Defendant that a global pandemic presents a unique set of
    circumstances. However, the Defendant is not the first inmate in Tennessee to seek lenity
    in sentencing based on a health condition. See, e.g., State v. Rick Allen Bowger, No.
    E2008-01252-CCA-R3-CD, 
    2009 WL 1026088
    , at *2 (Tenn. Crim. App. Apr. 15, 2009)
    (denying relief on a sentence to confinement for misdemeanor assault and deferring to the
    trial court’s “considerable latitude” in misdemeanor sentencing where the defendant
    argued his health conditions could lead to his demise in jail); State v. Grady Hargrove,
    No. 01C01-9102-CC-00041, 
    1993 WL 532627
    , at *2 (Tenn. Crim. App. Dec. 16, 1993)
    (affirming a sentence of incarceration when the trial court had concluded that the violent
    offense against a child required incarceration after the court considered proof that the
    - 15 -
    defendant “was in such ill health that medical testimony had indicated that incarceration
    and the stress resulting therefrom could in fact cause the defendant’s death”).
    We agree with the State that the Defendant has not cited to any legal authority
    which would support overturning the trial court’s sentencing decision. 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.”).
    Furthermore, while the record here contains proof of the Defendant’s medical condition,
    there is no evidence regarding what, if any, precautions were being taken in the facility
    where the Defendant would be held in custody or what potential health outcomes the
    Defendant would face if incarcerated. See Cameron v. Bouchard, 815 Fed. App’x 978,
    988 (6th Cir. 2020) (concluding that a preliminary injunction should be vacated because
    the section 1983 plaintiffs had not shown they were likely to succeed on the merits of
    their Eighth and Fourteenth Amendment claims because the jail had responded
    reasonably to the risk of COVID-19 transmission); People ex rel. Gregor v. Reynolds,
    
    124 N.Y.S.3d 118
    , 124 (N.Y. Sup. Ct. 2020) (ordering the release on bail of a nonviolent,
    medically vulnerable inmate when the facility did not permit social distancing); see also
    Estelle v. Gamble, 
    429 U.S. 97
    , 104 (1976) (noting that “deliberate indifference to serious
    medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ …
    proscribed by the Eighth Amendment”). On the record before us, we cannot conclude
    that the Defendant has shown that the trial court erred in its sentencing decision.
    IV. Judgment Forms
    The parties agree that there is an error in the judgment form for the DUI
    conviction in Count 1.1 The trial court initially sentenced the Defendant to eleven
    months and twenty-nine days, with six months to be served in confinement and five
    months and twenty-nine days to be served on probation. After considering the
    Defendant’s Rule 35 motion, the trial court modified the sentence on September 3, 2020.
    The court stated that the Defendant would serve an uninterrupted forty-five days at one
    hundred percent but that the remainder of the sentence of confinement would be ordered
    to be served on weekends. There is some ambiguity in the hearing, as the State asked
    whether the Defendant “has to do the 45 days on the weekend,” and the court responded
    in the affirmative, stating, “The length of the sentence is…going to be the same, only it’s
    going to be on weekends.” The trial court also at one point stated that the Defendant
    “shall be confined for a period of 6 months…with the balance suspended and placed on
    probation for a period of 10 months and 14 days…”
    1
    The judgment form for Count 2, which merged with Count 1, is not included in the record on
    appeal.
    - 16 -
    The judgment initially showed a six-month period of incarceration and a
    subsequent five month, twenty-nine days of supervised probation. This sentence was
    altered on September 3, 2020, after the trial court granted relief on the Rule 35 motion,
    by crossing out the prior sentence and indicating the new sentence. The altered judgment
    reflected a period of forty-five days to be incarcerated at one hundred percent and a
    subsequent ten months and fourteen days of supervised probation. On the same day, the
    court entered an “Order Allowing Service of Sentence at Later Date,” which ordered the
    Defendant’s forty-five-day sentence to begin on March 3, 2021.2 A separate “Order
    Allowing Non-Consecutive Sentence,” which ordered non-consecutive service on the
    weekends of a sentence of six months to begin on April 23, 2021, was likewise entered.
    We noted in our order granting the Defendant’s motion to stay his sentence pending
    appeal that the judgment form appeared to be in conflict with the trial court’s oral ruling
    and that the “Order Allowing Non-Consecutive Sentence” reflected non-consecutive
    service of the entire six months and did not subtract the “uninterrupted” forty-five days
    which the accompanying “Order Allowing Service of Sentence at Later Date” required.
    The parties on appeal agree that the actual sentence imposed was for six months in
    confinement, with forty-five days to be served contiguously and the remainder of the six
    months to be served on weekends. We remand for correction of the judgment form in
    Count 1 and of the “Order Allowing Non-Consecutive Sentence” to accurately reflect the
    trial court’s ruling, and for the entry of a judgment in Count 2. See State v. Berry, 
    503 S.W.3d 360
    , 365 (Tenn. 2015) (noting that the best practice is to enter separate judgments
    for merged offenses).
    CONCLUSION
    Based on the foregoing, we affirm the trial court’s judgments but remand for
    correction of the judgment forms and of the “Order Allowing Non-Consecutive
    Sentence” to conform with the trial court’s oral rulings, and for entry of a judgment form
    in Count 2.
    ___________________________________________
    JOHN EVERETT WILLIAMS, PRESIDING JUDGE
    2
    This court granted a motion to stay the service of the Defendant’s sentence pending the
    conclusion of the appellate process.
    - 17 -