             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                    Assigned on Briefs April 19, 2005

                 STATE OF TENNESSEE v. CHESTER FLOYD COLE

                           Appeal from the Circuit Court for Madison County
                               No. 03-130    Roy B. Morgan, Jr., Judge



                          No. W2004-01200-CCA-R3-CD - Filed June 30, 2005


A Madison County Circuit Court jury convicted the defendant, Chester Floyd Cole, of incest, a Class
C felony, and assault, a Class B misdemeanor, and the trial court sentenced him as a Range I,
standard offender to five years for the incest and six months for the assault1 to be served concurrently
in the Department of Correction. The defendant appeals, claiming the trial court erred in failing to
dismiss the incest count pursuant to Rule 8, Tenn. R. Crim. P., and State v. Dominy, 67 S.W.3d 822
(Tenn. Crim. App. 2001), and that his sentence is excessive. We affirm the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN , J., joined.

Jerry Mike Mosier, Jackson, Tennessee, for the appellant, Chester Floyd Cole.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

        This case relates to the defendant’s conduct with his step-daughter. The record reflects that
a Madison County Grand Jury originally returned an indictment on September 5, 2000, charging the
defendant with five counts of rape and two counts of rape of a child. Each offense occurred on a
different date and was based on separate facts. The parties agreed to sever one count of rape of a
child from the other six counts of the indictment and to proceed to trial on that count. The defendant
was convicted of rape of a child and the trial court sentenced him to twenty-five years. On appeal,
this court affirmed the defendant’s conviction but reduced his sentence to twenty-two years. See


         1
           Although the defendant’s notice of appeal related to both the incest and assault convictions, his issues deal only
with the incest conviction.
State v. Chester Floyd Cole, W2001-02871-CCA-R3-CD, Madison County (Tenn. Crim. App. Dec.
13, 2001). On April 1, 2002, a Madison County Grand Jury returned a superseding indictment,
charging the defendant with the five untried counts of rape, the one untried count of rape of a child,
and six corresponding counts of incest. The parties agreed to sever one count of rape and one count
of incest and proceed to trial only on those counts. The state thereafter moved for a continuance,
which the trial court denied, prompting the state to submit a nolle prosequi order of dismissal, which
the trial court granted. On March 3, 2003, a Madison County Grand Jury again returned an
indictment against the defendant, charging him with four of the five original counts of rape and four
corresponding counts of incest. After the trial court denied the defendant’s motion to dismiss the
incest counts, the parties agreed to sever one count of rape and a corresponding count of incest and
proceed to trial. At the trial, the jury found the defendant not guilty of rape but guilty of the lesser
included offense of Class B misdemeanor assault and of incest.

                                   I. MANDATORY JOINDER

        The defendant contends that the trial court erred in failing to dismiss the count of incest
pursuant to Rule 8, Tenn. R. Crim. P., and Dominy based upon the state’s failure to charge incest
in the original indictment. The state contends that the trial court’s denial of the defendant’s motion
to dismiss was proper because the incest count for which the defendant was convicted was based
upon a different set of facts than the rape of a child count for which the defendant was previously
convicted. We agree with the state.

       Rule 8(a), Tenn. R. Crim. P., provides,

                       (a) Mandatory Joinder of Offenses. Two or more offenses
               shall be joined in the same indictment, presentment, or information,
               with each offense stated in a separate count, or consolidated pursuant
               to Rule 13 if the offenses are based upon the same conduct or arise
               from the same criminal episode and if such offenses are known to the
               appropriate prosecuting official at the time of the return of the
               indictment(s), presentment(s), or information(s) and if they are within
               the jurisdiction of a single court. A defendant shall not be subject to
               separate trials for multiple offenses falling within this subsection
               unless they are severed pursuant to Rule 14.

The advisory commission comments to the rule state,

                      The Commission wishes to make clear that section (a) is
               meant to stop the practice by some prosecuting attorneys of “saving
               back” one or more charges arising from the same conduct or from the
               same criminal episode. Such other charges are barred from future
               prosecution if known to the appropriate prosecuting official at the



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                 time that the other prosecution is commenced, but deliberately not
                 presented to a grand jury.

        In Dominy, the defendant was originally tried and convicted of aggravated rape of his wife,
but his conviction was reversed by our supreme court on appeal. See State v. Dominy, 6 S.W.3d 472
(Tenn. 1997). The state then indicted the defendant based upon the same “criminal episode” for
spousal rape. This court concluded that the subsequent indictment was barred by Rule 8, stating,

                         In 1994, the state chose to prosecute the defendant on
                 aggravated rape charges exclusively. It easily could have opted at that
                 time to charge the defendant with rape of a spouse, either as an
                 alternative to, or in conjunction with, the aggravated rape charges.
                 Even though the prosecutor did not intend to “save back” the spousal
                 rape charges, Rule 8(a), via King[ v. State, 717 S.W.2d 306 (Tenn.
                 Crim. App. 1986)], monolithically poses a bar to initiating a second
                 prosecution for rape of a spouse after the completed trial of the
                 defendant on the first charge. See State v. Gilliam, 901 S.W.2d 385,
                 391 (Tenn. Crim. App. 1995) (where initial prosecution for first
                 degree felony murder was “tenuous at best,” subsequent attempt to
                 prosecute for second degree murder, which was then held to be not a
                 lesser-included offense of felony murder, was barred by rule 8(a)).

Dominy, 67 S.W.3d at 826. The defendant’s reliance on Dominy is misplaced. In Dominy, the
state’s subsequent indictment of the defendant was based upon the same “criminal episode” as the
first indictment. However, in this case, the superseding indictment was based upon an entirely
different event, occurring on a different date, and alleging a different set of facts.

          In an opinion affirmed by the supreme court and partially appended to its opinion, this court
stated:

                 The rule clearly permits a subsequently returned indictment to be
                 joined with a previous indictment where the alleged offenses relate to
                 the same criminal episode. See King v. State, 717 S.W.2d 306 (Tenn.
                 Crim. App. 1986). This practice, however, does have certain
                 limitations which, as the comments note, safeguard an accused
                 against prosecutorial abuse. For example, a prosecutor cannot simply
                 decide to “save” charges on other offenses arising out of the same
                 conduct until after a trial is had on the original charges. Obviously,
                 this would result in multiple trials and prejudice the defendant.

State v. Carruthers, 35 S.W.3d 516, 573 (Tenn. 2000) (Appendix); accord State v. Fisher, 88 S.W.3d
617 (Tenn. Crim. App. 2001). While the state in this case did not indict the defendant on the incest
charge until after the conclusion of his first trial, we see no violation of Rule 8(a) because the


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defendant was not convicted of incest arising out of the same “conduct” or “criminal episode” as the
rape of a child conviction. Rather, the superseding indictment added a count of incest which arose
out of the same “criminal episode” as the original rape count. We conclude that Carruthers is
controlling and that the state did not violate Rule 8(a) with its superseding indictment. The
defendant is not entitled to relief on this issue.

                                  II. EXCESSIVE SENTENCE

        The defendant contends that the trial court violated the rule announced in Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), by applying enhancement factors neither found
by the jury nor admitted by the defendant to enhance his sentence from the minimum three years to
five years. The state contends the defendant has waived this issue for failing to raise it in the trial
court. In the alternative, the state contends that any error is harmless beyond a reasonable doubt.

         In Blakely, the United States Supreme Court held that other than prior convictions, any facts
not reflected in the jury’s verdict and used to increase a defendant’s punishment above the
presumptive sentence must be admitted by the defendant or found by the jury beyond a reasonable
doubt. 542 U.S. at __, 124 S. Ct. at 2537. However, the Tennessee Supreme Court recently held
that failure to object on Sixth Amendment grounds in the trial court waives the issue on appeal and
that, in any event, Tennessee’s sentencing procedures do not violate the Sixth Amendment right to
trial by jury as interpreted by the Supreme Court in Blakely and United States v. Booker, __ U.S. __,
125 S. Ct. 738 (2005). See State v. Edwin Gomez and Jonathan S. Londono, No.
M2002-01209-SC-R11-CD, Davidson County, __ S.W.3d __, __ (Tenn. April 15, 2005).
Accordingly, the defendant’s reliance upon Blakely is misplaced, and he is not entitled to relief on
this issue.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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