        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 19, 2017

                STATE OF TENNESSEE v. STEPHEN W. JACO

                Appeal from the Circuit Court for Humphreys County
                        No. 12601 Larry J. Wallace, Judge
                      ___________________________________

                 No. M2016-00634-CCA-R3-CD – Filed June 20, 2017
                      ___________________________________


A Humphreys County jury convicted the Defendant, Stephen W. Jaco, of driving under
the influence (DUI) and unlawfully possessing a firearm while under the influence of
alcohol. The trial court sentenced him to eleven months and twenty-nine days for each
conviction to be served concurrently and on probation, after serving four days in jail.
The trial court fined the Defendant $350 for his DUI conviction. On appeal, the
Defendant challenges the sufficiency of the evidence for his DUI conviction, the trial
court’s imposition of a fine, the trial court’s failure to join all charges in one indictment,
and the trial court’s denial of his motion to dismiss based on double jeopardy principles.
We conclude that the trial court erred in imposing the fine for the Defendant’s DUI
conviction, and we reverse the trial court’s imposition of the fine and remand the matter
for the empaneling of a jury to fix the fine. The trial court’s judgments are otherwise
affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
                   Part and Reversed in Part; Case Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Anthony L. Clark and Chad A. Cox, Paris, Tennessee, for the appellant, Stephen W. Jaco.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; W. Ray Crouch, Jr., District Attorney General; and Talamage Woodall
and Jack Arnold, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                         OPINION
                        FACTUAL AND PROCEDURAL HISTORY

       On March 28, 2012, at 10:23 p.m., Investigator Downing,1 with the New
Johnsonville Police Department, was dispatched to the scene of a domestic assault
involving the Defendant and the Defendant’s wife. At 10:40 p.m., Deputy R. Jay Phelps,
with the Humphreys County Sheriff’s Office, pulled over a vehicle matching the
description of a vehicle associated with the domestic assault. After conducting a field
sobriety test, Deputy Phelps arrested the Defendant, who was the driver of the vehicle,
for DUI and unlawful possession of a firearm while under the influence of alcohol.
Subsequently, in April 2013, a Humphreys County Grand Jury indicted the Defendant for
DUI first offense, DUI per se, and unlawful possession of a firearm while under the
influence of alcohol. Although the Defendant was also arrested for domestic assault on
the same day and the charges were brought in New Johnsonville Municipal Court, those
charges were later dismissed and expunged on June 4, 2013.

        On July 30, 2013, the Defendant filed a motion to dismiss, arguing that mandatory
joinder pursuant to Tennessee Rule of Criminal Procedure 8(a) required that his DUI and
firearm charges be joined. He argued that all charges from March 28, 2012, could have
been brought in Humphreys County General Sessions Court. On December 9, 2013, the
trial court held a hearing on the motion to dismiss. The transcript of the hearing is not
included in the record. According to the statement of evidence provided in the record,
Investigator Downing, who was the arresting officer for the domestic assault charge in
New Johnsonville Municipal Court, had knowledge of the DUI and firearm charges in
Humphreys County General Sessions Court. Additionally, Sergeant Phelps, who was the
arresting officer for the DUI and firearm charges in Humphreys County General Sessions
Court, had knowledge of the domestic assault charge in New Johnsonville Municipal
Court. The statement of the evidence referred to all of the charges, including the
domestic assault charge, as arising from the same incident. It stated that “[a]ll charges
were known to all officers and to all prosecutors” and that the domestic assault charge
was dismissed and expunged from the Defendant’s record on June 4, 2013, after the
Defendant was indicted on the instant charges on March 27, 2013. We note that the
record contains no further information regarding the domestic assault charge, including
whether the Defendant was later indicted or re-indicted for domestic assault.2 Following
the hearing, the trial court denied the motion, finding that there was “not enough nexus to
constitute a single criminal episode” to require joinder.




      1
          The record does not provide this court with Investigator Downing’s first name.
      2
          It is unclear whether the Defendant was initially indicted for domestic assault.
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       We glean from the record that on August 19, 2014,3 the Defendant’s first trial date
occurred, and the Defendant requested a mistrial following the revelation of allegedly
exculpatory evidence. At the time of the revelation, the jury had been impaneled and
sworn. The motion for a mistrial was granted. The statement of evidence explained that
the discovery packet contained evidence that Sergeant Phelps declared that the
Preliminary Breath Test device “only displayed a positive (+) or negative (-) for the
presence of alcohol.” During the jury-out testimony at the trial ending in a mistrial,
however, Sergeant Phelps testified that he got a numerical reading from the testing device
that he used. This discrepancy provided the basis of the mistrial. On August 25, 2014,
the Defendant filed a motion to dismiss, arguing that double jeopardy principles protected
him from a second prosecution for the DUI and firearm charges. The Defendant
contended that because the jury had been impaneled and sworn at the first trial date,
jeopardy had attached and the State was barred from further prosecutions in the matter.

        On June 16, 2015, the Defendant’s trial was held for the charges of DUI and
unlawful possession of a firearm while under the influence of alcohol. Sergeant Phelps
testified that on the day of the crimes, he received a “be on the look out” (“BOLO”) from
the dispatcher for the Defendant’s vehicle. The statement of the evidence specifies that
the BOLO was issued in response to a domestic assault allegation against the Defendant.
Sergeant Phelps stated that he saw a vehicle that matched the description as provided in
the BOLO and pulled the vehicle over. Sergeant Phelps testified that he identified the
Defendant, the driver, as the person matching the description provided in the BOLO.
Upon reaching the vehicle, Sergeant Phelps smelled a strong odor of alcohol on the
Defendant and noticed that the Defendant’s “eyes were bloodshot and watery.” The
Defendant admitted to consuming alcohol earlier that day. Sergeant Phelps explained
that he administered two field sobriety tests, “the Walk and Turn and the One Leg
Stand.” He testified that, the Defendant “showed multiple clues of intoxication,”
including “missing heel-to-toe, hopping on one leg, and putting his foot down multiple
times.” The jury was shown a video of the Defendant’s performance of the various
roadside tests. Although Sergeant Phelps explained the video to the jury, the video itself
was not admitted into evidence. Sergeant Phelps testified that based on the Defendant’s
field sobriety task performances, he placed the Defendant under arrest for DUI. He also
testified that after arresting the Defendant, he administered a Preliminary Breath Test on
the Defendant. Although he could not recall the exact BAC percentage given by the
Preliminary Breath Test, he stated that the number was over 0.10. He then administered
an “Intoximeter” test on the Defendant, which showed a BAC of 0.15. He stated that he
conducted the test according to appropriate procedure.

       3
          We note that there is ambiguity in the record concerning the date of the mistrial and whether
there were two mistrials declared. For our purposes, the ambiguity is irrelevant to address the issue of
double jeopardy.
                                                 -3-
      Deputy Daniel Buchanan of the Humphreys County Sheriff’s Office testified that
he accompanied Sergeant Phelps on patrol on March 28, 2012. While Sergeant Phelps
was conducting the DUI stop, Deputy Buchanan searched the Defendant’s vehicle and
found a firearm. The firearm was admitted into evidence at trial.

        Special Agent Trey Miles with the Tennessee Bureau of Investigation was
accepted by the trial court as an expert in forensic science. He testified that the
“Intoximeter” that Sergeant Phelps used on the Defendant was “in good working order”
and that if the device had not been in good working order, it would not have provided a
result.

        Following the conclusion of proof, the trial court instructed the jury on DUI, first
offense; DUI per se; and unlawful possession of a firearm while under the influence of
alcohol. The trial court did not instruct the jury on the existence of a statutorily required
fine for a DUI conviction. See T.C.A. § 55-10-403(a)(1). The jury found the Defendant
guilty of DUI, first offense, and unlawful possession of a firearm while under the
influence of alcohol. The trial court sentenced the Defendant to eleven months and
twenty-nine days for each conviction, to be served concurrently and on probation, after
serving four days in jail. The trial court imposed the minimum fine of $350 for the DUI,
first offense, conviction. See T.C.A. § 55-10-403(a)(1).

                                       ANALYSIS

                             I.    Sufficiency of the Evidence

      The Defendant argues that Sergeant Phelps’ testimony alone was not sufficient to
support the jury’s DUI conviction. The State disagrees.

       When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient “to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e). The appellate court determines “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). In determining the sufficiency of the evidence, this court does not
reweigh or reevaluate the evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004). Instead, this court affords the State the strongest legitimate view of the evidence
contained in the record, as well as all reasonable and legitimate inferences that may be
drawn from that evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). “A guilty
verdict by the jury, approved by the trial court, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the prosecution’s theory.” State v.
                                            -4-
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The conviction replaces the presumption of
innocence with a presumption of guilt, and the accused has the burden of illustrating why
the evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Under Tennessee Code Annotated section 55-10-401, it is unlawful for the driver
of a vehicle to be “[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(a)(1) (2011).

       Here, the Defendant argues that because the video of the stop and arrest “was not
entered into evidence” and “there was no evidence of intoxication obtained through blood
or breath,” the evidence is insufficient to support his conviction. He contends that
although the video was shown to the jury, the video was not admitted into evidence
because it was not made an exhibit. The Defendant offers no support for this assertion
and we find none. The mere fact that evidence brought out at trial is not introduced as an
exhibit does not render the evidence improper for use by the jury. Further, we note that
the Defendant does not otherwise challenge the video’s admissibility or claim that the
jury should not have been allowed to the view the video at trial.

       Even if we are to assume that the video was not properly before the jury for their
consideration, we view the officer’s testimony and blood alcohol test results in the light
most favorable to the State. Elkins, 102 S.W.3d at 581. The evidence shows that
Sergeant Phelps saw the Defendant driving the vehicle. Upon approaching the Defendant
in his vehicle, Sergeant Phelps smelled alcohol on the Defendant and noticed that his
eyes were bloodshot. Sergeant Phelps then conducted two field sobriety tests, which the
Defendant failed. Additionally, the Defendant admitted to Sergeant Phelps that he had
been drinking alcohol that day. Although the Defendant claims that “there was no
evidence of intoxication obtained through blood or breath,” the evidence shows that his
blood alcohol content, which Sergeant Phelps tested, was above the legal limit. T.C.A. §
55-10-401(2). Further, the Defendant’s blood alcohol test results were introduced into
evidence. Accordingly, we hold that the evidence is sufficient to uphold the Defendant’s
DUI conviction.

                             II.   Constitutionality of Fine

       The Defendant next asserts that the fines imposed on him violate article VI,
section 14 of the Tennessee Constitution. The State argues that any error in imposing the
fines was waived because the record is inadequate, and absent waiver, that the fine is not
prejudicial because the trial court imposed the minimum statutorily allowed fine.
                                           -5-
        The State argues that the Defendant’s claim regarding the constitutionality of the
fine is waived because “there are no jury instructions in the record.” We are perplexed
by the State’s argument because the appellate record includes the written jury
instructions, which establish that the trial court failed to instruct the jury on the applicable
fine for DUI, first offense. Accordingly, this issue is not waived.

        Article VI, section 14 of the Tennessee Constitution prohibits the assessment of a
fine in excess of fifty dollars unless imposed by a jury. The procedure to be followed in
the imposition of a fine in excess of fifty dollars is that “[t]he jury shall report such fine
with a verdict of guilty. When imposing sentence, after the sentencing hearing, the court
shall impose a fine, if any, not to exceed the fine fixed by the jury.” T.C.A. § 40-35-
301(b). There are two exceptions to the rule that only a jury may fix such a fine: (1) the
defendant may waive his right for a jury to determine the amount; and (2) such a fine
may be imposed when it is “statutorily specified and allows no judicial discretion in its
imposition.” State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997) (citations omitted). The
jury fixed no fine in this case, and the Defendant did not waive his right to have a jury
specify the fine. Tennessee Code Annotated section 55-10-403(a)(1) specifies a range
that allows discretion in imposing the fine for DUI, first offense, which ranges from $350
to $1,500. Here, the trial court imposed the mandatory minimum fine of $350 required
by statute. In State v. Martin, the Tennessee Supreme Court concluded that because “the
statute prescribes only a minimum fine,” “the trial judge exercised some measure of
discretion.” Martin, 940 S.W.2d at 570. Accordingly, the fine in Tennessee Code
Annotated section 55-10-403(a)(1), which prescribes a minimum and maximum
allowable fine, does not permit judicial discretion and may only be imposed by a jury.

       In State v. Martin, after concluding that the fine was imposed in error absent a jury
determination, the Tennessee Supreme Court refused to replace the amount imposed by
the trial court with the mandatory minimum fine; instead, it remanded for a jury to
determine the amount of the fine. Id. at 570-71. The Court reasoned that even the
imposition of the statutory minimum was an exercise of judicial discretion in violation of
the Tennessee Constitution. Id. at 571.

        There is some precedent supporting the proposition that the error may be deemed
harmless, as the State asserts. In State v. Green, 129 Tenn. 619, 167 S.W. 867, 868
(Tenn. 1914), the Tennessee Supreme Court concluded that “[w]hile it was error for the
court to assess the fine without submitting the question of its amount to the jury, it is not
reversible error, because he exercised his assumed power for the benefit of the plaintiff in
error,” and ultimately determined it “would be useless to reverse and remand.” Id

      However, the weight of authority has required a remand to allow a jury to
determine the fine. In Upchurch v. State, 153 Tenn. 198, 281 S.W. 462, 463-64 (Tenn.
                                             -6-
1926), the Tennessee Supreme Court concluded that imposition of statutory minimum
fine required remand and disapproved of the result in State v. Green. See also State v.
John F. Wallace, No. W2005-02477-CCA-R3-CD, 2006 WL 3085505, at *4-5 (Tenn.
Crim. App. Oct.31, 2006) (remanding to allow jury to determine non-statutory
fine); State v. Donald Lee Reid, No. M2000-02026-CCA-R3-CD, 2001 WL 1028815, at
*5-6 (Tenn. Crim. App. Sept. 7, 2001) (remanding for determination of statutory fine).
In State v. Stanley Keith Holt, No. M2008-00047-CCA-R3-CD, 2009 WL 736665, at *9-
10 (Tenn. Crim. App. Mar. 19, 2009), this court was faced with the situation at bar: the
trial court had imposed the statutory minimum fine in violation of the Tennessee
Constitution. The court remanded so that a new jury could be empaneled to fix the
fine. Id. at *10; see also State v. Paul Allen St. Clair, M2012-00578-CCA-R3-CD, 2013
WL 1611206, at *4-5 (Tenn. Crim. App. Apr. 16, 2013), perm. app. denied (Tenn. July
12, 2013). We conclude that a remand is necessary. If the Defendant chooses not to
waive his right to have a jury impose the fine, a new jury must be empaneled to
determine the proper amount of the fine.

                         III.   Mandatory Joinder of Charges

        The Defendant argues that all charges brought against him on March 28, 2012,
should have been brought together under the same indictment. He contends that the
domestic assault charge brought in New Johnsonville Municipal Court should have
instead been brought in Humphreys County General Sessions Court with his DUI and
firearm charges. The State argues that the Defendant has waived this argument on appeal
because he failed to include a transcript of the pretrial hearing in the record and that,
despite wavier, he is not entitled to relief because trial court correctly found that the
evidence did not support a finding that that the offenses were “based on the same conduct
or arise from the same criminal episode.” Tenn. R. Crim. P. 8(a)(1)(A).

       The record provided to this court for appellate review includes the Defendant’s
motion to dismiss pursuant to Tennessee Rule of Criminal Procedure 8, the State’s
response to the motion, and the trial court’s order denying the motion to dismiss. The
record ultimately does not include the transcript of the hearing on the motion to dismiss,
but it does establish that both law enforcement agencies knew of the other charges and
the timing of the events. Additionally, the record contains the trial court’s finding that
the facts underlying the charges did not establish sufficient “nexus to constitute a single
criminal episode.” Accordingly, we hold that the Defendant’s argument is not waived
and proceed to the merits of the argument.

      In State v. Baird, this court concluded that the trial court’s factual findings related
to mandatory joinder under Tennessee Rule of Criminal Procedure 8(a) were binding on
appeal unless the evidence preponderated otherwise and that the trial court’s legal
                                            -7-
conclusions and application of law to the facts were reviewed de novo. 88 S.W.3d 617,
620 (Tenn. Crim. App. 2001); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)
(holding that the proper standard of review for claims under Rule 8(b) or Rule 14 is abuse
of discretion but stating that the new Rules, including mandatory joinder, have
significantly limited the court's discretion); compare State v. Schiefelbein, 230 S.W.3d
88, 125 (Tenn. Crim. App. 2007); State v. Thompson, 88 S.W.3d 611, 613 (Tenn. Crim.
App. 2000) (noting that in cases of mandatory joinder, the trial court retains discretion to
sever under Rule 14). Likewise, the Tennessee Supreme Court in State v. Johnson
conducted a de novo review of the trial court’s application of Rule 8(a) when the facts
had been stipulated by the parties. State v. Johnson, 342 S.W.3d 468, 471–72 (Tenn.
2011). Accordingly, we review the trial court’s legal conclusions and application of law
to the facts de novo. The trial court’s findings of fact are binding if the evidence does not
preponderate otherwise.

       Tennessee Rule of Criminal Procedure 8(a) governs the mandatory joinder of
offenses. Under Rule 8(a):

       (1) Criteria for Mandatory Joinder. Two or more offenses shall be joined
       in the same indictment, presentment, or information, with each offense
       stated in a separate count, or the offenses consolidated pursuant to Rule 13,
       if the offenses are:

       (A) based on the same conduct or arise from the same criminal episode;

       (B) within the jurisdiction of a single court; and

       (C) known to the appropriate prosecuting official at the time of the return of
       the indictment(s), presentment(s), or information(s).

       (2) Failure to Join Such Offenses. A defendant shall not be subject to
       separate trials for multiple offenses falling within Rule 8(a)(1) unless they
       are severed pursuant to Rule 14.

Tenn. R. Crim. P. 8(a). The Advisory Commission’s Comment to Rule 8(a) notes that
the Rule is also designed to encourage the disposition of offenses based on the same
conduct or criminal episode in one trial. See also State v. Carruthers, 35 S.W.3d 516,
573 (Tenn. 2000) (appendix) (“The purpose of Rule 8 is to promote efficient
administration of justice and to protect the rights of the accused.”).

      The Defendant’s domestic assault charge was ultimately dismissed in city court,
and there is nothing showing that the Defendant was later indicted for the offense.
                                            -8-
Separate trials are only improper when the relevant offenses are subject to mandatory
joinder. Tenn. R. Crim. P. 8(a). Because the Defendant has not been subject to separate
trials for the two sets of charges, we hold that there is no Rule 8 violation. We glean
from the record that the domestic assault charge was dismissed after the Defendant was
indicted on the DUI and firearm charges and, therefore, conclude that there was nothing
to join.

       If the charges indeed arose from the same criminal episode, the State might be
prohibited from later trying him on the domestic assault. However, the record here
supports the trial court’s conclusion that they were not the same episode. Although the
evidence establishes that all charges were brought in the same county and that the police
officers knew of the separate charges brought against the Defendant, the Defendant failed
to provide proof that the charges arose from the same criminal episode. The record
merely shows that the facts underlying all of the charges occurred during the same day,
not the same episode. In fact, the record establishes that there was a “break in the action”
between the domestic assault and the Defendant’s being stopped in his vehicle because
the Defendant left the scene of the domestic assault and drove away. Johnson, 342
S.W.3d at 475 (citing 9 Tennessee Criminal Practice and Procedure § 17:17, at 601) (“A
break in the action may be sufficient to interrupt the temporal proximity required for a
single criminal episode to exist.”). We hold that nothing in the record preponderates
against the trial court’s finding that the domestic assault charge and the DUI and firearm
charges were not part of the same criminal episode. Accordingly, we hold that the trial
court properly denied the Defendant’s motion to dismiss based on mandatory joinder.

                                 IV.    Double Jeopardy

       The Defendant argues that the trial court erred by denying his motion to dismiss
based on a violation of the principles of double jeopardy. The Defendant contends that
because the jury was sworn and impaneled, jeopardy attached and further prosecution is
in violation of the Fifth Amendment of the United States Constitution and article I,
section 10 of the Tennessee Constitution. He argues that the trial court should have
declared a mistrial, rather than continuing the trial. The State argues that the Defendant
failed to provide an adequate record on the issue of double jeopardy and, therefore,
waived the issue for our review.

       The relevant portions of the record provided to this court for appellate review
include only the statement of evidence, which provides a brief and incomplete picture of
the proceedings that resulted in a mistrial. Although the Defendant refers to some
relevant information in his brief and motion for a new trial, we cannot consider his
factual allegations as evidence. See State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim.
App. 1990). The record ultimately does not include the transcript of any of the
                                           -9-
proceedings from the mistrial or the trial court’s alleged denial of his motion to dismiss.
We must, therefore, presume that the trial court’s alleged denial of the motion to dismiss
was proper. Griffis, 964 S.W.2d at 592-93. Accordingly, we hold that the Defendant’s
argument is waived. Mickens, 123 S.W.3d at 387.

                                    CONCLUSION

      Based on the foregoing analysis, and the trial court’s judgments are affirmed in
part and reversed in part, and the case is remanded to the trial court for further
proceedings consistent with this opinion.



                                           ____________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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