IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs October 5, 2004 STATE OF TENNESSEE v. CORNELIUS BOALES Appeal from the Circuit Court for Henderson County No. 03005-2 Donald H. Allen, Judge

No. W2003-02724-CCA-R3-CD

JOSEPH M. TIPTON, J., concurring.

I concur in the results reached and most of the reasoning used in the majority opinion.

Although another panel of this court has concluded under Blakely v. Washington, 542 U.S. ____, 124 S. Ct. 2531 (2004), that juvenile adjudications may not be used by the trial judge, see State v. Recardo Dale, W2003-02391-CCA-R3-CD, Shelby County (Tenn. Crim. App. Jan. 10, 2005), I agree with the majority opinion’s conclusion that Blakely is not implicated. As for the trial court’s use of enhancement factor (9) in violation of Blakely, I conclude that it was harmless beyond a reasonable doubt given the evidence supporting it.

____________________________________ JOSEPH M. TIPTON, JUDGE