### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE v. EUNYCE MARIE SAUNDERS
Direct Appeal from the Criminal Court for Sullivan County

No. S40,916 Phyllis H. Miller, Judge

No. E1998-00230-CCA-R3-CD - Decided June 8, 2000

J UDGE W ITT , dissenting in part and concurring in part

I respectfully diss

ent from the major

ity’s holding th

a t the evidence is s

ufficient to support the convictions in t

his case. I concur in the result of the majority’s sentencing determination.
I. Sufficiency

Based upon the facts pre sented, I believe

the defendant’s

actions were cle

arly negligent, and if a cou rt of appropriate civil jurisdiction agrees, then a civil remedy will be (or perhaps has been) imposed. However, the facts supporting recklessness, as defined by Code sections 39-11-106(a)(31), 39-13-213(a)(1), and 39-11-302(c) are not so

cogent and markedly defined that I am c omfortable in concluding that our law criminalizes the defendant’s actions on the basis of being reckless. I would hold that the evidence is insufficient to support the vehicular homicide and reckless aggra

vated assault con

victions.
A. Criminal Liability

Based on Recklessnes

s. I believe that, in cases of criminal liability for an injury or death resulting from the reckless operation of a motor ve hicle, the determination of w hether the defe

ndant consciously disregarded

a risk is informed by the extent to which the offender’s action crossed some dimensional demarcation line. See

Tenn. Code Ann. §§ 39-11-106(a)(31), 39-11-302(c) ( 19 97). Examples include a defendant running a stop sign, crossing a highway centerline because of excessive speed, and driving at an outrageously excessive speed. See , e.g. , State v. John H. Gillon , No. 02C01-9610- CC-00363, slip op. at 9-10, 15 ( Tenn. Crim. App., Jackson, Oct. 10, 1997) (criminally negligent ho micide evidence sufficient where defendant, without stopping at a stop sign of wh ich he wa s aware, drove swiftly from a two-lane road across a four lane highway and collided with car traveling
on the four lane), perm

. app

. denied (Tenn. 1998); State v. Timothy Dean Martin , No. 01C01-9609- CC-00393 (Tenn. Crim. App., Nashville, Feb. 23, 1998) (vehicular homicide evidence sufficient when proof showed that defendant crossed the centerline as a consequence of speed and struck an on-coming car); Eddie Jake Mysinge r v. State , No. 314 (Tenn. Crim. App., Knoxville, Mar . 14 ,

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1990) (evidence that defendant’s speed was as high as 106 miles per hour was sufficient to support vehicular homicide conviction). See State v. Christopher Dale Gibbs , No. 01C01-9611-CC-00464 (Tenn. Crim. App., Nashville, Feb. 20, 1998) (defendant, who knowingly drove tr uck with defective steering in excess of spee d limit, left road, a

nd struck victi

m stand ing in victim’s yard , properly convicted of vehicular homicide by recklessness). How ev er, in the present case, the defendant’s conduct was more equivocal. Even though the proof established that she was speeding, the accident
was in part the result of inattentiveness or inadvertence. In State v. Timothy Gose , No. 03C01-9406- CR-00244 (Tenn. Crim. App., Knoxville, Jan. 29 , 1996 ), this court indicated that exceeding the posted speed limit did not al one constitute

gross negligence or recklessness but rather “a want of due care, inadvertence, and inattention.” Id ., slip op. at 3. In Roe v. State , 358 S.W.2d 308 (Tenn. 1962), our supreme

court said that to

establish homicide via negligent operation of automobile, the proof must show more than a “mere[] want of due care, inadvertence, or inattention,” and the defendant must have known “or reasonably should have known that . . . the death charged was the natural and pro bable re sult of such negligence.” Id . at 314. But see State v. Roy Houston Lane, III , No. 52 (Tenn. Crim. App., Jackson, Jun. 4, 1989) (affirming vehicular homicide by recklessness conviction based upon defendant “rear-ending” victim at a high rate of speed).

The exer cise of “d ue care” denot es the standard f

or determining civ

il tort liability based upon negligence. McCall v Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). Something more than
a failure to exer

cise due or reas

onable care is r

equired to eleva

te tortious carelessness to the level of criminal conduct. Tenn. Code Ann. § 39-11-302(d) (1997) , Advisory Comm’n Comments. In cases of criminally reckless

conduct, that “something more” is provided by the definition of recklessness which require s that the defendant be “ aware of but consciously disregard [] a substantial and unjustifiable risk

” when the disreg

ard equals a gross deviation from the standard of care. Tenn. Code Ann. § 39-11-106(a)(31) (1997) (emphasis added). In my view, the evid ence in the prese nt case does not support a finding of recklessness. The evidence lacks dimensional indicators of a conscious disregard of a su bstanti al and unjustifiable risk. Apparently, the defendant was unaware of the victims stopped in the road, and moreo v er, I must conclud e that the defend

ant’s speed was n

ot so excessive that the defenda nt must have been a

ware beyond a r

easonable doubt that her speed posed a substantial risk.

Because the convictions on both counts are based upon theories of r

ecklessness, both should be reversed. Because I find no lesser included offense of the aggravated assault alleged in count two which is notbased upon reckl essness, I conclude that count two must be dismissed. The disposition of the vehicular homicide conviction in count one is more perplexing.
B. Criminal Liability Based on Negligence.
Criminally

negligent homicide offers a vehicul ar homicide alternative which is based upon negligence, not

recklessness. Criminally negligent homicide occurs when death results from “criminally

negligent conduct.” Tenn. Code Ann. § 39-13-202(a) (1997). Criminally negl ige nt homicide is a

lesser included offense of vehicular homicide. State v. Roger D. Hipsher , No. 01C01- 9111-CC-00332, slip op. at 2 (Tenn. Crim. App., Nashville, Oct. 8, 1992); see also State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999). However, even though criminal negligence is based upon the

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failure to perceive a risk and not the conscious disregard of the risk, criminal negligence requires still “something more” than the garden variety negligence of tort law. See State v. Roger Hostetler , No. 02C01-9707-CC-00294, slip op. at 10-11 (Tenn. Crim. App., Jackson, Mar. 27, 1998), applic

. for perm

. app

. withdrawn (Tenn. 1998). In the case of criminal negligence, that “something more” is merely the requirement that the neg ligenc e must be a “gross deviation” from the standard duty of reasonable

care. Id ., slip op. at 11-12. See Tenn. Code Ann. § 39 -11-106(a)(4) (1997) (criminal negligence requir

es that th e “

failure to perceive [the risk] constitutes a gross deviation from the standard of care that an ordinary person would exercise”) (emphasis added).

The public, especially the motoring public, should h ave fair and reasonable notice when their

carelessness runs the

risk of criminal sanction. However, as a definitional barrier between tortious and crim

inal co nduct, “gross deviation” is a more amorphous concept than is “conscious disregard.” Nevertheless, the legislature has used “gross deviation” to set the concept of criminal negligence apart from tortio us negligence. Th

at being the case

, we must recognize that, unlike the establishment

of a duty or standard of care, which is a matter of law, the scope of a duty, or t he extent of a deviation fr

om a standard of c

are, is usually

a fact question for the jury. Jones v. Exxon Corp ., 940 S.W.2d 69, 72 (Tenn. 1966); Roger Hostetler , slip op. at 11. Accordingly, I conclude that it fell to a jury to determine w

hether the defe

ndant’s conduct a

mounted to a gross

deviation from the applicable standard of care.

Essentially, the jury has already m a de this determination when it found the defendant’s conduct to be rec kle ss. See T enn. Code Ann. § 39-11-302(c) (1997) (definition of recklessness

in cludes t

he element that the

offender’s disr

egard of a risk “

constitutes a gros s deviation”). Consequently, I would reverse the vehicular homicide conviction and impose a conviction of criminally negligent homicide.
II. Sentencing

I agree with

the remaining conclusions reached by the majority, except that I concur in the results only in the determination of the length of the defendant’s senten ce. My point of dep arture i n this determination is the majority’s application of enhancement factor (16), that the “crime was committed unde

r circumstance

s under which the p

otential for bodily

injury to a victim was great.” See Tenn. Code Ann. § 40-35-114(16) (1997).

I agree that this court has reached conflicting conclusions concerning the use of fac tor (16) when some person o

ther than the iden

tified victim

of the charged offense is endangered by the defendant’s actions. As indicated by the majority, the “ Sims ” line of cases supports the conclusion that the factor applies when a person other than the identified victim is put at risk for bodily injury by the defendant’s actions, even though that person experiences no injury or loss of property. See , e.g. , St ate v. Antonio Coach , No. 02C01-9805-CC-00160 (Tenn. Crim. App., Jackson, Mar. 25, 1999); State v. Donald Ray Shirley , No. 03C01-9610-CR-00369, slip op. at 36 (Tenn. Crim. App., Knoxville, May 27, 1998), rev’d in part on othe r g rounds , 6 S.W.3d 243 (Tenn . 1999); State v. Randal A. Thies , No. 02C01-9708-CC-00299, slip op. at 12 (Tenn. Crim. App., Jackson, Apr. 24, 1 998); State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). On the other hand, th e

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“ Bingham ” line of cases holds that factor (16) is inapplicable in this situation. See , e.g. , State v. Charles Justin Osborne , No. 01C01-9806-CC-00246, slip op. at5-6 (Tenn. Crim. App., Nashville, May 12, 1999); State v. Bingham , 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). As a practical matter, the uncertainty over the use of factor (16) when bystanders are endangered but n

ot adversely affected is of little consequence, because factor (10), that the “defendant had no h esitation about committing a crime

when the risk of human life i s high,” is usually a

pplicable in those

scenarios. See Tenn. Code Ann. § 40-35-114(10) (1997). Factors (10) and (16) address the same policy issues , and a court that appli

es both facto

rs typic ally recognizes that they are duplicitous and accords no appreciable

weight to factor ( 16) in excess of that accorded to factor (10). Consequently, this court has not been importunate about resolving that conflict. See State v . Ladonte M ontez Smith , No. M1997-00087-CCA-R3-CD, slip op. at 40 (Tenn. Crim. App., Nashvil le, Dec. 17, 1999) ; Antonio Coach , slip op. at 4. Nevertheless, the diversity of opinions on the subject hampers the trial courts, and it behooves us to clarify the use of factor (16).

The majority follows Sims because it finds that the number of opinions of this court which follow Sims exceeds the number of opinions which follow Bingham . Although the “weight of authority” rule has much to co mmend it, I find it use

ful to revisit the la

nguage of the sta

tute

. Factor (16) authorizes enhanc ement of a sentence when the crime is committed in circumstances where the “potent ial for bodily injury to a victim is great.” Tenn. Code Ann. § 40-35-114(16) (1997). The wording suggests that the factor applies to committing a crime in such a way as to put the victim at great risk for bodily injury when putting the victim to such risk is not necessary to the commission of the crime. Moreover, the factor addresses the potential for bodi

ly injury to a victim, not the possibility of injury to a potential victim. See Statev. Sims , 909 S.W.2d 46, 50 (T enn. Crim. App. 1995) (bystanders were “other pot ent ial victims”). I be

lieve the scope of

factor (16) is
narrower than the scope of factor (10), and sentencing courts must accou

nt for the legislat

ure’s use of the word “victim” in factor (16) but not (10).

On the other hand, I do not believe it is useful to simply apply factor (16) when the “victim” is “a victim of the charged offense, . . . not a victim of some collateral injury, or a victim of some uncharged offense.” Charles Justin Osborne , slip op. at 6. Making the use of factor (16) depend upon the presence of a victim of the char

ged offense cou

ld improvidently

exclude the factor when the offense is es sentially victimles s by definition but wa s committed in

a way that

causes injury or loss to a person. See e.g. , State v. Terry L. Byington , No. 03C01-9711-CC-00488 (Tenn. Crim. App., Knoxville, Nov. 12, 1998) (factor (16) applied in DUI case when trial court cited risk to persons on highway; proof showed that defendant struck another

car and caused property damage to its owner), perm

. app

. denied (Tenn. 1999); Statev. Aaron Eckard , No. 01C01-9610-CC-00429, slip op. at 8-9 (Te nn. Crim. App. , Nashville, Dec. 12, 1997) (facto

r (16) applied in a

rson case in view of risk of injury or death to persons in the burning house, although proof showed that some of the persons experie

nced actual loss a

nd injury); State v. Vir ginia Aileen Gann , No. 01C01-9704-CC

00164, slip op. at 14-15 (Tenn. Crim. App., Nashville, May 27, 1997) (factor (16) applied in DUI and evading arrest cases when, during the commission of th ese offenses, the defendant struck a parked police car), perm

. app

. denied (Tenn. 1998).-5- I believe the best approach in applying factor

(16) is to ascertain first whether there is a victim, and if so, whether the victim has been put at great risk of bodily injury. The first part of this inquiry, to determine whether a victim is involved, should not be made by focusing upon the ambit o f the charged offense. For purposes of applying enhancement factor (3), that the “off e ns e involved more than one (1) victim,” see Tenn. Code Ann. § 40-35-114(3) (1997), this court h as defined “victim” as a “pe rson or entity that i

s injured, kille

d, h ad property stole

n, or had propert

y destroyed by the perpetrator or a crime.” Statev. Raines , 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). I see no reason why the definition of “victim” used in one portion of the statute should not be the same for the same term used in another portion of the same statute. See State v. Derek Denton , No. 02C01-9406-CR-00186, slip op. at 22 (Tenn. Crim. App., Jackson, Aug. 2, 1996) ( Raines’s victim definition applied to enhancement factor (6)). Therefore, the first step in the factor (16) analysis should be to determine whether a person experi enced t he injury or loss ne cessary to qualify that person as a victim of the crime.

If the court dete

rmines that a victi

m is involved, it must then decide whether under the circumstances the defendant’s offending conduct posed a great

risk of bodily injury

to the victim. Obviously , if bodily injury is the Raines component which de fined a person a

s a victim, then th

e second requirement for applying factor (16) is met , at least where the injury was foreseeable. On the other hand, a victim may be defined by the experience of property loss or damage. Af te r determining that such a victim exists, the court would

then determine whether the victim was subject to great risk of bodily injury as contemplated by factor (16). Assuming that the use of factor (16) does not duplicate an element of the offense when ap plied to a victim,

the court would util

ize both steps in determining its applicability but only when the first step revealed that a person was a victim.

Applying this analysis to the present case and exclud ing th e named victims of the conviction offenses, I conclude that none of the bystanders or persons in harm’s way was a victim. None of themexperienced any injury or property loss. Accordingly, factor (16) was misapplied by the trial court.
Having reached that co nclusion, I never

theless c onc ur in the majority’ s ultimate disposition of the se

ntencing issues.
For these reasons, I dissent in part and concur in part.