         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                           AUGUST 1999 SESSION

STATE OF TENNESSEE                                             FILED
V.                                                  No. W1998-00582-CCA-R3-CD
                                                            December 29, 1999
MARK LEE BOONE                                                Cecil Crowson, Jr.
                                                             Appellate Court Clerk
                         Concurring and Dissenting Opinion



              I concur in the majority’s opinion, except for the affirmance of the

defendant’s DUI conviction. In my view, this court should hold under the plain

error rule that double jeopardy principles dictate the reversal of the DUI
conviction and the dismissal of that case.



              The aggravated vehicular homicide conviction was based upon

Tennessee Code Annotated sections 39-13-213 (a) (2) and -218. Section 39-13-

218 establishes the conditions for making a section 213 vehicular homicide an

aggravated offense, and section 213 proscribes generally vehicular homicide.

The basis for a vehicular homicide prosecution under section 39-13-213 (a)(2) is

“a reckless killing of another . . . [a]s the proximate result of the driver’s
intoxication as set forth in § 55-10-401.” Tenn. Code Ann. § 39-1213

(a)(2)(1997). Code section 55-10-401 is the statute which defines and

proscribes driving under the influence.


              In like manner, the defendant’s vehicular assault conviction was

based upon Tennessee Code Annotated section 39-13-106, which proscribes
vehicular assault proximately resulting from the defendant’s “intoxication as set

forth in § 55-10-401.”



              The defendant’s fourth-offense DUI conviction was based upon
section 55-10-401, which proscribes the under-the-influence operation of a motor

vehicle “on any of the public roads and highways of the state, or on any streets or

alleys, or while on the premises of any shopping center, trailer park or any

apartment house complex, or any other premises which is generally frequented

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by the public at large.” Tenn. Code Ann. § 55-10-401(a) (1997).



              The DUI conviction was based upon the November 9, 1996 conduct
which resulted in the vehicular homicide and assault.



              In State v. Burdine, 888 S.W.2d 463 (Tenn. Crim. App. 1994), this

court held that, for purposes of construing the provisions for eligibility for pretrial

diversion, “D.U.I. is an lesser included offense of vehicular assault.” Id. at 464. In

State v. McKinney, 605 S.W.2d 842 (Tenn. Crim. App. 1980), this court, in
deciding a jury-instruction issue, accepted without resistance McKinney’s claim

that DUI was a lesser include offense of vehicular homicide.



              In State v. Rhodes, 917 S.W.2d 708 (Tenn. Crim. App. 1995), this

court held that convictions for vehicular assault and DUI resulting from the same

conduct could not both stand because “the legislature intended for vehicular
assault to include DUI as a lesser included offense.” Id. at 712-13. We concluded

that “for double jeopardy purposes, a person cannot be punished separately for

DUI and vehicular assault for one act of driving under the influence . . . .” Id. at

713.



               In Rhodes, this court rejected the state’s argument that, because

the DUI statute contained the elements of driving “on a public road or designated

areas frequented by the public,” and that because these elements are not
contained in the vehicular assault statute, DUI should not be considered a lesser

included offense of vehicular assault under the principles of Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). Rhodes, 917 S.W.2d at
710. The Blockburger test for analyzing whether two offenses may result from

one action focuses upon “whether each [statutory] provision requires proof of an

additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S. Ct.

at 182. The Rhodes court acknowledged that legislative intent is the
determinative factor in deciding whether multiple punishments may be imposed

for a single act or event, Rhodes, 917 S.W.2d at 711, but it characterized the

Blockburger test as just one measure of legislative intent. The court found
compelling the fact that the legislature, in its 1989 enactments, used the same

language to proscribe vehicular assault which it presumptively knew had been


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previously interpreted as establishing DUI as a lesser included offense. Id. at 712.

Furthermore, the court reasoned that the DUI statute and both the vehicular

homicide and assault statutes “reflect a legislative expression of greatly
overlapping interests.” Id. For these reasons, the court concluded that because

the legislature intended that a defendant should not be punished both for

vehicular assault and the underlying DUI, he may not be.



              The Rhodes holding is supported by our supreme court’s recent

decision in State v. Brenda Anne Burns, — S.W.2d —, No. W1996-00004-SC-
R11-CD (Tenn., Jackson, Nov. 8, 1999). In Burns, the supreme court adopted a

“definition of ‘lesser included’ offenses”:

       An offense is a lesser included offense if:
       (a) all of its statutory elements are included within the
       statutory elements of the offense charged; or
       (b) it fails to meet the definition in part (a) only in the respect
       that it contains a statutory element of elements establishing:
                (1) a different mental state indicating a lesser kind of
       culpability; and/or
                (2) a less serious harm or risk of harm to the same
       person, property or public interest; or

       (c) it consists of [facilitation, attempt to commit the greater
       offense, or solicitation].



Brenda Anne Burns, — S.W.2d at —, slip op. at 22-23. A review of

the statutory elements of the greater offense of vehicular homicide
and vehicular assault reflects that all of the provisions of section

55-10-401 are incorporated by reference. Succinctly, “all of the

statutory elements” of DUI are “included within the statutory
elements” of the greater offenses.




              Based upon the authorities cited above, I conclude

that in the present case the DUI offense is barred by principles of

double jeopardy. See State v. George Blake Kelly, No. 01C01-

9610-CC-00448, slip op. at 18-19 (Tenn. Crim. App., Nashville,
Oct. 13, 1998) (holding that double jeopardy principles bar the

prosecution of vehicular homicide and DUI charges arising out of

one act); State v. Robert Glen Grissom III, No. 02C01-9204-CC-

00076, slip op. at 10 (Tenn. Crim. App., Jackson, Mar. 10, 1993)

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(“[O]peration of a motor vehicle while under the influence is an

essential element of the offense [of vehicular homicide]; and it is a

lesser included offense of [vehicular homicide].”) (emphasis
added). “When an accused is convicted of both a lesser included

offense and the greater offense, the conviction for the lesser

offense must be dismissed.” Robert Glen Grissom III, slip op. at

10.



              The question then becomes whether the issue should
be noticed under the plain error rule:

       An error which has affected the substantial rights of an
       accused may be noticed at any time, even though not raised
       in the motion for new trial or assigned as error on appeal, in
       the discretion of the appellate court where necessary to do
       substantial justice.

See Tenn. R. Crim. P. 52(b).



              It is difficult to imagine an error which more “affects the substantial

rights of an accused” than one which allows a prohibited conviction to be

imposed. As this court stated in Rhodes, “‘Where the State is precluded by the

United States Constitution from haling a defendant into court on a charge,

federal law requires that a conviction on that charge be set aside even if the
conviction was entered pursuant to a counseled plea of guilty.’” Rhodes, 917

S.W.2d at 711 (quoting Menna v. New York, 423 U.S. 61, 62, 96 S. Ct. 241, 242

(1975)). In State v. Epps, 989 S.W.2d 742 (Tenn. Crim. App. 1998), this court
noticed as plain error “that the appellant’s convictions for both theft and

attempted theft violate principles of double jeopardy.” Id. at 745. The court

reversed the attempted theft conviction and dismissed that charge. See State v.

Hodge, 989 S.W.2d 717 (Tenn Crim. App. 1998) (plain error noticed in an

election of offenses issue “[b]ecause election involves Appellant’s constitutional

rights to protection against double jeopardy and to a unanimous jury verdict”);

State v. Brooks, 909 S.W.2d 854 (Tenn. Crim. App. 1995) (legislative-intent
analysis used to determine whether aggravated assault and reckless

endangerment convictions violated double jeopardy principles, even though the

issue was not properly raised in the trial court).


              Based upon the guidance provided by these authorities, I would


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hold the imposition of the DUI conviction is barred and that, as a matter of plain

error, this conviction should be reversed and the charge dismissed.


              In all other respects, I fully concur in the majority opinion.



                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




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