            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



JUDGE WITT, dissenting in part and concurring in part

               I respectfully dissent from the majority’s holding that the evidence is sufficient to
support the convictions in this case. I concur in the result of the majority’s sentencing determination.

                                           I. Sufficiency

               Based upon the facts presented, I believe the defendant’s actions were clearly
negligent, and if a court 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 comfortable 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 aggravated assault convictions.

                         A. Criminal Liability Based on Recklessness.

                I believe that, in cases of criminal liability for an injury or death resulting from the
reckless operation of a motor vehicle, the determination of whether the defendant 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) (1997). 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
homicide evidence sufficient where defendant, without stopping at a stop sign of which he was
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 Mysinger v. State, No. 314 (Tenn. Crim. App., Knoxville, Mar. 14,
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 truck with defective
steering in excess of speed limit, left road, and struck victim standing in victim’s yard, properly
convicted of vehicular homicide by recklessness). However, 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 alone 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
probable result 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 exercise of “due care” denotes the standard for determining civil tort liability
based upon negligence. McCall v Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Something more than
a failure to exercise due or reasonable care is required to elevate 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 requires that the defendant be “aware of but consciously disregard[] a substantial and
unjustifiable risk” when the disregard equals a gross deviation from the standard of care. Tenn. Code
Ann. § 39-11-106(a)(31) (1997) (emphasis added). In my view, the evidence in the present case
does not support a finding of recklessness. The evidence lacks dimensional indicators of a conscious
disregard of a substantial and unjustifiable risk. Apparently, the defendant was unaware of the
victims stopped in the road, and moreover, I must conclude that the defendant’s speed was not so
excessive that the defendant must have been aware beyond a reasonable doubt that her speed posed
a substantial risk.

                Because the convictions on both counts are based upon theories of recklessness, both
should be reversed. Because I find no lesser included offense of the aggravated assault alleged in
count two which is not based upon recklessness, 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 vehicular 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 negligent
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 negligence 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 requires that the “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 have fair and reasonable notice
when their carelessness runs the risk of criminal sanction. However, as a definitional barrier between
tortious and criminal conduct, “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 tortious negligence. That 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 the
extent of a deviation from a standard of care, 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 whether the defendant’s conduct amounted to a gross deviation from the
applicable standard of care.

               Essentially, the jury has already made this determination when it found the
defendant’s conduct to be reckless. See Tenn. Code Ann. § 39-11-302(c) (1997) (definition of
recklessness includes the element that the offender’s disregard of a risk “constitutes a gross
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 sentence. My point of
departure in this determination is the majority’s application of enhancement factor (16), that the
“crime was committed under circumstances under which the potential 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 factor
(16) when some person other than the identified 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., State 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 other grounds, 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,
1998); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). On the other hand, the

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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. at 5-6 (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 not adversely
affected is of little consequence, because factor (10), that the “defendant had no hesitation about
committing a crime when the risk of human life is high,” is usually applicable 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 applies both factors typically 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 Montez Smith, No.
M1997-00087-CCA-R3-CD, slip op. at 40 (Tenn. Crim. App., Nashville, 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 commend it, I find it useful to revisit the language of the statute.
Factor (16) authorizes enhancement of a sentence when the crime is committed in circumstances
where the “potential 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 bodily injury to a victim,
not the possibility of injury to a potential victim. See State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
App. 1995) (bystanders were “other potential victims”). I believe the scope of factor (16) is
narrower than the scope of factor (10), and sentencing courts must account for the legislature’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 charged offense could improvidently exclude the factor
when the offense is essentially victimless by definition but was 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); State v. Aaron Eckard, No. 01C01-9610-CC-00429,
slip op. at 8-9 (Tenn. Crim. App., Nashville, Dec. 12, 1997) (factor (16) applied in arson case in
view of risk of injury or death to persons in the burning house, although proof showed that some of
the persons experienced actual loss and injury); State v. Virginia 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 these offenses, the defendant struck a
parked police car), perm. app. denied (Tenn. 1998).



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                 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 of the charged offense. For purposes of applying enhancement factor (3), that the “offense
involved more than one (1) victim,” see Tenn. Code Ann. § 40-35-114(3) (1997), this court has
defined “victim” as a “person or entity that is injured, killed, had property stolen, or had property
destroyed by the perpetrator or a crime.” State v. 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 experienced the injury or loss necessary to
qualify that person as a victim of the crime.

                If the court determines that a victim 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 defined a person as a victim, then the
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. After
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 applied to a victim, the court would utilize 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 excluding the named victims of the
conviction offenses, I conclude that none of the bystanders or persons in harm’s way was a victim.
None of them experienced any injury or property loss. Accordingly, factor (16) was misapplied by
the trial court.

                Having reached that conclusion, I nevertheless concur in the majority’s ultimate
disposition of the sentencing issues.

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




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