          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                       JANUARY 1998 SESSION
                                                      March 18, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9703-CC-00082
          Appellee,             )
                                )    LEWIS COUNTY
VS.                             )
                                )    HON. DONALD P. HARRIS,
GENE GRUZELLA,                  )    JUDGE
                                )
          Appellant.            )    (Mistreating a corpse)



FOR THE APPELLANT:                   FOR THE APPELLEE:


D. STUART CAULKINS                   JOHN KNOX WALKUP
212 E. Main St.                      Attorney General & Reporter
Franklin, TN 37064
                                     ELIZABETH B. MARNEY
                                     Asst. Attorney General
                                     425 Fifth Ave., N.
                                     Nashville, TN 37243-0493

                                     JOSEPH D. BAUGH
                                     District Attorney General

                                     RONALD L. DAVIS
                                     Asst. District Attorney General
                                     P.O. Box 937
                                     Franklin, TN 37065-0937




OPINION FILED:____________________



REVERSED AND DISMISSED


JOHN H. PEAY,
Judge
                                        OPINION



              The defendant was charged with unlawfully disposing of a corpse and with

mistreating a corpse. A jury acquitted him of the first offense but convicted him of the

latter. The defendant was subsequently sentenced to six years incarceration. In this

appeal as of right, the defendant challenges the sufficiency of the evidence and the

constitutionality of the statute which he was convicted of violating. Upon our review of

the record, we reverse the defendant's conviction and dismiss the charge against him.



              The State's proof in this case was very limited. Larry Hensley, the Lewis

County Sheriff, testified that in January 1993 he had received a report that the

defendant's mother, Thora Foster, “had been missing sometime around November

[1992].”   He and Don Schwendimann, an assistant district attorney, subsequently

interviewed the defendant about the whereabouts of his mother. Hensley testified that,

“first thing [the defendant] told us, he said she's in an illegal nursing home in Alabama.”

The defendant would not, however, tell the men where in Alabama. Hensley then

extended his investigation but found no trace of the missing woman.



              Hensley testified that, some weeks later, the defendant had told him “that

she was real sick, she died, and he kept her a few days and he said he chopped her up

and burnt her, just a little at a time. . . . He piled up brush out in the front yard and set

it afire, poured gas on it, and that's the way he told us he did it.” Hensley further testified

that the defendant had shown him “two or three different spots, but we never did find any

bones or anything. . . . We found where he had piled up brush, and we found just black

places where he burnt a lot of brush. He probably had ten or twelve acres of ground that

he'd been clearing, and he piled up a bunch of brush.” On cross-examination, Hensley



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admitted that the TBI had been involved in the investigation of the burned areas, and that

they had found no trace of any human remains having been burned there. He also

admitted that the search of the trailers in which the defendant and his mother had lived

had yielded nothing that substantiated the defendant's statement.



              Vanessa Bryan, an attorney with the public defender's office, testified that

she had been representing the defendant during the time that the investigation about his

mother's whereabouts was proceeding.              She testified that he had told her to tell

Schwendimann “that his mother had died of natural causes and that he had burned her

body in the compost pile.” On cross-examination, she testified that the defendant had

not told her anything about having chopped up his mother's body.



              Don Schwendimann also testified that, on his initial visit with the defendant,

the defendant had stated that his mother was “in an illegal nursing home in Alabama.

That was his word, <illegal.' ” Later, he testified, “[the defendant] authorized two assistant

public defenders to tell me that he had burned his mother's body, that she was dead.”

Then in July 1993, according to Schwendimann, the defendant had testified under oath

at a hearing that his mother had died on November 9, 1992, but that he had not notified

anyone. The defendant had further testified that he had “cremated her on the property”

and that it had taken him a day or two to accomplish the cremation.



              The defendant put on no proof.



              The defendant first contends that the evidence is insufficient to support his

conviction because there is no corroborative proof of the crime. Before an accused may

be convicted on the basis of his own inculpatory statements, there must be at least slight



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corroborating evidence of the corpus delicti of the crime. See State v. Ervin, 731 S.W.2d

70, 72 (Tenn. Crim. App. 1986). The “corpus delicti” of a crime is defined as “the body,

foundation or substance of the crime, which ordinarily includes two elements: the act and

the criminal agency of the act.” Black's Law Dictionary, Sixth Ed. Thus, the State must

prove two elements in order to establish the corpus delicti: “(1) That a certain result has

been produced, and (2) That the result was created through criminal agency.” Ervin, 731

S.W.2d at 71-2. In this case, the defendant was convicted of knowingly, without legal

privilege, physically mistreating a corpse in a manner offensive to the sensibilities of an

ordinary person. T.C.A. § 39-17-312(a)(1). Thus, the State had to prove that a corpse

had been physically mistreated by someone acting knowingly and without legal privilege.

Yet the only proof that a corpse had been mistreated came from the defendant's own

statements.



              The State argues that the evidence of burning on the defendant's property

with no trace of human remains and unopened mail addressed to Thora Foster found in

her trailer is sufficient corroboration. We must disagree. Neither of these pieces of

evidence offer even a scintilla of support to proving that the defendant mistreated a

corpse. That they corroborate certain details of his statements is not enough: they must

independently offer proof of the crime itself. The defendant was not convicted of illegally

burning brush on his property nor of leaving his mother's mail unopened. He was

convicted of mistreating a corpse. Yet the State has no corroborative proof that the

defendant either chopped up his mother's body or thereafter burned it. Accordingly, we

have no choice but to reverse the defendant's conviction and dismiss the charge.



              The defendant also contends that the statute which he was convicted of

violating is unconstitutional. Because we have resolved this case on other grounds, we



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decline to address the constitutionality issue. See Owens v. State, 908 S.W.2d 923, 926

(Tenn. 1995) (“If issues in a case can be resolved on non-constitutional grounds, courts

should avoid deciding constitutional issues.”)



             The judgment of conviction below is reversed and the charge of mistreating

a corpse is dismissed.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JERRY L. SMITH, Judge



______________________________
 THOMAS T. WOODALL, Judge




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