                                                                                         10/22/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 15, 2019 Session

      STATE OF TENNESSEE v. NATHANIEL DAVID LABRECQUE

                Appeal from the Criminal Court for Davidson County
                 No. 2017-B-1443      Amanda McClendon, Judge



                            No. M2018-01587-CCA-R3-CD



NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

       I agree with the majority’s conclusion that the trial court’s restitution order must
be reversed. I write separately, however, to address the State’s indicting the Defendant
for, and the Defendant’s ultimately pleading guilty to, two counts of failure to yield the
right of way resulting in serious bodily injury. I conclude that under plain error, the
Defendant’s dual convictions violate principles of double jeopardy.

       The double jeopardy clauses of the United States and Tennessee Constitutions
protect an accused from multiple punishments for the same offense in a single
prosecution. See State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). Relevant to this
case, “[u]nit-of-prosecution claims arise when defendants who have been convicted of
multiple violations of the same statute assert that the multiple convictions are for the
same offense.” Id. at 543. To determine the unit of prosecution, our supreme court has
explained as follows:

       [W]e first review the statutory language for an express definition. [State v.
       Hogg, 448 S.W.3d 877, 886 (Tenn. 2014)] (quoting [State v. Smith, 436
       S.W.3d 751, 768 (Tenn. 2014)]). If the unit of prosecution is clear from the
       statute, we apply the plain language without reviewing the legislative
       history. Id. (citing State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013)); see
       Smith, 436 S.W.3d at 768 (citing State v. Mata, 321 P.3d 291, 295-96
       (2014)). If the plain language of the statute does not identify the unit of
       prosecution, we determine the legislature’s intent by considering the
       legislative history and examining the statute’s subject matter, “the object
       and reach of the statute, the wrong or evil which it seeks to remedy or
       prevent, and the purpose sought to be accomplished in its enactment.”
       [State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997)] (quoting Mascari v.
       Raines, 415 S.W.2d 874, 876 (1967) (internal quotation marks omitted)). If
       there is ambiguity in defining the unit of prosecution, the “rule of lenity”
       resolves the ambiguity in favor of the defendant. Id.; Watkins, 362 S.W.3d
       at 543 (citing Gore v. United States, 357 U.S. 386, 391 (1958)).

State v. Harbison, 539 S.W.3d 149, 168 (Tenn. 2018).

        The State indicted the Defendant for one count of failure to yield the right of way
resulting in serious bodily injury in which Ms. Conner was the named victim and one
count of failure to yield the right of way resulting in serious bodily injury in which Mr.
Conner was the named victim pursuant to Tennessee Code Annotated section 55-8-197.
Tennessee Code Annotated section 55-8-197(a) provides that “[a]ny person who violates
subdivisions (a)(1)-(6) and the violation results in an accident resulting in serious bodily
injury to or death of any person shall be guilty of a misdemeanor.” Subdivision (a)(3)
specifies failing to yield the right of way pursuant to sections 55-8-128, 55-8-129, 55-8-
130, or 55-8-131. Tenn. Code Ann. § 55-8-197(a)(3). Tennessee Code Annotated
section 55-8-129, which is titled “Left turns; right of way,” provides as follows:

              (a) The driver of a vehicle within an intersection intending to
              turn to the left shall yield the right-of-way to any vehicle
              approaching from the opposite direction which is within the
              intersection or so close thereto as to constitute an immediate
              hazard, but the driver, having so yielded and having given a
              signal when and as required by this chapter, may make the
              left turn, and the drivers of all other vehicles approaching the
              intersection from the opposite direction shall yield the right-
              of-way to the vehicle making the left turn.

        The “act” of committing a traffic violation in Title 55, chapter 8 and chapter 10,
parts 1 through 5, is a Class C misdemeanor. Tenn. Code Ann. § 55-8-103. Therefore,
failure to yield the right of way usually is a Class C misdemeanor. Tennessee Code
Annotated section 55-8-197 elevates the offense to a Class B misdemeanor, though, if the
failure to yield the right of way results in an accident resulting in serious bodily injury to
or death of any person. Tenn. Code Ann. § 55-8-197(a), (c).

        I have not found any Tennessee cases addressing this issue. However, in Brian
Patrick Hopson v. State, No. CR-17-1155, 2019 WL 1593191, at *1 (Ala. Crim. App.
Apr. 12, 2019), the defendant was convicted of two counts of attempting to elude a law
enforcement officer after the defendant’s Volkswagen struck another vehicle, injuring
that driver and her passenger. Like Tennessee’s failure to yield statute, Alabama’s statute
for eluding a law enforcement officer enhanced the crime if death or injury resulted to
third parties. See Brian Patrick Hopson v. State, No. CR-17-1155, 2019 WL 1593191, at

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*9. On direct appeal of his convictions, the defendant argued that his dual convictions
violated double jeopardy principles, and the Alabama Court of Criminal Appeals agreed,
explaining as follows:

       [S]ubsections (a) and (b) of § 13A-10-52, Ala. Code 1975, describe the
       unlawful conduct. The plain language of subsection (b) of the statute --
       under which Hopson was charged -- proscribes the conduct of attempting to
       elude by motor vehicle a law-enforcement officer after having received a
       signal from the officer to bring the vehicle to a stop. Subsection (c) sets
       forth the punishments for a violation of the statute. The offense is
       classified as a misdemeanor unless the flight or eluding “causes an actual
       death or physical injury to innocent bystanders or third parties.” If a death
       or injury occurs, the offense is elevated to a Class C felony. The intent of
       subsection (c) was not to alter the gravamen of the crime of attempting to
       elude, but rather to enhance the penalty for attempting to elude a law-
       enforcement officer when that act causes death or physical injury to an
       innocent bystander or third party.

              Furthermore, the offense of attempting to elude does not involve a
       victim per se. This Court has recognized that double-jeopardy principles
       are not violated when multiple convictions involving multiple victims are
       obtained from one criminal transaction. Examples of statutes that allow
       multiple prosecutions for multiple victims are generally the criminal-code
       provisions for assaultive offenses. In assaultive offenses, this Court has
       held that the allowable unit of prosecution is each victim.

               Considering Alabama’s statutory scheme, this Court sees no
       indication that the legislature intended to punish a person multiple times for
       attempting to elude because multiple persons were injured during the
       offense. In criminalizing the conduct, the legislature has focused solely on
       the act of eluding; whether death or physical injury occurs to an innocent
       bystander or third party is relevant only in classifying the level of
       punishment such conduct would receive. Thus, the plain language of the
       statute describes the “unit of prosecution” as the conduct of fleeing or
       attempting to elude. The structure of the statute indicates that the
       legislature intended to limit the statute's “unit of prosecution” to the
       unlawful conduct set forth in subsection (a) and (b). The unit of
       prosecution under the attempting-to-elude statute does not turn upon the
       number of persons killed or who suffered physical injury as a result of the
       offense.

Id. at *9-10 (citations omitted).


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       I agree with the reasoning of the Alabama Court of Criminal Appeals. In my
view, the intent of Tennessee Code Annotated section 55-8-197 was to enhance the
penalty for failure to yield the right of way when that act results in an accident resulting
in serious bodily injury to or death of any person. Accordingly, I think our legislature
intended that the unit of prosecution be the act of failure to yield the right of way, not the
number of victims. I would hold under plain error that the Defendant’s dual convictions
violate double jeopardy principles and must merge.


                                           ____________________________________
                                           NORMA McGEE OGLE, JUDGE




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