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03/04/93 STATE TENNESSEE v. CYNTHIA R. MORSE

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT KNOXVILLE


March 4, 1993

STATE OF TENNESSEE, APPELLANT,
v.
CYNTHIA R. MORSE, APPELLEE

Roane County. E. Eugene Eblen, Judge. Vehicular Homicide.

Jones, Birch, Jr., Tipton

The opinion of the court was delivered by: Jones

The State of Tennessee appeals from a judgment of the trial court dismissing two counts of the indictment pending against the appellee, Cynthia R. Morse. The State presents one issue for review: "Whether the trial court correctly dismissed two counts of the indictment which charged the defendant with vehicular homicide?" *fn1

The judgment of the trial court is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

The Roane County Grand Jury returned a four count indictment against Morse on October 22, 1991. The indictment alleged that on the 4th day of July, 1991, Morse (a) aided and abetted Jeffrey Glenn Best in the operation of a motor vehicle while he was under the influence of an intoxicant, (b) killed Jeffrey Glenn Best due to her criminal negligence, (c) killed Jeffrey Glenn Best by her conduct creating a substantial risk of death or serious bodily injury, and (d) killed Jeffrey Glenn Best as a result of "Cynthia R. Morse and Jeffrey Glenn Best's intoxication as operator of said automobile."

Morse filed a motion to dismiss counts three and four of the indictment. The motion alleged in part:

1. The indictment upon its face fails to establish a criminal offense in that it does not charge that the Defendant was in operation of an automobile, airplane, motor boat or other motor vehicle in causing the death of the decedent, Jeffrey Glenn Best, who was himself the operator of the motor vehicle involved. There is no allegation of "another" being killed as a proximate result of decedent, Jeffrey Glenn Best, operating the motor vehicle.

2. The indictment, upon its face fails to state a criminal offense in that it does not charge that "another person" was killed as a proximate result of driver's, Jeffrey Glenn Best, intoxication. The only decedent in the accident was Jeffrey Glenn Best, who is not "another" as contemplated by § 39-13-213, Tennessee Code Annotated.

The trial court conducted a hearing so that the parties could ventilate their respective positions on the merits of the motion. The transcript contained in the record reveals that neither party presented evidence to establish the facts and circumstances surrounding the two offenses. The parties simply argued the law applicable to the issues raised by the motion. *fn2 In a brief filed in the trial court it is alleged: "Defendant was the owner and front seat passenger of an automobile, operated by Jeffrey Glenn Best, on July 4, 1991, which was involved in a one car accident from which the Defendant received injuries and the driver, Jeffrey Glenn Best, died." *fn3 The trial court entered an order granting Morse's motion on April 22, 1992; but the trial court did not state its reasons for dismissing the two counts.

Rule 12(b)(2), Tenn. R. Crim. P., provides the accused with a remedy to attack the validity of an indictment. This rule provides:

(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the Judge. The following must be raised prior to trial:

(2) Defenses and objections based on defects in the indictment, presentment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings).

The civil remedies of judgment on the pleadings, Tenn. R. Civ. P. 12.03, summary judgment, Tenn. R. Civ. P. 56, and declaratory judgment, Tenn. R. Civ. P. 57, are not available to parties in criminal prosecutions.

As the state argues in its brief, there are factual patterns which, if proven, would support a conviction for either offense. For instance, the evidence may show that Morse grabbed the steering wheel, turned it sharply, and caused the collision that resulted in Best's death.

It was error for the trial court to dismiss the vehicular homicide counts of the indictment under the circumstances presented by this appeal.

JOE B. JONES, JUDGE

CONCUR:

ADOLPHO A. BIRCH, JR., JUDGE

JOSEPH M. TIPTON, JUDGE


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