BASCHAB, Judge.
AFFIRMED BY UNPUBLISHED MEMORANDUM. NO OPINION.
Long, P.J., and McMillan and Fry, JJ., concur.
Cobb, J., concurs in part and dissents in part.
COBB, JUDGE, concurring in part and dissenting in part.
I concur in the majority's rejection in its unpublished memorandum of the appellant's argument that, in a prosecution for vehicular homicide, the term "unlawfully" describes the underlying traffic law or ordinance. As the majority rightly concludes, the action criminalized by the vehicular homicide statute is not the violation of the traffic law or ordinance, but the homicide that occurs as a result of the violation of the ordinance. I write specially to reiterate that I cannot agree that the term "unlawfully," as used in the vehicular homicide statute, describes the culpable mental state of the offender. As I stated in my dissent in Burnett v. State, [Ms. CR-98-0543, September 17, 1999], ___ So.2d ___ (Ala.Cr.App. 1999), it is my contention that the word "unlawfully" describes a person's conduct, not a person's state of mind.
In pertinent part, the vehicular homicide statute, § 32-5A-192, Ala. Code 1975, states:
"(a) Whoever shall
unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle . . . or to the regulation of traffic . . . shall be guilty of homicide when the violation is the proximate cause of death."
(Emphasis added.)