IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1998 March 9, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9709-CC-00439
)
Appellee, )
)
) HUMPHREYS CO UNTY
VS. )
) HON. ROBERT BURCH
PENNIE W. WATSON, ) JUDGE
)
Appe llant. ) (Direct Appeal - Driving on a Revoked
) License)
FOR THE APPELLANT: FOR THE APPELLEE:
SHIPP R. WEEMS JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
ROBERT H. STOVALL, JR. TIMOTHY BEHAN
Assistant Public Defender Assistant Attorney General
P. O. Box 160 425 Fifth Avenu e North
Charlotte, TN 37036 Nashville, TN 37243-0493
DAN ALSOBROOKS
District Attorney General
GEORGE C. SEXTON
Assistant District Attorney
Room 206
Humphreys County Courthouse
Wa verly, TN 37185
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
This matter is an appeal of right by Appellant, Pennie Watson, from
Division I of the Humphreys County Circuit Court. In April 1997, Appellant was
convicted by a jury for driving on a revoked license. The trial court sentenced
Appellant to six months in jail, susp ende d with tw o days to be s erved in
confinem ent. In May 1997, Appellant’s motion for a new trial was denied . In
August 1997, App ellant filed a notice of app eal to this Court raising the issue of
whether it was prop er for the trial co urt to deny her request for a jury charge on
the defe nse of ne cessity.
After our re view of the record, w e affirm the judgm ent of the tria l court.
FACTS
Appellant and a passenger, who is not identified in the re cord, were
traveling on a public highway in September 1995 when Appellant was stopped
by the police for an inop erative taillight. 1 Both A ppellant and the passenger
testified that the automobile was owned by the passenger, but driven by
Appellant because the p asse nger w as too ill to drive. A t the tim e, App ellant’s
driving privileges had been revoked.
At the jury trial in April 1997, counsel for Appellant requested a jury charge
on the defense of necessity. This request was denied by the trial court and
Appellant was convicted for driving on a revoked license. Subsequ ently,
1
Because the record on appeal does not contain the transcript of the evidence, we have referred
to the trial cou rt’s Orde r Refus ing Cha rge for the facts of th e prese nt case .
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Appellant filed a motion for a new trial which was also denied by the trial court.
Appellant now appeals to this Court raising the issue of whether it was proper for
the trial court to deny her req uest for a jury charge on the defen se of neces sity.
ANALY SIS
Rather than submitting the transcript of the e videnc e on a ppea l, Appellant
relies on the one paragraph recitation of the facts in the trial court’s Order
Refusing Charge. On this record, we find the defense of necessity is not
applic able to the pres ent case . Initially, we agree with Appellant’s contention that
she has a constitu tional right to a correct an d com plete cha rge of the law. State
v. Teel, 793 S.W.2d 236,249 (Tenn. 1990). We also agree that it is important
that the trial judge give a complete charge of the law applicable to the facts of the
case. State v. Harbison, 704 S.W . 2d 314, 319 (Tenn. 198 6). However, we do
not agree with Ap pellan t’s argu men t that the facts in this case su pport a trial court
instruction on the defense of necessity. The defense of necessity is available
when:
(1) the person reasonably believes the cond uct is im med iately
necessary to avoid imminent harm; and
(2) the desirability and urgency of avoidin g the h arm c learly
outweigh, according to ordinary standards of reasonableness, the
harm s ought to be preve nted by th e law pro scribing th e cond uct.
Tenn. Code Ann. §39-11-609.
Under this section, conduct which would ordinarily be criminal is justified
if the accu sed rea sonab ly believes th at the co nduc t is nece ssary to avoid
imminent harm. Put differently, the defense of neces sity excuse s crimina l liability
in those excee dingly ra re situa tions w here c rimina l activity is a n obje ctively
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reaso nable response to an extreme situation. Tenn. Code Ann. §39-11-609
Sentencing Commission Comments. This Court has provided examples of
excee dingly rare situ ations where a nec essity d efens e is applicable, including a
ship violating an embargo law to avoid a storm and a pharmacist providing
medication without a prescription to alleviate someone’s suffering during an
emerge ncy. State v. Daven port, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998)
(citing 11 D AVID R AYBIN, T ENNESSEE P RACTICE § 28.118 (1985 & Supp. 1997)). To
be entitled to the defense of necessity, Appellant m ust sh ow an imm ediate ly
necessa ry action, justifiable because of an imm inent th reat, w here th e actio n is
the only me ans to av oid the ha rm. State v. Green, 915 S.W.2d 827, 832 (Tenn.
2
Crim. A pp. 199 5).
Appe llant relies on th e case of State v. Bobby Ray Jenkins, No. 03C01-
9202-CR-00050, 1992 WL 22754 7, at *2 (Te nn. Crim . App., Knoxville, Sept. 18,
1992) wherein this Court held it was reversible error for the trial judge not to
charge necessity to the jury. In Jenkins, the defendant was arrested after a
police officer found him intoxicated, without a drivers license, and in the d rivers
seat of a running vehicle. At trial, d efend ant pre sente d proo f that the car’s
transmission had malfunctioned, and his friend, who had actually been driving,
had left the scen e to get he lp. It was furthe r shown that the de fendan t had to
keep his foo t on the brake peda l to preve nt the c ar from rolling down hill and
neede d the en gine run ning to op erate the power b rake sys tems. Id. at *2 .
In contrast to Jenkins, the meager record in this case does not
demo nstrate an imminent threat requiring immediate action on the part of the
2
T.P.I. 40.0 5----Crim . (4th Ed.)
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Appe llant. We only know that when stopped Appellant’s passenger was ill as a
result of the early stages o f pregnancy, an d therefore un able to drive. The re is
no showing that there was an imminent threat to the pass enge r’s life or h ealth if
Appellant did not drive. Indeed, there is nothing in the record showing that the
illness was severe enough to constitute an emergency, that the passenger was
being transported for medical treatment, or that other alternatives to Appellant
driving were unava ilable. In short, A ppella nt has failed to dem onstra te in this
record that her actions were th e only means of avoiding an imminent threat to her
pass enge r’s health and safety. Under these circumstances we cannot say it was
error for the trial judge to deny a request for a jury instruction on the defense of
necessity.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOHN H. PEAY, JUDGE
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