State v. Deborah Leigh Goins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY 1999 SESSION

FILED

No. M1998-00758-CCA-R3-CD

STATE OF TENNESSEE, * No. 01C01-9809-CR-003602000

February 25,

Appellee, * Cecil Crowson, Jr.

DAVIDSON COUNTY

Appellate Court Clerk

V. * Hon. Frank Clement, Jr., Judge

DEBORAH LEIGH GOINS, * (Leaving the Scene of an Accident

Resulting in Death)

Appellant. *

For Appellant: For Appellee:

Lee Offman Paul G. Summers

317 Main Street, Suite 208 Attorney General and Reporter

Franklin, TN 37064 425 Fifth Avenue North

Nashville, TN 37243-0493

Marvin E. Clements, Jr.

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

T.J. Haycox

Ed Ryan

Assistant District Attorneys General

Washington Square, Suite 500

222 2nd Avenue North

Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED AS MODIFIED

NORMA MCGEE OGLE, JUDGE

OPINION

The appellant, Deborah Leigh Goins, appeals her conviction by a jury

in the Davidson County Probate Court1 of leaving the scene of an accident without

complying with the requirements of Tenn. Code Ann. § 55-10-103(a) (1998) when

she knew or should have known that the accident resulted in a death. The trial court

imposed a sentence of two years incarceration in the Davidson County Workhouse

but suspended the sentence and imposed an equal period of probation. On appeal,

the appellant presents the following issues for our consideration:

1. Whether the appellant was “involved in an accident”

within the meaning of Tenn. Code Ann. § 55-10-101

(1998) and Tenn. Code Ann. § 55-10-103 in the absence

of any physical contact between her vehicle and a person

or another vehicle.2

2. Whether the trial court erred in instructing the jury that

the defenses of duress, necessity, and self defense

applied only to the homicide charges contained in the

appellant’s indictment.

3. Whether the trial court erred in refusing to permit the

appellant to present evidence at trial concerning the

victim’s “habit” of aggressive driving pursuant to Tenn. R.

Evid. 406.

4. Whether the trial court erred in sentencing the

appellant.

Following a thorough review of the record and the parties’ briefs, we modify the

length of the appellant’s sentence to one year incarceration in the Davidson County

Workhouse and otherwise affirm the judgment of the trial court.

I. Factual Background

On November 12, 1997, a Davidson County Grand Jury indicted the

appellant, in the alternative, on one count of vehicular homicide, one count of

reckless homicide, and one count of criminally negligent homicide. The Grand Jury

1

The D avidson Coun ty Probate C ourt has concu rrent jurisd iction with the D avidson Coun ty

Criminal Court on all matters. An Act to Amend Chapter 124 of the Private Acts of 1963, Ch.279 §

2(1), 198 2 Ten n. Priv. Acts 177, 178 . See also State v. Coolidge, 915 S.W .2d 8 20, 8 25 (T enn . Crim .

App. 1995).

2

Although the appellant characterizes this issue in her brief as a challenge to the sufficiency of the

evidence supporting the jury’s verdict, the appellant’s argument is essentially one of statutory

construction.

2

also indicted the appellant on one count of leaving the scene of an accident

resulting in a death. The appellant’s case proceeded to trial on May 18, 1998. On

May 21, 1998, following the parties’ presentation of proof, the jury acquitted the

appellant of the homicide charges and returned a verdict of guilt of leaving the

scene of an accident resulting in a death.

The appellant’s conviction arose from an accident at the intersection of

Franklin Pike and Franklin Pike Circle in Davidson County, which resulted in the

decapitation and consequent death of Paul Christian Kelly. According to the State’s

proof, the accident was the culmination of a race between the appellant and Mr.

Kelly, occurring over a two or three mile segment of Franklin Pike, between the

intersection with Otter Creek and Hogan Roads and the intersection with Franklin

Pike Circle. Between these intersections, Franklin Pike is a four lane road, with two

lanes proceeding north toward Nashville and two lanes proceeding south toward

Brentwood. Witnesses observed the appellant and Mr. Kelly driving in the

southbound lanes at speeds approaching one hundred (100) miles per hour while

weaving in and out of traffic. According to these witnesses, the appellant and Mr.

Kelly appeared to be racing. Indeed, Paula Galui, one of the State’s witnesses,

recalled that, before the cars moved beyond her field of vision, “neither of [the cars]

were slowing down or backing down. [The appellant’s] car stayed on . . . the tailend

[of Mr. Kelly’s car].” Another witness, Marty Sullivan, recalled that the appellant and

Mr. Kelly “were going for the gusto.” None of the witnesses ever observed the

appellant’s brake lights or observed the appellant attempt to evade Mr. Kelly or

otherwise disengage from the race.

As the appellant and Mr. Kelly neared the intersection with Franklin

Pike Circle, they were racing side by side, the appellant’s car in the left lane and Mr.

Kelly’s car in the right lane. Meanwhile, the traffic light controlling the intersection

had turned red and both the appellant’s and Mr. Kelly’s lanes were occupied by

other vehicles. However, the two southbound lanes of Franklin Pike widen at this

intersection to include a far right lane and a left turning lane, the latter providing

3

access to a Wendy’s Restaurant and other businesses. Upon reaching the

intersection, both the appellant and Mr. Kelly attempted to move into the far right

lane. At this point, Mr. Kelly lost control of his car.

Mr. Kelly’s car drove into the embankment on the right side of Franklin

Pike and hit a steel pole. As Mr. Kelly was ejected from his car, he was decapitated

and a quantity of his blood sprayed against the appellant’s car. Several witnesses

stopped their vehicles at the intersection or otherwise approached the intersection in

order to provide any necessary assistance, but the appellant continued driving south

through the intersection.

The appellant drove to a nearby Shell gas station and informed an

attendant, Toni Clendenon, that two cars had been racing, and one car had driven

into an embankment. She then asked Ms. Clendenon to call 911 and also

requested a car wash in order to wash the victim’s blood from her car. Upon

observing the appellant’s car, Ms. Clendenon noted that “[t]here was blood from the

front of the car windshield, the top of the car, and over the back.” Another

attendant, Will Brown, also noticed “spots” of blood on the right side of the

appellant’s car. According to both attendants, the appellant appeared “panicky” and

“scared.” The appellant departed the gas station after washing her car.

Jeff Goforth, an officer employed by the Traffic Division of the

Nashville Metropolitan Police Department, was dispatched to the location of the

accident at the intersection of Franklin Pike and Franklin Pike Circle. According to

Officer Goforth, the appellant returned to the scene of the accident approximately

forty minutes after the accident. He obtained the following written statement from

the appellant:

[Mr. Kelly’s] car went out of control at stoplight

intersection of Franklin Road and Franklin Road Court. I

just witnessed his car going out of control at stoplight and

going over embankment because he was speeding.

I witnessed the car going out of control at stoplight and

going over embankment. I immediately went to Shell

Gas Station and made sure someone called 911 and told

4

location of accident. Traveling South on Old Hickory

Blvd. going straight right lane. Other car going north in

left lane. At stoplight other car spinned around - by time I

reached stoplight - I was stopped when his car went over

embankment and possibly hit pole.

Subsequently, Officer Goforth received a slightly different, oral statement from the

appellant, who informed him that Mr. Kelly’s car had passed her approximately five

tenths of a mile from the intersection of Franklin Pike and Franklin Pike Circle as

she was driving south on Franklin Pike toward Brentwood. According to the

appellant, when she arrived at the intersection, she observed that Mr. Kelly’s car

had wrecked. The appellant explained to Officer Goforth that she did not remain at

the scene of the accident, because she was upset. Instead, she drove to the Shell

gas station and reported the accident before driving home and taking some

prescription medication for a migraine headache. Officer Goforth noticed that the

appellant’s car had been washed, although “there was still some speckled locations

of blood on the front right side of the car.”

The appellant testified on her own behalf at trial. She testified that she

was a partner and shareholder of The Resource Company, Incorporated, an agency

that recruits physicians for various healthcare entities throughout the United States.

She had worked for this company as a physician recruiter since 1988. Her office

was located in Brentwood. On the morning of the accident, the appellant went to

work but soon began experiencing a migraine headache. Accordingly, she left work

and drove to the Green Hills Medicine Shop to obtain medication that had been

prescribed by her doctor. She planned on returning home to take the medication,

because her doctor had instructed her to avoid driving when under the influence of

the medication. However, en route to her home, she decided to return to work

briefly. Accordingly, she turned onto Franklin Pike and drove south toward

Brentwood.

The appellant was driving in the right southbound lane as she

approached the intersection of Franklin Pike and Otter Creek and Hogan Roads.

The traffic light was red, and the appellant slowed her vehicle to a stop. However,

5

she first moved her vehicle into the left lane. She explained:

[W]hen I have a migraine, I’m very light sensitive, my

hearing is sensitive, and I felt like things were in slow

motion. I thought I needed to maybe go a little faster

myself and get to work and get home so I could take my

medication.

When the light turned green, she began to drive through the intersection. She

noticed that she was accelerating somewhat slower than the cars in the right lane

and suddenly heard a car horn behind her. She looked in her rear-view mirror and

observed that the driver of the car behind her, Mr. Kelly, was also flashing his car

lights and “waving his arms or his fist or something . . . .” In order to allow Mr. Kelly

to pass, the appellant increased her speed, passed several cars in the right lane,

and moved into the right lane.

When Mr. Kelly drew abreast of her car, he slowed his car and began

shouting and making frightening gestures. The appellant testified that she “started

getting afraid . . . .” Mr. Kelly then increased his speed, cut in front of the appellant

in the right lane, and applied his brakes, whereupon the appellant moved into the

left lane to avoid hitting Mr. Kelly’s car. The appellant testified that she attempted

on several occasions to allow Mr. Kelly to pass. However, “[t]here was no position

on the road, in which I would be, that he [w]ould not be beside me threatening me or

gesturing me or scaring me.” According to the appellant, Mr. Kelly called her “a

bitch and a whore. He shook his fist at me. He gave me the finger. He said

something of the nature of, I will get you.” On two occasions, Mr. Kelly attempted to

force her car into the oncoming lane of traffic. She observed, “[I]t was like, to me,

he was using his car as a weapon on me. I felt like he was using it as a power tool

and something to just petrify me, and he did.”

The appellant further testified that she was unfamiliar with Franklin

Pike and that the side streets appeared wooded. She was therefore afraid that, if

she stopped on a side street, Mr. Kelly “would injure me or actually kill me; he was

that angry.” Accordingly, she decided to drive to a more populated section of

Franklin Pike. Specifically, she testified:

6

I knew that I had to make it down to the Shell station or

Wendy’s. I knew that I wanted to get somewhere to a

place of business where someone could help me.

Where if I went in, if he followed me, someone could help

me. There was no fleeing from him; there was no

escape from him.

I don’t remember going real fast; I don’t remember

looking at my speedometer. I was so scared I wanted to

get somewhere where I could get help.

The appellant recounted that, as she and Mr. Kelly entered the

intersection of Franklin Pike and Franklin Pike Circle, Mr. Kelly was driving in the left

lane, and she was driving four or five car lengths behind him in the right lane.

According to the appellant, Mr. Kelly’s car swerved to the left before spinning toward

the embankment on the right side of Franklin Pike. She observed the car slide into

the embankment, heard a crash, and blood splattered on her car.

The appellant testified that she stopped at the traffic light, “laid [her]

head down on [the] steering wheel and cried.” She recalled that, at this time, she

was no longer afraid of Mr. Kelly but was still “traumatized.” She recounted:

I thought I have got to go get help, so I went to the Shell

station. I parked my car there and I told them inside that

there had been an accident and that there was blood on

my car. I knew someone had been hurt because there

was blood on my car. I told them that someone needed

to call 911 as quickly as possible. So they said they

would call, and they did.

The appellant denied ever informing Ms. Clendenon that two cars had been racing.

Moreover, the appellant asserted that, when she informed the attendants at the gas

station that an accident had occurred, she did not realize that Mr. Kelly had died

and, in any event, did not “consider [herself] to be involved with the accident.”

The appellant waited outside the gas station for approximately five to

seven minutes to ensure that someone called 911 and then washed Mr. Kelly’s

blood from her car. Afterwards, she drove home in order to take her medication.

Her mother was visiting her home at the time of the accident, and, accordingly, the

appellant related to her mother her encounter with Mr. Kelly. Her mother quickly

drove her back to the accident scene. According to the appellant’s testimony, she

7

returned to the intersection of Franklin Pike and Franklin Pike Circle at least thirty

minutes after the accident.

At the scene of the accident, the appellant spoke with Officer Goforth

and provided a written statement. At trial, the appellant conceded that this

statement was inaccurate. Moreover, she admitted that she did not inform police

about Mr. Kelly’s aggressive behavior. She explained that, when she returned to the

accident scene, she was still traumatized by her encounter with Mr. Kelly and the

accident. Nevertheless, she was able to deny to police either racing with Mr. Kelly

or colliding with Mr. Kelly’s car. The appellant similarly testified at trial that at no

time during her encounter with Mr. Kelly was she angry with Mr. Kelly or attempting

to “get even with him” or race him. She asserted that she was too frightened. The

appellant concluded that, although she was saddened “over having been

somewhere when the life’s blood went out of somebody,” she was not responsible

for the accident or Mr. Kelly’s death.

Laura Shumaker, the appellant’s mother, also testified at trial. Ms.

Shumaker recounted that, on the day of the accident, she was visiting the appellant

for the purpose of attending her granddaughter’s wedding. According to Ms.

Shumaker, on the morning of the accident,

I heard my daughter’s screaming outside. She was

crying uncontrollable. She was very frightened. I

couldn’t understand what she said; she kept screaming

mother. I ran out and she was on the steps crying with

her head down and I asked her what happened. It was a

few seconds before she could even tell me; she was so

upset.

After speaking with her daughter, Ms. Shumaker suggested that they return to the

scene of the accident. Accordingly, after the appellant had taken some medication

for migraine headaches, Ms. Shumaker drove her daughter to the intersection of

Franklin Pike and Franklin Pike Circle. Ms. Shumaker testified that the appellant

“was very upset, very emotional, she couldn’t hardly talk to the policeman. She was

just walking around in a daze.”

8

II. Analysis

V. Statutory Construction of Tenn. Code Ann. § 55-10-101 and Tenn. Code

Ann. § 55-10-103

Preliminarily, the offense of leaving the scene of an accident resulting

in a death is governed by Tenn. Code Ann. § 55-10-101, which requires that

[t]he driver of any vehicle involved in an accident

resulting in injury to or death of any person shall

immediately stop such vehicle at the scene of such

accident or as close thereto as possible, but shall then

forthwith return to and in any event shall remain at the

scene of the accident until the driver has fulfilled the

requirements of Tenn. Code Ann. § 55-10-103.

Id. at (a). The failure “to stop or comply with the requirements of subsection (a) [is a

class E felony] when such person knew or should reasonably have known that death

resulted from the accident.” Id. at (b)(2). Tenn. Code Ann. § 55-10-103(a) provides,

in turn, that

[t]he driver of any vehicle involved in an accident

resulting in injury to or death of any person or damage to

any vehicle which is driven or attended by any person

shall give such driver’s name, address and the

registration number of the vehicle such driver is driving,

and shall, upon request and if available, exhibit that

driver’s operator’s or chauffeur’s license, or driver

license, to the person struck or the driver or occupant of

or person attending any vehicle collided with, and shall

render to any person injured in such accident reasonable

assistance . . . .

In her first issue, the appellant asserts that she was not “involved in an

accident” within the meaning of Tenn. Code Ann. § 55-10-101 and -103, because

there was no physical contact between her car and Mr. Kelly or his vehicle. In other

words, the appellant argues that physical contact between a motorist’s car and a

person or another car is a prerequisite to criminal liability under Tenn. Code Ann. §

55-10-101. In support of her argument, the appellant directs this court’s attention to

the language contained in Tenn. Code Ann. § 55-10-103(a).3 As noted above, in

addition to requiring the provision of reasonable assistance to anyone injured in the

accident, Tenn. Code Ann. § 55-10-103(a) requires any driver involved in an

accident to provide identifying information “to the person struck or the driver or

3

Actually, the appellant directs the court’s attention to our opinion in Trail v. State , 552 S.W.2d 757,

758 (Tenn. Crim. App. 1976), in which we echoed substantially identical language contained in a

predecessor statute.

9

occupant of or person attending any vehicle collided with . . . .” (Emphasis added).

According to the appellant, the quoted language connotes physical contact and

should inform our interpretation of the phrase “involved in an accident” for the

purpose of defining the scope of Tenn. Code Ann. § 55-10-101.

This court’s primary role in statutory construction is to ascertain and

give effect to legislative intent. Fletcher v. State, 951 S.W.2d 378, 381 (Tenn.

1997). Whenever possible, courts should ascertain legislative intent from the

natural and ordinary meaning of the language used in the statute, “without a forced

or subtle construction that would limit or extend the meaning of the statute.” State v.

Pettus, 986 S.W.2d 540, 544 (Tenn. 1999). When, however, “the fair import of the

language of a penal statute, in the context of the legislative history and case law on

the subject, . . . results in ambiguity,” the statute should be strictly construed against

the State and in favor of the defendant. State v. Horton, 880 S.W.2d 732, 735

(Tenn. Crim. App. 1994). See generally State v. Rogers, 992 S.W.2d 393, 400

(Tenn. 1999); State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997). 4 In any

event, this rule of strict construction will not be applied if it would lead to absurd

results. Horton, 880 S.W.2d at 735.

The purpose of the statute proscribing leaving the scene of an

accident is to facilitate the investigation of automobile accidents and to assure

immediate aid to those injured in automobile accidents. State v. Correll, No. 03C01-

9809-CC-00318, 1999 WL 812454, at *10 (Tenn. Crim. App. at Knoxville, October 8,

1999). We note that, consistent with this purpose, the plain meaning of the phrase

“involved in an accident” does not necessarily entail physical contact between a

motorist’s vehicle and a person or another vehicle. Webster’s Third International

4

Citing Tenn. Code Ann. § 39-11-104 (1997), our supreme court recently suggested that this rule of

strict cons truction m ay not app ly to offense s conta ined in Title 3 9 of the T ennes see C ode. State v.

Legg, No. M1998-00479-SC-R11CD, 1999 WL 1211487, at *4 (Tenn. at Nashville, December 20,

1999). Comp are State v. Horton, 880 S.W.2d 732, 734-735 (Tenn. Crim. App. 1994)(citations

omitted)(while noting the implications of Tenn. Code Ann. § 39-11-104, this court also observed that

the rule of strict construction “‘is rooted in fundamental principles of due process which mandate that

no individual be forced to speculate . . . whether his conduct is prohibited’”). In any event, the offense

at issue in this case is defined in Title 55. Of course, Tenn. Code Ann. § 39-11-102 (b) (1997)

provides that parts 1-6 of Chapter 11 of the criminal code “apply to offenses defined by other laws

unless otherwise provided by law.” Nevertheless, Tenn. Code Ann. § 39-11-104 is limited by its own

terms to the provisions of Title 39.

10

Dictionary 1191 (1993), provides the following common definitions of “involved”: “to

[be] draw[n] in as a participant: engage[d] . . . oblige[d] to become associated (as in

an unpleasant situation): embroil[ed], entangle[d], implicate[d] . . . relate[d] closely:

connect[ed], link[ed] . . . .” Moreover, in the context of the statute at issue, this court

has previously approved the following definition of “accident” set forth in Black’s Law

Dictionary, 15 (6th ed. 1990):

The word “accident” requiring operator of vehicle to stop

immediately in case of accident, contemplates any

situation occurring on the highway wherein driver so

operates his automobile as to cause injury to the property

or person of another using the same highway. 5

Finally, at least one court has noted that, according to common sense, one need not

actually strike another person or vehicle in order to be “involved” in an accident.

People v. Mumaugh, 644 P.2d 299, 301 (Colo. 1982)(construing provisions of

Colorado’s penal code that are substantially identical to the statutory provisions at

issue in this case). Cf. People v. Bammes, 71 Cal. Rptr. 415 (1968)(a defendant

was “involved” in an accident when she pulled into the path of a station wagon,

causing the station wagon to swerve and be struck by a truck); Baker v. Fletcher, 79

N.Y.S. 2d 580 (1948)(a defendant was “involved” in an accident when he opened

the door of his car, causing another vehicle to swerve and collide with a third

vehicle); State v. Peterson, 522 P. 2d 912 (Or. Ct. App. 1974), reversed in part on

other grounds, 526 P.2d 1008 (Or. 1974)(a defendant was “involved in an accident”

when the defendant’s and the decedent’s vehicles were engaged in a drag race, and

the decedent’s vehicle collided with a third vehicle).

That having been said, we acknowledge that a court “‘should not lift

one word or clause from a statute and construe it alone without reference to the

5

By referring to this definition, we do not intend to imply that involvement in an accident under

Tenn. Code Ann. § 55-10-101 and -103 is necessarily synonymous with legal liability, whether civil or

criminal, for the accident. In other words, we reject the appellant’s oblique suggestion in his brief that

involvement in an accident involving a death under Tenn. Code Ann. § 55-10-101 and -103 entails a

proximate relationship between a motorist’s operation of her vehicle and the death of another person

sufficien t to establish the m otorist’s crim inal liability for hom icide. See, e.g., People v. Bammes, 71

Cal. Rptr. 415 (1968)(court observed that the jury’s acquittal of the defendant of manslaughter

charges was not inconsistent with their finding that the defendant was “involved” in the accident and

had an obligation to stop at the scene of the accident; the offense of leaving the scene of an accident

“is not concerned with the legal liability for the Cause of the accident but with involvement rather than

liability”); State v. Peterson, 526 P.2d 1008 (Or. 1974)(reversing manslaughter conviction but

upholding conviction of leaving the scene of an accident when defendant was participant in a drag

race during which the other participant drove through a stop sign and w as struck by a truck).

11

balance of the statute . . . ‘” Neff v. Cherokee Insurance Company, 704 S.W.2d 1, 7

(Tenn. 1986)(citation omitted). Nevertheless, as to the ambiguity arguably created

by the language contained in Tenn. Code Ann. § 55-10-103(a), we must conclude

that the appellant’s interpretation of this language would compel an absurd result,

directly contrary to the purposes of Tenn. Code Ann. § 55-10-101. According to the

appellant’s interpretation, even those drivers on the highway who in fact caused

accidents resulting in injuries or death but fortuitously avoided physical contact with

another vehicle or person could continue blithely on their way without providing

identifying information or even assistance to injured persons. We are unwilling,

without more, to conclude that the legislature intended this result. Horton, 880

S.W.2d at 735. See also Fletcher, 951 S.W.2d at 382 (in construing statutes, courts

should presume that the legislature did not intend an absurd result).6 In short, we

decline to judicially create a requirement of physical contact with a person or

another vehicle.

The appellant additionally contends that the legislature did not intend

that Tenn. Code Ann. § 55-10-101 and -103 apply to one who honestly believes that

she is in danger of bodily harm if she stops at the scene of an accident for the

purpose of complying with Tenn. Code Ann. § 55-10-103. However, because the

appellant’s assertion essentially constitutes an argument for the application of

certain defenses set forth in the criminal code, we will address this issue in the

context of the trial court’s instruction to the jury that the defenses of duress,

necessity, and self-defense applied only to the homicide charges contained in the

indictment.

6

We note that the Tennessee Financial Responsibility Law of 1977, enacted after the statute at

issu e, do es ex plicitly ex clud e fro m its repo rting a nd se curity r equ irem ents mo torist s invo lved in

accidents when there was no physical contact with another vehicle or object or person. Tenn. Code

Ann. § § 55-12-1 04(d)(2 ) and -10 6(13) (1 998). Comp are Tenn . Code A nn. § 55- 10-107 (a) (199 8).

This distinction is undoubtedly grounded in the narrower purpose of the Financial Responsibility Law.

We also note that Tenn. Code Ann. § 56-7-1201(e) (1998 Supp.) bars any recovery by the

victim of a “hit and run” accident under uninsured motorist provisions of an insurance policy unless

there was physical contact with the vehicle of the unknown motorist or the existence of the unknown

motorist is established by clear and convincing evidence. Again, in attempting to forestall fraudulent

insu ranc e claim s, this statu te se rves a som ewh at diff eren t purp ose than the s tatute at iss ue in th is

case.

Furthermore, in light of these statutes, the appellant’s interpretation of Tenn. Code Ann. § 55-

10-101 and -103 would encourage motorists to leave the scene of an accident precisely when the

requisite information would be most needed.

12

II. Jury Instructions

The appellant asserts that the trial court erred in instructing the jury

that the defenses of duress, necessity, and self-defense were applicable only to the

homicide charges. During the trial, defense counsel orally requested instructions

concerning all three defenses. The trial court granted defense counsel’s request but

noted that the defenses would only be applicable to the homicide charges, to which

observation defense counsel tacitly agreed. Nevertheless, in the appellant’s

Amended Motion for New Trial/Judgment of Acquittal, defense counsel challenged

the trial court’s instructions concerning the defenses of necessity and self-defense.

Defense counsel did not address the trial court’s instruction concerning the defense

of duress.

Pursuant to Tenn. R. Crim. P. 30(b), the failure to object to the content

of an instruction given at trial does not bar raising the issue as error in support of a

motion for new trial. State v. Lynn, 924 S.W.2d 892, 898-899 (Tenn. 1996); State v.

Graham, No. 02C01-9507-CR-00189, 1999 WL 225853, at *12 (Tenn.Crim.App. at

Jackson, April 20, 1999). Moreover, a trial court has a duty, irrespective of any

special request or contemporaneous objection by defense counsel, to instruct the

jury concerning issues fundamental to the defense and essential to a fair trial. State

v. Anderson, 985 S.W.2d 9, 17 (Tenn. Crim. App. 1997). See also State v. Teel,

793 S.W.2d 236, 249 (Tenn. 1990); State v. Stoddard, 909 S.W.2d 454, 460 (Tenn.

Crim. App. 1994). Accordingly, the appellant’s challenge to the trial court’s

instructions on necessity and self defense are properly before this court. However,

the appellant’s failure to address the trial court’s instruction on duress in her motion

for new trial results in the waiver of this issue on appeal. See Tenn. R. App. P. 3(e)

and 36(a).

In any event, the appellant’s contentions concerning all three

instructions have no merit. First, we agree with the State that the trial court correctly

declined to instruct the jury that the defense of self-defense was applicable to the

offense of leaving the scene of an accident involving death. By its own terms, the

13

defense is limited to the threat or use of force against another person by a criminal

defendant. Tenn. Code Ann. § 39-11-611 (a) (1997). The appellant’s departure

from the scene of the accident without providing identifying information or

assistance did not involve the threat or use of force against another person.

Second, the defenses of duress and necessity only justify criminal

conduct when a defendant thereby attempted to avoid imminent harm and the

desirability and urgency of avoiding the harm clearly outweighed, according to

ordinary standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct. Tenn. Code Ann. § 39-11-504 (1997); Tenn. Code Ann. §

39-11-609 (1997). 7 In State v. Bult, 989 S.W.2d 730, 733 (Tenn.Crim.App. 1998),

perm. to appeal denied, (Tenn. 1999), this court emphasized that

the defendant's conduct and mental state must meet an

objective standard of reasonableness for the conduct to

be justified under these statutory defenses. Thus, the

mere fact that the defendant believes that his conduct is

justified would not suffice to justify his conduct.8

7

This cour t has prev ious ly note d tha t “the d efen ses [of du ress and n ece ssity] a re sim ilar bo th in

form and in the policy supporting the availability of both defenses.” State v. Green, 995 S.W.2d 591,

606 (T enn. Cr im. Ap p. 1998) , perm. to appeal denied, (Tenn. 1999). However, this court noted the

following distinction between the two defenses, a distinction rooted in the common law:

Duress was said to excuse criminal conduct where the actor was

und er an unlaw ful thr eat o f imm inent deat h or s eriou s bod ily injury,

which threat caused the actor to engage in conduct violating the

literal terms of the criminal law. While the defense of duress covered

the situation where the coercion had its source in the actions of other

human beings, the defense of necessity, or choice of evils,

traditionally covered the situation where physical forces beyond the

actor’s control rendered illegal conduct the lesser of two evils.

Id. (emp hasis ad ded). Yet, s everal ca ses in this s tate have tended to blur this tradition al distinction.

See, e.g., State v. Cu lp, 900 S.W .2d 7 07 (T enn . Crim . App . 199 4)(d iscu ssin g def ens e of n ece ssity in

the context of a prisoner’s assertion that he escaped from jail, because he was threatened with injury

or death at the han ds of law enforce men t officers a nd other inmate s); State v. Green, 915 S.W.2d 827

(Tenn. Crim. App. 1995)(discussing defense of necessity in the context of an alleged accomplice who

claim ed th at he partic ipate d in an aggr avate d bur glary d ue to a thre at by th e def end ant to harm his

son); State v. Terry, No. 02C01-9708-CR-00313, 1998 WL 775651 (Tenn. Crim. App. at Jackson,

Novem ber 6, 19 98), perm. to appeal denied, (Tenn. 1999)(discussing defense of necessity in context

of defen dant’s claim that he dro ve reck lessly, beca use his p assen ger threa tened him with a gun ).

See also, e.g., Knight v. S tate, 601 So .2d 403 ( Miss. 19 92)(instru ction on d efense of nece ssity

warr ante d wh en a b lack mo torist struc k a w hite c hild an d the n fled the s cen e of th e acc ident in

response to an angry crowd and the observation of one onlooker that he had better “get away from

here”); State v. W ilhelm , 637 P.2d 1294 (Or. Ct. App. 1981)(a complete instruction on the defense of

neces sity would be warran ted whe n eviden ce add uced a t trial sugges ted that a d efenda nt failed to

stop at the scene of an accident, because the driver of the other car began to beat on her car with an

artificial limb); Huber v. City of Casper, 727 P.2d 1002 (W yo. 1986)( defens e of nec essity availab le to

moto rist who fa iled to imm ediately repo rt an acc ident whe n he wa s threate ned by a m otorcycle g ang).

In any event, as noted above, the evidence adduced at trial supported the application of neither the

defense of necessity nor the defense of duress.

8

W hile th is cou rt was addr ess ing, in part, t he de fens e of n ece ssity, th is sta tem ent is equa lly

applicable to the defense of duress.

14

We again agree with the State that the record is devoid of evidence

concerning any threat of imminent harm to the appellant after Mr. Kelly’s vehicle

drove into the embankment at the intersection of Franklin Pike and Franklin Pike

Circle. Indeed the appellant herself testified that, although she was “traumatized,”

she was no longer afraid of Mr. Kelly at that time, and there no longer existed any

threat. A trial court need only submit a defense to the jury when the defense is fairly

raised by the proof. Bult, 989 S.W.2d at 733. See also Tenn. Code Ann. §

39-11-203(c) and (d) (1997). This issue is without merit.

III. Tenn. R. Evid. 406

The appellant next argues that the trial court erred by refusing to allow

the appellant to introduce evidence of Mr. Kelly’s “habit” of aggressive driving

pursuant to Tenn. R. Evid. 406. However, even assuming that the evidence

proffered by the appellant established the victim’s habit of aggressive driving within

the meaning of Tenn. R. Evid. 406, the evidence was irrelevant in this case to the

appellant’s guilt or innocence of leaving the scene of an accident resulting in a

death. Tenn. R. Evid. 401, 402. With respect to this offense, the only issues to

which the proffered evidence possibly related were the defenses of duress and

necessity. Yet, as already noted, the appellant conceded at trial that, after Mr. Kelly

drove into the embankment, he no longer posed any danger to the appellant. This

issue is without merit.

IV. Sentencing

Following the appellant’s conviction, the trial court conducted a

sentencing hearing on June 15, 1998. At the sentencing hearing, the State relied

upon the evidence adduced at trial and the pre-sentence report. The pre-sentence

report reflects that the appellant has no history of criminal convictions or criminal

behavior. She is a graduate of Troy State University, where she obtained an

Associate of Science Degree in General Education. The appellant has a stable

history of employment and, at the time of the sentencing hearing, was maintaining

15

her position as a physician recruiter for the Resource Company, Incorporated.

The pre-sentence report additionally reflects that the appellant began

receiving psychiatric treatment in 1995 from Richland Creek Psychiatric Associates

for stress and depression stemming from a recent divorce and resulting in

sleeplessness and fatigue. The appellant also began receiving private disability

insurance in 1995 due to her psychological ailments and also gastroenteritis

inflammation and migraine headaches.

With respect to the instant offense, the appellant provided the

following statement to Cheryl Pullen, the probation officer who prepared the pre-

sentence report:

I was not involved in Mr. Kelly’s accident on 9/17/97. I

was behind him and witnessed his car go out of control.

Before Mr. Kelly’s car went out of control, he terrorized

me, intimidated me, ran my car into oncoming traffic,

made horrible gestures at me, yelled obscenities at me,

cut my car off while in traffic - I feared for my life. I did

not see his vehicle hit the pole after he lost control of his

vehicle. I had a severe migraine headache the whole

time I was on Franklin Road. I had no idea as to the

extent of Mr. Kelly’s injuries when he hit the pole after

having lost control of his vehicle. I was afraid to get out

of my vehicle for fear he might have a gun and shoot me

or harm me in some other way. Due to my physical

illness and my emotional status at that time (terrified of

Mr. Kelly) - I did what I thought I should do - I had no

cellular telephone with which to call for help, so I went to

the closest populated area - The Shell Station - told the

clerk that there had been an accident, told her the

location, and asked that she call 911 immediately. I was

crying hysterically, suffering from the migraine headache,

and traumatized by Mr. Kelly’s having terrorized me and

made me fear for my life while driving on Franklin Road,

then seeing his car go out of control. I then went home,

took my medication, and had my mother drive me back

to the scene. I feel I have been unjustly accused and

convicted of leaving the scene of a fatal accident. I feel I

acted within the parameters of the law - especially for the

situation I was in.

The appellant also testified on her own behalf at the sentencing

hearing. She clarified that she was no longer receiving disability insurance at the

time of the accident, although she continued to experience migraine headaches.

Moreover, she substantially reiterated her testimony at trial concerning Mr. Kelly’s

16

aggressive behavior and additionally asserted for the first time that she never drove

more than sixty or sixty-five miles per hour on the day of the accident. Contrary to

her testimony at trial, the appellant indicated that she was still afraid of Mr. Kelly

after she observed his car drive into the embankment at the intersection of Franklin

Pike and Franklin Pike Circle. Accordingly, she drove to the nearby Shell gas

station. For the first time, the appellant conceded that she did request a rag from

the gas station attendants for the purpose of wiping Mr. Kelly’s blood from her

windshield. However, she again denied requesting a car wash at the gas station,

asserting that the gas station attendants had lied during her trial. Moreover, she

denied any realization at the time of the accident of a need to preserve the blood on

her car as possible evidence. Finally, the appellant acknowledged that she was

aware of the location of the Brentwood Police Department at the time of the accident

and was aware that the police department was a shorter distance from the gas

station than her home. Nevertheless, she drove home after washing Mr. Kelly’s

blood from her car.

In addition to relying upon evidence proffered during trial, the appellant

presented the following evidence concerning Mr. Kelly’s history of aggressive

driving: a certified copy of Mr. Kelly’s driver record with the Tennessee Department

of Safety reflecting a history of eight accidents involving property damage or

personal injury between 1988 and 1997, one conviction of reckless driving in 1993,

and one conviction of speeding in 1997; a certified order of the Davidson County

Circuit Court imposing civil liability upon Mr. Kelly for compensatory and punitive

damages resulting from his assault in 1991 upon another person with his

automobile; and a certified copy of Mr. Kelly’s judgment of conviction in the

Davidson County Probate Court of the 1991 aggravated assault.

Moreover, the appellant presented the testimony of witnesses

concerning two instances in the late 1980s and early 1990s when Mr. Kelly engaged

in aggressive driving including speeding, tailgating other motorists, flashing his car

lights at other motorists, honking his car horn at other motorists, yelling obscenities,

17

making rude gestures, and, on one occasion, swerving his car into another for the

purpose of forcing the car off the road. One witness referred to Mr. Kelly as

“Saddam Hussein on wheels.” Another recalled Mr. Kelly’s prescient remark that

“the faster you go, the quicker you die.”

Following the presentation of proof, the trial court sentenced the

appellant as a standard, Range I offender to a maximum sentence of two years

incarceration in the Davidson County Workhouse but granted the appellant full

probation. In sentencing the appellant to two years incarceration, the trial court

applied enhancement factor (16), that the crime was committed under

circumstances under which the potential for bodily injury to a victim was great.

Tenn. Code Ann. § 40-35-114 (1997). In mitigation, the trial court found that the

appellant had no criminal record and that, at the time of the offense, the appellant

was suffering from a mental or physical condition that significantly reduced her

culpability for the offense. Tenn. Code Ann. § 40-35-113 (8), (13) (1997).

Additionally, in evaluating the suitability of a sentencing alternative to incarceration,

the trial court noted the circumstances of the offense, including the appellant’s

attempt to eliminate evidence by washing her car following the accident, and further

noted that the appellant’s testimony during trial and the sentencing proceedings was

not entirely truthful, and the appellant lacked remorse for her conduct.

On appeal, the appellant challenges both the trial court’s denial of

judicial diversion and the imposition of the maximum sentence within the applicable

range. Appellate review of the length, range, or manner of service of a sentence is

de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de novo

review, this court considers the following factors: (1) the evidence, if any, received at

the trial and the sentencing hearing; (2) the pre-sentence report; (3) the principles of

sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statement by the

defendant in his own behalf; and (7) the potential for rehabilitation or treatment.

18

Tenn. Code. Ann. § 40-35-102, -103, -210 (1997). See also State v. Ashby, 823

S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to demonstrate

the impropriety of her sentence. Tenn. Code. Ann. § 40-35-401, Sentencing

Commission Comments. Moreover, if the record demonstrates that the trial court

adequately considered sentencing principles and all relevant facts and

circumstances, this court will apply a presumption of correctness to the trial court’s

sentencing determinations. Id. At (d); Ashby, 823 S.W.2d at 169.

The record in this case does not support the application of a

presumption of correctness in light of the trial court’s failure to explicitly address on

the record the appellant’s request for judicial diversion, notwithstanding the trial

court’s consideration of several relevant factors and its effective denial of the

request. See, e.g., State v. Electroplating, Incorporated, 990 S.W.2d 211, 229

(Tenn. Crim. App. 1998)(setting forth factors relevant to granting or denying judicial

diversion and emphasizing the need for the trial court to explain its reasoning when

denying a request for judicial diversion). In any event, the trial court’s findings

concerning the appellant’s lack of candor and her refusal to accept responsibility for

the offense alone support a denial of judicial diversion. See, e.g., id. (denial of

judicial diversion warranted not only by circumstances of the offense but also by

defendant’s failure to accept responsibility for the offense); State v. Anderson, 857

S.W.2d 571, 574 (Tenn. Crim. App. 1992)(denial of judicial diversion warranted by

appellant’s failure to accept responsibility for the offense); State v. Smith, No.

02C01-9805-CR-00128, 1999 WL 487029, at *3 (Tenn. Crim. App. at Jackson, July

12, 1999)(a trial judge’s finding of untruthfulness is alone enough to uphold the

denial of judicial diversion); State v. Phillips, No. 03C01-9801-CR-00024, 1999 WL

135058, at *2 (Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn.

1999)(untruthfulness will support the denial of judicial diversion).

Turning our attention to the length of the appellant’s sentence,

however, we must agree with the appellant that the trial court erred in imposing a

maximum sentence of two years incarceration for the felony offense of leaving the

19

scene of an accident involving a death. We base our conclusion upon the trial

court’s application of the enhancement factor set forth in Tenn. Code Ann. § 40-35-

114 (16), that the crime was committed under circumstances under which the

potential for bodily injury to a victim was great. The record simply does not reflect

that the appellant’s act of leaving the scene of the accident created any risk of bodily

injury to any individual. As required by the felony offense of leaving the scene of an

accident, Mr. Kelly was already dead at the time of the appellant’s offense and no

other individuals were injured in the accident. For similar reasons, we reject the

State’s assertion in its brief that Tenn. Code Ann. § 40-35-114(10) is applicable to

the appellant’s offense. Indeed, the appellant, while otherwise failing to comply with

Tenn. Code Ann. § 55-10-101 and -103, did ask that the Shell gas station

attendants notify appropriate authorities that an accident involving an injury had

occurred.

In light of the trial court’s application of mitigating factors (8) and (13),

Tenn. Code Ann. § 40-35-113, and in light of our observation that the appellant’s

conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann. § 40-

35-113(1), the appellant was entitled to the minimum sentence within the applicable

range. Accordingly, we modify the judgment of conviction to reflect a sentence of

one year incarceration in the Davidson County Workhouse. Tenn. Code Ann. § 40-

35-112(a)(5) (1997); Tenn. Code Ann. § 40-35-210(c). On the basis of the record

before this court, we decline to disturb the trial court’s imposition of a two year

period of probation. See Tenn. Code Ann. § 40-35-303(c) (1997).

III. Conclusion

For the foregoing reasons, we modify the length of the appellant’s

sentence to one year incarceration in the Davidson County Workhouse. We

otherwise affirm the judgment of the trial court.

Norma McGee Ogle, Judge

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CONCUR:

Jerry L. Smith, Judge

Thomas T. W oodall, Judge

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