FILED

February 18, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. No. 01C01-9611-CR-00477

*

Appellee, * DAVIDSON COUNTY

*

VS. * Hon. Thomas H. Shriver, Judge

*

SCOTTY S. DAVENPORT * (Aggravated robbery)

*

Appellant. *

For Appellant: For Appellee:

Jeffrey A. DeVasher Charles W. Burson

Assistant Public Defender Attorney General and Reporter

(on appeal)

 Lisa A. Naylor

James P. McNamara Assistant Attorney General

Assistant Public Defender 450 James Robertson Parkway

(on appeal) Nashville, TN 37243-0493

David M. Siegel Nick Bailey

Assistant Public Defender Assistant District Attorney General

(at trial)

Isabel Maumus

1202 Stahlman Building Assistant District Attorney General

Union Street Washington Square, Suite 500

Nashville, TN 37201 222 2nd Ave., North

Nashville, TN 37201-1649

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, JUDGE
2

OPINION

The defendant, Scotty S. Davenport, appeals from his conviction of

aggravated robbery. The trial court imposed a Range I sentence of eight years. In

this appeal of right, the defendant presents the following issues for our review:

(1) whether the evidence was sufficient to support his

conviction; 

(2) whether the trial court erred by denying the

defendant's request for a special jury instruction on the

defenses of necessity and duress.

We find no error and affirm the judgment of the trial court.

At about 1:00 A.M. on July 10, 1995, Mitchell Abbott, a cash register

clerk at a Mapco store in Madison, was preparing to close for the day. As he

attempted to lock the doors, someone pushed through the doors and knocked him

backwards. His assailant's face was partially covered with a cloth, but Abbott could

see his eyes and the top of his head. When asked what he wanted, the assailant

pointed towards the cash register and then back at Abbott with his covered,

outstretched hand, which looked "like he had something in [it]." Abbott, who initially

was unsure whether his assailant was armed, handed over a bag containing fifty to

seventy-five dollars in cash and twenty or thirty dollars in food stamps, "so nobody

would get hurt." Abbott testified that he thought the assailant had a gun but

conceded that he never actually saw a weapon.

Officer Tony Turner, a patrolman with the Nashville Metro Police

Department, responded to a radio report of a robbery at the Mapco in Madison and

interviewed Abbott. He recalled that Abbott described his assailant as having an

orange cloth around his hand and an object that could have been a handgun. 

Officer Turner was given a detailed description of the suspect.
3

On the next day, Metro Police Officer Marshall Stanton, who was a

childhood friend of the defendant, received a telephone message on his answering

machine from the defendant, who said he was "in a bad way and ... thinking about

getting ... the police to come to his house." The defendant left word that he

intended to arm himself and step outside so officers would shoot him. The

defendant directed Officer Stanton "not to come down" to his residence. After

hearing the message, Officer Stanton had begun his work shift when he received a

report to drive to the defendant's address. The defendant's ex-wife had called the

police to report that the defendant was suicidal. When Officer Stanton arrived at the

scene, another officer was talking with the defendant by telephone. The defendant

then saw Officer Stanton and agreed to be handcuffed and driven to Vanderbilt

Hospital for emergency treatment. 

En route, the defendant volunteered information to Officer Stanton that

he had committed the robbery at the Mapco the previous night. The defendant

explained that he had used crack cocaine heavily for two months and had entered

the store with a handkerchief or rag over his hand before demanding money. The

defendant explained that he used the robbery proceeds for a crack purchase at the 

Rio Vista Apartments but that the dealer substituted a piece of wax. Officer Stanton

reported the incident to Detective Jeff Nidiffer of the armed robbery division, who

traveled to the hospital to question the defendant. The defendant repeated his

confession. After a Vanderbilt physician determined that the defendant did not need

to be hospitalized but did require drug treatment, the defendant was taken into

custody. 

Later, Detective Nidiffer videotaped another incriminating statement by

the defendant. The tape, which was played for the jury at trial, contained a
4

statement by the defendant that he had been high on cocaine and without sleep for

six days leading up to the robbery. He admitted waiting in his vehicle, placing a

cloth around his face and another cloth around his hand and pointed finger. He

then entered the store and announced, "This is a robbery." The defendant told

officers that the clerk unlocked the door and gave him the cash and food stamps

from the register.

Ms. Shirley Janes, the Assistant Manager of the Mapco store and

Abbott's co-worker, testified on behalf of the defense. While not present when the

store was robbed, she knew the defendant as a frequent customer. Ms. Janes

recalled that a few days after the robbery, Abbott reported to her that he was outside

the store, which was against store policy, when first approached by the defendant. 

Ms. Janes recalled that Abbott had not mentioned that the defendant was armed

and had referred to him as "my friend." She testified that she had never felt

threatened when the defendant had been in the store on other occasions. 

The forty-three-year-old defendant testified that he had worked as a

drywall finisher for twenty-eight years and could neither read nor write. He admitted

that he had abused alcohol since the age of fifteen; although he had successfully

quit drinking for a twelve year period, he had struggled with alcohol and a drug

addiction for the past three years since his mother's death. The defendant recalled

that when her doctors informed him that she had only six weeks to live, he begun to

use cocaine because "I wanted to die with her." The defendant testified that he had

relied on his mother for the paperwork required for his work and, after her death, he

could no longer work because of his cocaine habit and his illiteracy. He added that

a muscle condition, for which he receives approximately four hundred dollars a

month in benefits, was also a disability. The defendant testified that he drove drug
5

dealers from one place to another in order to support his habit. According to the

defendant, who is divorced, his daughter, who lived with her children at Rio Vista

Apartments, became involved with the dealers and owed them money. When she

did not pay, the dealers threatened her children. He claimed that he turned to

robbery so that the dealers would not take the "kids out one at a time." 

The defendant claimed that he had been robbed at gunpoint by these

dealers two months before the robbery. He had participated in a shoot-out with

these dealers in late June. On both occasions he made reports to the police. He

contended that a few days before the robbery, these dealers insisted on money from

the defendant's daughter else they would take her children. The defendant testified

that he had no other choice but to commit the Mapco robbery. He recalled that the

clerk laughed at the time, placed the cash into a paper bag, and then asked him if

he wanted the change too. The defendant claimed the clerk knew there was no

gun. 

The defendant testified that when he returned to Rio Vista Apartments

with the money, none of the dealers would take the money. He contended that he

eventually went to the kingpin, who took the money, gave the defendant a piece of

wax fashioned to look like rock cocaine, and promised to "take care of them for

you." The defendant recalled at trial that he slept several hours before instructing

his ex-wife to remove the children from the house because he intended to commit

suicide. He remembered placing the call to Officer Stanton and later surrendering to

him. The defendant explained that he did not tell Officer Stanton or Detective

Nidiffer about the threats against his grandchildren because he did not want them to

think his daughter was on drugs. He claimed that the robbery proceeds were used
6

to protect his grandchildren. The defendant then expressed remorse for his actions

and asserted that he had successfully completed a drug rehabilitation program. 

Ronnie McEwing testified that the defendant contacted him in June of

1995 and asked him for eight hundred dollars. He recalled the defendant saying

that his daughter and grandchildren were in trouble down at the Rio Vista

Apartments; he was not, however, told that their lives were in danger.

Baptist minister Larry Graves, a brother-in-law to the defendant,

testified that in June and July of 1995, the defendant asked him for money. He

recalled the defendant's claim that he needed money to pay a drug debt and that he

and his family were being threatened. Graves said he refused to give the defendant

money because he was not sure he was being truthful and did not want the

defendant to buy drugs. In July of 1995, Graves learned that the defendant had

been involved in a shooting. He learned that he defendant had fled Knoxville to

escape threats against his life. On cross-examination, Graves admitted that he was

unaware of any claims of threats against the defendant's grandchildren until after

the robbery and his arrest. 

I

The defendant first challenges the sufficiency of the evidence. On

appeal, of course, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the
7

relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983); Tenn. R. App. P. 13(e).

Aggravated robbery, a Class B felony, is "robbery ... [a]ccomplished

with a deadly weapon or by display of any article used or fashioned to lead the

victim to reasonably believe it to be a deadly weapon...." Tenn. Code Ann. § 39-13-

402(a). Robbery is "the intentional or knowing theft of property from the person of

another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401(a). 

A theft is committed when a person, "with intent to deprive the owner of property, ...

knowingly obtains or exercises control over the property without the owner's

effective consent." Tenn. Code Ann. § 39-14-103. A person acts intentionally,

"when it is the person's conscious objective or desire to engage in the conduct or

cause the result." Tenn. Code Ann. § 39-11-302(a). A person acts knowingly as to

conduct or circumstances "when the person is aware of the nature of the conduct or

that the circumstances exist. A person acts knowingly with respect to a result ...

when the person is aware that the conduct is reasonably certain to cause the result." 

Tenn. Code Ann. § 39-11-302(b).

The defendant specifically contends that the evidence did not establish

that he used a deadly weapon or any article intended to make the victim reasonably

believe he was carrying a deadly weapon. The jury, however, accredited the

testimony of Abbott and rejected the claim of the defendant. There was proof that

the defendant sat in his car and planned his robbery. He waited for other cars to

leave the area. Then, he covered his face with a cloth to disguise himself and

fashioned a rag upon his hand in an effort to lead Abbott to believe he held a
8

weapon. The defendant also pushed his way into the store by force and announced

"a robbery." Abbott stated his belief that the defendant was armed. 

In our view, the defendant's actions were clearly knowing and could

reasonably be found to have been intentional. We cannot say that the proof was

insufficient to establish every element of aggravated robbery. Under these

circumstances, a rational trier of fact could have easily concluded that the crime was

committed by the defendant beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307 (1979).

II

Next, the defendant challenges the accuracy of the jury instructions. 

He specifically argues that the trial court erred by rejecting instructions on the

defenses of necessity and duress. The state, however, disagrees on the basis that

neither defense is applicable to the facts of this case.

Initially, we point out that the trial judge has the duty to give a complete

charge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d

314, 319 (Tenn. 1986). The instructions should include a charge on the defense of

necessity or duress if the facts would fairly support either. As necessity and duress

are not classified by our code as affirmative defenses, the defendant need not prove

them by a preponderance of the evidence. State v. Culp, 900 S.W.2d 707, 710

(Tenn. Crim. App. 1994). Where the proof, however, "fairly raises" the defense, the

trial court "must submit the defense to the jury and the prosecution must 'prove

beyond a reasonable doubt that the defense does not apply.'" Id. (quoting State v.

Hood, 868 S.W.2d 744 (Tenn. Crim. App. 1993)). The test for whether a special

instruction must be given is whether "there is any evidence which reasonable minds
9

could accept as to any such [defense] ...." Johnson v. State, 531 S.W.2d 558, 559

(Tenn. 1975). 

We first address the requirement of an instruction on the defense of

necessity. Necessity is a defense wherein conduct, otherwise unlawful, is justified if:

"(1) The person reasonably believes the conduct is immediately necessary to avoid

imminent harm; and (2) The desirability and urgency of avoiding the harm clearly

outweigh, according to ordinary standards of reasonableness, the harm sought to be

prevented by the law proscribing the conduct." Tenn. Code Ann. § 39-11-609. The

Sentencing Commission Comments to this section state that the defense of

necessity is applicable in exceedingly rare situations where criminal activity is "an

objectively reasonable response to an extreme situation." The Sentencing

Commission provides an example as follows: "[T]he necessity defense would bar a

trespass conviction for a hiker, stranded in a snowstorm, who spends the night in a

vacant cabin rather than risking death sleeping in the open." 

Necessity has traditionally been used appropriately when the extreme

situation is brought on by something other than a human act. Neil P. Cohen, et al.,

Prevalence and Use of Criminal Defenses: A Preliminary Study, 60 Tenn. L. Rev.

957, 966 (1993). Examples of necessity include a ship violating an embargo law to

avoid a storm, a pharmacist providing medication without a prescription to alleviate

someone's suffering during an emergency, or where two sailors are shipwrecked

and one pushes the other off the float to save his own life. 11 David L. Raybin,

Tennessee Practice § 28.118 (1985 & Supp. 1997) (citations and footnotes

omitted). Moreover, necessity requires an immediately necessary action, justifiable

because of an imminent threat, where the action is the only means to avoid the

harm. Id.; see also State v. Green, 915 S.W.2d 827, 832 (Tenn. Crim. App. 1995)
10

(trial judge would be prudent to instruct jury on necessity and duress where father's

testimony raised a sufficient question of fact as to either defense; father had agreed

to participate in a burglary only because his son was directly threatened with harm if

the father refused). 

Failure to charge the jury as to the defense of necessity can be

reversible error where the facts fairly satisfy the elements. State v. Bobby Ray

Jenkins, C.C.A. No. 03C01-9202-CR-00050 (Tenn. Crim. App., at Knoxville, Sept.

18, 1992). In Jenkins, a police officer found the defendant in a vehicle stopped in

the middle of the road; the defendant was in the driver's seat and the motor was

running. The defendant, who was intoxicated, had no driver's license, and had been

previously convicted as a motor vehicle habitual offender, was arrested and again

convicted under the Motor Vehicle Habitual Offenders Act. Id., slip op. at 2. He had

presented proof at trial that the car's transmission had malfunctioned and his friend,

who had actually been driving, had left the scene to get help. The defendant had to

keep his foot on the brake pedal to prevent the car from rolling down hill and needed

the engine running to operate the power brake systems. On appeal, a panel of this

court found the defense witnesses were consistent and the defendant's testimony

corroborated them. Id., slip op. at 7. The court ruled that the defendant had fairly

raised a necessity defense and it was reversible error for the trial judge not to

charge it to the jury. Id., slip op. at 8.

Initially, we point out that the defendant's trial testimony and his pretrial statements were contradictory. The defense witnesses were marginally

corroborative. During his taped confession and in his statement to Officer Stanton

in the patrol car, the defendant claimed he had robbed the store to get drugs for

himself, having used cocaine heavily for two months and having gone without sleep
11

for six consecutive days. He made no mention to Officer Stanton or Detective

Nidiffer that his family had been threatened. Moreover, the defendant has failed to

demonstrate that the threat was imminent, requiring immediate action on his part. 

While defense witnesses recalled the defendant's claim that he or his family had

been threatened only days or weeks before the crime, Graves testified that he did

not learn of the actual threats against the defendant's grandchildren until after the

robbery. Finally, the defendant has not provided proof tending to show that

aggravated robbery was the only alternative available. There was testimony that he

received disability benefits every month and owns a car; thus, there were lawful

avenues for obtaining some fifty dollars owed by his daughter. He did not explain

that he could not remove the children from that environment to his own residence. 

So, even if the defendant's proof was true, he has not established the essential

elements of necessity.

Next, we turn to the defendant's request for an instruction on duress. 

This defense is defined as follows:

 (a) Duress is a defense to prosecution where the

person or a third person is threatened with harm which is

present, imminent, impending and of such a nature to

induce a well-grounded apprehension of death or serious

bodily injury if the act is not done. The threatened harm

must be continuous throughout the time the act is being

committed, and must be one from which the person

cannot withdraw in safety. Further, the desirability and

urgency of avoiding the harm must clearly outweigh,

according to ordinary standards of reasonableness, the

harm sought to be prevented by the law proscribing the

conduct.

Tenn. Code Ann. § 39-11-504. The Sentencing Commission Comments to this

section advise that the duress defense requires that the offense must be committed

because another person threatens death or serious bodily injury if the offense is not

committed. There must be no reasonable means to escape the compulsion to
12

commit the offense. See State v. Robinson, 622 S.W.2d 62, 73 (Tenn. Crim. App.

1980). 

The defendant argues that the trial court was required to instruct the

jury on duress. Again, he claims that his motivation to rob the store was solely to

obtain money to alleviate a threat of death to his grandchildren. The defendant

insists that this threat was continuous and harm to the children imminent. Although

he knew it was wrong to rob a store, the defendant believed obtaining money to pay

off the dealers and alleviate the threat to his grandchildren outweighed the

harmfulness the robbery statute was designed to protect. 

We disagree. By the uncontested proof, there were other alternatives

available to the defendant other than commission of this offense. No one

threatened the defendant or a third person with harm if he did not commit the

robbery. Thus, duress is not fairly raised by the proof and the trial court did not err

in refusing to give the special instruction.

Accordingly, the judgment of the trial court is affirmed.

__________________________________

Gary R. Wade, Judge

CONCUR:

_______________________________

Thomas T. Woodall, Judge

_______________________________

Curwood Witt, Judge