IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 16, 2005 Session

STATE OF TENNESSEE v. DONALD BLEVINS

 Appeal from the Circuit Court for Warren County

No. —9201 Larry B. Stanley, Judge

No. M2004-01906-CCA-R3-CD - Filed May 6, 2005

The defendant, Donald Blevins, was convicted for contributing to the delinquency of a minor. The

trial court imposed a sentence of 11 months and 29 days. On appeal, the defendant asserts that the

trial court erred by failing to instruct the jury on the defenses of necessity and duress. The conviction

and sentence are affirmed; the case is remanded for entry of an amended judgment to correct a

clerical error. 

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed; Remanded for Entry of

Corrected Judgment

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.

WOODALL, JJ., joined.

Michelle M. Benjamin, Winchester, Tennessee, for the appellant, Donald Blevins. 

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General;

and Larry Bryant, Assistant District Attorney General, for the appellee, State of Tennessee. 

OPINION

At approximately 11:55 p.m. on July 27, 2002, Lisa Norris of the McMinnville Police

Department was dispatched to the Scottish Inn Motel in McMinnville. The officer was responding

to a call from Terry Milburn, who had legal custody of her seventeen-year-old granddaughter, Holly

Clayton. Officer Norris informed Ms. Milburn, who was at the motel looking for her granddaughter,

that she would wait outside to watch in case Ms. Clayton stepped outside one of the rooms. Shortly

thereafter, Officer Norris observed the defendant and Ms. Clayton walk out of a room together.

Because Ms. Clayton was holding a beer and a cigarette, Officer Norris arrested her for possession

of alcohol and for violation of the curfew law. The defendant, who was thirty-one years old at the

time, was cited for contributing to the delinquency of a minor. 
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At the trial, Ms. Milburn testified that when she had found her granddaughter in the

defendant’s car earlier the same day, she had required Ms. Clayton to get out of the car, ordered the

defendant to stay away, and then taken Ms. Clayton home. She testified that later that evening, she

left Ms. Clayton alone at home while she took another grandchild to the skating rink. She returned

thirty minutes later to find that Ms. Clayton was gone. Ms. Milburn, who explained that there was

never any alcohol in her house, testified that while looking for Ms. Clayton, she found the

defendant’s vehicle parked at the Scottish Inn and ultimately contacted the police for assistance.

Officer Norris testified that upon her arrival at the Scottish Inn, she spoke with Ms. Milburn,

looked outside the motel for Ms. Clayton, and then saw the defendant and Ms. Clayton emerge armin-arm from one of the units. According to the officer, Ms. Clayton was carrying a beer in one hand

and a cigarette in the other. She recalled that there was another couple in the same hotel room.

Officer Norris, who testified that there was an 11:00 p.m. curfew in the city, placed Ms. Clayton

under arrest for possession of alcohol and for violation of the curfew law and issued a citation to the

defendant for contributing to the delinquency of a minor.

The defendant testified that at approximately 8:30 p.m. on the night of the offense, Ms.

Clayton telephoned to inform him that she was upset because she and her boyfriend had ended their

relationship. According to the defendant, she threatened to harm herself if he did not take her for

a drive. He stated that a few minutes later he picked her up as she was walking along the road a

short distance from her grandmother’s house. It was his testimony that his only purpose was to calm

Ms. Clayton because of his concern for her welfare. According to the defendant, he received a call

on his cellular telephone from a friend, Bryan Tidenberg, who invited him to a room Mr. and Mrs.

Tidenberg had rented at the Scottish Inn. While the defendant remembered that Ms. Clayton, prior

to their arrival at the motel, had asked for an alcoholic drink, he claimed that he had refused the

request. 

The defendant stated that after they arrived at the motel, Ms. Tidenberg, who was of legal

age, asked him for some beer, so he brought in a six-pack from his car. He testified that Ms.

Tidenberg put the alcohol in the refrigerator and that during the next several minutes, Ms. Clayton

did not consume any alcohol. The defendant claimed that he had to leave the motel room on an

errand and that when he returned to the room, Ms. Clayton had not consumed any alcohol. It was

his contention that he was concerned about Ms. Clayton's being out so late but that she made a

telephone call and afterward assured Ms. Tidenberg that she had permission to stay at the motel. He

claimed that Ms. Clayton asked him for a beer but he refused, explaining, “[Y]ou’re not drinking in

my presence.” The defendant blamed Ms. Tidenberg for giving Ms. Clayton the beer and testified

that he left the room with Bryan Tidenberg and at that point saw Officer Norris, who asked about

Ms. Clayton. He claimed that before he could answer, Ms. Clayton walked out of the room with a

beer in her hand. The defendant insisted that he never gave Ms. Clayton any beer and never

observed her drinking any alcohol.

On cross-examination, the defendant contended that Ms. Clayton was fearful of her

grandmother who, he understood, beat her. He denied that Ms. Milburn warned him to stay away
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from her granddaughter. He acknowledged that he had neither attempted to calm Ms. Clayton down

at her house nor attempted to take her back home, explaining it was because of “all the stuff that

happens in her house” and because she had threatened suicide if returned there. The defendant

claimed that he did not have a chance to notify the police or Ms. Milburn to tell them that Ms.

Clayton was at the motel room.

Bryan Tidenberg, who acknowledged that he asked the defendant to bring the beer to his

room, testified that he did not observe the defendant give Ms. Clayton any of the alcohol. He stated

that when the defendant left the motel for approximately twenty minutes, Ms. Clayton did ask his

wife for some beer, but he recalled that his wife refused her request. It was his contention that while

the defendant was still out of the room, Ms. Clayton took a beer without asking. According to

Tidenberg, the defendant refused to give Ms. Clayton alcohol. For the most part, his testimony

corroborated that provided by the defendant. 

At the conclusion of the trial, the trial court instructed the jury that the defendant was charged

with contributing to the delinquency of a minor. No objections were made with regard to the content

of the instructions. There were no special requests for additional charges to the jury. 

On appeal, the defendant argues that the trial court erred by failing to instruct the jury on the

defenses of necessity and duress. He argues that the trial court should have instructed on the defense

of duress as presented in Tennessee Pattern Jury Instruction 40.03 and the defense of necessity as

provided in Tennessee Pattern Jury Instruction 40.05. Both of the charges are taken from the

provisions of our code. See Tenn. Code Ann. §§ 39-11-504(a), -609. 

Under the United States and Tennessee Constitutions, a defendant has a constitutional right

to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. 1, § 6; see State v. Bobo, 814 S.W.2d 353,

356 (Tenn. 1991); Willard v. State, 174 Tenn. 642, 130 S.W.2d 99 (1939). This right encompasses

the defendant's right to a correct and complete charge of the law. State v. Teel, 793 S.W.2d 236, 249

(Tenn. 1990). In consequence, the trial court has a duty "to give a complete charge of the law

applicable to the facts of a case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see State

v. Forbes, 793 S.W.2d 236, 249 (Tenn. 1990); see also Tenn. R. Crim. P. 30.

Our law requires that all of the elements of each offense be described and defined in

connection with that offense. See State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). When the

evidence in the record fairly raises or supports the existence of a defense, the trial court is compelled

to instruct the jury on the issue. Manning v. State, 500 S.W.2d 913, 915-16 (Tenn. 1973); see also

Almonrode v. State, 567 S.W.2d 184, 187 (Tenn. 1978). As part of its instruction, the trial court

must inform the jury that any reasonable doubt on the existence of the defense requires acquittal.

Tenn. Code Ann. § 39-11-203(c); State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998);

State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). This court has added that "due

process requires that a criminal defendant be afforded a meaningful opportunity to present a

complete defense, which includes the right to have the jury instructed regarding fundamental
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defenses raised by the evidence." State v. Michael S. Nevens, No. M2000-00815-CCA-R3-CD

(Tenn. Crim. App., at Nashville, April 27, 2001); see also Tenn. Code Ann. § 39-11-203(c), (d).

Whether the evidence has raised a defense and, therefore, requires a jury instruction depends

upon an examination of the evidence in the light most favorable to the defendant. Bult, 989 S.W.2d

at 733. 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)). 

 Necessity is a defense wherein conduct, otherwise unlawful, is justified if "[t]he person

reasonably believes the conduct is immediately necessary to avoid imminent harm; and [t]he

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." Tenn. Code Ann. § 39-11-609, Sentencing

Commission Comments. The Sentencing Commission provides an example as follows: "The

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." Id. 

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 one of two shipwrecked sailors

pushing the other off the float to save his own life. 11 David L. Raybin, Tennessee Practice § 28.118

(1985 & Supp. 1997). 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) (noting that defenses of necessity and

duress would have been raised byfather’s testimonythat he had agreed to participate in burglary only

because his son was directly threatened with harm if he 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, 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
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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 brakes. 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.

This court has also held that in order for a defendant to be entitled to the defense of necessity,

he “must show an immediately necessary action, justifiable because of an imminent threat, where

the action is the only means to avoid the harm.” State v. Watson, 1 S.W.3d 676 (Tenn. Crim. App.

1999) (citing Green, 915 S.W.2d at 832). The sentencing commission comments indicate that the

statute codifies the common law and, therefore, common law distinctions are instructive. State v.

Green, 995 S.W.2d 591, 606 (Tenn. Crim. App. 1998). In particular, the common law indicated as

follows: 

"Duress was said to excuse criminal conduct where the actor was under an unlawful

threat of imminent death or serious bodily 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. Thus, where A destroyed a dike because B threatened to kill

him if he did not, A would argue that he acted under duress, whereas if A destroyed

the dike in order to protect more valuable property from flooding, A could claim a

defense of necessity."

Id. (quoting United States v. Bailey, 444 U.S. 394, 409-10 (1980)). The defense of necessity is

generally only available when nonhuman acts prompt the illegal action. State v. Jason C. Polston,

No. W2003-02556-CCA-R3-CD (Tenn. Crim. App., at Jackson, Aug. 19, 2004).

The defendant in this instance did not present evidence that he was under an immediate

physical threat to provide Ms. Clayton with alcohol in order to avoid her harming herself. Further,

the defendant did not produce any evidence that his actions were the only means available to avoid

an imminent threat to the health of the victim. Nothing in the record indicates that the victim had

any means to harm herself or was in immediate danger of doing so. The defendant was convicted

of contributing to the delinquency of a minor by allowing a minor to consume alcohol. The

evidence, therefore, did not properly raise the issue of necessity; thus, the trial court was not required

to charge the jury on necessity. 

Duress, previously distinguished from the defense of necessity, has been defined as follows:

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
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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(a). 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. Id., Sentencing Commission

Comments. There must be no reasonable means to escape the compulsion to 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 take the victim to the motel, rather than home, was to prevent her

from harming herself. The defendant failed, however, to present any evidence that he was forced

to provide the victim alcohol in order to prevent death or serious bodily harm. Moreover, he could

have easily avoided giving her access to his beer. The defendant could have taken the victim to a

hospital if he feared harm. He could have left the alcohol in his car when he entered the motel.

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

threatened the defendant or a third person with harm if he did not provide the victim alcohol. Thus,

duress is not fairly raised by the proof and the trial court did not err in refusing to give the

instruction. 

Although not raised as an issue, the judgment correctly classifies the offense as “contributing

to the delinquency of a minor,” but incorrectly cites Tennessee Code Annotated section 39-15-404.

The proper statutory citation for the offense of contributing to the delinquency of a minor is

Tennessee Code Annotated section 37-1-156. The jury was instructed under the proper section. 

Therefore, the judgment of the trial court is affirmed, but remanded for re-entry to reflect the

proper statutory citation. See Tenn. R. Crim. P. 36 (providing for correction of clerical mistakes on

judgment forms).

___________________________________ 

GARY R. WADE, PRESIDING JUDGE