IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 15, 2019 Session

STATE OF TENNESSEE v. BECKY JO BURLISON

Appeal from the Criminal Court for Davidson County

No. 2014-D-3015 Monte Watkins, Judge

No. M2019-00148-CCA-R9-CD

In June 2015, a Davidson County Criminal Court jury convicted the Defendant, Becky Jo 

Burlison, of two counts of aggravated rape of a child, one count of aggravated child 

abuse, and one count of aggravated child neglect. Later, the trial court granted the 

Defendant’s motion for new trial on grounds that she had been deprived of the effective 

assistance of counsel. Prior to the new trial, the Defendant provided notice that she 

intended to offer expert testimony of her diminished capacity at the time of the offenses. 

The State moved to exclude the testimony, arguing that the testimony was not admissible 

because it did not satisfy the requirements established in State v. Hall, 958 S.W.2d 679 

(Tenn. 1997). Following a hearing, the trial court denied the State’s motion and deemed 

the testimony admissible. The trial court and this court granted the State’s application for 

permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9. In this 

interlocutory appeal, the State challenges the trial court’s denial of its motion to exclude 

expert testimony regarding the Defendant’s mental state at the time of the alleged 

offenses, reiterating the claim that the evidence does not satisfy the requirements for 

admission. Because we agree that the proffered evidence does not satisfy the 

requirements for admission established by Hall and its progeny, we reverse the ruling of 

the trial court and remand the case for further proceedings consistent with this opinion.

Tenn. R. App. P. 9; Judgment of the Criminal Court Reversed; Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson, 

Assistant District Attorney General, for the appellant, State of Tennessee.

Mark C. Scruggs, Nashville, Tennessee, for the appellee, Becky Jo Burlison.

12/06/2019
-2-

OPINION

FACTUAL AND PROCEDURAL HISTORY

In 2014, the Davidson County Grand Jury charged the Defendant with two counts 

of aggravated rape of a child, one count of aggravated child abuse, and one count of 

aggravated child neglect based upon acts committed against the two-year-old victim on 

April 13, 2012. The case first went to trial in June 2015. The evidence adduced at that 

trial established that the Defendant, a family friend, was babysitting the victim when she 

noticed that he was behaving as though he was constipated. The Defendant claimed that 

she treated the victim with a laxative and with a children’s enema. When neither 

treatment produced a bowel movement, the Defendant inserted the rubber handle of a 

hairbrush into the victim’s rectum, ostensibly to provide the victim relief from impacted 

stool. When the Defendant inserted the hairbrush a second time, the handle came off 

inside the victim’s rectum, and the Defendant was unable to retrieve it. Instead of 

telephoning an ambulance or driving the victim to the hospital herself, the Defendant

telephoned her husband and waited until her husband arrived to take the victim to the 

hospital. At the conclusion of the trial, the jury convicted the Defendant as charged.

The Defendant filed a timely motion for new trial, alleging, among other things, 

that she was deprived of the effective assistance of counsel at trial by her counsel’s 

failure to request a pretrial forensic evaluation and by his failure to timely notify the court 

of the Defendant’s intent to offer the testimony of a mental health expert. The trial court 

granted the Defendant’s motion for new trial based upon its conclusions that counsel had 

performed deficiently and that the Defendant was prejudiced by the deficient 

performance. Specifically, the trial court concluded that counsel “delayed in securing a 

mental health expert evaluation,” “failed to file a timely notice of intention to introduce a 

medical expert,” failed to provide the Defendant’s previous mental health records to the 

doctor who eventually conducted the evaluation, and failed to ask that doctor to “evaluate 

the Defendant for diminished mental capacity or insanity at the time of the event.” The 

State asked permission to seek interlocutory review of the court’s order granting the new 

trial via Tennessee Rule of Appellate Procedure 9, but the trial court denied the motion.

In January 2018, the Defendant moved the trial court to provide a jury instruction 

on the defense of “medical necessity.” The trial court denied the motion but granted the 

Defendant’s application for permission to pursue an interlocutory appeal to this court. 

This court, however, denied the Defendant’s application, finding that the Defendant had 

failed to satisfy the requirements for interlocutory appeal. See State v. Becky Jo Burlison, 

No. M2018-00356-CCA-R9-CD (Tenn. Crim. App., Nashville, Apr. 9, 2018) (Order), 

perm. app. denied (Tenn. July 18, 2018).
-3-

In September 2018, the Defendant filed notice that she intended to rely on the 

testimony of Dr. Keith Caruso to establish that, at the time of the offense, she “lacked the 

capacity because of her mental disease or defect to either intentionally, knowingly[,] or 

recklessly distinguish between lawful versus unlawful sexual penetration as prohibited by

T.C.A. § 39-13-522(a) and 39-13-501(7)” and “lacked the capacity because of her mental 

disease or defect to either intentionally, knowingly[,] or recklessly determine what was 

immediately necessary to avoid imminent harm and apply necessary medical treatment to 

the child victim in accordance with ordinary standards of reasonableness.” The 

Defendant exhibited to her notice a letter from Dr. Caruso to defense counsel and a copy 

of a report prepared by Dr. Caruso in September of 2018.

In the letter, Dr. Caruso stated, “[I]t is my opinion to a reasonable degree of 

medical certainty that [the Defendant’s] actions could best be described as negligent.” In 

his report, Dr. Caruso stated that, at the time of the alleged offenses, the Defendant

suffered from “Schizoaffective Disorder, Bipolar Type, multiple episodes” and “acute 

episode Opioid Intoxication.” He opined that the Defendant was competent to stand trial 

and that she did not meet the criteria for an insanity defense because “[h]er severe mental 

disease did not prevent her from appreciating the nature of her actions, as she 

acknowledged seeking to disimpact [the victim’s] stool from his rectum by inserting a 

hairbrush handle.” He explained, “She did not believe that she was acting wrongfully, 

but instead believed that her actions were necessary in order to treat [the victim’s] 

constipation. This belief, however misinformed, was not the product of psychosis.” Dr.

Caruso found that the Defendant “was suffering from manic symptoms at the time of the 

alleged offenses, including distractibility, impulsivity, heightened activity and irritability” 

and that she “was intoxicated at the time of the alleged offenses.” He concluded that,

“[a]s a result, she was impatient and acted impulsively, pursuing a very ill advised course 

of action with” the victim. Dr. Caruso also concluded, however, that “although [the 

Defendant] suffered from a severe mental disease at the time of the alleged offenses . . . 

and was suffering from manic symptoms in her account, this did not prevent her from 

knowingly or recklessly penetrating [the victim’s] rectum with a hairbrush handle . . . in 

accordance with criteria in State v Hall.” He did conclude that “her severe mental disease 

and intoxication prevented her from recognizing ordinary standards of reasonableness at 

the time of the alleged offenses.”

The State moved the trial court to exclude Dr. Caruso’s testimony on grounds that 

he had concluded that an insanity defense could not be supported and that the 

Defendant’s severe mental disease did not prevent her from acting knowingly or 

recklessly. The State also argued that Dr. Caruso should not be permitted to testify that it 

was his opinion that the Defendant’s “‘actions could best be described as negligent.’”

In her response to the State’s motion, the Defendant conceded that “[t]here is no 
-4-

question that” her actions met the statutory definition of sexual penetration and that Dr. 

Caruso had confirmed that she “acted either intentionally, knowingly or recklessly in 

engaging in the penetration of the victim” but nevertheless argued that the evidence in 

this case established that she had “acted out of what she perceived to be a ‘medical 

necessity,’ or in the absence of such an instruction, a necessity in inserting the brush 

handle into the child-victim’s anus.” She asserted that Dr. Caruso’s opinion addressed 

the questions “whether the Defendant’s mental defect(s) . . . prevented her from 

identifying whether the technique she employed to relieve the victim’s constipation was 

‘lawful’” and whether her “mental defects” also impacted “her belief that a necessity 

existed.”

Dr. Caruso was the only witness presented at the hearing on the State’s motion to 

exclude. Both his letter to defense counsel and his September 2018 report were exhibited 

to his testimony at the hearing.

During direct examination, Dr. Caruso testified that he had reviewed a variety of 

materials, all of which established that the Defendant “had a long history of mental 

illness.” He also interviewed the Defendant more than once and interviewed her 

husband, daughters, mother, and two family friends. Based upon his review of the 

materials and the information gleaned during the interviews, Dr. Caruso diagnosed the 

Defendant with “schizoaffective disorder, bipolar-type.” He concluded that the 

Defendant “appeared to be in a manic episode at the time of the alleged offense” and that 

she was “intoxicated on opioids at the time of the offense as well.” It was his opinion 

that the Defendant’s “manic episode” “caused her to be too impatient to wait for the 

Miralax or the enema to work, and . . . caused her to act impulsively” and that her mania 

“also interfered with her ability to recognize ordinary standards of reasonableness.” Dr.

Caruso added that “essentially there’s some knowledge gained I guess from speaking 

with a pediatrician, but also I think that, you know, she believed, her account was that she 

believed that what she did was necessary to relieve his suffering at that time.” When 

asked to characterize the Defendant’s “mental state as related to her ability to recognize 

whether or not her actions were lawful versus unlawful,” Dr. Caruso stated that 

there was both a knowledge deficit, in terms of she had information from 

the pediatrician that this would be an appropriate thing, but also I think her 

manic state caused her to be somewhat grandiose to assume that it was 

okay for her, as a layperson, to go ahead and do this, and that -- it also 

impaired her ability to recognize the ordinary standards of reasonableness 

about whether or not a hairbrush would be an appropriate substitute for a 

finger or for a rectal thermometer.

During cross-examination by the State, Dr. Caruso agreed that the Defendant’s 
-5-

“knowledge deficit and manic state caused her to assume that it was okay to do this.” 

When asked whether it was his opinion that the Defendant “lacked the capacity to 

recognize whether or not it was appropriate,” he said, “I think the best way I can describe 

it is that her manic state caused her to behave in this way and caused her to be more 

impulsive.” Dr. Caruso opined that the Defendant’s mental disease “did not prevent her 

from acting knowingly or recklessly” and agreed that he could not “here today state that 

she lacked the capacity” to form a knowing or reckless mental state. It was his opinion 

that the Defendant was able to appreciate both the wrongfulness of her actions and the 

nature of her actions. He agreed that the Defendant’s actions indicated “that she was 

acting recklessly and impulsively.”

On redirect examination, Dr. Caruso said that the Defendant’s “manic state, as a 

result of schizoaffective disorder,” caused her to view her actions “as a necessity at the 

time” instead of “sexual penetration. She saw it as relieving the child’s constipation.” 

He clarified on recross-examination that the Defendant “inaccurately believed that this 

was something that would be indicated for her to do, so she had a knowledge deficit that 

was independent of her mental state. . . . It was independent of any psychotic disorder.” 

He opined that the Defendant’s mental state “impaired” her ability to appreciate the 

wrongfulness of her actions “because part of it, part of her perceiving that she was not 

acting wrongfully was based on . . . information” instead of “psychosis.” He added, 

“And then she was more prone to behave in this fashion because she was grandiose, she 

overestimated, you know, what would be indicated for someone like her to do.” Dr.

Caruso again agreed that the Defendant’s mental disease “did not cause her to lack the 

capacity to form the requisite mens rea,” but he said that “there was impairment and it did 

impact upon her acting in that way.” He reiterated that he could not state with a 

reasonable degree of medical certainty that the Defendant lacked the capacity to form the 

necessary mens rea.

In a written order denying the State’s motion to exclude Dr. Caruso’s testimony, 

the trial court found that Dr. Caruso was qualified as an expert witness, and his testimony 

at trial was permissible. The court concluded, with very little analysis, that Dr. Caruso’s 

testimony complied with the requirements of both State v. Hall, 958 S.W.2d 679 (Tenn. 

1997), and State v. Shuck, 953 S.W.2d 662 (Tenn. 1997). The court observed, “At the 

evidentiary hearing, Dr. Caruso testified that the Defendant did not believe that she was 

acting wrongfully, but instead believed that her actions were necessary. Her severe 

mental disease and intoxication prevented her from recognizing ordinary standards of 

reasonableness at the time of the offense.” Following the trial court’s ruling, the State 

moved the trial court for permission to pursue an interlocutory appeal, and the trial court 

granted the motion. This court then granted the State’s application for Rule 9 appeal. 
-6-

ANALYSIS

In this appeal, the State asserts that the trial court erred by denying its motion to 

exclude Dr. Caruso’s testimony, arguing that his proffered testimony is inadmissible

because he did not testify “unequivocally” that the Defendant’s mental disease or defect 

prevented her from forming the necessary mens rea for the charged offense. The 

Defendant contends that the trial court did not err because “Dr. Caruso’s testimony 

addresses the Defendant’s mental state in relation to her ability to determine lawful 

versus unlawful sexual penetration and what she believed was a necessary procedure to 

relieve the child of his pain.”

In State v. Hall, our supreme court held that, because “the general criminal law 

requires that mental state be proven by the State beyond a reasonable doubt,” “evidence 

which tends to prove or disprove the required mental state is relevant and generally 

admissible under Tennessee law.” State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). 

That being said, “expert testimony regarding a defendant’s incapacity to form the 

required mental state must satisfy the general relevancy standards as well as the 

evidentiary rules which specifically govern expert testimony.” Id. “Assuming that those 

standards are satisfied, psychiatric evidence that the defendant lacks the capacity, because 

of mental disease or defect, to form the requisite culpable mental state to commit the 

offense charged is admissible under Tennessee law.” Id. The supreme court 

“emphasize[d] that the psychiatric testimony must demonstrate that the defendant’s 

inability to form the requisite culpable mental state was the product of a mental disease or 

defect, not just a particular emotional state or mental condition,” stating, “[i]t is the 

showing of a lack of capacity to form the requisite culpable mental intent that is central to 

evaluating the admissibility of expert psychiatric testimony on the issue.” Id. at 690 

(citing State v. Shelton, 854 S.W.2d 116, 122 (Tenn. Crim. App. 1992). Although the 

court expanded the holding in Hall to encompass testimony from experts other than 

psychiatrists, the court has consistently held “that ‘[e]vidence that the defendant suffered 

from a mental disease or defect’” is only “‘admissible whenever it is relevant to prove 

that the defendant did or did not have the state of mind which is an element of the 

offense.’” State v. Ferrell, 277 S.W.3d 372, 379 (Tenn. 2009) (quoting Hall, 958 S.W.2d 

at 690 n.9); see also Nesbit v. State, 452 S.W.3d 779, 798 (Tenn. 2014); State v. Adams, 

405 S.W.3d 641, 661 (Tenn. 2013); State v. Hatcher, 310 S.W.3d 788, 806 (Tenn. 2010). 

These cases, as well as the myriad cases of the same ilk decided by this court, clearly 

establish that expert testimony on the issue of diminished capacity is admissible only 

when it demonstrates that the defendant “lacked the capacity” to form the requisite mens

rea for the charged offense.

In this case, the Defendant was charged with aggravated rape of a child, 

aggravated child abuse, and aggravated child neglect. “Aggravated rape of a child is the 
-7-

unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if 

the victim is three (3) years of age or less.” T.C.A. § 39-13-531(a).1 Our supreme court 

has explained that the offense of rape of a child may be separated into two elements, 

which elements also apply to the offense of aggravated rape of a child: “unlawful sexual 

penetration” and the age of the child. State v. Clark, 452 S.W.3d 268, 296 (Tenn. 2014).

Because the Code does not supply a mens rea for either element, “the generic mens rea 

statute fills in the gap.” Id. “Because the act of sexual penetration relates to the result of 

the defendant’s conduct,” the element of “unlawful sexual penetration may be done 

intentionally, knowingly, or recklessly.” Id. (citation and footnote omitted). Similarly, 

“a defendant may satisfy” the element related to the age of the child victim “when he or 

she is reckless, knowing, or intentional regarding the attendant circumstance of the age of 

the victim.” Id. at 297 (citation omitted).

At the time of the offenses in this case, Tennessee Code Annotated section 39-15-

401 provided:

(a) Any person who knowingly, other than by accidental means, treats a 

child under eighteen (18) years of age in such a manner as to inflict injury 

commits a Class A misdemeanor; provided, however, that, if the abused 

child is eight (8) years of age or less, the penalty is a Class D felony.

(b) Any person who knowingly abuses or neglects a child under eighteen 

(18) years of age, so as to adversely affect the child’s health and welfare, 

commits a Class A misdemeanor; provided, that, if the abused or neglected 

child is eight (8) years of age or less, the penalty is a Class E felony.

T.C.A. § 39-15-401(a)-(b). As charged in this case, aggravated child abuse or aggravated 

child neglect is child abuse or neglect as defined above when a “dangerous 

instrumentality . . . is used to accomplish the act of abuse [or] neglect.” T.C.A. § 39-15-

402(a)(2). 

Our supreme court has recognized that

 

1 At this juncture, we note that the cover page of the indictment, all of the pleadings, and the 

judgment forms from the Defendant’s first trial all indicate that the Defendant was charged with 

“aggravated rape of a child.” All those documents, however, contain citations to Tennessee Code 

Annotated section 39-13-522, which defines the offense of rape of a child: “Rape of a child is the 

unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is 

more than three (3) years of age but less than thirteen (13) years of age.” T.C.A. § 39-13-522(a). The 

offense of aggravated rape of a child is defined in section 39-13-531. That being said, the language of the 

indictment tracks the statutory language in section 39-13-531, and the record clearly establishes that the 

Defendant had actual notice of the offenses charged against her.
-8-

Tennessee’s child abuse and neglect statute may be broken down into two 

classifications, abuse and neglect, each of which have both a conduct and a 

result element. Child abuse requires that: (1) a person knowingly “treat in 

such a manner” a child under eighteen years of age; and (2) the child 

sustains an injury. Child neglect requires that: (1) a person knowingly 

neglect a child under eighteen years of age; and (2) the child’s health and 

welfare are adversely affected. 

State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). “[T]he statute requires that the act of 

treating a child in an abusive manner or neglecting the child must be knowing conduct.” 

Id. at 897.

Here, Dr. Caruso testified that the Defendant suffered from schizoaffective 

disorder, bipolar type and that she self-reported her intoxication on opioids at the time of 

the alleged offenses. He stated that the Defendant was in a manic state at the time she 

committed the acts against the victim and that her mania led her to be impatient and 

impulsive. He opined that her intoxication contributed to her impulsivity. He did not, 

however, testify that the Defendant lacked the capacity to act either intentionally, 

knowingly, or recklessly. Instead, he testified that the Defendant’s mental disease in 

combination with her “knowledge deficit” “contributed or impaired” her ability to 

appreciate the wrongfulness of her actions.

“It is well established that a mental disease or defect that impairs or reduces a 

defendant’s capacity to form the requisite culpable mental state for the offense does not 

satisfy the two–prong test under Hall.” State v. Lesergio Duran Wilson, No. M2014-

01487-CCA-R9-CD, 2015 WL 5170970, at *12 (Tenn. Crim. App. Sept. 2, 2015) (citing 

State v. Tray Dontacc Chaney, No. W2013-00914-CCA-R9-CD, 2014 WL 2016655, at 

*9 (Tenn. Crim. App. May 14, 2014); State v. Herbert Michael Merritt, No. E2011-

01348-CCA-R3-CD, 2013 WL 1189092, at *27 (Tenn. Crim. App. Mar. 22, 2013); State 

v. Anthony Poole, No. W2007-00447-CCA-R3-CD, 2009 WL 1025868, at *11 (Tenn. 

Crim. App. Apr. 14, 2009); State v. Antonio D. Idellfonso-Diaz, No. M2006-00203-CCAR9-CD, 2006 WL 3093207, at *4 (Tenn. Crim. App. Nov. 1, 2006)). In Lesergio Duran 

Wilson, this court determined that testimony proffered by two defense experts did not 

satisfy the admission requirements established in Hall because neither expert could 

“conclusively testify that Wilson lacked the capacity to premeditate or act intentionally at

the time of the killing.” Lesergio Duran Wilson, 2015 WL 5170970, at *13. Similarly, 

in Tray Dontacc Chaney, this court concluded that the trial court erred by admitting 

expert testimony on the issue of diminished capacity when the defense expert testified 

“that the defendant’s ‘psychological problems coupled with the stressors at that point 

impacted, eroded his capacity to premeditate’” but “‘acknowledged that he did not 

conclude that the defendant’s capacity to do so ‘was completely eroded.’” Tray Dontacc 
-9-

Chaney, 2014 WL 2016655, at *9. In Herbert Michael Merritt, we determined that the 

trial court properly excluded evidence that “merely indicated that Defendant’s mental 

disease or defect impaired or reduced his capacity to form the requisite mental state and 

therefore, did not satisfy the two-prong requirement of Hall and Faulkner.” Herbert 

Michael Merritt, 2013 WL 1189092, at *27. Additionally, in Antonio D. Idellfonso-Diaz, 

we confirmed that “[t]he fact that the appellee’s mental disease impaired or reduced his 

capacity to form the requisite mental state does not satisfy the two-prong requirement in 

Hall and Faulkner.” Antonio D. Idellfonso-Diaz, 2006 WL 3093207, at *4.

Dr. Caruso did not testify that, as a result of the Defendant’s mental disease or 

defect, she lacked the capacity to form the requisite mens rea for the charged offenses. 

Instead, he testified that the Defendant’s manic state, a feature of her mental disease,

combined with what he termed “knowledge deficit” apparently attributable to medical 

advice she had previously received, led her to penetrate the victim’s rectum with the 

handle of a hairbrush because she believed it was necessary at the time. This testimony is 

more akin to testimony about “‘a particular emotional state or mental condition’ rather 

than on Defendant’s ‘lack of capacity to form the requisite culpable mental intent.’” 

Hatcher, 310 S.W.3d at 807 (quoting Hall, 958 S.W.2d at 690). Consequently, Dr. 

Caruso’s testimony did not satisfy the requirements in Hall, and the trial court should 

have excluded the testimony.

The Defendant also argues, as she did in the trial court, that “Dr. Caruso’s 

testimony addressed the Defendant’s mental state in relation to her ability to determine 

lawful versus unlawful sexual penetration and what she believed was a necessary 

procedure to relieve the pain of the child.” Both in the trial court and in her appellate 

brief, the Defendant conflates the issue of diminished capacity, which is a rule of 

evidence, and the defense of necessity, which operates to justify the commission of a 

crime. The defense of necessity justifies the commission of a criminal act when :

(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 the 

harm sought to be prevented by the law proscribing the conduct, according 

to ordinary standards of reasonableness.

T.C.A. § 39-11-609. The defense of necessity “excuses criminal liability in those 

exceedingly rare situations where criminal activity is an objectively reasonable response 

to an extreme situation,” and is available only when “the defendant acts upon a 

reasonable belief that the action is necessary to avoid harm” and “the harm sought to be 

avoided is clearly greater than the harm caused by the criminal act.” Id., Advisory 
-10-

Comm’n Comments.

In contrast, “diminished capacity is never used as a justification or an excuse for a 

crime. Rather, it is an attempt to prove that the defendant, incapable of the requisite 

intent of the crime charged, is innocent of that crime but may well be guilty of a lesser 

one.” State v. Phipps, 883 S.W.2d 138, 143 (Tenn. Crim. App. 1994) (United States v. 

Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990)). It is well-settled that “the defendant’s 

conduct and mental state must meet an objective standard of reasonableness for the 

conduct to be justified under” the defense of necessity because that defense “not only 

entail[s] what a defendant actually believes, but include[s], as well, what is a reasonable 

belief under the circumstances.” State v. Bult, 989 S.W.2d 730, 732 (Tenn. Crim. App. 

1998). The general policy behind the defense of necessity contemplates a judgment that 

an individual acting under conditions that “‘a person of ordinary firmness would have 

been unable to resist or reasonably believing that criminal action was necessary to avoid a 

harm more serious than that sought to be prevented by the statute defining the offense 

does not deserve criminal punishment.’” State v. Brandon Cole-Pugh, ___ S.W.3d ___, 

No. W2017-00469-SC-R11-CD, 2019 WL 5485627, at *5 (Tenn. Oct. 25, 2019) (quoting 

W. Mark Ward, Tenn. Crim. Trial Practice § 23:16 (Oct. 2018 update)) (emphasis 

added). “Thus, the mere fact that the defendant believes that his conduct is justified 

would not suffice to justify his conduct” under the defense of necessity. Bult, 989 

S.W.2d at 732. Because the defense of necessity requires an evaluation of the 

circumstances from the view of “a person of ordinary firmness,” Dr. Caruso’s testimony 

would not be relevant to the question whether the Defendant acted out of necessity.

This court considered a similar issue in State v. Stacy Dewayne Ramsey. In that 

case, the defendant, who had been diagnosed with dependent personality disorder and a 

low IQ, moved the trial court to instruct the jury 

that as to the defense of duress, the duress must generally be actual and 

existing at the times alleged. However, even if such duress was not 

actually existing, the defendant has the right to rely upon the defense of 

duress if such actions by another are reasonably perceived by the defendant 

to amount to duress, having in mind the defendant’s diminished capacity, if 

any you should find.

State v. Stacy Dewayne Ramsey, No. 01C01-9412CC00408, 1998 WL 255576, at *17

(Tenn. Crim. App. May 19, 1998). The defendant also moved the court to provide a 

second special instruction regarding the impact of his diminished capacity on the defense 

of duress:

Because of his diminished capacity, a person may have been mistaken 
-11-

based upon his perception of the circumstances as to the extent of his actual 

duress. But if he acts under duress from honest, even though mistaken, 

conviction as to the extent of danger to him, he will not be held criminally 

liable for his actions.

Id. at *17. This court concluded that the trial court did not err by refusing to provide 

either instruction because “the defendant’s state of mind is irrelevant to the defense of 

duress.” Id. at *18. We noted that “the defendant’s mental state is not an element of the 

defense under the statute” and that “[t]he defense of duress is not supported by evidence 

that the defendant was mistaken as to the circumstances due to his diminished capacity.” 

Id. As between the defenses of duress and necessity, “one primary difference” exists: 

“the defense of duress requires that the ‘threatened harm must be . . . one from which the 

person cannot withdraw in safety.’” Brandon Cole-Pugh, 2019 WL 5485627, at *7. 

“[O]ne commonality between the two defenses remains: ‘[u]nder any definition of these 

defenses . . .[,] if there was a reasonable, legal alternative to violating the law, a chance 

both to refuse to do the criminal act and also to avoid the threatened harm, the defenses 

will fail.’” Id. (quoting United States v. Bailey, 444 U.S. 394, 410 (1980) (internal 

quotation marks omitted)). Because the defense of necessity, like the defense of duress, 

turns upon “ordinary standards of reasonableness,” diminished capacity evidence would 

not be admissible to show that the defendant acted out of necessity.

The expert testimony offered by the Defendant did not satisfy the requirements for 

admission established in State v. Hall. In consequence, the trial court erred by denying 

the State’s motion to exclude that testimony. Accordingly, we reverse the judgment of 

the trial court denying the State’s motion to exclude and remand the case for further 

proceedings consistent with this opinion.

JOHN EVERETT WILLIAMS, PRESIDING JUDGE