        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 22, 2015

              STATE OF TENNESSEE v. KENNETH LEE BOLES

                    Appeal from the Circuit Court for Bedford County
                      No. 17682    Franklin Lee Russell, Judge


                 No. M2014-01030-CCA-R3-CD – Filed June 19, 2015



The defendant, Kenneth Lee Boles, was convicted by a Bedford County jury of the
introduction of a controlled substance into a penal institution and the possession of a
controlled substance in a penal institution, both Class C felonies. After merging the
counts into a single conviction, the trial court sentenced the defendant as a Range II,
multiple offender to ten years in the Department of Correction. On appeal, the defendant
argues that the trial court erred by not allowing him to present the testimony of his expert
witness and by not instructing the jury on the defense of necessity. Following our
review, we affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROGER A. PAGE, JJ., joined.

Michael P. Auffinger, Lewisburg, Tennessee, for the Appellant, Kenneth Lee Boles.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert James Carter, District Attorney General; and Richard A. Cawley, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       On January 9, 2013, correctional officers at the Bedford County Workhouse saw
the defendant, who was serving a forty-eight-hour sentence at the facility, kneeling in his
cell in the apparent act of snorting some crushed powder into his nostrils. Officers
searched the cell and found three pills that were later identified as Roxicodone, which is a
brand name for oxycodone, and methadone. The defendant was subsequently indicted by
the Bedford County Grand Jury with one count of the introduction of a controlled
substance into a penal institution and one count of the possession of a controlled
substance in a penal institution.

       Prior to trial, the defendant filed a notice of his “intent to introduce expert
testimony relating to the mental condition of the Defendant.” Specifically, he sought to
introduce the testimony of a nurse practitioner about the defendant’s Post-Traumatic
Stress Disorder (“PTSD”) and his fear that he would die during the forced withdrawal of
his opiate pain medication during his incarceration. At the January 2, 2014 evidentiary
hearing, Chandler Anderson, a board certified family nurse practitioner and a certified
emergency nurse with eight years of experience, testified that he was familiar with “pain
narcotics,” including the withdrawal symptoms associated with their discontinued use.
He said he had reviewed the defendant’s medical records and also spoken with him.
Approximately three years earlier, the defendant had been in a serious motor vehicle
accident that caused him to sustain severe injuries, including a below-the-knee
amputation of one leg. As a result, the defendant was “placed on Xanax to help manage a
post-traumatic stress disorder and . . . was titrated . . . from Lortab to oxycodone to . . .
methadone for pain management.” Anderson described the withdrawal symptoms
experienced by patients who abruptly cease opiate pain medication:

       The opiate withdrawal process, people in the early stages tend to get
       irritable, they tend to have increased anxiety, they sweat more, but the later
       effects, after about 48 hours, they start to be nauseated, vomit, they start to
       have diarrhea, intense stomach cramps, they can become more irritable, and
       even have . . . a confused [mental] state.

       Anderson testified that the withdrawal symptoms associated with the abrupt
cessation of Xanax, or benzodiazepine, were worse:

              Well, again, the opiates would cause the nausea, vomiting, diarrhea,
       abdominal pain. Those withdrawals aren’t as significant as those of
       benzodiazepine or Xanax withdrawals. Those people can actually have
       seizures, and benzodiazepine withdrawals, you can actually die from versus
       opiates which just make you feel very miserable.

       Anderson testified that the defendant’s “dosing gives three times a day,” so the six
pills the defendant reported that he had brought with him to the jail would have
constituted “two days worth of medication.” When asked again his opinion of the effect
of the defendant’s not having that medication for forty-eight hours, he replied that “at the
48-hour mark, again, he would have irritability, maybe some confusion, nausea,
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vomiting, diarrhea, abdominal cramping, sweating. Those would be the symptoms of the
opiate withdrawal.”

       Anderson testified that the defendant informed him of a previous period of
incarceration in which he had been denied access to his medication and had gone through
“withdrawals,” with his primary symptom being that he was “confused and disoriented.”
He said the defendant was diagnosed with PTSD after his motor vehicle accident and that
patients with PTSD “typically have a feeling of impending doom and with a magnified
fear of dying.” He opined that the combination of the defendant’s PTSD and his previous
experience with severe withdrawal made him believe he had no choice other than to take
his prescribed medication with him into the jail:

               Well, again, if you’re already afraid that you’re going to die at . . . a
       heightened level than the normal person and you’ve experienced this,
       terrible side effects of withdrawals before, it’s reasonable to say while
       you’re not in withdrawals at the time that you go in that you are, you could
       be in fear that you’re going to get that sick again because you, “A”, you’ve
       experienced it before and, “B”, you have what appears to be, to other
       people, an irrational fear of dying. But it’s documented well in the DSM-5,
       which is the new criteria for diagnosing people with PTSD, that those
       people have what appears to be an unreasonable fear of dying, so.

              My opinion is that he approached the jail and he told the nurse this is
       what, this is what I’m on, I’ve been through withdrawals before, because
       that’s what he told me, and he was told by the nurse that their policy is not
       to administer any narcotics, because, again, that’s what he told me, so, you
       know, he made the nurse aware this is what he was on, he was afraid of
       going through withdrawals again so he was turned away. So, you’re put in
       a situation where you have to choose do I just go through withdrawals
       again or do I bring medicine in. I’ve been told no, so what do I do.

        At the conclusion of the hearing, the trial court observed that the defendant’s fear
of withdrawal symptoms was not a recognizable defense to the offenses and ruled that
Anderson’s proposed testimony was irrelevant and inadmissible. On January 8, 2014, the
trial court entered a written order disallowing the testimony.

       Since many of the facts are not in dispute, we can summarize a good bit of the
testimony at the defendant’s January 13, 2014 trial as follows. A day or two before the
defendant was booked into the workhouse on January 9, 2013, to begin serving a forty-
eight-hour sentence, he and his parents arrived at the facility with his prescription pain
medication, only to be told that he could not bring it with him into the workhouse. He
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was told to direct his questions about the medication to the sergeant in charge, who
referred him to the jail nurse.

       According to the defendant’s mother, the defendant was told he could not have his
medications with him in the workhouse and was directed to call “Nurse John” to talk
about his concerns. The defendant’s mother testified that she called “Nurse John” on the
defendant’s behalf, and that, while sympathetic, he was unable to help, telling her, “I
don’t know,” when she asked what they should do about the defendant’s need for
medication.

        When the defendant returned on January 9 to begin serving his sentence, he said
nothing about being on oxycodone and methadone, reporting only that he was taking
gabapentin, a non-narcotic medication generally used to treat neuralgia and nerve pain.
The defendant was searched but managed to smuggle a two-day supply of his narcotic
pain medication into the workhouse with him. The defendant was placed in a medical
observation cell because of his amputation, and during a routine check a correctional
officer observed him on his knees in the act of snorting some powder into his nostrils
through a rolled up piece of cardboard.

       Charles Timothy Lokey of the Bedford County Sheriff’s Department, the
administrator of the workhouse, testified that “the standard procedure . . . was that
narcotics were not allowed in the correctional facility.” He said that there had been one
or two occasions during the seven years he had been administrator that narcotics were
administered but that it was “under strict supervision and . . . isolated because of the
potential abuse of those narcotics in the facility.” Whether narcotics were administered
was a decision left “to the medical staff.” He stated he had seen inmates undergoing
“detox symptoms” over the years, and the medical staff had medications they
administered to help with that process. He testified that a nurse was on duty during the
day at the nearby jail and that in the event of an emergency, the nurse could reach the
workhouse “in less than five minutes.” During after hours, they had the ability to contact
the main nurse “and get medical attention right then via ambulance or whatever it may
be.”

       Janet Harrison, an LPN who worked at the Bedford County Jail during the relevant
time period, testified that the procedure for inmates who were on “life-saving” or
essential, non-narcotic medication such as blood pressure or diabetes medication was to
report and turn over their medications to the correctional officers during intake. The
correctional officers would, in turn, deliver the medications to the nurse. After first
calling the pharmacies to verify the medications, the nurse would then “pack [those]
medications” to dispense to the inmate on the appropriate schedule. She said that it was
her understanding that narcotics were not allowed in the jail and that she had only once
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during the two and half years she worked there seen a narcotic administered. In that
instance, the narcotic was actually prescribed by the medical director at the jail.

        Harrison testified that the jail had a protocol in place for dealing with inmates who
were experiencing withdrawal symptoms, which included monitoring their vital signs and
administering various vitamins and medication, such as Librium and anti-seizure
medication. During the time she worked there, a nurse was on duty at the jail from 5:30
a.m. to 6:00 p.m., and there was always a nurse or “medical team administrator” on call
after the regular shift hours.

       The defendant’s mother described the terrible injuries the defendant had sustained
in his motor vehicle accident two years earlier, which included a crushed face, a broken
jaw, a broken back, broken ribs, broken pelvis, collapsed lungs, and the below-the-knee
amputation of his left leg. She also described how the correctional officers turned the
defendant away from the jail when he arrived with his pain medications and how “Nurse
John” had told her about his own father’s leg amputation and constant pain but provided
no help with respect to the defendant’s need for pain medication.

        The defendant described his injuries and testified that a few weeks after his
accident he asked to be taken off his morphine and other narcotic drips because he was a
recovering narcotics user who had been clean for a year before the accident. The medical
staff, however, told him he “couldn’t handle the pain.” He said he then asked to be put
on something that was not as strong and “that’s when they started putting [him] on [his]
methadone and [his] Roxis and [his] Xanaxes.” He testified that he had a lawful
prescription for the methadone and oxycodone he brought with him to the jail and that he
brought only enough medication to cover his forty-eight-hour sentence. He stated he had
recently had another leg surgery and that his stump was still bandaged when he entered
the jail. Also, in the past he had experienced a seizure and had to be transported to the
emergency room after going three days without his Xanax and methadone. He explained
the effect these various experiences had on him:

              It just feared (sic) me that I’d get in there and go through
       withdrawals and they would just let me lay there for 48 hours and my body
       would shut down. I was just, I was, I was still traumatized. I was still
       going through surgeries. . . .

              ....

             And I been in withdrawals before over my Xanaxes and my
       methadone and my Roxis and stuff, and I knowed what the side effects was.
       And knowing that nobody was there and knowing that the nurse didn’t,
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       wouldn’t come and check on you, I knowed what it was like. And I didn’t,
       I didn’t, I didn’t want to put myself in harm or put others in harm with
       myself.

                 I.     Disallowance of Expert Witness Testimony

       The defendant first contends that the trial court abused its discretion by
disallowing the testimony of his expert witness. He argues that Nurse Practitioner
Anderson’s testimony about his mental state at the time of the offenses was based on the
nurse practitioner’s review of “sufficiently trustworthy and reliable” medical records and
would have “substantially assisted the trier of fact.” The State responds that the trial
court properly precluded the testimony of Nurse Practitioner Anderson on the basis that
he was not qualified to deliver his opinion on any psychological, psychiatric, or
pharmacological question. We agree with the State.

       The admission of expert testimony is governed by Tennessee Rules of Evidence
702 and 703. Rule 702 provides that “[i]f scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.” Tenn. R. Evid.
702. Rule 703 provides that expert testimony shall be disallowed “if the underlying facts
or data indicate lack of trustworthiness.” Tenn. R. Evid. 703.

      In McDaniel v. CSX Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997), our
supreme court recited several nonexclusive factors that a court may consider in
determining the reliability of scientific testimony, including:

       “(1) whether scientific evidence has been tested and the methodology with
       which it has been tested; (2) whether the evidence has been subjected to
       peer review or publication; (3) whether a potential rate of error is known;
       (4) whether . . . the evidence is generally accepted in the scientific
       community; and (5) whether the expert’s research in the field has been
       conducted independent of litigation.”

Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting
McDaniel, 955 S.W.2d at 265). The Brown court identified two other factors that a trial
court may consider in assessing the reliability of an expert’s methodology: (1) the
expert’s qualifications for testifying on the subject at issue, and (2) the connection
between the expert’s knowledge and the basis for the expert’s opinion. Id. (citations
omitted).

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       “[T]he allowance of expert testimony, the qualifications of expert witnesses, and
the relevancy and competency of expert testimony are matters which rest within the
sound discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim.
App. 1987) (citations omitted). As such, we will not disturb the trial court’s ruling absent
a clear showing that it abused its discretion in admitting the testimony. Id.; State v.
Stevens, 78 S.W.3d 817, 832 (Tenn. 2002).

        We find no abuse of discretion in the trial court’s disallowance of the testimony.
In its written order, entered on January 8, 2014, the trial court found, among other things,
that “the proposed expert’s qualifications to testify on psychological, psychiatric or
pharmacological issues were not proven” and “the fact that the Defendant feared
withdrawal” from his prescribed medication “does not provide a defense to the charge
and does not negate the intent required by the statute to commit this crime.” The court
further found that there was “no necessity defense to this charge under these
circumstances” and “[t]hat the expert did not propose to present any evidence that the
Defendant was in withdrawal on the date of the alleged crime, but only to present
testimony of the Defendant’s likely physical condition if he did not receive the drugs
while in jail[.]”

        The testimony presented by Nurse Practitioner Anderson at the pretrial hearing
supports the findings and conclusion of the trial court. Accordingly, we conclude that
the trial court correctly determined that the proposed testimony of the nurse practitioner
about the effects of opiate pain medication withdrawal was not relevant to any issue at
trial and would not have substantially assisted the jury to understand the evidence or
determine any facts at issue in the trial. The defendant is not entitled to relief on the basis
of this issue.

                      II.     Jury Instruction on Defense of Necessity

       The defendant next contends that the trial court erred by not instructing the jury on
the defense of necessity. He argues that the evidence at trial, which included his previous
experiences with severe withdrawal symptoms, fairly raised the applicability of the
defense and warranted an instruction by the trial court. The State argues that the trial
court appropriately concluded that the facts did not warrant such an instruction. We,
again, agree with the State.

      “It is well-settled in Tennessee that a defendant has a right to a correct and
complete charge of the law so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.
2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have the duty to give “a
                                              7
complete charge of the law applicable to the facts of the case.” State v. Davenport, 973
S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citation omitted). This includes an instruction
on the defense of necessity if the defense is fairly raised by the proof. Id.

      The defense of necessity is codified at Tennessee Code Annotated section 39-11-
609, which provides in pertinent part that “conduct 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 the harm sought to be prevented by the law prescribing the
       conduct, according to ordinary standards of reasonableness.

Tenn. Code Ann. § 39-11-609 (2014).

       The sentencing commission comments explain how rarely the defense applies:

               This section codifies the common law defense of necessity. It
       excuses criminal liability in those exceedingly rare situations where
       criminal activity is an objectively reasonable response to an extreme
       situation. For example, 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.

              The defense is limited to situations: (1) where the defendant acts
       upon a reasonable belief that the action is necessary to avoid harm; and (2)
       where the harm sought to be avoided is clearly greater than the harm caused
       by the criminal act. The defense is further limited in application to those
       offenses where it is not expressly excluded by statute.

               Subdivisions (1) and (2) contemplate a balancing between the harm
       caused by the conduct constituting an offense, and the harm the defendant
       sought to avoid by the conduct. If the harm sought to be avoided was, by
       ordinary standards of reasonableness, clearly greater than the harm actually
       caused (the offense), the defendant’s conduct causing the offense is
       justified.

       The trial court found that the facts did not warrant a jury instruction on the defense
of necessity, noting that the defendant was incarcerated for a relatively short period of
time in a medical observation cell and that there were procedures in place to handle
                                             8
inmates undergoing withdrawal from pain medication, including actions to be taken in an
emergency situation.

        We find no error in the trial court’s ruling. As the trial court observed, the
testimony of jail officials established that there were procedures in place to deal with
inmates undergoing withdrawal symptoms. We note that the defendant’s proposed expert
testified that the withdrawal symptoms associated with the cessation of opiate pain
medication, which is the only type of prescription medication the defendant smuggled
into the jail, were not nearly as severe as the withdrawal symptoms associated with the
cessation of benzodiazepine or Xanax, which could cause seizures or even death, “versus
opiates which just make you feel very miserable.”

        We are not unsympathetic to the defendant’s desire to avoid pain or the
withdrawal symptoms associated with missing his scheduled pain medication. However,
the defendant’s belief that he would die without his medication was not reasonable, and
his feeling “miserable” without the pain medication is not the type of imminent harm
contemplated by the statute. Accordingly, we conclude that the defendant is not entitled
to relief on the basis of this issue.

                                       CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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