         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                           NOVEMB ER SESSION, 1998        March 9, 1999

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9709-CC-00439
                                )
      Appellee,                 )
                                )
                                )    HUMPHREYS CO UNTY
VS.                             )
                                )    HON. ROBERT BURCH
PENNIE W. WATSON,               )    JUDGE
                                )
      Appe llant.               )    (Direct Appeal - Driving on a Revoked
                                )    License)




FOR THE APPELLANT:                   FOR THE APPELLEE:

SHIPP R. WEEMS                       JOHN KNOX WALKUP
District Public Defender             Attorney General and Reporter

ROBERT H. STOVALL, JR.               TIMOTHY BEHAN
Assistant Public Defender            Assistant Attorney General
P. O. Box 160                        425 Fifth Avenu e North
Charlotte, TN 37036                  Nashville, TN 37243-0493

                                     DAN ALSOBROOKS
                                     District Attorney General

                                     GEORGE C. SEXTON
                                     Assistant District Attorney
                                     Room 206
                                     Humphreys County Courthouse
                                     Wa verly, TN 37185



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                        OPINION

        This matter is an appeal of right by Appellant, Pennie Watson, from

Division I of the Humphreys County Circuit Court. In April 1997, Appellant was

convicted by a jury for driving on a revoked license. The trial court sentenced

Appellant to six months in jail, susp ende d with tw o days to be s erved in

confinem ent. In May 1997, Appellant’s motion for a new trial was denied . In

August 1997, App ellant filed a notice of app eal to this Court raising the issue of

whether it was prop er for the trial co urt to deny her request for a jury charge on

the defe nse of ne cessity.



        After our re view of the record, w e affirm the judgm ent of the tria l court.



                                             FACTS

        Appellant and a passenger, who is not identified in the re cord, were

traveling on a public highway in September 1995 when Appellant was stopped

by the police for an inop erative taillight. 1           Both A ppellant and the passenger

testified that the automobile was owned by the passenger, but driven by

Appellant because the p asse nger w as too ill to drive. A t the tim e, App ellant’s

driving privileges had been revoked.



        At the jury trial in April 1997, counsel for Appellant requested a jury charge

on the defense of necessity. This request was denied by the trial court and

Appellant was convicted for driving on a revoked license.                           Subsequ ently,

        1
            Because the record on appeal does not contain the transcript of the evidence, we have referred
to the trial cou rt’s Orde r Refus ing Cha rge for the facts of th e prese nt case .

                                                  -2-
Appellant filed a motion for a new trial which was also denied by the trial court.

Appellant now appeals to this Court raising the issue of whether it was proper for

the trial court to deny her req uest for a jury charge on the defen se of neces sity.



                                      ANALY SIS

        Rather than submitting the transcript of the e videnc e on a ppea l, Appellant

relies on the one paragraph recitation of the facts in the trial court’s Order

Refusing Charge.       On this record, we find the defense of necessity is not

applic able to the pres ent case . Initially, we agree with Appellant’s contention that

she has a constitu tional right to a correct an d com plete cha rge of the law. State

v. Teel, 793 S.W.2d 236,249 (Tenn. 1990). We also agree that it is important

that the trial judge give a complete charge of the law applicable to the facts of the

case. State v. Harbison, 704 S.W . 2d 314, 319 (Tenn. 198 6). However, we do

not agree with Ap pellan t’s argu men t that the facts in this case su pport a trial court

instruction on the defense of necessity. The defense of necessity is available

when:



        (1) the person reasonably believes the cond uct is im med iately
        necessary to avoid imminent harm; and
        (2) the desirability and urgency of avoidin g the h arm c learly
        outweigh, according to ordinary standards of reasonableness, the
        harm s ought to be preve nted by th e law pro scribing th e cond uct.

Tenn. Code Ann. §39-11-609.



        Under this section, conduct which would ordinarily be criminal is justified

if the accu sed rea sonab ly believes th at the co nduc t is nece ssary to avoid

imminent harm. Put differently, the defense of neces sity excuse s crimina l liability

in those excee dingly ra re situa tions w here c rimina l activity is a n obje ctively

                                           -3-
reaso nable response to an extreme situation. Tenn. Code Ann. §39-11-609

Sentencing Commission Comments.                This Court has provided examples of

excee dingly rare situ ations where a nec essity d efens e is applicable, including a

ship violating an embargo law to avoid a storm and a pharmacist providing

medication without a prescription to alleviate someone’s suffering during an

emerge ncy. State v. Daven port, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998)

(citing 11 D AVID R AYBIN, T ENNESSEE P RACTICE § 28.118 (1985 & Supp. 1997)). To

be entitled to the defense of necessity, Appellant m ust sh ow an imm ediate ly

necessa ry action, justifiable because of an imm inent th reat, w here th e actio n is

the only me ans to av oid the ha rm. State v. Green, 915 S.W.2d 827, 832 (Tenn.

                          2
Crim. A pp. 199 5).



      Appe llant relies on th e case of State v. Bobby Ray Jenkins, No. 03C01-

9202-CR-00050, 1992 WL 22754 7, at *2 (Te nn. Crim . App., Knoxville, Sept. 18,

1992) wherein this Court held it was reversible error for the trial judge not to

charge necessity to the jury. In Jenkins, the defendant was arrested after a

police officer found him intoxicated, without a drivers license, and in the d rivers

seat of a running vehicle. At trial, d efend ant pre sente d proo f that the car’s

transmission had malfunctioned, and his friend, who had actually been driving,

had left the scen e to get he lp. It was furthe r shown that the de fendan t had to

keep his foo t on the brake peda l to preve nt the c ar from rolling down hill and

neede d the en gine run ning to op erate the power b rake sys tems. Id. at *2 .



      In contrast to Jenkins, the meager record in this case does not

demo nstrate an imminent threat requiring immediate action on the part of the

      2
          T.P.I. 40.0 5----Crim . (4th Ed.)

                                              -4-
Appe llant. We only know that when stopped Appellant’s passenger was ill as a

result of the early stages o f pregnancy, an d therefore un able to drive. The re is

no showing that there was an imminent threat to the pass enge r’s life or h ealth if

Appellant did not drive. Indeed, there is nothing in the record showing that the

illness was severe enough to constitute an emergency, that the passenger was

being transported for medical treatment, or that other alternatives to Appellant

driving were unava ilable. In short, A ppella nt has failed to dem onstra te in this

record that her actions were th e only means of avoiding an imminent threat to her

pass enge r’s health and safety. Under these circumstances we cannot say it was

error for the trial judge to deny a request for a jury instruction on the defense of

necessity.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                                        -5-
