                                                                                        02/28/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2017

            STATE OF TENNESSEE v. DARLENE F. HOTTIMAN

                  Appeal from the Circuit Court for Hardin County
                   No. 16-CR-11       C. Creed McGinley, Judge
                     ___________________________________

                           No. W2016-02077-CCA-R3-CD
                       ___________________________________

A Hardin County Circuit Court Jury convicted the Appellant, Darlene F. Hottiman, of
operating a motor vehicle after having been declared a motor vehicle habitual offender, a
Class E felony, and driving on a revoked license, a Class A misdemeanor, and she
received an effective four-year sentence to be served in confinement. On appeal, the
Appellant contends that the evidence is insufficient to support her convictions due to her
defense of necessity; that the trial court made improper comments to an alternate juror,
made improper comments about the length of jury deliberations, and made improper
comments about plea negotiations during the sentencing hearing; and that the trial court
improperly enhanced her felony sentence based upon her prior criminal history and
should have granted her request for probation. Based upon the record and the parties’
briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

Terry Lee Dicus, Jr., Savannah, Tennessee, for the appellant, Darlene F. Hottiman.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Matthew Stowe, District Attorney General; and Vance Dennis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

     Investigator Keith Amos of the Hardin County Sheriff’s Department testified that
on August 27, 2015, he was driving on 3 Wheeler Lane, which he described as a public
“gravel dirt” road. A gold Ford Explorer was traveling toward him from the opposite
direction, and he saw the Appellant driving the vehicle. He said that he knew the
Appellant did not have a driver’s license, that he turned his patrol car around, and that he
activated his car’s emergency equipment. The Appellant pulled over, and Investigator
Amos approached the Explorer. He asked the Appellant where she was going and if she
“did get her license back.” She told him that she was “sick” and that she was “going to
someone’s house for them to take her to the doctor.” Investigator Amos “ran” the
Appellant’s information through dispatch, and dispatch advised him that she had been
declared a motor vehicle habitual offender and that her license had been revoked.

        Investigator Amos testified that the Appellant gave him consent to search the
Explorer, that he searched it for weapons and narcotics, and that he did not find anything.
He also searched her purse and found one prescription bottle for fluoxetine, which was a
generic version of Prozac, and one prescription bottle for gabapentin. He said that the
Appellant was not exhibiting any signs of physical trauma at that time but that she kept
telling him she was sick. She did not tell him about any specific illness.

       Investigator Amos testified that two other officers arrived and that he told the
Appellant he was going to arrest her for “driving offenses.” He said that as he was
talking to the other officers, he turned around and saw that the Appellant “had opened
[the fluoxetine bottle] and poured a handful of pills out attempting to put them in her
mouth.” The officers removed about ten pills from the Appellant’s mouth, and she fell to
the ground. Investigator Amos said that he did not know how many pills the Appellant
swallowed, so he called for medical assistance “to check her out.”

       Investigator Amos testified that an ambulance arrived and that medical personnel
told him the Appellant was conscious but not responding to them. They transported the
Appellant to an emergency room, and she stayed in the hospital overnight for
observation. She was released from the hospital the next day, and a police officer
arrested her and transported her to jail.

       On cross-examination, Investigator Amos testified that he knew the Appellant
“from prior arrests” and that she was not speeding, was wearing her seatbelt, and was
maintaining her lane of travel when he stopped her on August 27. After the stop, the
Appellant kept telling him that she was sick and that she did not want to go to jail. She
also told him that she was trying to get someone to take her to the doctor. However, she
did not ask for an ambulance and did not tell him that she had a stroke in 2009. After
Investigator Amos told the Appellant that she was going to jail, she “attempted to harm
herself” by swallowing the pills. She fell to the ground about twenty seconds later.
Another officer administered a “sternum rub” to the Appellants’ chest, but she was
unresponsive. Investigator Amos acknowledged that a sternum rub was painful and that
it “would probably wake you up if you were trying to fake.”


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       The Appellant testified in her own behalf that she was fifty-six years old, that she
had been declared a motor vehicle habitual offender in 1994, and that she had been
unable to get her driver’s license reinstated. The Appellant said that in 2009, she was
diagnosed with TIA or “mini strokes” and that her symptoms at that time were headaches
and dizziness. The Appellant said that on August 27, 2015, she was driving because she
was “sick.” She explained,

              I had a bad headache and dizzy. I called my cousin[, Cindy
              Franks, and] asked her would she take me to the hospital,
              because I felt like I was having a stroke like I did before.
              And she said, no, come to my house. She told she told me if I
              could get over there to pick her up she would.

The Appellant telephoned another friend but that friend had a broken leg and could not
drive. The Appellant also called her son but was unable to contact him. She said she
usually did not drive and was on her way to Franks’s house when Investigator Amos
stopped her.

        The Appellant testified that she did not swallow any medication on August 27 and
that “I was going to, but he got it away from me.” She denied trying to harm herself and
said she told Investigator Amos that she was going to take her medicine because she had
not taken it that day. She said that she did not remember receiving a sternum rub and
acknowledged that she was driving on August 27 because she thought she was having a
medical emergency and needed immediate medical treatment.

        On cross-examination, the Appellant testified that Cindy Franks could not come to
get her because Franks did not have a car. The gold Explorer belonged to the Appellant’s
son. The Appellant said she did not dial 9-1-1, and the State asked, “Ms. Hottiman, don’t
you think it would be reasonable if you were in fear of serious medical problems for you
to call 911 and let them come get you and treat you quickly?” The Appellant answered,
“Yes, sir, but I couldn’t think straight.” She acknowledged that she had been declared a
motor vehicle habitual offender twenty-two years before trial and that she had received
three prior convictions related to driving over the past twenty years. She also
acknowledged that she knew she was not supposed to be driving on August 27. She
denied trying to swallow “a handful” of pills but acknowledged that several pills may
have been in her hand.

       On redirect examination, the Appellant testified that she never claimed in prior
cases that she was having a stroke. She said that she understood perjury was a felony and
maintained that she was driving on August 27 because she thought she was having a
medical emergency. The Appellant identified her medical records from 2009 and
acknowledged that they showed she became unresponsive then, just like she became
unresponsive on August 27, 2015.

                                           -3-
       At the conclusion of the Appellant’s testimony, the jury convicted her as charged
of operating a motor vehicle after having been declared a motor vehicle habitual offender,
a Class E felony, and driving on a revoked license, a Class A misdemeanor. After a
sentencing hearing, the trial court sentenced her to concurrent sentences of four years and
eleven months, twenty-nine days, respectively.

                                       II. Analysis

                             A. Sufficiency of the Evidence

       The Appellant claims that the evidence is insufficient to support her convictions
because the proof is undisputed that she was driving out of necessity. The State argues
that the evidence is sufficient because the jury rejected the Appellant’s necessity defense.
We agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

                                           -4-
       During the final jury charge, the trial court instructed the jurors as follows:

                     Included in the defendant’s plea of not guilty is her
              plea of necessity as a defense. It is a defense to the offense
              charged that number one, the defendant reasonably believed
              the conduct was immediately necessary to avoid imminent
              harm. And number two, the desirability and urgency of
              avoiding the harm clearly outweighed according to the
              ordinary standards of reasonableness, the harm sought to be
              prevented by the law prescribing the conduct.

                     Imminent means near, at hand, or on the point of
              happening. Ordinary standards of reasonableness means the
              care an ordinary, reasonable, prudent person would have
              taken under the same or similar circumstances. If evidence is
              introduced supporting the defense of necessity, the burden is
              on the State to prove beyond a reasonable doubt that the
              defendant did not act out of necessity.

                     If from all the facts and circumstances, you find the
              defendant acted out of necessity or if you have a reasonable
              doubt as to whether she acted out of necessity then you must
              find the defendant not guilty.

See Tenn. Code Ann. § 39-11-609; T.P.I. - Crim. 40.05. The common law defense of
necessity “excuses criminal liability in those exceedingly rare situations where criminal
activity is an objectively reasonable response to an extreme situation.” Tenn. Code Ann.
§ 39-11-609, Sentencing Comm’n Comts. “[N]ecessity requires an immediately
necessary action, justifiable because of an imminent threat, where the action is the only
means to avoid the harm.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App.
1998). “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.” Tenn. Code Ann. § 39-11-609, Sentencing Comm’n Comts.

        In this case, Investigator Amos testified that he saw the Appellant driving the
Explorer and that she was not speeding, was wearing her seat belt, and was traveling
within her lane. When he stopped her, she did not mention having a headache, dizziness,
or a history of mini strokes. Instead, she kept telling him that she was “sick” and that she
did not want to go to jail. The Appellant never requested an ambulance and did not
exhibit any physical symptoms of an illness until the officer told her that he was arresting
her. At that time, she attempted to swallow a handful of prescription medication, fell to
the ground, and became unresponsive. During closing arguments, the State contended

                                             -5-
that the only issue in this case was whether “it was somehow necessary for her to break
the law.” The State noted that the Appellant telephoned several people and argued as
follows:

              There’s nothing reasonable about getting in a vehicle when
              you know you’re prohibited from driving that vehicle, when
              you know you’ve been convicted three different times for
              driving when you’re not supposed to drive, there’s nothing
              reasonable about that when you can pick up the phone and
              trained medical personnel will come to your aid immediately.
              Nothing reasonable about that.

The jury heard the evidence and, irrespective of whether it believed the Appellant’s claim
that she thought she was having a stroke, chose to reject her defense of necessity, as was
its prerogative. Accordingly, the evidence is sufficient to support the convictions.

                                 B. Improper Comments

       Next, the Appellant contends that she was denied a fair trial because the trial court
made improper comments to an alternate juror at the close of proof, made improper
comments about the length of jury deliberations at the close of proof, and made improper
comments about plea negotiations during the sentencing hearing. However, the
Appellant did not raise any of the issues in her motion for new trial or during the very
brief hearing on the motion. Therefore, she has waived them. See Tenn. R. App. P. 3(e).

       With regard to the Appellant’s claim that the trial court made improper comments
about plea negotiations during the sentencing hearing, she contends that the court’s
statements constitute plain error and require a new trial in front of a different judge. We
disagree.

       During the sentencing hearing, defense counsel advised the trial court that the
Appellant was “extremely fragile,” that she had “a number of health issues,” and that
counsel did not think society would benefit from her being incarcerated. The trial court
stated as follows:

              Well, it’s not the Court’s intent to go into the background of
              any plea offers, but you said earlier on a particular defendant
              you had nothing to lose. I believe I would have looked at any
              potential offers, because this lady had a tremendous amount
              to lose in promoting a, quote, defense that clearly the jury saw
              through. As I recall the jury was out a very limited amount of
              time, and it showed the strength of the State’s case.


                                           -6-
The Appellant argues that the court’s comments “cause[] unnecessary concern as to
whether the case was lost before the first witness testified thus depriving the Appellant of
her day in court.” However, the Appellant received her day in court, having a jury trial
and even testifying in front of that jury. The court did not make the comments during the
trial or in front of the jury. In sum, nothing indicates that a clear and unequivocal rule of
law was breached, that a substantial right of the accused was adversely affected, or that
consideration of the error is necessary to do substantial justice. State v. Adkisson, 899
S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). The Appellant is not entitled to plain error
relief.

                                      C. Sentencing

       Finally, the Appellant claims that the trial court improperly enhanced her felony
sentence based upon her prior criminal history and should have granted her request for
probation. The State argues that the court properly sentenced the Appellant. We agree
with the State.

        No witnesses testified at the sentencing hearing, but the State introduced the
Appellant’s presentence report into evidence. According to the report, the Appellant was
divorced with two adult children. In the report, the Appellant stated that she was raised
in foster homes and that she had a nervous breakdown when her younger brother died in
2009. She described her mental health as “fair” due to her being bipolar and
schizophrenic and her physical health as “poor” due to TIA, ulcerative colitis, anemia,
thyroid problems, and nerve damage to her back and legs. The report showed that the
Appellant dropped out of high school after the tenth grade but that she obtained her GED
and became a certified nursing assistant. According to the report, she worked as a
certified nursing assistant from 1982 to 1983 and 1987 to 1990 and that she worked as a
housekeeper for a hospital from 1987 to 1989. At the time of the report, the Appellant
did not work but received $733 per month in disability income. The report showed that
the Appellant had the following criminal history: operating a motor vehicle after having
been declared a motor vehicle habitual offender in 1996, 2002, and 2013; misdemeanor
theft in 2008 and 2009; and five convictions for writing bad checks in 2001.

        The trial court found that the Appellant was a Range II, multiple offender and that
she was not eligible for alternative sentencing due to her criminal history. The court,
listing her ten prior felony and misdemeanor convictions, applied enhancement factor (1),
that “[t]he defendant has a previous history of criminal convictions or criminal behavior,
in addition to those necessary to establish the appropriate range,” to her sentence for
operating a motor vehicle after having been declared a motor vehicle habitual offender.
See Tenn. Code Ann. § 40-35-114(1). The court stated that the Appellant’s history of
criminal convictions was “significant” and justified the maximum punishment in the
range, four years. See Tenn. Code Ann. § 40-35-112(b)(5). The Appellant received a


                                            -7-
concurrent sentence of eleven months, twenty-nine days for the conviction of driving on a
revoked license.

       Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court is to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to
alternative sentencing). In sentencing a defendant, the trial court shall consider the
following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the Appellant in her own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991). The burden is on the Appellant to demonstrate the impropriety of her
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because
              the general assembly set the minimum length of sentence for
              each felony class to reflect the relative seriousness of each
              criminal offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in § 40-35-113
              and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343. Appellate courts are “bound by a trial court’s

                                           -8-
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.

        An appellant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). Moreover, an appellant who is
an especially mitigated or standard offender convicted of a Class C, D, or E felony should
be considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-
35-103(1) sets forth the following sentencing considerations which are utilized in
determining the appropriateness of alternative sentencing:

                      (A) Confinement is necessary to protect society by
              restraining a defendant who has a long history of criminal
              conduct;

                     (B) Confinement is necessary to avoid depreciating
              the seriousness of the offense or confinement is particularly
              suited to provide an effective deterrence to others likely to
              commit similar offenses; or

                    (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal
conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

       The Appellant contends that the trial court should not have enhanced her felony
sentence based upon her three prior convictions of operating a motor vehicle after having
been declared a motor vehicle habitual offender because the trial court also used the three
convictions to classify her as a Range II, multiple offender. We agree in part with the
Appellant. A defendant qualifies as a multiple offender if he or she has a “minimum of
two (2) but not more than four (4) prior felony convictions within the conviction class, a
higher class, or within the next two (2) lower felony classes.” Tenn. Code Ann. § 40-35-
106(a)(1). Here, the Appellant had three convictions of operating a motor vehicle after
having been declared a motor vehicle habitual offender, a Class E felony. Two of those
convictions were sufficient to establish her as a multiple offender. The remaining
conviction and her seven misdemeanor convictions justified the application of

                                           -9-
enhancement factor (1). The Appellant contends that her misdemeanor convictions
should be “somewhat mitigated” by the fact that she survives on just $733 per month.
However, the 2005 amendments to the 1989 Sentencing Act “deleted as grounds for
appeal a claim that the trial court did not weigh properly the enhancement and mitigating
factors.” Carter, 254 S.W.3d at 345.

       Regarding the trial court’s denial of probation, we initially note that as a Range II,
multiple offender, the Appellant was eligible for alternative sentencing but not considered
a favorable candidate for alternative sentencing. Moreover, the trial court’s comments
demonstrate that it was greatly troubled by the Appellant’s likelihood to reoffend and her
lack of potential for rehabilitation. During the sentencing hearing, the trial court stated,
“She’ll be trying [to drive] as soon as she gets out the door, claiming some other excuse I
guess. Look at her history[.]” The court also stated that the Appellant “poses a threat to
the public given her prior history as well as her continual disregard of conforming her
conduct to the requirements of the law.” Given the court’s finding that confinement was
necessary to protect society from the Appellant and that she lacked potential for
rehabilitation, the court properly ordered that she serve her sentences in confinement.

                                       III. Conlusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.

                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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