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State v. Hottiman

Court of Criminal Appeals of Tennessee, Jackson

February 28, 2018

STATE OF TENNESSEE
v.
DARLENE F. HOTTIMAN

          Assigned on Briefs September 7, 2017

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

         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

          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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         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."

         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 ...


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