MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 22 2017, 10:09 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Marjorie Lawyer-Smith Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stephen Roberts, March 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1609-CR-2011 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David M. Hooper, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G12-1512-CM-43151
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 1 of 7 [1] Stephen Roberts (“Roberts”) was convicted in Marion Superior Court of Class
B misdemeanor public intoxication. Roberts appeals and argues that the State
failed to present sufficient evidence to rebut his defense of necessity.
[2] We affirm.
Facts and Procedural History
[3] In the evening of December 5, 2015, Indianapolis Metropolitan Police
Department Officer David Kinsey (“Officer Kinsey”) was driving his patrol car
on West Washington Street to his shift’s roll call. As he did so, he observed
Roberts staggering in the street, heading east between the two westbound lanes
of traffic. Roberts’s behavior was causing a traffic jam, with vehicles in one lane
at a standstill, while vehicles in the other lane had to enter the center turn lane
to avoid hitting Roberts.
[4] Officer Kinsey stopped his car and asked Roberts to come to him. Roberts did
so, staggering and almost falling down as he made his way to the police car.
Once he got to Officer Kinsey’s car, Roberts had to lean against vehicle to prop
himself up and keep from falling down. Officer Kinsey noticed that Roberts’s
eyes were glassy and bloodshot, that his speech was slurred, and that he smelled
of alcohol. Officer Kinsey placed Roberts in his patrol car and drove him to the
police station. As he did so, the smell of alcohol was so overpowering that he
had to roll down the windows of his patrol car. Roberts repeatedly told Officer
Kinsey that he needed to get back to Bloomington, because he had been
released from a V.A. hospital and there were people who were supposed to pick
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 2 of 7 him up in Bloomington. The following day, the State charged Roberts with
Class B misdemeanor public intoxication.
[5] A bench trial was held on August 11, 2016, at which Roberts testified on his
own behalf. Roberts claimed that, on the night in question, he had been at a
nearby American Legion post, where he consumed four beers and some french
fries. He claimed that, as he was on his way back to a veteran’s housing unit,
two unknown assailants approached him from behind, one of whom kicked
him in the side. Roberts claimed that the traffic was stopped at the time, so he
fled into the street to avoid being robbed. In his closing statement, Roberts’s
counsel argued that the State had failed to prove that he was intoxicated, but he
also argued in the alternative that even if the State proved the elements of public
intoxication, Roberts’s act of staggering into the street was excused by the
defense of necessity, i.e. to avoid being robbed by the two unknown assailants.
The State countered that Roberts’s claim of being attacked was unworthy of
credit, as he had not mentioned it to the officer on the night in question and
was not seen running away from any attackers but instead was merely
staggering down the middle of the street. The trial court found Roberts guilty as
charged and sentenced him to ten days in jail, which was covered by his time
served. Roberts now appeals.
Discussion and Decision
[6] Necessity is an affirmative defense, and an affirmative defense admits all the
elements of the crime but proves circumstances which excuse the defendant
from culpability. Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013). Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 3 of 7 Accordingly, here, Roberts does not challenge the sufficiency of the evidence
used to prove that he was intoxicated in public and that he endangered his own
life, the life of others, breached the peace, or harassed, annoyed, or alarmed
another person. See Ind. Code § 7.1-5-1-3 (setting forth elements of the crime of
public intoxication as a Class B misdemeanor). Instead, Roberts’s sole claim on
appeal is that the State failed to present evidence sufficient to rebut his defense
of necessity.
[7] In order to prevail on a claim of necessity, the defendant must show the
following:
(1) the act charged as criminal must have been done to prevent a significant evil, (2) there must have been no adequate alternative to the commission of the act, (3) the harm caused by the act must not be disproportionate to the harm avoided, (4) the accused must entertain a good faith belief that his act was necessary to prevent greater harm, (5) such belief must be objectively reasonable under all the circumstances, and (6) the accused must not have substantially contributed to the creation of the emergency.
Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999).
[8] In order to negate a claim of necessity, the State must disprove at least one
element of the defense beyond a reasonable doubt. Id. The State may refute a
claim of the defense of necessity by direct rebuttal or by relying upon the
sufficiency of the evidence in its case-in-chief. Id. The question of whether a
claim of necessity has been disproved is entrusted to the trier of fact. Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 4 of 7 [9] When reviewing a claim that the State failed to present sufficient evidence to
negate a defendant’s claim of necessity, we apply the same standard of review
used for all sufficiency of the evidence questions. Id. at 30. We neither reweigh
the evidence nor judge the credibility of witnesses and instead examine only the
evidence most favorable to the State along with all reasonable inferences to be
drawn therefrom. Id. If there is substantial evidence of probative value to
sustain the conviction, then it will not be set aside. Id. Or, put differently,
“[w]here a defendant is convicted despite his claim of necessity, this court will
reverse the conviction only if no reasonable person could say that the defense
was negated by the State beyond a reasonable doubt.” Id. at 29.
[10] Here, the State did not present any evidence in rebuttal. Thus, the question is
whether the State’s case-in-chief adequately refuted Roberts’s claim of necessity.
We believe that a reasonable trier of fact could so conclude. Indeed, the trial
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 22 2017, 10:09 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Marjorie Lawyer-Smith Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stephen Roberts, March 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1609-CR-2011 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David M. Hooper, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G12-1512-CM-43151
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 1 of 7 [1] Stephen Roberts (“Roberts”) was convicted in Marion Superior Court of Class
B misdemeanor public intoxication. Roberts appeals and argues that the State
failed to present sufficient evidence to rebut his defense of necessity.
[2] We affirm.
Facts and Procedural History
[3] In the evening of December 5, 2015, Indianapolis Metropolitan Police
Department Officer David Kinsey (“Officer Kinsey”) was driving his patrol car
on West Washington Street to his shift’s roll call. As he did so, he observed
Roberts staggering in the street, heading east between the two westbound lanes
of traffic. Roberts’s behavior was causing a traffic jam, with vehicles in one lane
at a standstill, while vehicles in the other lane had to enter the center turn lane
to avoid hitting Roberts.
[4] Officer Kinsey stopped his car and asked Roberts to come to him. Roberts did
so, staggering and almost falling down as he made his way to the police car.
Once he got to Officer Kinsey’s car, Roberts had to lean against vehicle to prop
himself up and keep from falling down. Officer Kinsey noticed that Roberts’s
eyes were glassy and bloodshot, that his speech was slurred, and that he smelled
of alcohol. Officer Kinsey placed Roberts in his patrol car and drove him to the
police station. As he did so, the smell of alcohol was so overpowering that he
had to roll down the windows of his patrol car. Roberts repeatedly told Officer
Kinsey that he needed to get back to Bloomington, because he had been
released from a V.A. hospital and there were people who were supposed to pick
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 2 of 7 him up in Bloomington. The following day, the State charged Roberts with
Class B misdemeanor public intoxication.
[5] A bench trial was held on August 11, 2016, at which Roberts testified on his
own behalf. Roberts claimed that, on the night in question, he had been at a
nearby American Legion post, where he consumed four beers and some french
fries. He claimed that, as he was on his way back to a veteran’s housing unit,
two unknown assailants approached him from behind, one of whom kicked
him in the side. Roberts claimed that the traffic was stopped at the time, so he
fled into the street to avoid being robbed. In his closing statement, Roberts’s
counsel argued that the State had failed to prove that he was intoxicated, but he
also argued in the alternative that even if the State proved the elements of public
intoxication, Roberts’s act of staggering into the street was excused by the
defense of necessity, i.e. to avoid being robbed by the two unknown assailants.
The State countered that Roberts’s claim of being attacked was unworthy of
credit, as he had not mentioned it to the officer on the night in question and
was not seen running away from any attackers but instead was merely
staggering down the middle of the street. The trial court found Roberts guilty as
charged and sentenced him to ten days in jail, which was covered by his time
served. Roberts now appeals.
Discussion and Decision
[6] Necessity is an affirmative defense, and an affirmative defense admits all the
elements of the crime but proves circumstances which excuse the defendant
from culpability. Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013). Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 3 of 7 Accordingly, here, Roberts does not challenge the sufficiency of the evidence
used to prove that he was intoxicated in public and that he endangered his own
life, the life of others, breached the peace, or harassed, annoyed, or alarmed
another person. See Ind. Code § 7.1-5-1-3 (setting forth elements of the crime of
public intoxication as a Class B misdemeanor). Instead, Roberts’s sole claim on
appeal is that the State failed to present evidence sufficient to rebut his defense
of necessity.
[7] In order to prevail on a claim of necessity, the defendant must show the
following:
(1) the act charged as criminal must have been done to prevent a significant evil, (2) there must have been no adequate alternative to the commission of the act, (3) the harm caused by the act must not be disproportionate to the harm avoided, (4) the accused must entertain a good faith belief that his act was necessary to prevent greater harm, (5) such belief must be objectively reasonable under all the circumstances, and (6) the accused must not have substantially contributed to the creation of the emergency.
Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999).
[8] In order to negate a claim of necessity, the State must disprove at least one
element of the defense beyond a reasonable doubt. Id. The State may refute a
claim of the defense of necessity by direct rebuttal or by relying upon the
sufficiency of the evidence in its case-in-chief. Id. The question of whether a
claim of necessity has been disproved is entrusted to the trier of fact. Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 4 of 7 [9] When reviewing a claim that the State failed to present sufficient evidence to
negate a defendant’s claim of necessity, we apply the same standard of review
used for all sufficiency of the evidence questions. Id. at 30. We neither reweigh
the evidence nor judge the credibility of witnesses and instead examine only the
evidence most favorable to the State along with all reasonable inferences to be
drawn therefrom. Id. If there is substantial evidence of probative value to
sustain the conviction, then it will not be set aside. Id. Or, put differently,
“[w]here a defendant is convicted despite his claim of necessity, this court will
reverse the conviction only if no reasonable person could say that the defense
was negated by the State beyond a reasonable doubt.” Id. at 29.
[10] Here, the State did not present any evidence in rebuttal. Thus, the question is
whether the State’s case-in-chief adequately refuted Roberts’s claim of necessity.
We believe that a reasonable trier of fact could so conclude. Indeed, the trial
court could have simply discredited Roberts’s entire story of being attacked.
Roberts did not mention that he was fleeing any assailants to Officer Kinsey.
The trial court could reasonably expect that someone fleeing into traffic to
avoid potential robbers might mention this to a police officer. Yet all Roberts
told Officer Kinsey was that he needed to get back to Bloomington, with no
mention of his attackers. Also, Roberts was not observed fleeing or running
from any attackers; instead, he was staggering between traffic lanes in the
opposite direction of the traffic. Furthermore, Roberts’s credibility was undercut
by his claims of having only had four beers over a period of two and one-half
hours. However, he was so intoxicated that he could barely stand, had slurred
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 5 of 7 speech, and reeked of alcohol so badly that arresting officer had to roll down
the windows in his car to get fresh air.
[11] Moreover, even if the trial court believed that Roberts was attempting to escape
his alleged assailants, the trial court, acting as the trier of fact, could reasonably
conclude that the State negated at least one element of the necessity defense.
Roberts did not testify that he was in fear for his life, only that he was
concerned that his wallet might be stolen. Thus, the trial court could reasonably
conclude that there was another adequate alternative to avoid being robbed
other than staggering in between two lanes of traffic at night. See Dozier, 709
N.E.2d at 29 (noting that second element of necessity defense is that there must
have been no adequate alternative to the commission of the act). Indeed,
Roberts testified that the traffic was stopped at the time he was allegedly
attacked. Therefore, he could have crossed the street or attempted to flag down
a motorist for help. The trial court could also reasonably have concluded that
Roberts’s belief that his action of staggering between lanes of oncoming traffic
was not objectively reasonable under the circumstances. See id. (noting that fifth
element of necessity defense is that defendant’s belief that his act was necessary
to prevent greater harm must be objectively reasonable under the
circumstances). Thus, the State adequately negated at least one element of the
necessity defense.
Conclusion
[12] In short, the trial court, acting as the trier of fact, was under no obligation to
credit Roberts’s claim that he had been attacked by unknown assailants and was Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 6 of 7 fleeing from what he believed to be an attempt at robbery. Moreover, even if the
trial court credited Roberts’s story, it could have reasonably concluded that the
State presented evidence sufficient to negate one or more of the elements of the
necessity defense. For these reasons, the State presented evidence sufficient to
support Roberts’s conviction for Class B misdemeanor public intoxication.
[13] Affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 7 of 7