MEMORANDUM DECISION                                                          FILED
                                                                        Feb 27 2017, 9:31 am
Pursuant to Ind. Appellate Rule 65(D),
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
Michael Frischkorn                                       Curtis T. Hill, Jr.
Fortville, Indiana                                       Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benton Courtney,                                         February 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1604-CR-864
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C06-1504-F5-491



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017          Page 1 of 8
                                       Statement of the Case
[1]   Benton Courtney appeals the trial court’s revocation of his probation and its

      order that he serve the entirety of his previously suspended sentence. Courtney

      raises two issues for our review, namely:

              1.      Whether the trial court erred when it rejected Courtney’s
                      proffered affirmative defense of necessity.


              2.      Whether the court abused its discretion when it ordered
                      Courtney to serve the entirety of his previously suspended
                      sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 30, 2015, Courtney pleaded guilty, pursuant to a written

      agreement, to possession of methamphetamine, as a Level 5 felony;

      maintaining a common nuisance, as a Level 6 felony; and theft, as a Class A

      misdemeanor. Pursuant to the plea agreement, the State recommended that

      Courtney receive a three-year sentence suspended to probation. The trial court

      accepted the plea agreement and sentenced Courtney accordingly.


[4]   Less than one month later, Courtney led Alexandria Police Department

      Officers Michael Montgomery and Joe Heath on a high-speed chase through a

      residential neighborhood. In particular, the officers observed Courtney cross

      double-yellow lines and drive seventy miles per hour in a twenty-mile-per-hour

      residential zone. They also observed Courtney twice fail to stop at four-way

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 2 of 8
      stops in that residential area. And, during the chase, the officers observed

      Courtney laughing.


[5]   Courtney eventually complied with the officers’ demands to stop his vehicle.

      The officers then ordered Courtney out of the vehicle. Also inside the vehicle

      were Myra Applegate, Courtney’s mother, in the front passenger’s seat and

      Kayla Short in the back seat along with two children younger than two years

      old.


[6]   After the officers had placed Courtney in a patrol vehicle, Short and Applegate

      stated that Courtney had been trying to get Applegate to a hospital because she

      had been having seizures. The officers called for paramedics, but, upon their

      arrival, Applegate told them that “she was not having a seizure and she felt

      fine.” Tr. at 32.


[7]   Thereafter, the State filed a notice of probation violation in which the State

      alleged that Courtney had committed several new offenses, namely, resisting

      law enforcement, as a Level 6 felony; neglect of a dependent, as a Level 6

      felony; and criminal recklessness, as a Level 6 felony. The State further alleged

      that, shortly before the traffic incident, Courtney had tested positive for

      methamphetamine and amphetamine.


[8]   The trial court held an evidentiary hearing on the State’s notice of probation

      violation. At that hearing, Courtney admitted to the failed drug test, but he

      argued that his traffic violations were justified under the doctrine of necessity



      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 3 of 8
      because he needed to get his mother to a hospital. The trial court, not

      convinced, stated:


              I heard your explanation for why this happened and it’s[,] put
              very bluntly, not believable, not even close. You[’re] driving
              away from the . . . hospital that’s in close proximity of your
              home . . . . Secondly[,] if I’d say that’s okay . . . , you’re going to
              the next closest hospital, you leave the most direct route to get
              there[] to enter into a residential area where . . . you go at a high
              rate of speed . . . away from the closest hospital. If you’re truly
              going to the hospital, even if there is a police officer behind you,
              you don’t start going into residential areas away from your
              intended . . . destination. That is not objectively reasonable, that
              is anything but reasonable on any standard . . . . You had other
              alternatives available to you, you could call an ambulance.
              Again, even if you were going to the hospital . . . that does not
              give you leave to cross double yellow lines, we have evidence of
              that. That does not give you leave to go seventy miles an hour in
              a twenty mile an hour zone, we have evidence of that. [A]s I
              said, it’s not even close. Your explanation does not hold
              water . . . .


      Id. at 42-43. The court then revoked Courtney’s placement on probation and

      ordered him to serve the entirety of his previously suspended sentence. This

      appeal ensued.


                                     Discussion and Decision
                                            Standard of Review

[9]   Courtney argues on appeal that the trial court erroneously rejected his defense

      of necessity and that the court abused its discretion when it ordered him to



      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 4 of 8
       serve the entirety of his previously suspended sentence. As the Indiana

       Supreme Court has stated:


               “Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled.” Prewitt v. State,
               878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the
               trial court to determine probation conditions and to revoke
               probation if the conditions are violated. Id. In appeals from trial
               court probation violation determinations and sanctions, we
               review for abuse of discretion. Id. An abuse of discretion occurs
               where the decision is clearly against the logic and effect of the
               facts and circumstances, id., or when the trial court misinterprets
               the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
               Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
               (“An abuse of discretion may also be found when the trial court
               misinterprets the law or disregards factors listed in the controlling
               statute.”)).


       Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We address each of

       Courtney’s arguments in turn.


                                       Issue One: Necessity Defense

[10]   We first consider Courtney’s argument that the trial court erred when it rejected

       his proffered affirmative defense of necessity. As we have explained:


               In order to prevail on a claim of necessity, the defendant must
               show (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

       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 5 of 8
               accused must not have substantially contributed to the creation of
               the emergency. Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct.
               App. 1994). In order to negate a claim of necessity [in a criminal
               trial], the State must disprove at least one element of the defense
               beyond a reasonable doubt. See Pointer v. State, 585 N.E.2d 33,
               36 (Ind. Ct. App. 1992) (discussing State’s burden in the context
               of an analogous self-defense claim). 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
               decision whether a claim of necessity has been disproved is
               entrusted to the fact-finder. Id.


       Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999).


[11]   Courtney’s entire argument on this issue on appeal is a request for this court to

       credit and give controlling weight to his testimony instead of the testimony of

       the officers involved in the traffic incident. We will not reweigh the evidence

       on appeal or reassess the credibility of the witnesses. The trial court acted

       within its discretion when it found Courtney’s proffered defense “not

       believable,” “not objectively reasonable,” and “not even close.” Tr. at 42-43.

       We affirm the trial court’s rejection of Courtney’s affirmative defense and the

       revocation of his probation.


                                  Issue Two: Imposition of Entirety of
                                     Previously Suspended Sentence

[12]   Courtney also asserts that the trial court abused its discretion when it ordered

       him to serve the entirety of his previously suspended sentence. Courtney’s

       entire argument on this issue is as follows:



       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 6 of 8
                 Courtney admitted to a dirty drug screen and using
                 methamphetamine[,] which saved the State time and effort to
                 prove the violation. Also, this is the first probation violation and
                 it does not rise to the level of revoking probation and ordering
                 that Courtney serve the previously suspended sentence. At the
                 time of the initial sentencing, the underlying conviction was
                 Courtney’s only felony conviction. Courtney has been
                 cooperative from the initial guilty plea in this case to the
                 probation violation admission.


       Appellant’s Br. at 10.1


[13]   We cannot agree with Courtney. The evidence before the trial court

       demonstrated that, less than one month after he had been placed on probation,

       Courtney used illicit substances and committed new offenses of resisting law

       enforcement, as a Level 6 felony; neglect of a dependent, as a Level 6 felony;

       and criminal recklessness, as a Level 6 felony. And the facts underlying

       Courtney’s new offenses demonstrate an egregious disregard for law

       enforcement and the safety of others, including two very young children who

       were in his vehicle at the time of the offenses. Based on the facts before the trial

       court, the court’s imposition of the entirety of Courtney’s previously suspended

       sentence was well within its discretion. As such, we affirm the court’s

       judgment.




       1
           We do not interpret Courtney’s argument on this issue to be a challenge to the revocation of his probation.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017             Page 7 of 8
[14]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017   Page 8 of 8
