Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                       Mar 31 2014, 6:27 am
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:

TIMOTHY J. BURNS                                GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

TERELLE YOUNG,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1308-CR-712
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable David M. Hooper, Commissioner
                            Cause No. 49F08-1301-CM-4769


                                      March 31, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Terelle Young (Young), appeals his conviction for failure to

stop after an accident resulting in personal injury, a Class A misdemeanor, Ind. Code §§

9-26-1-1; -8.

       We affirm.

                                         ISSUE

       Young raises one issues on appeal which we restate as:         Whether the State

presented sufficient evidence beyond a reasonable doubt to disprove Young’s necessity

defense.

                       FACTS AND PROCEDURAL HISTORY

       On January 20, 2013, Melin Nesbitt (Nesbitt) was sitting in the front passenger

seat of her car while parked outside a grocery store in Indianapolis, Indiana. Young, then

eighteen-years-old, entered the driver’s side of a red Lexus, which was parked

approximately fifteen feet away. Putting his car in reverse, Young backed into Nesbitt’s

car as Nesbitt’s husband was returning from the grocery store. Young exited his car,

checked whether it was damaged, gave Nesbitt the finger, and drove away from the

scene. Nesbitt copied down the car’s license plate number. Later that same day, police

officers located Young and the red Lexus at Young’s mother’s residence.

       Because the collision caused Nesbitt’s knee to strike the dashboard of her car and

become painful and swollen, she received treatment in the emergency room. At the time

of the accident, Young held a learner’s permit and was prohibited from driving the car

alone. Also, Young’s “license had been suspended” after a previous incident where he


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received a learner’s permit violation and speeding infraction for driving over the speed

limit. (Transcript p. 116).

       On January 20, 2013, the State filed an Information charging Young with failure

to stop after an accident resulting in personal injury, a Class A misdemeanor, I.C. §§ 9-

26-1-1; -8. On April 29, 2013 and July 26, 2013, the trial court conducted a bench trial.

During trial, Young asserted a necessity defense arguing that because Nesbitt’s husband

was shouting at him and walking towards him, he rapidly left out of fear that Nesbitt’s

husband would start a fight. At the close of the evidence, the trial court found Young

guilty as charged and sentenced him to 365 days with four days executed and 361 days

suspended to probation.

       Young now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

       Young does not contest that he drove into Nesbitt’s car and left the scene of the

accident. He argues, however, that he did so out of necessity because Nesbitt’s husband

approached and acted as if he wanted to start a fight and that the State introduced

insufficient evidence to prove otherwise. The common law defense of necessity has

evolved over the years and is often referred to as the “choice of evils” defense. Toops v.

State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). Although the confines of the necessity

defense vary from jurisdiction to jurisdiction, the central element involves the emergency

nature of the situation. Id. That is, under the force of extreme circumstances, conduct

that would otherwise constitute a crime is justifiable and not criminal because of the

greater harm which the illegal act seeks to prevent. Id.


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       Traditionally, in order to prevail on a claim of necessity, the defendant must show

that (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).

       Our supreme court has noted that necessity is an affirmative defense and that an

affirmative defense “admits all the elements of the crime but proves circumstances which

excuse the defendant from culpability.” Melendez v. State, 511 N.E.2d 454, 457 (Ind.

1987). Thus, in order to negate a claim of necessity, the State must disprove at least one

element of the defense beyond a reasonable doubt. Dozier, 709 N.E.2d at 29. 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 finder-of-fact. Id. Where 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.

       Reviewing the evidence before us, we do not conclude that a necessity justified

Young’s departure from the scene of the accident without exchanging information with

Nesbitt. By driving the vehicle with a learner’s permit and without a licensed driver,


                                            4
backing into Nesbitt’s parked vehicle with enough force to injure her knee and giving her

the middle finger, the trial court could reasonably conclude that Young substantially

contributed to the existence of the emergency. Therefore, we affirm the trial court’s

decision.

                                    CONCLUSION

      Based on the foregoing, we conclude that the State presented sufficient evidence

beyond a reasonable doubt to rebut Young’s necessity defense.

      Affirmed.

ROBB, J. and BRADFORD, J. concur




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