MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 31 2017, 9:53 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kurt A. Young                                           Curtis T. Hill, Jr.
Nashville, Indiana                                      Attorney General of Indiana

                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Codi Butler,                                            May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1610-CR-2415
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                     Judge

                                                        The Honorable Steven J. Rubick,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G01-1509-F3-34511



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017         Page 1 of 10
                                       Statement of the Case
[1]   Codi Butler appeals his convictions, following a bench trial, for criminal

      confinement, as a Level 3 felony, and residential entry, a Level 6 felony. He

      raises one issue on appeal, namely, whether the State presented sufficient

      evidence to support his convictions. We affirm.


                                 Facts and Procedural History
[2]   On September 24, 2015, Elliott Bevers was in his apartment on South East

      Street in Indianapolis playing video games when he heard the two women who

      lived next door screaming and cursing as they ran up the stairs and closed their

      apartment door. Bevers opened his door and looked out to see Butler, who he

      did not know and had never seen before, coming up the stairs with a gun.

      Bevers closed his door and attempted to hide in a small closet. Butler kicked in

      Bevers’ door and entered Bevers’ apartment. Bevers saw “a lot of blood on

      [Butler’s] body,” and Butler seemed to be scared. Tr. Vol. II at 29. Bevers said,

      “hello” to Butler, id. at 28, and Butler responded, “I’m not going to shoot you.

      Shut the f--- up. I’m not going to shoot you,” id. at 21. Butler waved his gun in

      Bevers’ direction and Bevers could see the entire gun, including the barrel.

      Butler told Bevers, “I’m bleeding.” Id. at 29. Bevers asked Butler, “Were you

      shot?” Id. Bevers replied, “I was shot.” Id.


[3]   Bevers was afraid for his safety and did not feel free to leave his apartment.

      When Bevers first offered to call 9-1-1 for Butler, Butler said, “no.” Id. at 22.

      When Bevers offered a little while later to call an ambulance for Butler, Butler


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 2 of 10
      responded, “yes.” Id. After Bevers called 9-1-1, Butler stated, “They’re coming

      to kill me.” Id. at 29.


[4]   Bevers saw red lights outside the apartment through his bathroom window.

      Butler, still holding a gun, approached Bevers. Butler did not point his gun at

      Bevers or push Bevers or speak to Bevers at this time, but he made “enough”

      physical contact with Bevers that Bevers believed he had to go into the

      bathroom with Butler. Id. at 24. The two men entered the bathroom and Butler

      looked out the window. When Butler saw the police, he said to Bevers, “Why

      did you tell them I had a gun?” Id. Bevers responded that he did not tell the

      police that Butler had a gun. Butler then rubbed his gun on his shirt and walked

      into the main room of the apartment. Butler moved a trundle bed partly in

      front of the apartment door, and he then laid down on the floor in between the

      bed and the wall, to the side of the front door.


[5]   Officers Jose Navarro and Jennifer Asher of the Indianapolis Metropolitan

      Police Department (“IMPD”) responded to a dispatch report that a black male

      wearing a white shirt and “khakis” had “purportedly” fired six gun shots in the

      area of Lincoln and New Jersey streets and was running toward the Emhardt

      building, which was Bevers’ apartment building. Id. at 49-50. When Officers

      Navarro and Asher arrived outside Bevers’ apartment building, Officer Navarro

      noticed damage to the exterior door of the building. The officers then checked

      inside the apartment building and Officer Navarro noticed damage to Bevers’

      apartment door, which was slightly open. The officers announced themselves



      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 3 of 10
      and pushed their way into the apartment, past the trundle bed blocking the

      door.


[6]   Upon entering Bevers’ apartment, Officer Navarro saw Butler lying on the floor

      to the left of the door. Officers Navarro and Asher also saw Bevers toward the

      back of the apartment, and he appeared to be shaking, nervous, and scared.

      While Officers Navarro and Asher checked the rest of the apartment, IMPD

      Officer Gregory Popcheff arrived and saw Butler lying on the floor. Officers

      Navarro and Asher went to Butler to see if he was injured. When they lifted

      Butler’s shirt, a small black handgun fell out of the shirt. EMS personnel

      arrived at the scene. The officers and EMS personnel who inspected Butler did

      not find any gunshot wounds on him. The officers arrested Butler and placed

      him in an ambulance. While paramedics were evaluating Butler for injuries, he

      began to struggle. Butler disobeyed Officer Popcheff’s commands and resisted

      the officer’s attempts to place handcuffs on him.


[7]   The State charged Butler with Count I, criminal confinement as a Level 3

      felony; Count II, carrying a handgun without a license, as a Level 5 felony;

      Count III, residential entry, a Level 6 felony; Count IV, resisting law

      enforcement, as a Class A misdemeanor; and Count V, pointing a firearm, as a

      Level 6 felony. Butler waived a jury trial and his bench trial occurred on

      September 9, 2016. At his trial, Butler admitted that he did not have a license

      to carry the handgun, that he had kicked in Bevers’ door, and that he had

      resisted law enforcement officers while they tried to restrain him in the

      ambulance. But Butler maintained that he broke into Bevers’ apartment due to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 4 of 10
      an emergency—that is, he was trying to escape several men who had pulled a

      gun on him earlier and who he thought were chasing him. Butler testified that

      he did not pull out his own gun during the encounter with the other men.

      Butler testified that he told the medics and officers in the ambulance that “they

      tried to kill [him].” Tr. Vol. II at 68. However, Officers Navarro and Popcheff

      testified that they did not hear Butler make that statement and they did not hear

      him tell them that he was in danger.


[8]   Officer Popcheff testified that Butler matched the description of the suspect in

      the September 24, 2015, dispatch report. The State introduced its Exhibit 19, to

      which Butler stipulated. That exhibit, which was a CD recording of telephone

      conversations Butler had while he was in jail for the charges in this case, was

      admitted. In particular, the following portions of Exhibit 19 were played for the

      court:


               Unidentified Male: “Do I know who did it?”

               Butler: “What’s that?”

               Male: “The shooting.”

               Butler: “Ah, sh--[,] bro, I jumped the gun first[,] bro.”


      Appellee’s Br. at 13. And:


               Unidentified Female: “And you didn’t[,] like, stab somebody
               with a knife, or pull a gun or nothing?”

               Butler: “Yeah I had pulled a gun [laughs] it was . . .”

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 5 of 10
                Female: “There you go, now I got ya.”


       Id.1


[9]    The trial court found Butler guilty of Count I, criminal confinement, as a Level

       3 felony; Count II, carrying a handgun without a license, as a Level 5 felony;

       Count III, residential entry, a Level 6 felony; and Count IV, resisting law

       enforcement, as a Class A misdemeanor. The court entered judgment and

       sentenced Butler to concurrent terms of nine years, three years, one year, and

       one year on the respective counts. The court found Butler not guilty of Count

       V, pointing a firearm. This appeal ensued.


                                        Discussion and Decision
[10]   Butler challenges the sufficiency of the evidence to support his convictions of

       criminal confinement and residential entry.2 Our standard of review of the

       sufficiency of the evidence is well-settled:

                When reviewing the sufficiency of the evidence needed to
                support a criminal conviction, we neither reweigh evidence nor
                judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
                (Ind. 2009). “We consider only the evidence supporting the
                judgment and any reasonable inferences that can be drawn from
                such evidence.” Id. We will affirm if there is substantial



       1
         The Court Reporter was unable to locate the CD of the jail telephone calls for inclusion in the record on
       appeal. Ex. Vol. I at 22-23. However, Butler does not dispute the accuracy of the above quotes of two of the
       jail telephone calls as contained in the State’s brief.
       2
         Butler does not appeal his convictions for carrying a handgun without a license and resisting law
       enforcement.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017              Page 6 of 10
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.


[11]   To support Butler’s conviction of criminal confinement, as a Level 3 felony, the

       State had to prove: (1) Butler; (2) knowingly or intentionally; (3) confined

       Bevers without his consent; (4) while armed with a handgun. Ind. Code § 35-

       42-3-3 (2015). To support his conviction of residential entry, the State was

       required to prove: (1) Butler; (2) knowingly or intentionally; (3) broke and

       entered Bevers’ dwelling. I.C. § 35-43-2-1.5. Butler does not deny that he

       knowingly confined Bevers without his consent while armed with a handgun.

       Nor does he deny that he knowingly broke and entered Bevers’ dwelling.

       Rather, Butler contends that he “presented all the elements of the defense of

       necessity”—thus showing his actions were justified—and that the State failed to

       rebut any of those elements beyond a reasonable doubt. Appellant’s Br. at 12.


[12]   When a defendant raises the affirmative defense of necessity, he 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 accused must
               not have substantially contributed to the creation of the
               emergency.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 7 of 10
       Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999) (citing Toops v. State, 643

       N.E.2d 387, 390 (Ind. Ct. App. 1994)).3 To negate a claim of necessity, the

       State must disprove at least one element of the defense beyond a reasonable

       doubt. 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.” Clemons, 996

       N.E.2d at 1285.


[13]   Assuming without deciding that Butler proved all six necessity elements by a

       preponderance of the evidence, the trial court did not err in holding that the

       State provided sufficient evidence to disprove at least one of those elements

       beyond a reasonable doubt. Although the parties discuss several of the

       necessity elements, we only address whether Butler substantially contributed to

       the nature of the emergency. We hold that the State provided sufficient

       evidence that he did.


[14]   Although Butler claims that he did not initiate the shooting with other men in

       the area of Lincoln and New Jersey streets, the State provided sufficient

       evidence from which the trial court could reasonably infer that he did. The




       3
          Thus, Butler is incorrect when he maintains, without citation to authority, that he did not have the burden
       of proving the affirmative defense of necessity by a preponderance of the evidence. Appellant’s Br. at 4.
       Necessity is an affirmative defense in which the defendant “admits all the elements of the crime, but proves
       circumstances which excuse the defendant from culpability.” Clemens, 996 N.E.2d at 1285 (quoting Melendez
       v. State, 511 N.E.2d 454, 457 (Ind. 1987)). And “[a] defendant bears an initial burden of proof by a
       preponderance of the evidence on any affirmative defense.” Wilson v. State, 997 N.E.2d 38, 44 (Ind. Ct. App.
       2013) (quoting Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017               Page 8 of 10
       IMPD officers testified that the September 24, 2015, dispatch report was that a

       black male wearing a white shirt and khakis had purportedly fired six gun shots

       in the area of Lincoln and New Jersey streets and was running toward the

       Emhardt building, which was Bevers’ apartment building. Officer Popcheff

       testified that Butler, who was found at Bevers’ apartment soon thereafter,

       matched the dispatch report description of the suspect and possessed a gun.


[15]   Moreover, the State presented evidence, to which Butler stipulated, of

       telephone conversations Butler had while in jail. In those calls, Butler stated, in

       reference to the shootings he said took place on September 24, 2015, that he

       had “jumped the gun first,” and that he “had pulled a gun.” Appellee’s Br. at

       13. Butler does not deny that he made those statements or that they referred to

       the events of September 24. Rather, he insists that the State and the court

       misinterpreted them. However, this is merely a request that we reweigh the

       evidence, which we cannot do. Clemons, 996 N.E.2d at 1285. It was reasonable

       for the trial court to conclude that Butler substantially contributed to the

       creation of the alleged emergency from the evidence of Butler’s identity, his

       location at the scene, and his possession of a gun, and from the evidence that he

       was the first to pull a gun during the shooting.


[16]   A reasonable person could conclude that the State presented sufficient evidence

       to disprove beyond a reasonable doubt Butler’s claim that he did not

       substantially contribute to the creation of the emergency that allegedly

       necessitated his actions. Id. As the State need only negate one of the six

       necessity defense elements, Dozier, 709 N.E.2d at 29, we hold that there was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 9 of 10
       sufficient evidence to support Butler’s convictions of criminal confinement and

       residential entry.


[17]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2415 | May 31, 2017   Page 10 of 10
