FOR PUBLICATION
                                                                        Oct 29 2013, 5:36 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                         GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              ANDREW FALK
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

GERALD CLEMONS,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A05-1210-CR-587
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Amy J. Barbar, Magistrate
                          Cause No. 49G02-1203-FC-14547



                                   October 29, 2013


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Gerald Clemons appeals his conviction for possession of cocaine. Clemons raises

one issue, which we restate as whether the evidence is sufficient to sustain his conviction.

We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In the early morning hours of March 3, 2012, Indianapolis Metropolitan Police

Officer Brad Alford responded to a dispatch regarding a domestic disturbance at an

apartment complex in Marion County. When Officer Alford arrived, he heard muffled

screaming and banging coming from an upstairs apartment. He opened the exterior

building door, entered the narrow common hallway of the apartment building, and heard

noise coming from the apartment up the stairs and to the left. Officer Alford shined his

flashlight in the hallway and noticed blood splatter on the walls and on the handrail

leading up to the door from which the noise was coming. He went up the stairs, stopped

just outside the closed door to the apartment unit occupied by Clemons and his girlfriend,

Kayla Conner, and heard “belligerent yelling and screaming” coming from inside the

apartment. Transcript at 24. Clemons said, “I’m going to f--- you up, b----, I’m going to

f------ kill you.” Id. Officer Alford kicked the door loudly in an attempt to attract the

attention of someone inside the apartment. The yelling and banging ceased, and about

five to ten seconds later, Officer Alford heard footsteps coming toward the door. As no

one answered the door, Officer Alford again knocked very loudly and announced, “police

officer, open the door.” Id. at 25. In response, he heard a muffled female voice very

clearly say, “help me, please help me.” Id. Clemons asked “who is it” from inside the

apartment, and Officer Alford stated that he was a police officer and to open the door. Id.


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        Clemons opened the door about six inches, and Officer Alford noticed that he was

not wearing a shirt, was sweating, and that the room was disheveled with “stuff thrown

everywhere” and “broken items and blood on the ceiling, floor, and walls.” Id. at 26.

Officer Alford entered the apartment, ordered Clemons at gunpoint to move to the ground

on his stomach and show his hands, and noticed that Clemons had blood all over his

pants and that there was blood splatter on all four walls of the room. Clemons went to his

knees but did not show his hands. Officer Ryan Archer arrived at the scene and also

ordered Clemons to show his hands, but he still did not comply. Officer Archer deployed

his taser, but Clemons still refused to show his hands. Officer Archer used his taser

again, Clemons rolled over to his stomach and put his hands behind his back, and Officer

Alford handcuffed him. Clemons had blood on his hands, and Officer Archer asked

Clemons what had happened. Clemons stated “she cut me.” Id. at 87. Officer Archer

asked him to be more specific but Clemons did not wish to say anything else.

        Officer Alford then went to the back bathroom and found Conner covered in blood

and in the fetal position in the bathtub. He noticed blood on every wall, the ceiling, and

the floor of the bathroom. He told Conner, who “was in and out of consciousness” and

had blood in her hair, that the medics were on the way to help her. Id. at 35. Medics

took her out of the apartment on a stretcher. Officers followed a trail of blood and

discovered a kitchen knife, about six inches long, with blood on it underneath the kitchen

sink.   Clemons was arrested and transported to the arresting processing center (the

“APC”), and a search at the APC revealed a substance in Clemons’s sock which was later

determined to be 0.6963 grams of cocaine.


                                            3
        The State charged Clemons, as amended, with battery as a class C felony,

possession of cocaine as a class D felony, and resisting law enforcement as a class A

misdemeanor.1 A jury trial was conducted during which the jury heard testimony from,

among others, Officer Alford, Officer Archer, Conner, and Clemons.                            During her

testimony, Conner indicated that she had been drinking the night of the incident, that she

was highly intoxicated, that part of the subject of her argument with Clemons was

cocaine, that she wanted to use the cocaine, that Clemons took it from her, and that the

argument became heated.             Conner indicated that she wanted the cocaine and that

Clemons would not give it back. The State also presented photographic evidence of the

blood splatter in the hallway and throughout the apartment, including on the walls, in the

bathtub, and in other areas, the knife, and Conner’s injuries.

        Following the presentation of the State’s case, Clemons moved for a directed

verdict, and the court granted the motion as to the charges for battery and resisting law

enforcement.2 The jury found Clemons guilty as charged of possession of cocaine as a

class D felony. The court noted that Clemons had no prior criminal history, that the

circumstances of the crime were unlikely to reoccur, and that the mitigating

circumstances outweighed any aggravating circumstances, entered judgment of


        1
        The State originally charged Clemons with two counts of battery as class C felonies, criminal
confinement as a class D felony, and possession of cocaine as a class D felony.
        2
          Specifically, the trial court noted, with respect to the charge for resisting law enforcement, that
both officers testified that Clemons was never aggressive towards them and did not come towards or
touch them, and as a result there was no evidence that “would qualify as being forcibly resisting.”
Transcript at 140. With respect to the charge for battery, the court stated: “the only evidence that the
State has presented in it’s [sic] case in chief is that two people, both of them injured were in an apartment
when the police got there. There is no evidence of who struck who except the defendant saying she
stabbed me. So there’s absolutely no evidence as to what happened in that apartment to Kayla Conner.”
Id.
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conviction as a class A misdemeanor, and sentenced Clemons to one year suspended to

probation with a condition that he perform forty hours of community service.

                         ISSUE AND STANDARD OF REVIEW

       The issue is whether the evidence is sufficient to sustain Clemons’s conviction for

possession of cocaine. 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 evidence of probative value such that a reasonable

trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.

Id.

                                       DISCUSSION

       Ind. Code § 35-48-4-6 provides in part that a person who “knowingly or

intentionally possesses cocaine (pure or adulterated) . . . commits possession of cocaine .

. . , a Class D felony, except as provided in subsection (b).” Clemons contends that,

while he was in possession of the cocaine discovered in his sock, the State failed to prove

beyond a reasonable doubt that his possession of cocaine was not justified by reason of

necessity.

       In Dozier v. State, this court stated:

       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

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       reasonable under all the circumstances, and (6) the accused must not have
       substantially contributed to the creation of the emergency.

709 N.E.2d 27, 29 (Ind. Ct. App. 1999) (citing Toops v. State, 643 N.E.2d 387, 390 (Ind.

Ct. App. 1994)). In order to negate a claim of necessity, the State must disprove at least

one element of the defense beyond a reasonable doubt. Id. (citation omitted). 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. 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.   The Indiana 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). Indiana Trial Procedure Rule 8(C) provides in

part that “[a] responsive pleading shall set forth affirmatively and carry the burden of

proving . . . any other matter constituting an . . . affirmative defense.” In Custer v. Plan

Comm’n of City of Garrett, this court noted that Indiana Trial Procedure Rule 15(B)3


       3
           Ind. Trial Rule 15(B) provides:

       Amendments to conform to the evidence. When issues not raised by the pleadings are
       tried by express or implied consent of the parties, they shall be treated in all respects as if
       they had been raised in the pleadings. Such amendment of the pleadings as may be
       necessary to cause them to conform to the evidence and to raise these issues may be made
       upon motion of any party at any time, even after judgment, but failure so to amend does
       not affect the result of the trial of these issues. If evidence is objected to at the trial on
       the ground that it is not within the issues made by the pleadings, the court may allow the
       pleadings to be amended and shall do so freely when the presentation of the merits of the
       action will be subserved thereby and the objecting party fails to satisfy the court that the
       admission of such evidence would prejudice him in maintaining his action or defense
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“provides an escape hatch. If the issue is tried by the implied consent of the parties it is

treated as if raised by the pleadings.” 699 N.E.2d 793, 795 (Ind. Ct. App. 1998) (citing

Puckett v. McKinney, 175 Ind. App. 673, 676, 373 N.E.2d 909, 911 (1978) (holding that

the defendant had not waived an affirmative defense even though he did not assert it in

the pleadings as evidence which tended to establish the defense was elicited at trial and

admitted without objection and thus that “it may fairly be assumed the issue was tried

with the implied consent of the parties”)).

       Clemons specifically argues that “[t]he reason the situation escalated into such a

bloody conflict is because [he] wanted to prevent [Conner] from using the cocaine,” that

he “possessed the cocaine to avoid a greater harm – [Conner’s] use of it,” that he “was

presented with the choice of two evils – 1) allowing [Conner] to use the cocaine and harm

herself, or 2) possessing the cocaine to prevent her from using the cocaine,” and that his

“possession of the cocaine was the lesser of the two evils, and that he made the right

choice in taking it away from [Conner].” Appellant’s Brief at 8. Clemons further asserts

that there “was no adequate alternative to the commission of the act – if [he] had not

taken the cocaine from her, [Conner] was intent on using it,” that the “bloody situation

the police walked into upon their arrival shows that [he] did not have the time to do

anything else with the cocaine yet,” that the harm caused was not disproportionate to the

harm avoided of Conner’s use of it, and that he “did not substantially contribute to the

creation of the emergency – he did not help buy the cocaine or pick it up for her.” Id. at

9.


       upon the merits. The court may grant a continuance to enable the objecting party to meet
       such evidence.
                                                  7
       The State maintains that Clemons failed to the plead the defense of necessity as an

affirmative defense prior to trial, that he did not tender, request, or receive any

instructions on the defense of necessity, that it is not clear that he argued the defense of

necessity at trial, and that, as a result, he forfeited the defense. The State further argues

that Clemons failed to establish the elements of a defense of necessity as set forth in

Dozier v. State, 709 N.E.2d 27 (Ind. Ct. App. 1999), that Clemons did not tell the police

that he had been attempting to take cocaine from Conner to prevent her from using it, that

he fails to show that less confrontational and violent means could have prevented Conner

from using the cocaine, and that Conner’s condition of “lapsing in and out of

consciousness while lying in a pool of blood in the bathtub” presented a question

regarding whether Clemons’s confiscation of the cocaine was not “disproportionate to the

harm avoided.” Id. at 10-11. Additionally, the State notes that Clemons threatened

Conner by stating that he was going to “f--- you up, b----” and “I’m going to f------ kill

you,” and that, to the extent that Conner’s use of cocaine was a significant evil, “it would

appear that it was such an evil because it caused the horrific fight” between Conner and

Clemons and thus that Clemons substantially contributed to the creation of an emergency.

Id. at 11. In his reply brief, Clemons asserts that he did not forfeit his necessity defense

because it was tried with the implied consent of the parties, that, through Conner’s

testimony, he raised the defense of necessity, and that his closing argument shows he

intended to raise the defense of necessity.

       We first observe that Clemons does not point to the record to show that he raised a

defense of necessity as an affirmative defense prior to trial. To the extent that the defense


                                              8
of necessity was tried with the implied consent of the parties, we conclude that, based

upon the evidence, a reasonable person could say that the defense was negated by the

State beyond a reasonable doubt and thus that reversal of Clemons’s conviction is not

warranted.

       The record reveals that Conner had been drinking the night of March 3, 2012, that

she was highly intoxicated, that part of the subject of her argument with Clemons was

cocaine, that she wanted to use the cocaine, that Clemons took it from her and would not

give it back, and that the argument became heated. The jury heard Officer Alford testify

that, upon his arrival at the apartment building, he heard muffled screaming and banging

coming from the apartment, that he noticed blood splatter on the walls and on the

handrail leading up to the apartment door, that he heard “belligerent yelling and

screaming” coming from inside the apartment, and that he heard Clemons say “I’m going

to f--- you up, b----, I’m going to f------ kill you.” Transcript at 24. Officer Alford also

heard Conner say “help me, please help me.” Id. at 25. The evidence shows that

Clemons was sweating, had blood on his pants, and was not compliant with the officers’

orders to show his hands. The evidence further reveals that the living room of the

apartment was disheveled and that blood splatter was on all four walls, that there was

blood on every wall, the ceiling, and the floor of the bathroom, that Conner was

discovered covered in blood and with blood in her hair in the fetal position in the bathtub,

and that she was “in and out of consciousness.” Id. at 35. The evidence also reveals that

officers followed a trail of blood to discover a six-inch kitchen knife with blood on it




                                             9
underneath the kitchen sink. The police first learned of the cocaine when Clemons was

searched at the APC.

       Even if the jury believed that Clemons’s act of possession of the cocaine was to

prevent Conner from using or abusing the drug, a reasonable jury could find, based upon

the testimony and evidence presented, that there was an adequate alternative to

Clemons’s actions, that the harm caused by his actions was disproportionate to the harm

avoided, that Clemons did not have a good faith belief that his actions were necessary to

prevent greater harm, that his belief that his actions were necessary was not objectively

reasonable under all the circumstances, or that Clemons substantially contributed to the

creation of the emergency. See Dozier, 709 N.E.2d at 29. Based upon the evidence, we

find, to the extent that the defense of necessity was tried with the implied consent of the

parties, that there is substantial evidence of probative value such that a reasonable trier of

fact could have concluded beyond a reasonable doubt that the State disproved at least one

element of the defense of necessity and that Clemons was guilty of possession of cocaine.

                                      CONCLUSION

       For the foregoing reasons, we affirm Clemons’s conviction for possession of

cocaine.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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