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
