MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be
                                                                              Oct 29 2019, 10:26 am
regarded as precedent or cited before any
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
Joel M. Schumm                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dominique Rena Triblet,                                  October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-515
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G21-1802-F5-4859



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019                     Page 1 of 10
                                            Case Summary
[1]   Dominique Rena Triblet (“Triblet”) appeals her conviction of Carrying a

      Handgun without a License, elevated to a Level 5 felony due to her conviction

      of a felony within the prior fifteen years.1 We affirm.



                                                    Issues
[2]   Triblet presents two issues for review:


                 I.       Whether the trial court abused its discretion by denying
                          defense counsel’s request for a continuance for lack of
                          preparation because counsel had primarily concentrated
                          on another criminal case scheduled for trial on the same
                          day; and


                 II.      Whether the trial court abused its discretion by refusing to
                          instruct the jury on the defense of necessity.


                                Facts and Procedural History
[3]   On February 5, 2018, Triblet received a telephone call from a man she knew

      only as “Whitey.” He asked that Triblet meet him at a residence on Hillside

      Avenue in Indianapolis to discuss “an important matter.” (Tr. Vol. II, pg. 98.)

      Triblet suspected that Whitey had ordered her brother’s murder, but she agreed

      to meet with him. She and her cousin drove to Whitey’s residence.




      1
          Ind. Code § 35-47-2-1(e)(2)(B).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 2 of 10
[4]   When Triblet entered the residence, she observed eight males dressed in black,

      and there were “guns everywhere.” Id. at 110. She had a “gut feeling” that she

      was in danger. Id. at 102. Undetected, Triblet took a handgun from the kitchen

      counter, and she then left the residence with Whitey following closely behind

      her.


[5]   Triblet called her mother to come and get her. Unwilling to end that call to

      place another, Triblet asked a neighbor to call 9-1-1. The neighbor refused to

      do so and Triblet then approached the home of Brooke Pyles (“Pyles”) and

      asked that she call 9-1-1. Pyles saw Triblet pointing the gun and became

      frightened and headed for the basement. Nevertheless, Pyles called 9-1-1.

      Before the police arrived, Pyles heard shots being fired outside her house.


[6]   When police arrived, they took hold of Triblet and attempted to pull back her

      arms. Some scuffling occurred, during which the handgun fell from Triblet’s

      waistband. Triblet was arrested and charged with Carrying a Handgun without

      a License, Pointing a Firearm, Criminal Recklessnes, and Resisting Law

      Enforcement.


[7]   On December 11, 2018, Triblet was brought to trial before a jury. Triblet

      testified and admitted that she had possessed and fired a handgun. According

      to Triblet, she took the gun because she feared for her life and she fired into the

      air to deter Whitey from his pursuit of her. She denied that she had pointed the




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 3 of 10
      gun at Pyles or resisted arrest.2 The trial court instructed the jury on self-

      defense but refused Triblet’s proffered instruction on the defense of necessity.

      The jury found Triblet guilty of Carrying a Handgun without a License but

      acquitted her on all other charges.


[8]   Triblet waived her right to have a jury determine whether she had committed a

      prior felony within the requisite statutory period for elevation of her offense to a

      Level 5 felony. On February 1, 2019, the trial court found sufficient evidence

      supported the elevation and sentenced Triblet to five years imprisonment, with

      two years suspended to probation. Triblet now appeals.



                                      Discussion and Decision
                                       Motion for a Continuance
[9]   Triblet’s trial was first scheduled for May 1, 2018, but was rescheduled for

      September 11, 2018, upon the request of Triblet’s initial counsel. On August

      14, 2018, Dana Childress-Jones (“Defense Counsel”) appeared as Triblet’s new

      counsel. At a pretrial conference on September 4, 2018, Defense Counsel

      moved to continue the trial, and trial was reset for October 16, 2018. The State

      moved to continue the October trial setting, and trial was reset for December

      11, 2018.




      2
          Triblet testified that she had yelled out in pain due to a recently broken leg.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019       Page 4 of 10
[10]   On December 5, 2018, the State and Defense Counsel appeared for a final

       pretrial conference on Triblet’s case. Defense Counsel advised the trial court

       that plea negotiations were “too far apart,” such that Triblet’s case was likely

       proceeding to trial. (Supp. Tr., Vol. II, pg. 4.) Defense Counsel further advised

       that she was also counsel on another case scheduled for trial on the same day

       and she “was starting to decide which one I should really focus on.” Id. at 5.

       At the conclusion of the brief hearing, the trial court acknowledged that

       Defense Counsel had “two ahead of Ms. Triblet as it stands right now [Blow

       and Barnett]” but confirmed Triblet’s trial setting. Id. at 6. Defense Counsel

       expressed her thanks.


[11]   Thus, three cases were “stacked” for jury trials on the same day. (Tr. Vol. II,

       pg. 7.) The day before the scheduled trials, the case of defendant Blow was

       continued. As for the Barnett case, he and the State reached a tentative plea

       agreement at approximately 5:00 p.m. Defense Counsel sent e-mail messages

       to the trial court and prosecutor expressing her need for a continuance in

       Triblet’s case because she had concentrated on Barnett’s case. Feeling ill,

       Defense Counsel did not continue to check her e-mail in the evening hours.


[12]   On the day of trial, Defense Counsel appeared and learned that the prosecutor

       opposed an additional continuance. At a conference outside the presence of the

       jury, Defense Counsel insisted that she was unprepared, and could provide only

       ineffective assistance if forced to proceed immediately with Triblet’s trial. The

       trial court reminded Defense Counsel that she was familiar with the court’s

       practice of “stacking,” with cases “congested off” rarely before “the very last

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 5 of 10
       minute.” Id. The trial court listened to the recording of the December 5, 2018

       final pretrial conference and clarified that the Triblet trial setting had been

       confirmed. The trial court denied Defense Counsel’s oral motion for a

       continuance but permitted her a one-hour delay to obtain the Triblet file.

       Triblet now argues that the denial of a continuance was an abuse of the trial

       court’s discretion because Defense Counsel was forced to trial despite repeated

       protests that she was unprepared.


               Rulings on non-statutory motions for continuance are within the
               trial court’s discretion and will be reversed only for an abuse of
               that discretion and resultant prejudice. Maxey v. State, 730
               N.E.2d 158, 160 (Ind. 2000). An abuse occurs only where the
               trial court’s decision is clearly against the logic and effect of the
               facts and circumstances. Palmer v. State, 704 N.E.2d 124, 127
               (Ind. 1999). “There is a strong presumption that the trial court
               properly exercised its discretion.” Warner v. State, 773 N.E.2d
               239, 247 (Ind. 2002).


       Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).


[13]   We are not unsympathetic to the significant challenges faced by defense

       attorneys assigned to multiple “stacked” cases. In some circumstances, the

       combination of over-scheduling and last-minute moves for congestion could

       render an attorney unable to pursue an able defense. But here, at bottom, the

       request for a continuance was a last-minute oral request made four months into

       client representation and one week after confirmation of the trial setting. And it

       appears that Defense Counsel ably represented her client – who was ultimately



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 6 of 10
       acquitted of three charges. We commend her commitment to advocacy even

       when confronted with less than ideal circumstances.


[14]   As for a strategy that might have been implemented with additional

       preparation, Triblet suggests only that Defense Counsel could have presented

       testimony from Triblet’s mother. Triblet’s mother, who was not an eyewitness,

       could have confirmed that Triblet called her when leaving Whitey’s residence.

       Triblet admitted that she possessed a gun without a license. The jury’s task was

       to determine whether the conduct was excused under the law. As such, the

       relevance of Triblet’s mother’s testimony would have been marginal, at best.

       We cannot say that the trial court abused its discretion in denying the motion

       for a continuance.


                             Defense of Necessity Instruction
[15]   A trial court’s decision to give or refuse a jury instruction is reviewed for an

       abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). We

       consider (1) whether the instruction correctly states the law; (2) whether there is

       evidence in the record to support the giving of the instruction; and (3) whether

       the substance of the tendered instruction is covered by other instructions. Id.

       The parties do not dispute whether Triblet’s tendered instruction is an accurate

       statement of the law or whether its substance was covered by another

       instruction. As such, our focus is upon whether there was evidence in the

       record to support giving the necessity instruction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 7 of 10
[16]   The common law defense of necessity has been referred to as a “choice of evils”

       defense. Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). The

       following are traditional prerequisites in establishing the defense:


               (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.


       Id. at 390. A defendant must present at least some evidence on each of these

       elements to warrant the necessity instruction, but “[e]ven if there is only a

       ‘scintilla’ of evidence in support of a criminal defendant’s proposed defense

       instruction, it should be left to the province of the jury to determine whether

       that evidence is believable or unbelievable.” Hernandez, 45 N.E.3d at 378

       (citing Howard v. State, 755 N.E.2d 242, 247-48 (Ind. Ct. App. 2001)). In

       determining whether the refusal of a proffered instruction warrants reversal, we


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 8 of 10
       assess whether the defendant was prejudiced by the trial court’s failure to give

       the instruction. Id.


[17]   Triblet likens her circumstances to those of the defendant in Hernandez, whose

       conviction for carrying a handgun without a license stemmed from a vehicle

       stop. See id. at 375. Hernandez was a reluctant passenger in the vehicle of his

       neighbor, Gray, when that vehicle was stopped. Immediately upon his exit

       from the vehicle, Hernandez notified an officer that he was in possession of a

       gun. Because he had no license for the weapon, Hernandez was arrested,

       charged, and brought to trial for carrying a handgun without a license.

       Hernandez pursued a necessity defense, claiming that Gray was a dangerous

       felon who had insisted that Hernandez take possession of the handgun during

       the traffic stop. Id. Hernandez testified that Gray had commanded him to

       “take the gun or else” and Hernandez understood this as a threat from Gray to

       shoot him. Id. According to Hernandez, he tried to place the gun under a seat,

       but Gray insisted that he put it in his pocket. Id. Our Indiana Supreme Court

       vacated Triblet’s conviction for instructional error and remanded for a new

       trial, concluding that there was “some evidence” that warranted giving the

       defense of necessity instruction tendered by Hernandez. Id. at 376.


[18]   In this case, the trial court observed that Triblet had placed herself in the

       circumstances she considered emergent. Also, the trial court found a lack of

       evidence that there was no adequate alternative to Triblet’s possession of the

       gun. We agree with the trial court’s characterization of the evidence. Triblet

       testified that she experienced a “gut feeling” that her life was in danger and she

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 9 of 10
       decided to leave. (Tr. Vol. II, pg. 102.) But there is no evidence that Triblet’s

       exit was impeded by conduct such as threatening words, movement, or

       gestures. With no impediment, Triblet’s choices were to walk out or to walk

       out armed. She chose the latter course and grabbed the gun, undetected. This

       does not evince a lack of an adequate alternative.


[19]   And, even if we assume that Triblet faced an emergency inside the residence,

       she retained the handgun as circumstances evolved to safety. Unlike the

       defendant in Hernandez, Triblet did not freely divest herself of the gun at her first

       opportunity. It fell from her waistband during her arrest, without her having

       informed officers of its existence. Even if the jury were convinced that Triblet

       took the gun out of necessity, the jury would likely have found that her

       subsequent placement of the gun in her clothing amounted to carrying a

       handgun without a license. We cannot say that the omission of a defense of

       necessity instruction prejudiced Triblet.



                                               Conclusion
[20]   Triblet has not shown that the trial court abused its discretion in denying her

       motion for a continuance or in refusing her instruction on the defense of

       necessity.


[21]   Affirmed.


       Najam, J., and May, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-515 | October 29, 2019   Page 10 of 10
