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.
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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
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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.
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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
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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
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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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