Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-864 | February 27, 2017 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Michael Frischkorn

Fortville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Benton Courtney,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 27, 2017

Court of Appeals Case No.

48A02-1604-CR-864

Appeal from the Madison Circuit 

Court

The Honorable Mark Dudley, 

Judge

Trial Court Cause No.

48C06-1504-F5-491

Najam, Judge.
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Statement of the Case

[1] Benton Courtney appeals the trial court’s revocation of his probation and its 

order that he serve the entirety of his previously suspended sentence. Courtney 

raises two issues for our review, namely:

1. Whether the trial court erred when it rejected Courtney’s 

proffered affirmative defense of necessity.

2. Whether the court abused its discretion when it ordered 

Courtney to serve the entirety of his previously suspended 

sentence.

[2] We affirm.

Facts and Procedural History

[3] On November 30, 2015, Courtney pleaded guilty, pursuant to a written 

agreement, to possession of methamphetamine, as a Level 5 felony; 

maintaining a common nuisance, as a Level 6 felony; and theft, as a Class A 

misdemeanor. Pursuant to the plea agreement, the State recommended that 

Courtney receive a three-year sentence suspended to probation. The trial court 

accepted the plea agreement and sentenced Courtney accordingly.

[4] Less than one month later, Courtney led Alexandria Police Department 

Officers Michael Montgomery and Joe Heath on a high-speed chase through a 

residential neighborhood. In particular, the officers observed Courtney cross 

double-yellow lines and drive seventy miles per hour in a twenty-mile-per-hour 

residential zone. They also observed Courtney twice fail to stop at four-way 
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stops in that residential area. And, during the chase, the officers observed 

Courtney laughing.

[5] Courtney eventually complied with the officers’ demands to stop his vehicle. 

The officers then ordered Courtney out of the vehicle. Also inside the vehicle 

were Myra Applegate, Courtney’s mother, in the front passenger’s seat and 

Kayla Short in the back seat along with two children younger than two years 

old. 

[6] After the officers had placed Courtney in a patrol vehicle, Short and Applegate 

stated that Courtney had been trying to get Applegate to a hospital because she 

had been having seizures. The officers called for paramedics, but, upon their 

arrival, Applegate told them that “she was not having a seizure and she felt 

fine.” Tr. at 32.

[7] Thereafter, the State filed a notice of probation violation in which the State 

alleged that Courtney had committed several new offenses, namely, resisting 

law enforcement, as a Level 6 felony; neglect of a dependent, as a Level 6 

felony; and criminal recklessness, as a Level 6 felony. The State further alleged 

that, shortly before the traffic incident, Courtney had tested positive for 

methamphetamine and amphetamine.

[8] The trial court held an evidentiary hearing on the State’s notice of probation 

violation. At that hearing, Courtney admitted to the failed drug test, but he

argued that his traffic violations were justified under the doctrine of necessity
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because he needed to get his mother to a hospital. The trial court, not 

convinced, stated:

I heard your explanation for why this happened and it’s[,] put 

very bluntly, not believable, not even close. You[’re] driving 

away from the . . . hospital that’s in close proximity of your 

home . . . . Secondly[,] if I’d say that’s okay . . . , you’re going to 

the next closest hospital, you leave the most direct route to get 

there[] to enter into a residential area where . . . you go at a high 

rate of speed . . . away from the closest hospital. If you’re truly 

going to the hospital, even if there is a police officer behind you, 

you don’t start going into residential areas away from your 

intended . . . destination. That is not objectively reasonable, that 

is anything but reasonable on any standard . . . . You had other 

alternatives available to you, you could call an ambulance. 

Again, even if you were going to the hospital . . . that does not 

give you leave to cross double yellow lines, we have evidence of 

that. That does not give you leave to go seventy miles an hour in 

a twenty mile an hour zone, we have evidence of that. [A]s I 

said, it’s not even close. Your explanation does not hold 

water . . . .

Id. at 42-43. The court then revoked Courtney’s placement on probation and 

ordered him to serve the entirety of his previously suspended sentence. This 

appeal ensued.

Discussion and Decision

Standard of Review

[9] Courtney argues on appeal that the trial court erroneously rejected his defense 

of necessity and that the court abused its discretion when it ordered him to 
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serve the entirety of his previously suspended sentence. As the Indiana 

Supreme Court has stated:

“Probation is a matter of grace left to trial court discretion, not a 

right to which a criminal defendant is entitled.” Prewitt v. State, 

878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the 

trial court to determine probation conditions and to revoke 

probation if the conditions are violated. Id. In appeals from trial 

court probation violation determinations and sanctions, we 

review for abuse of discretion. Id. An abuse of discretion occurs 

where the decision is clearly against the logic and effect of the 

facts and circumstances, id., or when the trial court misinterprets 

the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing 

Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991) 

(“An abuse of discretion may also be found when the trial court 

misinterprets the law or disregards factors listed in the controlling 

statute.”)).

Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We address each of 

Courtney’s arguments in turn.

Issue One: Necessity Defense

[10] We first consider Courtney’s argument that the trial court erred when it rejected 

his proffered affirmative defense of necessity. As we have explained:

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

the emergency. Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct.

App. 1994). In order to negate a claim of necessity [in a criminal 

trial], the State must disprove at least one element of the defense 

beyond a reasonable doubt. See Pointer v. State, 585 N.E.2d 33, 

36 (Ind. Ct. App. 1992) (discussing State’s burden in the context 

of an analogous self-defense claim). 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.

Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999).

[11] Courtney’s entire argument on this issue on appeal is a request for this court to 

credit and give controlling weight to his testimony instead of the testimony of 

the officers involved in the traffic incident. We will not reweigh the evidence 

on appeal or reassess the credibility of the witnesses. The trial court acted 

within its discretion when it found Courtney’s proffered defense “not 

believable,” “not objectively reasonable,” and “not even close.” Tr. at 42-43. 

We affirm the trial court’s rejection of Courtney’s affirmative defense and the 

revocation of his probation.

Issue Two: Imposition of Entirety of 

Previously Suspended Sentence

[12] Courtney also asserts that the trial court abused its discretion when it ordered 

him to serve the entirety of his previously suspended sentence. Courtney’s 

entire argument on this issue is as follows:
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Courtney admitted to a dirty drug screen and using 

methamphetamine[,] which saved the State time and effort to 

prove the violation. Also, this is the first probation violation and 

it does not rise to the level of revoking probation and ordering 

that Courtney serve the previously suspended sentence. At the 

time of the initial sentencing, the underlying conviction was 

Courtney’s only felony conviction. Courtney has been 

cooperative from the initial guilty plea in this case to the 

probation violation admission.

Appellant’s Br. at 10.1

[13] We cannot agree with Courtney. The evidence before the trial court 

demonstrated that, less than one month after he had been placed on probation, 

Courtney used illicit substances and committed new offenses of resisting law 

enforcement, as a Level 6 felony; neglect of a dependent, as a Level 6 felony; 

and criminal recklessness, as a Level 6 felony. And the facts underlying 

Courtney’s new offenses demonstrate an egregious disregard for law 

enforcement and the safety of others, including two very young children who 

were in his vehicle at the time of the offenses. Based on the facts before the trial 

court, the court’s imposition of the entirety of Courtney’s previously suspended 

sentence was well within its discretion. As such, we affirm the court’s 

judgment.

 

1

 We do not interpret Courtney’s argument on this issue to be a challenge to the revocation of his probation.
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[14] Affirmed. 

Bailey, J., and May, J., concur.