Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2011 | March 22, 2017 Page 1 of 7

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

Matthew D. Anglemeyer

Marion County Public Defender 

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Stephen Roberts,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 22, 2017

Court of Appeals Case No. 

49A04-1609-CR-2011

Appeal from the Marion Superior 

Court

The Honorable David M. Hooper, 

Magistrate

Trial Court Cause No. 

49G12-1512-CM-43151

Mathias, Judge.
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[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 
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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). 
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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. 
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[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 
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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 
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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.