Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court exce pt for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : TIMOTHY J. BURNS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDI ANA

TERELLE YOUNG, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A02

- 1308

- CR

- 712 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David M. Hooper, Commissioner Cause No. 49F08

- 1301

- CM

- 4769
March 31, 2014 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE
A ppellant

- Defendant , Terelle Young ( Young ) , appeals his conviction for failure to stop after an accident resulting in personal injury, a Class A misdemeanor, Ind. Code § §
9

- 26

- 1

- 1;

- 8

. We affirm.
ISSUE Young raises one issues on appeal which we restate as: Whether the State presented sufficient evidence beyond a reasonable doubt to disprove Young’s necessity
defense

. FACTS AND PROCEDURAL HISTORY On January 20, 2013, Melin Nesbitt (Nesbitt) was sitting in the front passenger seat of her car while parked outside a grocery store in Indianapolis, Indiana. Young, then eighteen

- year s - old, entered the driver’s side of a red Lexus , which was parked approximately fifteen fee t away. Putting his car in reverse, Young backed into Nesbitt’s

car as Nesbitt’s husband was returning from the grocery store. Young exited his car, checked whether it was damaged, gave Nesbitt the finger, and drove away from the scene. Nesbitt copied d own the car’s license plate number. Later that same day, police officers located Young and the red Lexus at Young’s mother’s residence. Because the collision caused Nesbitt’s k nee to strike the dashboard of her car and become painful and swollen, she r eceived treatment in the emergency room. At the time of the accident, Young held a learner’s permit and was prohibited from driving the car alone. Also, Young’s “ license had been susp ended ” after a previous incident where he3

received a learner’s permit v iolation and speeding infraction for driving over the speed limit. (Transcript p. 116). On January 20, 2013, the State filed an Information charging Young with failure to stop after an accident resulting in personal injury, a Class A misdemeanor, I.C. §§ 9

- 26

- 1

- 1;

- 8. On April 29, 2013 and July 26, 2013, the trial court conducted a bench trial. During trial, Young asserted a necessity defense arguing that because Nesbitt’s husband was shouting at him and walking towards him, he rapidly left out of fear t hat Nesbitt’s husband would start a fight. At the close of the evidence, the trial court found Young guilty as charged and sentenced him to 365 days with four days executed and 361 days suspended to probation. Young now appeals

. Additional facts will be provided as necessary.

DISCUSSION AND DECISION Young does not contest that he drove into Nesbitt’s car and left the scene of the accident. He argues, however, that he did so out of necessity because Nesbitt’s husband approached and acted as if he want ed to start a fight and that the State introduced insufficient evidence to prove otherwise. The common law defense of necessity has evolved over the years and is often referred to as the “choice of evils” defense. Toops v.
State , 643 N.E.2d 387, 389 (Ind . Ct. App. 1994). Although the confines of the necessity defense vary from jurisdiction to jurisdiction, the central element involves the emergency nature of the situ ation. Id . That is, under the force of extreme circumstances, conduct that would otherw ise constitute a crime is justifiable and not criminal because of the greater harm which the illegal act seeks to prevent. Id.4

Traditionally, i n order to prevail on a claim of necessity, the defendant must show that (1) the act charge d 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 accu sed must entertain a good faith belief that his act was necessary to prevent greater harm; (5) such belief must be objectively reasona ble 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)

. Our 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). Thus, i n order to negate a claim of necessity, the State must disprove at least one element of the defense beyond a reasonable doub t. Dozier , 709 N.E.2d at 29. 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 finder

- of

- fact. Id . Where a defendant is convicted despite his claim of nece ssity, 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

. Reviewing the evidence before us, we do not conclude that a necessity justified Young’s depart ure from the scene of the accident without exchanging information with Nesbitt. By driving the vehicle with a learner’s permit and without a licensed driver ,5

backing into Nesbitt’s parked vehicle with enough force to injure her knee and giving her
the mid dle finger, the trial court could reasonabl y conclude that Young substantially contributed to the existence of the emergency. Therefore, we affirm the trial court’s
decision.
CONCLUSION Based on the foregoing, we conclude that the State presented suffic ient evidence beyond a reasonable doubt to rebut Young’s necessity defense

. Affirmed. ROBB, J. and BRADFORD, J. concur