Dozier v. State

• Decision Date: 21 April 1999
• Docket Number: No. 49A02-9710-CR-671,49A02-9710-CR-671
• Citation: 709 N.E.2d 27
• Parties: 133 Ed. Law Rep. 1011 George DOZIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 27

709 N.E.2d 27

133 Ed. Law Rep. 1011

George DOZIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9710-CR-671.

Court of Appeals of Indiana.

April 21, 1999.

Richard Kammen, James T. Flanigan, McClure, McClure & Kammen, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge

After a bench trial George Dozier was convicted of carrying a handgun on school property without a license, a Class C felony ¹ and dangerous possession of a firearm, a Class A misdemeanor. ² He now appeals raising two issues for our review which we rephrase as (1) was the evidence sufficient to rebut Dozier's defense of necessity, and (2) did Dozier's conviction violate an Indiana Constitutional provision permitting citizens to bear arms.

The record shows that Dozier, who was sixteen years of age at the time he was charged with the offenses giving rise to this appeal, ³ had been a member of a street gang since the age of ten. The gang is notorious for engaging in a variety of illegal activities including drug trafficking, gun dealing, intimidation, and extortion. As a gang member Dozier also engaged in illegal activity. He was also a disciplinary problem at both home and school. Sometime in September or October of 1995 Dozier decided to leave the gang. He quit associating with gang members and refused to wear gang colors. The record shows that persons attempting to quit gang membership are at great risk from other gang members. The higher in rank a gang member is, the more serious the threat for leaving. Dozier had reached the second highest rank. Aware of the potential for death or serious bodily injury Dozier spoke with a number of adults about his decision to disassociate himself from the gang and sought advice on how to best protect himself. Dozier's math tutor advised him to form a support group; a mental health counselor advised him to talk with his parents; and Dozier's football coach advised him that he would have to quit the gang on his own.

In the evening hours of November 1, 1995, Dozier received a telephone call at home from a gang member. Using street slang and gang terminology the gang member told Dozier that he was going to be killed. Dozier obtained a .9 millimeter handgun and took it with him to North Central High School the following day. After receiving a tip, School authorities confiscated the weapon. Dozier was subsequently arrested and charged with carrying a handgun without a license on school property and dangerous possession of a firearm. After a trial to the bench Dozier was found guilty as charged. The trial court sentenced Dozier to a suspended four-year term, gave him credit for time served in pre-trial detention, and placed him on probation for the remaining period. This appeal followed. Additional facts are set forth below where relevant.

I.

Dozier does not contest that he carried a loaded .9 millimeter semi-automatic pistol into North Central High School. He argues however that he did so out of manifest necessity and that the State introduced insufficient evidence to prove otherwise. 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 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, 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. 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 only element of the necessity defense at issue in this case is the "no adequate alternative to the commission of the act." Toops, 643 N.E.2d at 390. Pointing out that his life was in danger because he was attempting to quit a violent street gang and that the adults with whom he spoke gave no realistic guidance on how he might leave the gang without resultant harm, Dozier insists that he had no adequate alternative to protect himself other than carrying a handgun. Dozier maintains the only evidence the State introduced to rebut this claim involved events occurring after he was arrested on the instant charges. According to Dozier that evidence was not sufficient. The facts are these. Two months after his arrest Dozier was confronted by several gang members who were concerned that he would snitch to the authorities concerning gang activities. Shortly thereafter Dozier contacted a twenty-seven year-old adult gang member seeking assistance. Dozier explained that he intended to cause no trouble and simply wanted to get out of the gang. The adult member reassured Dozier that as long as he kept his mouth shut everything would be fine. Dozier experienced no problems with the gang thereafter. After concluding that Dozier was guilty as charged the trial court commented that it "finds" Dozier could have contacted the adult gang member earlier to intervene on his behalf as an alternative to carrying a weapon to school. In his brief Dozier places great emphasis on the trial court's "finding" and advances a number arguments refuting the same.

Although characterized as a "finding" we view the trial court's remark as merely a partial explanation of the mental process in which the trial court engaged to reach the conclusion that Dozier was guilty as charged. Indeed in a criminal case the trial court is not required to make either findings of fact or conclusions of law. Nation v. State, 445 N.E.2d 565, 570 (Ind.1983). Thus, the focus of our inquiry is not upon the remarks the trial court makes in a bench trial after having reached the conclusion that a defendant is guilty. Rather the question is whether the evidence presented to the trial court as fact-finder was sufficient to sustain the conviction. When reviewing whether the State presented sufficient evidence to negate a defendant's claim of necessity, we apply the same standard of review used for all sufficiency of the evidence...