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Man’s defense of necessity argument fails on appeal

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The Indiana Court of Appeals held Tuesday that a reasonable jury could find that a man’s actions in trying to prevent his girlfriend from using cocaine were disproportionate to the harm avoided if she had used the drug, thus putting an end to his defense of necessity claim. The judges upheld Gerald Clemons’ possession of cocaine conviction.

Police responded to a domestic disturbance call at an apartment complex involving Clemons and his girlfriend Kayla Conner. Police saw blood on the walls and handrail leading to the apartment and heard Clemons threatening to kill Conner through their apartment door. Once inside, officers saw blood throughout the apartment and found a bloodied Conner in the bathtub. The officers found cocaine in Clemons’ sock.

He was convicted of Class D felony possession of cocaine, but the judge reduced it to a Class A misdemeanor.

Clemons argued in Gerald Clemons v. State of Indiana, 49A05-1210-CR-587, 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 the drug was not justified by reason of necessity. He claimed that – and Conner testified at his trial to the same – that Conner wanted to use the drug and he was keeping it from her. The situation escalated as he tried to prevent her from using the drug, he argued.

But Clemons didn’t tell officers that he was holding it to keep Conner from using the drug, Conner was seriously injured by Clemons, and an officer heard Clemons threaten to kill her.

“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,” Judge Elaine Brown wrote.
 

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  1. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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