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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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