ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RICHARD KAMMEN JEFFREY A. MODISETT
JAMES T. FLANIGAN Attorney General of Indiana
McClure, McClure & Kammen
Indianapolis, Indiana JANET BROWN MALLETT
Deputy Attorney General
GEORGE DOZIER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-9710-CR-671 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
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.
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 questions. We neither reweigh the evidence nor judge the credibility of witnesses. Johnson v. State, 671 N.E.2d 1203, 1209 (Ind. Ct. App. 1996), trans. denied. Rather, we 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.
injury or loss of life to innocent bystanders and other students was immense.See footnote
As the trial
The finding of guilt on this case had to do with the harm that you exposed several thousand other students to when you brought that gun to school. . . . [T]here were children in that school that had nothing to do with your gang involvement who were exposed to harm . . . . I believed you were in fear and that you had a right to be in fear. I did not believe that your fear extended or gave you the right to expose several thousand other children to potential life threatening harm.
R. at 637. We agree. When balancing the potential risks involved in this case it is apparent
to us that any one of the alternatives referenced above would have been more adequate than
taking a loaded gun to school. Indeed we can envision no set of facts supporting the
proposition that a student carrying a handgun into a public school is ever an adequate
alternative for self protection. The evidence in this case was sufficient to sustain Dozier's
constitutional right to bear arms is not absolute. Our supreme court has determined "[t]he
Legislature has the power, in the interest of public safety and welfare, to provide reasonable
regulations for the use of firearms which may be readily concealed, such as pistols."
Matthews v. State, 237 Ind. 677, 686, 148 N.E.2d 334, 338 (1958) (rejecting an Article I §
32 challenge to handgun legislation). The statutes at issue in this case require a person to
have a license to carry a handgun, increase the class of the offense for carrying an unlicensed
handgun on school property, and prohibit the possession of a handgun by a person under
eighteen years of age. These statutes are in the interest of public safety and provide
reasonable regulation for the use of handguns. Dozier's constitutional challenge thus fails.
GARRARD, J., and RILEY, J., concur.
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