David, J.
Oliver Gray was pulled over by Indianapolis Metropolitan Police for not having a properly displayed license plate on the vehicle he was driving. John Hernandez was the only passenger in the vehicle when the traffic stop occurred. Upon discovering that Gray was also driving with a suspended license, he was placed under arrest. Although Hernandez was not under arrest, the police requested that he exit the vehicle so an inventory search could be conducted and the vehicle could be towed. Immediately upon exiting the vehicle, Hernandez put his hands up and informed police he had a handgun in his pocket. The handgun was safely retrieved by police. Because Hernandez was not licensed to carry a handgun, he was also placed under arrest.
Hernandez was charged with carrying a handgun without a license and went to trial. At trial, Hernandez repeatedly testified that during the traffic stop Gray had been in possession of the handgun but threatened Hernandez into taking the gun from him. Gray told Hernandez he would not go back to jail and instructed him to take the gun “or else.” Hernandez knew of Gray’s criminal history and was fearful that he would be shot if he refused to take the handgun. He also feared that Gray may start shooting others if Gray maintained possession of the gun. Therefore, Hernandez took the handgun, but asserted at trial that he had done so only out of necessity. At the conclusion of the evidence, the trial court denied giving Hernandez’s tendered final jury instruction on the defense of necessity. Hernandez was found guilty and was convicted of carrying a handgun without a license.
Because Hernandez presented some evidence to support the defense of necessity instruction, we now hold that it was error for the trial court to have refused giving the instruction.
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… A criminal defendant is entitled to have a jury instruction on “any theory or defense which has some foundation in the evidence.” Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). “We apply this rule even if the evidence is weak and inconsistent so long as the evidence presented at trial has some probative value to support it.” Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001). However, even if the refusal to give a tendered jury instruction was error, this Court must assess whether the defendant was prejudiced by the trial court’s failure to give the instruction. [Citation omitted.] …
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… The parties do not dispute that [Hernandez’s] tendered instruction [on the defense of necessity] is an accurate statement of the law or whether the substance of the instruction was covered by another instruction. As such, we must only determine whether there was evidence in the record to support giving the necessity instruction.
In evaluating whether the evidence supports a necessity instruction, the six factors provided in Hernandez’s offered instruction substantially recites the factors set out in Toops. These six factors must be present in order to establish a necessity defense. See Toops, 643 N.E.2d at 390; See also Patton v. State, 760 N.E.2d 672, 676 (Ind. Ct. App. 2002). As such, if Hernandez presented some evidence that could support finding each of the six factors, it was error for the trial court to refuse the necessity instruction.
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[A]fter reviewing the record, it appears that there is at least some evidence supporting each element of a necessity defense. Even if there is only a “scintilla” of evidence in support of [Hernandez]’s proposed defense instruction, it should be left to the province of the jury to determine … whether Hernandez unlawfully possessed the handgun out of necessity. As such, the trial court abused its discretion in failing to give the final instruction of necessity to the jury.
Moreover, we also conclude that the failure to give such an instruction burdened Hernandez’s substantial rights. …
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Because Hernandez presented sufficient evidence to have the jury instructed on his defense of necessity, and the error impacted Hernandez’s substantial rights, we reverse the trial court, vacate Hernandez’s conviction, and remand for a new trial.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
Oliver Gray was pulled over by Indianapolis Metropolitan Police for not having a properly displayed license plate on the vehicle he was driving. John Hernandez was the only passenger in the vehicle when the traffic stop occurred. Upon discovering that Gray was also driving with a suspended license, he was placed under arrest. Although Hernandez was not under arrest, the police requested that he exit the vehicle so an inventory search could be conducted and the vehicle could be towed. Immediately upon exiting the vehicle, Hernandez put his hands up and informed police he had a handgun in his pocket. The handgun was safely retrieved by police. Because Hernandez was not licensed to carry a handgun, he was also placed under arrest.
Hernandez was charged with carrying a handgun without a license and went to trial. At trial, Hernandez repeatedly testified that during the traffic stop Gray had been in possession of the handgun but threatened Hernandez into taking the gun from him. Gray told Hernandez he would not go back to jail and instructed him to take the gun “or else.” Hernandez knew of Gray’s criminal history and was fearful that he would be shot if he refused to take the handgun. He also feared that Gray may start shooting others if Gray maintained possession of the gun. Therefore, Hernandez took the handgun, but asserted at trial that he had done so only out of necessity. At the conclusion of the evidence, the trial court denied giving Hernandez’s tendered final jury instruction on the defense of necessity. Hernandez was found guilty and was convicted of carrying a handgun without a license.
Because Hernandez presented some evidence to support the defense of necessity instruction, we now hold that it was error for the trial court to have refused giving the instruction.
….
… A criminal defendant is entitled to have a jury instruction on “any theory or defense which has some foundation in the evidence.” Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). “We apply this rule even if the evidence is weak and inconsistent so long as the evidence presented at trial has some probative value to support it.” Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001). However, even if the refusal to give a tendered jury instruction was error, this Court must assess whether the defendant was prejudiced by the trial court’s failure to give the instruction. [Citation omitted.] …
….
… The parties do not dispute that [Hernandez’s] tendered instruction [on the defense of necessity] is an accurate statement of the law or whether the substance of the instruction was covered by another instruction. As such, we must only determine whether there was evidence in the record to support giving the necessity instruction.
In evaluating whether the evidence supports a necessity instruction, the six factors provided in Hernandez’s offered instruction substantially recites the factors set out in Toops. These six factors must be present in order to establish a necessity defense. See Toops, 643 N.E.2d at 390; See also Patton v. State, 760 N.E.2d 672, 676 (Ind. Ct. App. 2002). As such, if Hernandez presented some evidence that could support finding each of the six factors, it was error for the trial court to refuse the necessity instruction.
….
[A]fter reviewing the record, it appears that there is at least some evidence supporting each element of a necessity defense. Even if there is only a “scintilla” of evidence in support of [Hernandez]’s proposed defense instruction, it should be left to the province of the jury to determine … whether Hernandez unlawfully possessed the handgun out of necessity. As such, the trial court abused its discretion in failing to give the final instruction of necessity to the jury.
Moreover, we also conclude that the failure to give such an instruction burdened Hernandez’s substantial rights. …
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Because Hernandez presented sufficient evidence to have the jury instructed on his defense of necessity, and the error impacted Hernandez’s substantial rights, we reverse the trial court, vacate Hernandez’s conviction, and remand for a new trial.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.