(dissenting).
I still adhere to my dissent in State v. Rome, 426 N.W.2d 19 (S.D.1988). This case, however, may be distinguished from Rome. In order to assert a justification/necessity defense, the bodily harm must be imminent or emergent.
In the present case, defendant was charged not only with childnapping but also with brutally beating the child’s custodial grandmother. Defendant knew about the abuse allegations for over two years and had unsuccessfully litigated this issue at the custody hearing. These allegar tions were rejected by the civil trial court and custody was continued in the grandparents. Twenty days following the trial court’s December 29, 1987, memorandum decision which continued custody in Jack and Millie Thomas, defendant allegedly beat the custodial grandmother and took the child. Herein, the trial court properly held an offer of proof hearing, considered evidence relating to the justification/necessity defense, and held that although such a defense may be allowed in certain cases, considering the circumstances involved, it was inapplicable in this proceeding.
At the offer of proof hearing, defendant had the burden of showing whether the justification/necessity defense was appropriate in light of the facts. See State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981); State v. Reese, 272 N.W.2d 863, 867 (Iowa 1978). When the requirements of this defense are not addressed, the trial court is not obligated to submit the issue to the trier of fact. See United States v. Jackson, 838 F.2d 301, 302 (8th Cir.1988); State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981) (citing United States v. Campbell, 609 F.2d 922, 924 (8th Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1282, 63 L.Ed.2d 604 (1980)).
Defendant’s evidence presented at the offer of proof hearing discloses that the *4defense of necessity/justification was not available to her since the essential requirements of the defense had not been met. This court, in State v. Miller, 313 N.W.2d 460 (S.D.1981), adopted the rationale previously set forth in State v. Baker, 598 S.W.2d 540 (Mo.App.1980) and recognized that the defense of necessity should involve a consideration of the “circumstances surrounding the crime based upon a reasonable person standard.” Citing Baker, we stated:
[W]hen the offered evidence, if believed by the jury, would support a finding by them that the offense of escape was justified by a reasonable fear of death or bodily harm so imminent or emergent that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the public injury arising from the offense committed to avoid injury to the prisoner.
Miller, 313 N.W.2d at 462. Therefore, this court has adopted the following standard in considering the defense of necessity:
(1) whether bodily harm or death is imminent or emergent;
(2) whether reasonable fear exists of death or bodily harm; and
(3) whether a person with ordinary standards of intelligence or morality would think that the desirability of avoiding the imminent danger outweighs the offense committed.
This court has examined the Miller standard in both State v. Watkins, 316 N.W.2d 627 (S.D.1982) and State v. Rich, 417 N.W.2d 868 (S.D.1988). Within Watkins, a prosecution for escape, this court held that the threshold element in determining whether to permit submitting the defense of necessity to the jury is a reasonable fear of imminent or emergent death or bodily harm. Holding that imminent danger did not exist, we denied the use of the necessity defense and did not proceed to discuss the other, more subjective elements of this defense.
The defendant in this case should be denied the defense of necessity/justification since she did not meet the essential standards of the defense. I would affirm.