No. 89-428
I N THE SUPREME COURT O F THE STATE O F MONTANA
1989
STATE O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-vs-
T O N I LEA OTTWELL,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e J e f f r e y S h e r l o c k , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Michael Donahoe, Helena, Montana
For R e s p o n d e n t :
Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
James Yellowtail, Asst. Atty. General, Helena
Mike McGrath, County Attorney; Carolyn Clemens, Deputy,
Helena, Montana
S u b m i t t e d on B r i e f s : Nov. 2, 1989
Decided: December 22, 1989
Filed:
Chief ~ustice A. Turnage delivered the opinion of the Court.
J.
Toni Lea Ottwell appeals the decision of the First Judicial
~istrictCourt, Lewis and Clark County, revoking the appellant's
ten-year suspended sentence after her flight from parole. We
affirm.
The appellant raises the single issue of whether the District
Court erred in failing to hold that her flight from parole was
justified under the necessity doctrine when the appellant alleged
that her foster parent coerced her into a sexual relationship.
In December of 1987, Ottwell escaped from the Mountain View
School girls correctional facility near Helena, Montana. When
school officials attempted to return Ottwell to the school, she
threatened them with a handgun. Ottwell was convicted of felony
assault and given a ten-year suspended sentence. See State v.
Ottwell (Mont. 1989), 779 P.2d 500, 46 St.Rep. 1580 (upholding
Ottwell's felony assault conviction).
The District Court placed a number of conditions on Ottwell's
suspended sentence including ten years probation, psychological
therapy, a period of intensive supervision, placement in a
Billings, Montana, foster home, continued high school education,
and general compliance with the laws. Initially, Ottwell conformed
to these conditions and her supervision was gradually relaxed until
she was allowed to move out of the foster home. In March of 1989,
probation officers discovered that Ottwell had absconded from her
Billings residence; she had been arrested in Oakland, California,
for prostitution.
On her return to Montana, the District Court revoked the
suspended sentence and sentenced Ottwell to the Women's Correc-
tional Facility with the recommendation that she be transferred to
the Life Skills Center in Billings, Montana.
The sentencing judge is authorized in his discretion to revoke
a suspended sentence. Section 46-18-203 (I), MCA. In reviewing the
use of that discretion, the standard is whether the record contains
substantial, credible evidence supporting the sentencing court's
decision. State v. Lange (Mont. 1989), 775 P.2d 213, 215, 46
St.Rep. 991, 994.
In this case, the record contains considerable uncontested
evidence that Ottwell violated her probation conditions. She left
her Billings residence for Oakland without permission from her
probation officer. She failed to remain in school. She failed to
comply with the law by soliciting prostitution in California.
Ottwell argues that, even in light of this evidence, the
District Court should not have revoked her suspended sentence
because she absconded from Billings out of necessity. Ottwell
alleges that while in the foster home, the male guardian coerced
her into a sexual relationship which continued after she moved into
her own residence. She contends that had she not complied with his
demands, the guardian would have forced her return to jail.
The parties apparently disagree on what defense the appellant
is raising. Ottwell calls it necessity and relies on the common
law rather than the Montana statutes. The State counters that the
alleged defense is that of compulsion, as recognized in Montana
law under section 45-2-212, MCA.
Some disagreement over the proper analysis is not surprising
considering the present state of this area of Montana law. As with
other jurisdictions, Montana has referred to this type of defense
by a variety of names. Section 45-2-212, MCA c compulsion^^) ; State
v. Pease (Mont. 1988), 758 P.2d 764, 768, 45 St.Rep. 1296, 1300
("necessity, "duress,'I and l'compulsion'l)cert . den. 109 S .Ct . 845
'I ,
(1989); State v. Strandberg (1986), 223 Mont. 132, 135, 724 P.2d
710, 712 (ttjustificationll);State v. Owens (1979), 182 Mont. 338,
347, 597 P.2d 72, 77 (ttcompulsionll); State v. Stuit (1978), 176
Mont. 84, 88, 576 P.2d 264, 266 ("justificationw and "necessity1').
In two cases, this Court relied on the common law defense.
Strandberq, 223 Mont. at 135, 724 P.2d at 712-13; Stuit, 176 Mont.
at 88, 576 P.2d at 266. In another case, we applied the compulsion
statute. Owens, 182 Mont. at 347, 597 P.2d at 77. In the most
recent case we used both. Pease, 758 P.2d at 768, 45 St.Rep. at
1300.
Traditionally, courts recognized necessity as one of only two
defenses of this type, the other being duress. Both types excused
criminal conduct when the defendant acted under the threat of
imminent death or serious bodily harm to himself or another.
Duress applied when the threat was from another human being.
Necessity applied when the threat was from physical forces. United
States v. Bailey (1980), 444 U.S. 394, 409-10, 100 S.Ct. 624, 634,
62 L.Ed.2d 575, 590; see also 1 W. LaFave & A. Scott, Jr.,
.
Substantive Criminal Law, 5 5 5.3 (a) and 5.4 (a) Thus, duress could
be a defense to bank robbery for a taxi driver who drove the robber
to the bank with a gun pointed at his head. People v. Merhige
(Mich. 1920), 180 N.W. 418, 422. Necessity could be a defense to
prison escape when the prison was on fire. People v. Whipple
(Cal.App. 1929), 279 P. 1008, 1009.
The necessity defense has also been characterized by situa-
tions in which the defendant faced a choice between two evils. In
this type of case, defendants argued that they were justified in
breaking the law to prevent a greater harm than the law was
intended to cure. Thus, in one case, the defendants claimed
necessity as a defense to charges of smuggling Laetrile into the
United States to treat cancer patients. United States v. Richard-
son (9th Cir. 1978), 588 F.2d 1235, 1239, cert. den. 440 U.S. 947,
99 S.Ct. 636. In another, a defendant who felt a moral obligation
to frustrate United States military efforts in Southeast Asia
claimed necessity as a defense to charges of burning Selective
Service System records. United States v. Simpson (9th Cir. 1972),
460 F.2d 515, 517-18.
Modern cases and statutes tend to abandon all distinctions
characterizing necessity, duress, and other similar defenses. See
Bailey, 444 U.S. at 410, 100 S.Ct. at 634, 62 L.Ed.2d at 590.
Montana's compulsion statute follows this trend.
A person is not guilty of an offense, other
than an offense punishable with death, by
reason of conduct which he performs under the
compulsion of threat or menace of the imminent
infliction of death or serious bodily harm if
he reasonably believes that death or serious
bodily harm will be inflicted upon him if he
does not perform such conduct.
Section 45-2-212, MCA.
The statute contains no distinctions based on compulsion by
human beings, compulsion by natural forces, or by choices between
lesser evils. It brings together all of the related defenses, by
whatever name called, under a single codification.
One apparent exception to the statutory amalgamation is still
found in Montana criminal case law. When dealing with prisoners
charged with escape, this Court has not applied the compulsion
statute. Instead, we have relied on a more appropriate version of
the necessity doctrine derived from the California case of People
v. Lovercamp (1974), 43 Cal.App.3d 823, 118 Cal.Rep. 110. In State
v. Stuit we approved jury instructions derived from Lovercamp and
held that justification is an affirmative defense which the
defendant must prove by a preponderance of the evidence. Stuit,
176 Mont. at 89, 576 P.2d at 267. Most recently, in State v.
Strandberg, we restated the essential elements of a necessity-of-
escape defense:
1) The defendant was faced with a specific
threat of death, or substantial bodily injury
in the immediate future.
2) There is no time for a complaint to the
authorities or there exists a history of
futile complaints which makes any result from
such complaints illusory.
3) There is not time or opportunity to resort
to the courts.
4) The prisoner immediately reports to the
proper authorities when he has attained a
position of safety from the immediate threat.
Strandberq, 223 Mont. at 135, 724 P.2d at 712-13.
To justify an escape under these elements, the defendant must
Inestablish by a preponderance of the evidence that escape is
objectively the only viable and reasonable choice available under
the circumstance^.^^ Strandberq, 223 Mont. at 135, 724 P.2d at 713.
(Emphasis deleted.)
The courts have long recognized that necessity may excuse
escape from a prison when warranted by appropriate circumstances.
1 Hale, Pleas of the Crown 611 (1778). In the classic statement
of the doctrine, when a prisoner flees a fire, "he is not to be
hanged because he would not stay to be burnt." United States v.
Kirby (1868), 7 Wall. 482, 487, 19 L.Ed. 278, 280. Use of the
necessity defense in this context is now universally accepted.
Bailey, 444 U.S. at 425, 100 S.Ct. at 642, 62 L.Ed.2d at 600 (J.
Blackmun dissenting); see also, Annotation, Duress, Necessity, or
Conditions of Confinement as Justification for Escape from Prison,
69 A.L.R.3d 678 (1976 & 1989 Supp.).
In Montana, necessity as a defense to prison escapes overlaps
significantly with the compulsion statute. The elements of the
statute are:
(1) [The defendant] was compelled to perform
the offensive conduct (2) by the threat or
menace (3) of the imminent infliction (4) of
death or serious bodily harm, and that (5) he
believed that death or serious bodily harm
would be inflicted upon him if he did not
perform such conduct, and (6) his belief was
reasonable.
Owens, 182 Mont. at 347, 597 P.2d at 77. (Emphasis deleted.)
Neither distinguishes between natural or human causes. Both impose
an objective standard and define the harm faced as death or serious
bodily injury. The futility of complaints and resort to the courts
required by Strandberq go to the statutory requirement that the
defendant was compelled to act and that the resulting actions were
objectively reasonable. Under both, the threatened harm must occur
imminently or in the immediate future. The statutory and common
law defenses differ most markedly in that Strandberg requires the
defendant to report immediately to the proper authorities. This
is a reasonable additional requirement for prison escapes. An
analogous requirement in cases brought under the compulsion statute
may be imposed in appropriate circumstances by the legal duty to
report a felony. See section 45-7-305, MCA.
We conclude that the compulsion statute and necessity doctrine
of Strandberq do not provide mutually exclusive defenses; they are
complimentary. Strandberq is merely an application of the compul-
sion statute tailored to the circumstances of prison escapes. When
dealing with prison escapes, therefore, Strandberq provides the
appropriate analysis.
The Strandberq elements are also appropriate in the present
case; as the appellant argues, absconding from parole is analogous
to prison escape. In the context of this review, the question is
whether the record contains substantial, credible evidence to
establish the elements of the necessity defense by a preponderance.
We hold that it does not.
The first element requires that the defendant be faced with
a specific threat of death, or substantial bodily injury in the
immediate future. Many courts have considered the defense of
necessity when the defendant faced sexual abuse. Most often the
defendants faced choices between homosexual rape or severe beatings
and possible death. See e.g., lover cam^, 43 Cal.App.3d at 825, 118
Cal.Rep. at 111; People v. Unger (Ill. App. 1975), 338 N.E.2d 442,
443; 69 A.L.R.3d 678, 5 8, supra. Ottwell presented uncontested
evidence of a coerced sexual relationship. We need not determine
whether that evidence was sufficient to satisfy this element of the
necessity defense because Ottwell failed to present any evidence
to support the remaining elements.
Ottwell failed to report the alleged sexual coercion even
though she had ample opportunity to do so. According to the
evidence, she developed a close relationship with her parole
officer. On numerous occasions they discussed her home life,
including Ottwellls life with her foster parents. The appellant
admits that she never told her parole officer of sexual harassment.
She did not report it to the police, the courts, or anyone else.
Ottwell also failed to report to the proper authorities once she
escaped but instead was arrested for prostitution. Even then, the
appellant apparently did not explain her flight by telling Oakland
police about the alleged sexual relationship. If the alleged
sexual coercion occurred, Ottwell passed up numerous opportunities
to remedy the situation short of violating parole.
We hold the record contains sufficient evidence to reject the
appellant's necessity defense and to uphold revocation of her
suspended sentence.
Affirmed.
Chief Justice
We concur:
M228d Justices
/
Justice John C. Sheehy, dissenting:
I am unwilling to sign an opinion which holds that
uncontested evidence of a coerced sexual relationship,
without more, is not sufficient to justify a parolee to
escape the situation.