No. 89-428 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsTONI LEA OTTWELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Asst. Atty. General, Helena 

Mike McGrath, County Attorney; Carolyn Clemens, Deputy, 

Helena, Montana 

Filed: 

Submitted on Briefs: Nov. 2, 1989 

Decided: December 22, 1989 
Chief ~ustice J. A. Turnage delivered the opinion of the Court. 

Toni Lea Ottwell appeals the decision of the First Judicial 

~istrict Court, 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 Correctional 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, 'I "duress, 'I and l'compulsion'l) , cert . den. 109 S . Ct . 845 

(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, 55 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 situations 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. Richardson (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-ofescape 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 compulsion 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.