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, CountyAttorney; Carolyn Clemens, Deputy, Helena, Montana

Filed: Submitted on Briefs: Nov. 2, 1989
Decided: December 22, 1989Chief ~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 Courtplaced a number of conditionson 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 totheseconditionsandher supervisionwasgradually relaxeduntil shewas allowed tomove out of the foster home. InMarch of 1989, probation officers discovered that Ottwell had absconded from her Billings residence; shehad 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 shebe transferred to the Life Skills Center in Billings, Montana. The sentencing judge isauthorized inhisdiscretionto revoke
a suspended sentence. Section 46-18-203(I),MCA. Inreviewingtheuse of thatdiscretion, the standard iswhether 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 Ottwellviolated 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 intoa sexual relationshipwhich continued after shemoved into her own residence. She contends thathad shenot complied with his demands, the guardian would have forced her return to jail. Theparties apparently disagree on what defense the appellant is raising. Ottwell calls it necessity and relies on the common law rather than theMontana 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 thepresent state of this area of Montana law. As with other jurisdictions,Montana has referred to this type of defense by avariety ofnames. 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 ("justificationwand "necessity1'). In two cases, this Court relied on the common law defense.Strandberq, 223 Mont. at 135, 724 P.2d at 712-13; Stuit, 176Mont. 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 appliedwhen the threat was fromphysical forces. United Statesv. Bailey (1980), 444U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575, 590; see also 1 W. LaFave & A. Scott, Jr., SubstantiveCriminal Law, 

### 55 5.3 (a)and 5.4 (a)

# . Thus,duress could be a defense tobank robbery fora taxidriverwho drove the robber to the bank with a gun pointed at his head. People v. Merhige

(Mich. 1920), 180N.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 thedefendant faced a choicebetween 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 cancerpatients. United Statesv. Richardson (9thCir. 1978), 588 F.2d 1235, 1239,cert. den. 440U.S. 947, 99 S.Ct. 636. In another, a defendant who felt amoral 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 (9thCir. 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 ormenace 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, compulsionby natural forces, or by choices between lesser evils. Itbrings 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 amore 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 complaintswhich 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 fromthe immediate threat.
Strandberq, 223 Mont. at 135, 724 P.2d at 712-13. To justify an escape under these elements, the defendant must Inestablishby 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. (Emphasisdeleted.) 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.). InMontana,necessity as a defense toprison 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 ormenace (3) of the imminent infliction (4) of death or seriousbodily 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. (Emphasisdeleted.) Neither distinguishes betweennatural orhuman causes. Both impose
an objectivestandardand define theharm faced as death or serious bodily injury. The futility of complaintsand resort to the courts required by Strandberq go to the statutory requirement that the defendantwas compelled to act and that the resulting actionswere objectively reasonable. Underboth, the threatenedharmmust 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 analogousrequirement incasesbrought 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 thecompulsion statuteand necessitydoctrine of Strandberqdo notprovide mutually exclusivedefenses; they are complimentary. Strandberq ismerely an application of the compulsion statutetailored to the circumstancesof 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 appellantargues, absconding fromparole is analogous to prison escape. In the context of this review, the question is whether the record contains substantial, credible evidence to establish theelements of thenecessitydefenseby apreponderance. 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 defendantsfacedchoicesbetween homosexual rapeor severebeatings andpossible death. Seee.g., lover cam^, 43 Cal.App.3d at 825, 118 Cal.Rep. at 111; Peoplev. Unger (Ill.App. 1975), 338N.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 evidencewas sufficientto satisfythis 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 Ottwelllslife with her foster parents. The appellant admitsthat shenever toldherparole 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 insteadwas arrested forprostitution. Even then, the appellant apparentlydid not explain her flightby telling Oakland police about the alleged sexual relationship. If the alleged sexual coercion occurred,Ottwellpassed 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 JusticeWe concur:



# M228d /

JusticesJustice 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.