Nos. 92-407 and 92-443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CITY OF HELENA, 

Plaintiff and Respondent, 

JOHN T. LEWIS, 

Defendant and Appellant. 

CITY OF HELENA, 

Plaintiff and Respondent, 

CLAIRE BRISENDINE, 

Defendant and Appellant. 

SEP f! bs 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

Hon. Thomas C. Honzel, Judge presiding in No. 92-407 

Hon. Jeffrey Sherlock, Judge presiding inNo. 92-443 

COUNSEL OF RECORD: 

For Appellants: 

Patrick F. Flaherty, Attorney at Law, Great Falls 

Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Patricia 

J. Jordan, Asst. Attorney General, Helena, Montana 

Robert Wood, Assistant City Attorney, Helena, 

Montana 

Filed: 

Submitted on Briefs: May 20, 1993 

Decided: September 20, 1993 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Appellants Claire Brisendine and John Lewis appeal from 

separate orders of the First Judicial District Court, Lewis and 

Clark County, finding Claire Brisendine guilty of criminal trespass 

and disorderly conduct and John Lewis guilty of criminal trespass. 

The appeals were consolidated pursuant to order of this Court. We 

affirm. 

We phrase the issues on appeal as follows: 

I) Did the District Court err in granting the City's motion 

in limine to prohibit the Defendants from introducing evidence 

regarding the defenses of necessity and justifiable use of force? 

2) Did the District Court properly instruct the jury in 

Lewis' case? 

3) Did the Defendants possess the requisite mental state for 

conviction under the criminal trespass and disorderly conduct 

statutes? 

4) Did the prosecution wrongfully withhold exculpatory 

material from the Defendants in violation of Bradv v. Maryland? 

Claire Brisendine (Brisendine) and John Lewis (Lewis) attended 

a demonstration at the Intermountain Planned Parenthood Clinic 

(Clinic) in Helena, Montana, on December 6, 1991. "No trespassing" 

signs were posted around the perimeter of the property, and a 

statewide injunction forbidding all but patients and staff from 

entering the Clinic premises also was posted. People in groups of 

three, Lewis and Brisendine included, had joined themselves 

2 
together at the neck with bicycle locks and were sitting in 

triangular patterns in front of the doorway to the Clinic. The 

Helena City Police were called to the Clinic and informed the 

demonstrators that they were trespassing. Both Brisendine and 

Lewis refused to leave when asked to do so by the Clinic director 

and the police. The Helena Fire Department arrived and cut off the 

bicycle locks. Lewis and Brisendine, among others, were arrested. 

Brisendine was charged in City Court with criminal trespass and 

disorderly conduct; Lewis was charged with criminal trespass. 

After their convictions in City Court, both Brisendine and 

Lewis appealed to the District Court. Brisendine was represented 

by counsel in District court; Lewis appeared pro se throughout the 

proceedings. In both cases, the City promptly filed a motion in 

limine requesting the District Court to prohibit Brisendine and 

Lewis from making any references to the propriety of abortion or 

any other matters that were not relevant to the charges of criminal 

trespass and disorderly conduct. In response to the City's motion 

in lirnine, Brisendine filed notice of the affirmative defense of 

justifiable use of force under 5 45-3-102, MCA, and also filed a 

motion to dismiss the charges. 

In Brisendine's case, District Court Judge Jeffrey Sherlock 

granted the City's motion in limine and denied Brisendiners motion 

to dismiss. At a bench trial held July 31, 1992, Brisendine waived 

her right to a jury trial and stipulated that she had been on the 

Clinic's private property and had obstructed ingress and egress to 

the Clinic. Over the City' s abjection, Brisendine made an offer of 
proof, testifying briefly as to the motivations behind her actions. 

On August 3, 1992, the District Court issued an order finding 

Brisendine guilty of disorderly conduct and criminal trespass and 

reinstating the sentence previously imposed by the City Court. Her 

sentence was stayed pending appeal. 

In Lewis' case, District Court Judge Thomas Honzel granted the 

City's motion in limine. The charge against Lewis proceeded to 

trial, and the jury found him guilty of criminal trespass. The 

court sentenced Lewis to 180 days in jail, with 179 days suspended 

and credit for one day served, imposed a $300 fine, and assessed 

jury costs. Judgment against Lewis was entered on June 23, 1992. 

Both Brisendine and Lewis appealed. 

On November 5, 1992, this Court granted Lewis' and 

Brisendinefs motion to consolidate the two cases. Although they 

presented distinct arguments regarding their defenses to the 

District Court, Brisendine and Lewis have filed a consolidated 

brief on appeal. Therefore, for purposes of discussing their 

arguments, Brisendine and Lewis will be referred to collectively as 

the Defendants. 

Did the District Court err in granting the City's motion in 

limine to prohibit the Defendants from introducing evidence 

regarding the defenses of necessity and justifiable use of force? 

In Brisendine's case, the District Court reasoned that her 

opposition to the motion in limine centered around her argument 

that Roe v. Wade (l973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 

147, was incorrectly decided. The District Court concluded that 

the activities at the Clinic were legal, and that it could not 

4 
overrule Roe v. Wade. For that reason, the court ruled that the 

defense of necessity was not appropriate, nor was reference to any 

other matter dealing with the abortion process. In granting the 

City's lengthy motion in limine, the District Court allowed 

Brisendine to indicate why she was acting as she did on December 6, 

1991, but prohibited her from an "extended forayu into the issues 

surrounding abortion. In Lewis' case, the District Court also 

granted an identical motion in limine, but did so without 

explanation of record. 

On appeal, the Defendants primarily challenge the following 

provision of the motion in limine, which excluded all 

"legal argumentstt or "legal documentst1 deemed 

inadmissible as a matter of law, including but not 

limited to the ltnecessity defense," lljustifiable use of 

forcebv defense, treaties, biblical or moral justification 

for their actions, arguments that abortion is illegal, 

Roe v. Wade is bad law, or that the charges filed against 

the Defendant are unconstitutional. 

The Defendants assert that they were improperly "gagged" from 

referring to their defenses at trial. The City asserts that 

because the defenses are inapplicable as a matter of law, they are 

necessarily irrelevant under Rule 402, M.R.Civ.P., and, therefore, 

properly excluded by the motions in limine. 

purpose motion limine prevent the 

introduction of evidence which is irrelevant, immaterial, or 

unfairly prejudicial." Feller v. Fox (1989), 237 Mont. 150, 153, 

772 P.2d 842, 844. Accordingly, the authority to grant or deny a 

motion in limine "rests in the inherent power of the court to admit 

or exclude evidence and to take such precautions as are necessary 
to afford a fair trial for all parties." Feller, 772 P.2d at 844, 

quoting Wallin v. Kenyon Estate (1974), 164 Mont. 160, 165, 519 

P.2d 1236, 1238. Thus, we will not overturn a district court's 

grant of a motion in limine absent an abuse of discretion. See 

Feller, 772 P.2d at 844; State v. Oman (1985), 218 Mont. 260, 264, 

707 P.2d 1117, 1119. Keeping this standard in mind, we review the 

District Courts' decisions to exclude the evidence regarding their 

asserted defenses. 

This Court recently clarified the applicability of the 

"necessity" defense in Montana and concluded that the defense has 

been codified in g 45-2-212, MCA. State v. Ottwell (1989), 240 

Mont. 376, 379, 784 P.2d 402, 404. In Ottwell, we explained that 

the defenses of necessity, justification, compulsion, duress, and 

the "choice of two evils" have been merged statutorily and labeled 

"compulsion" under 5 45-2-212, MCA. Ottwell, 784 P.2d at 404. 

Thus, the common law elements and distinctions between the 

aforementioned defenses are no longer applicable in Montana, with 

one exception which is inapplicable here. Ottwell, 784 P.2d at 

404; see also State v. Pease (1988), 233 Mont. 65, 71, 758 P.2d 

764, 768. Therefore, we apply the elements of 5 45-2-212, MCA, to 

the case before us. 

Montana's compulsion statute reads: 

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 compulsion defense does not include 

imminent threats of harm to a third party. State v. Spalding 

(1991), 247 Mont. 317, 321, 806 P.2d 1029, 1032. The statute does 

not excuse criminal conduct unless the person assertinq the defense 

reasonably believes that death or serious bodily injury will be 

inflicted upon him if he does not perform the criminal act. 

The Defendants have not alleged that they reasonably believed 

that death or serious bodily injury would be inflicted upon them if 

they did not trespass on the Clinic's property. Therefore, the 

defense of compulsion, which the Defendants characterize as the 

defense of necessity and/or justification, does not apply to this 

case. We conclude that the District Court did not err in 

concluding that the "necessity" defense was inappropriately raised 

by the Defendants. 

The Defendants rely exclusively on a Kansas district court 

case, City of Wichita v. Tilson (Kan. Dist. Ct. 1992), No. 91 MC 

108, to support their argument on appeal. This reliance is 

misplaced for several reasons. First, the result is based on the 

court's analysis of the common law defense of "choice of evils," 

which the court alternatively denominates as "justification by 

necessity." As explained, these defenses are included in the 

statutory amalgamation of § 45-2-212, MCA, in Montana; the common 

law elements are not recognized here. In addition, the case is 

presently on appeal to the Kansas Supreme Court. Moreover, the 

Kansas Legislature recently amended its trespass statute to 

specifically include "remaining upon private land or structure in 
a manner that interferes with access to or from any health care 

facility." (See Kansas H.B. 2646 Sec. 6(a) (2), which became 

effective July 1, 1992, after the Tilson defendant's criminal acts 

occurred). As conceded by Kansas trial court, the same facts may 

very well yield different results under the amended statute. 

Finally, the great weight of authority is decidedly against 

the Kansas district court's reasoning in City of Wichita. The 

following cases have rejected the choice of evils or necessity 

defense in similar factual situations: Allison v. City of 

Birmingham (Ala. Crim. App. 1991), 580 So.2d 1377; Cleveland v. 

Municipality of Anchorage (Alaska 1981), 631 P.2d 1073; Pursley v. 

State (Ark. App. 1987), 730 S.W.2d 250; People v. Garziano (Cal. 

App. 1991), 230 Cal.App.3d 241, 281 Cal.Rptr. 307; State v. Anthony 

(Conn. App. l99l), 588 A.2d 214; Gaetano v. United States (D.C. 

App. l979), 406 A.2d 1291; Hoover v. State (Ga. App. l99l), 402 

S.E.2d 92; People v. Krizka (Ill. App. 1980), 416 N.E.2d 36; Sigma 

Reproductive Health Center v. State (Md. App. 1983), 467 A.2d 483; 

City of St. Louis v. Klocker (Mo. App. l982), 637 S.W.2d 174; State 

v. Thomas (N.C. App. lggl), 405 S.E.2d 214; State v. Sahr (N.D. 

1991), 470 N.W.2d 185; City of Kettering v. Berry (Ohio App. 1990), 

567 N.E.2d 316; State v. Clowes (Or. l99O), 801 P.2d 789; 

Commonwealth v, Wall (Pa. Super. 1988), 539 A.2d 1325; Crabb v. 

State (Tex. App. l988), 754 S.W.2d 742; Buckley v. City of Falls 

Church (Va. App. 1988), 371 S.E.2d 827. 

The Defendants also argue that the District Court erred in 

excluding evidence regarding "justifiable use of force." In the 
District Court, Brisendine filed notice of her intent to assert 

this affirmative defense, relying on 5 45-3-102, MCA. On appeal, 

the Defendants mention the defense in passing but do not explain 

its applicability to their situation; nor do they cite any 

applicable authority. 

Section 45-3-102, MCA, reads in pertinent part: 

A person is justified in the use of force or threat to 

use force against another when and to the extent that he 

reasonably believes that such conduct is necessary to 

defend himself or another against such other's imminent 

use of unlawful force. . . . 

The plain language of the statute clearly limits the 

applicability of the defense to situations in which the aggressor's 

force is "unlawful.11 As noted by the Criminal Law Commission 

Comments to 5 45-3-102, MCA, unlawful includes either criminal or 

tortious force or threat of force. See also State v. Kills On Top 

(1990), 243 Mont. 56, 94, 793 P.2d 1273, 1299. 

Even assuming the Defendants1 acts of criminal trespass 

properly could be characterized as the use of force against the 

Clinic and, similarly, that the Clinic's activities could be 

characterized as the use of force, the Defendants have not proved 

or even alleged that any of the Clinic's activities were "unlawful" 

under § 45-3-102, MCA. Because all statutory elements must be 

satisfied to assert the defense of justifiable use of force, we 

need not analyze the remaining elements of the defense; justifiable 

use of force is simply not applicable to the facts of this case. 

The Defendants also assert several "historical defenses1'-- 

comparing abortion to nazism, slavery, and euthanasia--and 
arguments concerning when life begins and the constitutionality of 

the criminality of their conduct. We concur with the City's 

characterization of these arguments; all are based on the 

Defendantsf belief that Roe v. Wade was wrongly decided. The 

District Court's conclusion that it could not overturn the United 

States Supreme Court's decision in Roe v. Wade is equally 

applicable to this Court. That prerogative is left to the United 

States Supreme Court which, quite recently, reaffirmed the 

essential holding of Roe v. Wade in Planned Parenthood v. Casey 

(1992), 505 U.S. -, -I 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674, 

Behind the Defendants' appeal is their choice to pursue their 

personal beliefs in violation of the law. We repeat the language 

of the Superior Court of ~ennsylvania, which stated: 

We live in a society of laws and no individual is 

entitled to raise himself above the law. We are each 

bound by the law no matter its source. If we were free 

to pick and choose which laws we wished to obey, the 

result would be a society of strife and chaos . . . Democracy allows the citizenry to protest laws of which 

they disapprove. But they must nonetheless obey such 

laws or face the legal consequences. 

Commonwealth v. Markum (Pa. Super. 1988), 541 A.2d 347, 350. The 

Alaska Supreme Court also acknowledged the citizen's right to 

protest a law if he or she believes the protest is necessary in 

pursuit of a moral cause, but emphasized that: 

[tlhey [philosophers and religionists discussing civil 

disobedience] have been in general agreement that while 

in restricted circumstances a morally motivated act 

contrary to law may be ethically justified, the action 

must be non-violent and the actor must accept the penalty 

for his action. In other words, it is commonly conceded 

that the exercise of a moral judgment based upon 
individual standards does not carry with it legal 

justification or immunity from punishment for breach of 

the law. 

Cleveland, 631 P.2d at 1084. 

The same reasoning applies to the Defendants here. Lewis and 

Brisendine are entitled to hold and act upon their personal 

beliefs. Those personal beliefs, however, do not afford the 

Defendants immunity from the law. They must accept the legal 

consequences of their choice to trespass on the Clinic's property. 

Having concluded that none of the defenses asserted by the 

Defendants are applicable to this case, we hold that the District 

Courts did not abuse their discretion in granting the City's 

motions in limine. 

Did the ~istsict Court properly instruct the jury in Lewis' 

case? 

The Defendants argue that the District Court erred in refusing 

to instruct the jury on Lewis' theory of the case. The Defendants 

do not, however, identify which instructions were wrongly given or 

wrongly refused. Therefore, we can only assume that this argument 

merely carries forward the Defendants' earlier arguments concerning 

the defenses of necessity and justifiable use of force. 

A district court need not instruct on an issue if the subject 

matter of the instruction is not applicable to the facts or not 

supported by the evidence introduced at trial. See Webcor 

Electronics v. Home Electronics (19881, 231 Mont. 377, 381, 754 

P. 2d 491, 493. Having determined that the defenses asserted by the 

Defendants are not applicable to the facts of this case, we 
conclude that the District Court did not err in instructing the 

jury. 

Did the Defendants possess the requisite mental state for 

conviction under the criminal trespass and disorderly conduct 

statutes? 

The Defendants assert that they did not possess the requisite 

intent under either 5 45-6-203, MCA, or 5 45-8-101, MCA. They 

claim that because they did not "intend to break the law," they did 

not possess a criminal %ens rea" and their convictions should be 

set aside. This argument verges on the frivolous, as those 

concepts of criminal mental state were replaced long ago. See 

State v. Crabb (1988), 232 Mont. 170, 176, 756 P.2d 1120, 1124. 

Under the criminal trespass statute, 5 45-6-203, MCA, the City 

had to establish that the Defendants "knowingly" remained 

unlawfully upon the premises of another. Under § 45-8-101(f), MCA, 

the disorderly conduct statute, the City had to show that 

Brisendine "knowinglyf1 disturbed the peace by blocking free ingress 

or egress to a private place. Testimony established that the 

Defendants remained on the Clinic's property after they were told 

they were trespassing and were asked to leave. Brisendine 

stipulated that she knowingly blocked the free ingress to the 

Clinic. Therefore, we conclude that the City adequately proved the 

mental state required by the statutes at issue. 

Did the prosecution wrongfully withhold exculpatory material 

from the Defendants in violation of Brady v. Marvland? 

The Defendants assert that the District Court's refusal to 

admit their proffered evidence regarding their asserted defenses 

12 
amounted to an unconstitutional withholding of exculpatory 

evidence, citing Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 

1194, 10 L.Ed.2d 215. The most minimal inquiry into the subject 

would have revealed that Bradv is not remotely applicable to the 

Defendants' situation. The United States Supreme Court in Bradv 

held that suppression bv the prosecution of evidence favorable to 

the accused after such evidence was requested in discovery violates 

due process where the evidence is material to either guilt or 

punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-7, LO L.Ed.2d 

at 218. 

Here, the Defendants at all times possessed the material they 

claim was "wrongfully withheld." The City did not withhold 

exculpatory material in violation of Brady, nor have the Defendants 

argued that the City possessed the disputed information. The 

District Court's refusal to admit the evidence is totally unrelated 

to the constitutional principles espoused in Brady. The 

Defendants' argument is without merit. 

Affirmed. 

We concur: ------' d/fT-A& 

hie Justice 
for Justice James C