Petition for Writ of Certiorari — Detwiler v. City of Akron
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, SS eer,
JY-, A498 RFiLED
MAR 19 1991
OFFICE OF THE CLERK
No.
In The :
Supreme Court Of The United States
October Term, 1990
MARY DETWILER,
Petitioner,
Vv.
CITY OF AKRON,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE NINTH
APPELLATE DISTRICT, SUMMIT COUNTY, OHIO
PETITION FOR A WRIT OF CERTIORARI
Robert R. Melnick
Of Counsel: Counsel of Record
John W. Whitehead Daniel G.LaPorte
THE RUTHERFORD THE RUTHERFORD
INSTITUTE INSTITUTE of OHIO
1445 East Rio Road 18 N. Phelps St., Suite 300
Charlottesville, VA 22901 Youngstown, Ohio 44503
(804) 978-3888 (216) 744-8973
Attorneys for Petitioner
i
QUESTION PRESENTED
Whether the right to a fair trial, under the Sixth and Fourteenth
Amendments, demands that a defendant charged with trespass and
other misdemeanors at an abortion clinic be allowed to present
evidence to the jury in support of her claim that her conduct was
privileged under the common law because it was necessary to save
human life beyond the first trimester of pregnancy.
ii
LIST OF PARTIES
The parties to the criminal and appellate proceedings in the state
courts were Petitioner, Mary Detwiler, as Defendant in the Akron
Municipal Court and Appeilant in the Court of Appeals, and the City
of Akron, as Plaintiff in the Akron Municipal Court and Appellee in
the Court of Appeals.
TABLE OF CONTENTS
QUESTION PRESENTED ................
MOPORPANTONS...................5..
TABLE OF AUTHORITIES ................
OPINIONS BELOW ....................
ee ees
CONSTITUTIONAL AND STATUTORY
PUMPER wt ts
DIATOMENT Ur IMECASE .........2206.
SUMMARY OFARGUMENT ..............
EE ee ee
I. THE RIGHT OF CRIMINAL DEFENDANTS
TO A REASONABLE OPPORTUNITY TO
BE HEARD IS A FUNDAMENTAL RIGHT
IN THE AMERICAN SYSTEM OF JURIS-
ee
II. THE OPPORTUNITY TO PRESENT A
COMPLETE DEFENSE IS INCLUDED
WITHIN THE PENUMBRA OF THE FUN-
DAMENTAL RIGHT OF CRIMINAL
DEFENDANTS TOBEHEARD ........
III. PETITIONER WAS DEPRIVED OF
HER OPPORTUNITY TO PRESENT HER
NECESSITY DEFENSE TO THE JURY,
IN VIOLATION OF HER CONSTITU-
TIONAL RIGHT TO PRESENT A COM-
PUMBRURUPUUEPMES CR te ee
IV. PETITIONER COULD HAVE SUSTAINED
HEK BURDEN OF PROOF WITH RESPECT
TO HER NECESSITY DEFENSE .......
—=— —
na & WwW N
iv
V. PETITIONER’S LACK OF PRIVILEGED
CONDUCT, AS AN ELEMENT OF THE
ALLEGED MISDEMEANOR, WAS NOT
PROVED BEYOND A REASONABLE
DOUBT BY THE PROSECUTION .....-.- - 14
‘se Sa re a oe 15
Vv
TABLE OF AUTHORITIES
A. CASES
Akron v. Akron Center for Reproductive Health,
RE SG ae ee ge we ee 8 4,9, 10,11
Akron v. Detwiler, No. 89 CRB 3282
PE ID gcc cc tee ee 3
Baltimore & Ohio R. Co. v. United States,
eee ee 5
Beachwood v. Cohen, 29 Ohio App.3d 226,
504 N.E.2d 1186 (App. 1986) ........... 14,15
California v. Trombetta, 467 U.S. 479 (1984) .. 2... 6
Castle v. United States, 347 F.2d 492 (D.C. Cir.), cert.
den., 381 U.S. 929 (1964), 381 U.S. 953,
pet. reh. den., 382 U.S. 874 (1965), cert. den.,
Pn PRE 6 be 6 va iw te 6 06 8
Chambers v. Mississippi, 410 U.S. 284 (1973) ..... 6,8
Cleveland v. Municipality of Anchorage,
OR Bi) er 11
Cleveland v. Sabo, Cuyahoga App. Nos. 41999 and
42004 (decided May 14, 1981), 1981 WL 4949
Pee eae ee ee 12
Cleveland v. Sundermeier, 48 Ohio App.3d 204, 549
Pe so a a as sake 8 12, 15
Crane v. Kentucky, 476 U.S. 683 (1986) ......... 5, 6,7
Davis v. Alaska, 415 U.S. 308 (1974) .......... 6
Dayton v. Drake, 1990 WL 121890 (Ohio App.) .... 10
Detwiler v. Akron, C.A. No. 14385
SS 8a Seas eee & 4 6 ale 10, 11
Duncan v. Louisiana, 391 U.S. 145 (1968) ....... 6
vi
Fairfield Commons Condominium Assn. v. Stasa, 30 Ohio
App.3d 11, 506 N.E.2d 237 (1985) cert. den., sub.
nom., Moriarty v. Fairfield Commons Condominium
Assn., 479 U.S. 1055 (1987) 2... 6 6 eee ees
Griswold v. Connecticut, 381 U.S. 479 (1965)... ..
Harriss v. Pan American World Airways, 649 F.2d 670
(Sth Cir. 19BO) wee ee ee ees
Hoffart v. State, 686 S.W.2d 259 (Tex. App. 14 Dist.
1985), cert. den., 479 U.S. 824, reh. den., 479 US.
iL a ee
fe ve Oliver, 383 U.S. 257(1948) 20. eee
In re Winship, 397 U.S. 358(1970) ..... 2.5 ---
Int’l Union, United Auto. Aerospace and Agricultural Im-
plement Workers of America UAW v. Johnson Con-
trols, Inc., 886 F.2d 871 (7th Cir. 1989) ....
Jenkins v. McKeithen, 395 U.S. 411 (1969) .......
Kettering v. Berry, 57 Ohio App.3d 66,
__N.E.2d___ (1990)... 2 ee ee ees
Levin v. Delta Air Lines, 730 F.2d 994
(4th Cir. 1984) 2... ec eee ee ees
Mariemont v. Wells, 33 Ohio Misc.2d 9, 514
N.E.2d 764 (M.C. 1986) ... 2... 5 2 ee ees
Morgan v. United States, 298 U.S. 468 (1936)... . .
Ohio v. Rinear, No. 78CRB-3706 (Mun. Ct. Hamilton
County, Ohio, decided May 2,1978) .......
People v. Harmon, 394 Mich. 625, 232
N.W.2d 187 (1975) 2... 6 ee es
People v. Luther, 394 Mich. 619, 232
N.W.2d 184 (1975) 2... 2 ee ee ee es
People v. Stiso, 93 I. App.3d 101, 416
N.E.2d 1209 (Ill. App. 1981)... 2... ee.
People v. Unger, 66 Il.2d 333, 362
N.E.20 319 (101. 1977) ww ees
10
5,6
14
10
14
1]
~J
Vii
Powell v. Alabama, 287 U.S. 45(1932) ......
Roe v. Wade, 410 U.S. 113 (1973) ... 2...
Sigma Reproductive Health Center v. Maryland,
297 Md. 660, 467 A.2d 483 (1983) .....
Specht v. Patterson, 386 U.S. 605 (1967)... . .
St. Louis v. Klocker, 637 S.W.2d 174
IIIS Ca litre or | a Pe
State v. Adams, 62 Ohio St.2d 151, 404
Wk.ae BO6GCISSR) 2...
State v. Balch, No. CR10-94874 (C.P. New London
County, Conn., decided March 7, 1978) .. .
State v. Brechon, 352 N.W.2d 745 (Minn. 1984)
State v. Burton, 103 A. 962(R.1.1918) ......
State v. Cross, 58 Ohio St.2d 482, 391
N.E.2d 319(1979) .........2......
State v. Isaac, 44 Ohio Misc. 87, 337 N.F.2d 818
Da s&h us 6 owe tO ea
State v. Milam, 108 Ohio App. 254, 156
IN.E.28 640(1959) ..............
State v. Procter, 51 Ohio App.2d 152, 367
8
State v. Rasmussen, 5 Fam. L. Rep. 2037
(BNA) (Mun. Ct. Hennepin County,
WC II gs vc ct ck
State v. Sappienza, 84 Ohio St. 63, 95
SEE: wha Gs 6 40 0 0 oak
United States v. Bailey, 444 U.S. 394 (1980) _..
United States v. Balch, No. 64684-77
(D.C. Super. Ct., decided Dec. 19,1977) _ .
United States v. Contento-Pachon, 723 F.2d 691
ae tat a |.
United States v. Dorrell, 758 F.2d 427
RS
. . .
12
viii
United States v. Kabat, 797 F.2d 580 (8th Cir. 1986),
cert. den., 481 U.S. 1030 (1987) ........--- 8
United States v. Lopez, 885 F.2d 1428 (9th Cir. 1989),
cert. den., 110 S.Ct. 748 (1990)... 2... - 7
United States v. McKnight, 427 F.2d 75 (7th Cir.),
cert.den., 400 U.S. 880 (1970) ........-5-- 7
United States v. Simpson, 460 F.2d 515
‘Le a 12, 13
Washington v. Texas, 388 U.S. 14 (1967) ......---. 5,6
William Gray, 29 F. Cas. 1300 (C.C.D.N.Y. 1810) ... 7
Wilson v. State, 777 S.W.2d 823
(Tex. App.- Austin 1989)... 2.2... - eee 12
Woods v. State, 121 S.W.2d 604 (Tex. 1938) ...... 7
Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982)
B. STATUTES
Akron City Code, Section 130.02 .....-.---5-: 2, 14
Akron City Code, Section 131.08(B)(1) .....-.-. 2
C. OTHER AUTHORITIES
Note, Necessity As A Defense To A Charge of Criminal
Trespass In An Abortion Clinic, 48 U. Cin. Law
el ere 7, 8,10
No.
In The
Supreme Court Of The United States
October Term, 1990
MARY DETWILER,
Petitioner,
v.
CITY OF AKRON,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE NINTH
APPELLATE DISTRICT SUMMIT COUNTY, OHIO
OPINIONS BeLOW
The Entry of the Ohio Supreme Court denying jurisdictics is not
reported and is printed in the Appendix, p. A-1.
The Decision and Journal Entry of the Court of Appeals, Ninth
Judicial District, Summit County, Ohio is not reported and is printed
in the Appendix, p. A-2.
The Judgment of Conviction of the Akron Municipal Court is
not reported and is printed in the Appendix, p. A-20.
The Findings of Fact and Conclusions of Law of the Akron
Municipal Court are not reported. They are printed in the Appendix,
p. A-22.
JURISDICTION
The Court of Appeals for the Ninth Judicial District, Summit
County, Ohio, entered its Decision and Journal Entry on July 5, 1990,
affirming the Judgment of Conviction entered against Mary Joun
Detwiler, Petitioner in this case, on November 15, 1989. At her trial.
2
Petitioner was prevented from introducing any evidence in support of
her claim that her presence at the abortion clinic on May 6, 1989 was
necessary to save human life, despite her argument that her defense
did not conflict with this Court’s decision in Roe v. Wade, 410 U.S.
113 (1973). Petitioner then timely filed an appeal and motion for
certiorari with the Ohio Supreme Court. The Ohio Supreme Court
dismissed the motion and appeal on December 19, 1990. The jurisdic-
tion of this Court is invoked under 28 U.S.C. Sec. 1257(a).
U.S. CONSTITUTIONAL PROVISIONS
AND STATE STATUTES INVOLVED
U.S. Constitution, Amendment VI:
...[I]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury. . .
U.S. Constitution, Amendment XIV, Section I:
...[NJor shall any State deprive any person of life, liberty,
or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
Akron City Code § 130.02:
“PRIVILEGE.” An immunity, license, or right conferred
by law, or bestowed by express or implied grant, or arising
out of status, position, office, or relationship, or growing
out of necessity. ‘
Akron City Code § 131.08 (B)(1):
(B) Noperson, without privilege to do so, shall do any of
the following:
(1) Knowingly enter or remain on the land or
premises of another;...
3
STATEMENT OF THE CASE
This is a Petition for Certiorari from the affirmance by the Ninth
District Court of Appeals, Summit County, Ohio of the Judgment of
Conviction entered in favor of the City of Akron against Mary Joan
Detwiler on November 15, 1989 in Akron Municipal Court Case No.
89 CRB 3282.
Prior to trial, Petitioner filed a motion and a memorandum to
allow the introduction of medical and other evidence in support of her
defense of necessity. After a hearing, the motion was denied and the
Akron Municipal Court subsequently issued Findings of Fact and
Conclusions of Law (the “Findings”) in support of the denial. At the
motion hearing, Petitioner’s counsel expressly raised the issue of
whether Roe v. Wade, 410 U.S. 113 (1973), prevented the defense of
necessity.
Following a timely appeal to the Ninth District Court of Appeals,
Summit County, Ohio, the appellate court affirmed the trial court on
all issues by its Decision and Journal Entry of July 5, 1990. The first
assignment of error to the Court of Appeals stated as follows:
The trial court below deprived appellant of her constitu-
tional right to due process of law by refusing to aliow
appellant to present the common law defense of necessity
and to introduce expert medical evidence in support there-
of.
A timely notice of appeal to the Supreme Court of Ohio was filed
with the Court of Appeals on August 6, 1990 and a copy of that notice,
together with a memorandum in support of jurisdiction, was filed with
the Supreme Court of Ohio on September 4, 1990. Treating the appeal
as a motion for an order directing the Court of Appeals for Summit
County to certify its record, the Supreme Court of Ohio, on December
19, 1990, overruled the motion and dismissed the appeal sua sponte
on the grounds that no substantial constitutional question was in-
volved. This Petition for Certiorari ensued in due course.
The facts material to a consideration of this case are as follows:
on Saturday, May 6, 1989, Petitioner, a 27-year old housewife and
mother, then of four, now of five, arrived with other persons at 839
East Market Street, Akron, Ohio, at approximately 8:00 a.m., to try to
4
save the lives of unborn children scheduled for abortion and death that
day at the Akron Center for Reproductive Health (Akron Municipal
Court Trial Transcript Vol. I, 149, hereinafter “Tr.”) a second floor
tenant of the commercial building at that address (Tr. Vol. IT, 322 &
ff). She found pro-abortion protestors already on the premises, chiefly
on the second floor balcony area of the building near the second floor
entrance to the abortion clinic. Petitioner took up a position in an
unenclosed outside stairwell area of the premises next to the adjacent
parking lot and open to the public. However, she was not in front of
the stairs to the second floor (7r. Vol. II, 329). Throughout the day
until the time of her arrest, Petitioner sang hymns and otherwise
conducted herself in a peaceful manner in this common area (7r. Vol.
IT, 331). Petitioner at no time entered any portion of the premises
leased to the abortion clinic. She remained, with her friends, in
approximately the same area, until the point of her arrest. After being
arrested, booked and fingerprinted, she was transported to the Power
Street correctional facility and incarcerated before being released on
her own recognizance.
SUMMARY OF ARGUMENT
The Ohio courts denied Petitioner her fundamental right to
present a complete defense to misdemeanor trespass. Specifically, the
Ohio courts excluded all evidence at trial which related to Petitioner’s
necessity defense. In holding that the necessity defense is unavailable
to pro-life trespassers with respect to abortions of pregnancies beyond
the first trimester, the Ohio courts have ignored this Court’s declara-
tions in Roe v. Wade, 410 U.S. 113 (1973) and Akron v. Akron Center
for Reproductive Health, 462 U.S. 416 (1983), that the State has a
compelling interest in the potentiality of human life beyond the first
trimester of pregnancy and have misapplied the holdings of these
cases. The Ohio courts have thus deprived Petitioner and an entire
class of criminal defendants of their fundamental right to present a
complete defense to the jury.
5
ARGUMENT
I. THE RIGHT OF CRIMINAL DEFENDANTS x
TO A REASONABLE OPPORTUNITY TO BE
HEARD IS A FUNDAMENTAL RIGHT IN THE
AMERICAN SYSTEM OF JURISPRUDENCE.
This Court unequivocally has held that the right of criminal
defendants to be heard, i.e., the “ right to [one’s] day in court,” is a
fundamental right in the American system of jurisprudence. See /n re
Oliver, 333 U.S. 257, 273 (1948).
The opportunity to be heard includes the right to offer testimony.
Oliver, 333 U.S. at 273. Indeed, this Court has held:
The right to present evidence is, of course, essential to the
fair hearing required by the Due Process Clause. See, e.z.,
Morgan v. United States, 298 U.S. 468, 479-80; Baltimore
& Ohio R. Co. v. United States, 298 U.S. 349, 368-69
(1936). And, as we have noted above, this right becomes
particularly fundamental when the proceeding aliegedly
results in a finding that a particular individual was guilty
of a crime. Cf. Washington v. Texas, 388 U.S. 14 (1967);
In re Oliver, 333 U.S. 257, 273 (1948).
Jenkins v. McKeithen, 395 U.S. 411, 429 (1969). This Court has
reiterated this fact many times, without regard to the nature of the
alleged crime or the motivation of the accused. See e.g., Crane v.
Kentucky, 476 U.S. 683, 690 (1986); Washington v. Texas, 388 U.S.
14, 19 (1967); Powell v. Alabama, 287 U.S. 45, 68 (1932).
This vital and sacred right to be heard was denied Petitioner in
the case presently before this Court.
II. THE OPPORTUNITY TO PRESENT A COM-
PLETE DEFENSE IS INCLUDED WITHIN THE
PENUMBRA OF THE FUNDAMENTAL RIGHT
OF CRIMINAL DEFENDANTS TO BE HEARD.
The Court has held that “specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that
help give them life and substance.” Griswold v. Connecticut, 381 U.S.
479, 484 (1965). As such, the right to present a complete defense to
6
the jury is within the penumbra of the Sixth and Fourteenth Amend-
ment rights to present a complete defense.
This Court has held that under the Due Process Clause of the
Fourteenth Amendment, criminal prosecutions must comport with
notions of fundamental fairness, which notions include an opportunity
to present a complete defense:
We have long interpreted this standard of fairness to re-
quire that criminal defendants be afforded a meaningful
opportunity to present a complete defense.
California v. Trombetta, 467 U.S. 479, 485 (1984) (emphasis added).
See Crane, 476 U.S. at 690; Chambers v. Mississippi, 410 U.S. 284,
302 (1973); Washington, 388 U.S. at 23; and Oliver, 333 U.S. at 273.
In fact, this Court has concluded that:
[J]urors were entitled to have the benefit of the defense
theory before them so that they could make an informed
judgment as to the weight to place on Green’s testimony
which provided “a crucial link in the proof ... of petitioner’s
act.”
Davis v. Alaska, 415 U.S. 308, 317 (1974).
This fundamental right provides, as Justice White once ex-
pressed it for the Court:
[A]n accused with the right to be tried by a jury of his peeis
[which gives] him an inestimable safeguard against the
corrupt or overzealous prosecutor and against the com-
pliant, biased, or eccentric judge. If the defendant preferred
the common-sense judgment of a jury to the more tutored
but perhaps less sympathetic reaction of the single judge,
he was to have it.
Duncan v. Louisiana, 391 U.S. 145, 156 (1968). This fundamental
right is nowhere more important than in cases such as Petitioner’s
where the issues are highly charged and highly susceptible of bias and
overzealcus prosecution. This Court has never held that an entire class
of criminal defendants, i.e., pro-life protesters accused of trespass, are
not entitled to present a complete defense to their juries.
atl
5
The opportunity to present a complete defense is an empty one
indeed if the State may exclude competent, reliable evidence that is
central to a defendant’s claim of innocence. Crane, 476 U.S. at 690;
see also Specht v. Patterson, 386 U.S. 605, 610 (1967). Petitioner’s
right to acomplete defense was rendered entirely empty when the Ohio
courts refused her the opportunity to present her necessity defense to
the jury.
Ill. PETITIONER WAS DEPRIVED OF HER
OPPORTUNITY TO PRESENT HER NECESSITY
DEFENSE TO THE JURY, IN VIOLATION OF
HER CONSTITUTIONAL RIGHT TO PRESENT
A COMPLETE DEFENSE.
Petitioner seeks from this Court only the opportunity to present
her necessity defense to the jury, which defense is recognized in Ohio.
See State v. Sappienza, 84 Ohio St. 63, 95 N.E. 381 (1911); State v.
Milam, 108 Ohio App. 254, 156 N.E.2d 840, 843 (1959).
The necessity defense has been presented to the jury in many
States, including Ohio. See, e.g., United States v. McKnight, 427 F.2d
75 (7th Cir.), cert. den., 400 U.S. 880 (1970) (in defense of illegal
importation of heroin); State v. Procter, 51 Ohio App.2d 152, 367
N.E.2d 908 (1977) (prison escape); Castle v. United States, 347 F.2d
492 (D.C. Cir.), cert. den., 381 U.S. 929 (1964), 381 U.S. 953, pet.
reh. den., 382 U.S. 874 (1965), cert. den., 388 U.S. 915 (1967) (illegal
drug distribution); People v. Luther, 394 Mich. 619, 232 N.W.2d 184
(1975) (prison escape); People v. Harmon, 394 Mich. 625, 232
N.W.2d 187 (1975) (prison escape); United Statics v. Lopez, 885 F.2d
1428 (9th Cir. 1989), cert. den., 110 S.Ct. 748 (1990) (prison escape);
People v. Unger, 66 II1.2d 333, 362 N.E.2d 319 (Ill. 1977) (prison
escape); United States v. Contento-Pachon, 723 F.2d 691 (9th Cir.
1984) (unlawful narcotics distribution); State v. Burton, 103 A. 962
(R.I. 1918) (traffic laws in wartime); The William Gray, 29 F. Cas.
1300 (C.C.D.N.Y. 1810) (embargo laws); Woods v. State, 121 S.W.2d
604 (Tex. 1938) (leaving scene of accident).
The necessity defense is central to Petitioner’s defense since
charges against pro-life trespassers are generally dropped when the
necessity defense is permitted. See, Necessity As A Defense To A
Charge of Criminal Trespass In An Abortion Clinic, 48 U. Cin. Law
8
Rev. 501, 502 n. 11 (1979) citing Ohio v. Rinear, No. 783CRB-3706
(Mun. Ct. Hamilton County, Ohio, decided May 2, 1978). It has been
asserted that such charges are dropped precisely to avoid setting a
precedent which would enable pro-life protesters successfully to
defend their alleged trespasses. See Necessity As A Defense To A
Charge of Criminal Trespass In An Abortion Clinic, 48 U. Cin. Law
Rev. at 502 n. 11 (1979).
IV. PETITIONER COULD HAVE SUSTAINED HER
BURDEN OF PROOF WITH RESPECT TO HER
NECESSITY DEFENSE.
The Court has held that the necessity defense is available if the
criminal action was necessary to avoid a harm more serious than that
sought to be prevented by the statute defining the offense. United
States v. Bailey, 444 U.S. 394, 410 (1980).
In considering the matter, courts have routinely held that the
necessity defense is not intended to excuse criminal activity by those
who merely disagree with the decisions and policies of the lawmaking
branches of government. See United States v. Kabat, 797 F.2d 580,
591 (8th Cir. 1986), cert. den., 481 U.S. 1030 (1987). Petitioner does
not assert the necessity defense merely because she disagrees with the
decisions and policies of the lawmaking branches of government with
respect to the right to an abortion.
The Court has held that a vital element of any necessity defense
is the lack of a reasonable alternative to violating the law, i.e., a
“chance both to refuse to do the criminal act and also to avoid the
threatened harm.” Bailey, 444 U.S. at 410.
The Court has required a threshold showing on the part of those
who assert an affirmative defense to a crime and if testimony support-
ing one element is insufficient to sustain it, the trial court and jury need
not be burdened with testimony supporting other elements of the
defense. Bailey, 444 U.S. at 416. Nonetheless, where constitutional
rights directly affecting the ascertainment of guilt are implicated, rules
of evidence may not be applied mechanistically to defeat the ends of
justice. See Chambers, 410 U.S. at 302.
Petitioner was unconstitutionally deprived of the opportunity to
present evidence to the jury concerning these issues and could have,
9
if so permitted, supported her defense with a preponderance of the
evidence, as required by Ohio law. See Sappienza, 95 N.E. 381.
Specifically, Petitioner could have shown, if she had been per-
mitted to do so, that her actions met all the requirements of Ohio
common law for assertion of a necessity defense. These requirements
are considered as follows:
(1) The threatening or triggering harm outweighed
(or at least equaled) the harm designed to be
avoided by the statute defining the alleged of-
fense. This is an objective matter and is not to be
based upon Petitioner’s subjective view at the
time of her conduct. Moreover, this issue, as
framed below, has not been decided by this Court.
This Court has held that the State has an “important and
legitimate interest in protecting the potentiality of human life.” Roe v.
Wade, 410 U.S. 113, 162 (1973); Akron v. Akron Center for Reproduc-
tive Health, 462 U.S. 416, 428 (1983). Moreover, the Court has held
that after the end of the first trimester of pregnancy the State’s interest
becomes compelling. Roe, 410 U.S. at 163; Akron Center, 462 U.S.
at 429. Indeed, at viability, this interest in protecting the potential life
of the unborn child is so important that the State may proscribe
abortions altogether. Roe, 410 U.S. at 163-64; Akren Center, 462 U.S.
at 428.
These interests of the State in the “potentiality of human life”
have been furthered by the courts in other contexts. For example,
unconstitutional discrimination against pregnant women has been
condoned as part of industrial fetal protection policies, see, e.g., Int’!
Union, United Auto. Aerospace and Agricultural Implement Workers
o} America UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir.
1989) and Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982) and in
connection with airline safety, see Levin v. Delta Air Lines, 730 F.2d
994 (4th Cir. 1984) and Harriss v. Pan American World Airways, 649
F.2d 670 (9th Cir. 1980). How can it be said that business entities must
protect the health of the unborn when Petitioner may not protect the
very life of the same unborn?
Further, as part of the objective basis for use of the defense,
Petitioner proffered previously recorded testimony of a medical ex-
10
pert, and other documentary evidence, showing the scientific grounds
for concluding that a fetus is 2live. Medical references proffered are
listed in Appendix B to this Petition.
In this respect,the Ohio courts have misapplied the principles of
Roe and Akron Center, supra. See, ¢.g., Fairfield Commons Con-
dominium Assn. v. Stasa, 30 Ohio App.3d 11, 506 N.E.2d 237 (1985),
cert. den. sub. nom., Moriarty v. Fairfield Commons Condominium
Assn., 479 U.S. 1055 (1987) (abortion protests not justified by legal
necessity because United States Supreme Court has found that abor-
tions are not illegal); Dayton v. Drake, 1990 WL 121890 (Ohio App.)
(necessity defense unavailable because abortion performed prior to
viability is not illegal act); and in Petitioner’s case, Detwiler v. Akron,
C.A. No. 14285 (9th App. Dist. 1990) at 5S (necessity defense unavail-
able because abortion performed pricr to viability is not illegal act);
An Ohio appellate court has stated that:
Through judicial decision and legislative determination
denying abortion recognition as a harm, the law has
preempted the central inquiry of the necessity defense;
whether the activity sought to be stopped or the criminal
conduct employed to stop it is the “greater harm.” By
denying abortion classification as a harm the law has
determined that the greater harm per se is in the criminal
conduct. The defense of necessity which has been created
by the law may not, therefore, be employed to justify or
excuse it.
Kettering v. Berry, 57 Ohio App.3d 66, __N.E.2d_ (1990).
Other courts that have held the necessity defense inapplicable to
trespass of abortion clinics have often based their decisions on the fact
that first trimester abortions are legal, see Necessity As A Defense To
A Charge of Criminal Trespass In An Abortion Clinic, 49 U. Cin. Law
Rev. at 513, including n. 99, citing State v. Balch, No. CR10-94874
(C.P. New Lendon County, Conn., decided March 7, 1978) (oral
opinion); United States v. Balch, No. 64684-77 (D.C. Super. Ct.,
decided Dec. 19, 1977) (oral opinion); State v. Rasmussen, 5 Fam. L.
Rep. 2037 (BNA) (Mun. Ct. Hennepin County, Minn. Nov. 21, 1978);
or that abortions in general are legal, e.g., Hoffart v. State, 686 S.W.2d
259 (Tex. App. 14 Dist. 1985), cert. den., 479 U.S. 824, reh. den., 479
1]
U.S. 977 (1986); State v. Brechon, 352 N.W.2d 745 (Minn. 1984);
Sigma Reproductive Health Center v. Maryland, 297 Md. 660, 467
A.2d 483 (1983); St. Louis v. Klocker, 637 S.W.2d 174 (Mo. App.
1982); Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alas-
ka 1981); People v. Stiso, 93 Ill. App.3d 101, 416 N.E.2d 1209 (TI.
App. 1981).
Notwithstanding the erroneous holdings of the courts cited
above, this Court has not determined whether the harm of trespass
outweighs the State’s compelling interest in the “potentiality of human
life” beyond the first trimester of pregnancy as these interests have
been declared by this Court in Roe and Akron Center, supra. This
Court has never declared a compelling interest in avoiding trespass.
Indeed, the dissent in the Ohio Court of Appeals wrote in Petitioner's
case:
I would recognize the common law defense of necessity.
However, the burden of proving that defense is upon the
defendant. To my mind, she must establish that an abortion
was about to be performed upon a specific woman who was
more than three months pregnant or upon a minor at any
stage of pregnancy where the applicable laws dealing with
notice and parental consent have not been complied with.
The Supreme Court has approved the legality of abortions
through the first trimester. Until the Court decides when a
fetus is a person, I see no reason to deny the defense of
necessity to those who believe that the fetus is viable and
is a person at more than the third month of pregnancy. At
least it would get the issue squarely before the U.S.
Supreme Court who must eventually decide the issue.
Detwiler v. Akron, C.A. No. 14385 at 22 (9th App. Dist. 1990)
(Mahoney, J., dissenting).
The director of the Akron Center for Reproductive Health tes-
tified at Petitioner’s trial that abortions of pregnancies bevond the first
trimester were scheduled on the date of Petitioner’s alleged trespass.
See Tr. Vol. I, 159. Petitioner testified that she was at the Akron Center
for Reproductive Health solely to save unborn babies from abortion.
See Tr. Vol. I, 326.
12
With respect to abortions of pregnancies beyond the first
trimester, Petitioner’s purpose was in accord with this Court’s decla-
ration of the State’s compelling interest in the potentiality of human
life. Petitioner was seeking to save lives in which the State has asserted
a compelling interest.
Therefore, there can be no doubt that Petitioner had sufficient
evidence to present to the jury the factual question as to whether there
were pregnancies beyond the first trimester scheduled for abortion and
whether Petitioner’s purpose was in fact to prevent such abortions.
Petitioner was unconstitutionally deprived the jury’s judgment on this
factual question.
(2) The threatening or triggering harm was imminent
with no reasonable alternative to Petitioner’s con-
duct.
Courts have often excluded necessity defense evidence when
alternative courses of action were available to avert the harm, such as
opportunities for speech and political participation. See, e.g., United
States v. Dorrell, 758 F.2d 427 (9th Cir. 1985) (damage to government
property to redress concerns regarding U.S. policy on nuclear war);
Wilson v. State, 777 S.W.2d 823 (Tex. App.- Austin 1989) (seizure of
university president's office to stop apartheid); and United States v.
Simpson, 460 F.2d 515 (9th Cir. 1972) (damage to government proper-
ty to move U.S. to terminate involvement in Southeast Asia).
Petitioner could have shown that, as to a particular abortion
beyond the first trimester which was scheduled for the date of
Petitioner's alleged trespass, other opportunities for educational and
political participation would have been futile or non-existent. In this
respect, Petitioner could have distinguished her facts from many cases
cited by the trial court. See Appendix A-22. For example, pro-life
trespassers have been denied the necessity defense because the desire
to impart information regarding abortion was not a valid basis for the
necessity defense in that there were viable alternatives to trespassing
such as public sidewalk picketing and dissemination of information
through print and television media. See Cleveland v. Sabo, Cuyahoga
App. Nos. 41999 and 42004 (decided May 14, 1981), 1981 WL 4949
(Ohio App.) and Cleveland v. Sundermeier, 48 Ohio App.3d 204, 549
13
N.E.2d 561 (1989). As set forth above, Petitioner testified that her sole
purpose was to save unborn babies.
Courts have also excluded the necessity defense in the absence
of a showing that there was a sufficient causal relationship between
the act committed by the defendant and avoidance of the asserted
“greater harm.” See, e.g., Simpson, 460 F.2d 515 (damage to govern-
ment property not sufficient to move U.S. to terminate involvement
in Southeast Asia). Petitioner could have shown a direct casual
relationship between her alleged trespass and protection of the State’s
admitted compelling interest in potential human life, such as the fact
that no abortionist arrived to perform abortions at the Akron Center
for Reproductive Health until after 4:00 P.M. on the date of
Petitioner’s alleged trespass. Tr. Vol. J, 150-151.
Therefore, there can be no doubt that Petitioner had sufficient
evidence to present to the jury the factual question as to whether
alternatives existed to Petitioner’s conduct. Petitioner was unconstitu-
tionally deprived of the jury’s judgment on this factual question.
(3) Petitioner reasonably believed her action was
necessary to avoid a threatening or triggering
harm.
One of the essential features of necessity or duress defense is the
sense of present, imminent, immediate and impending death or serious
bodily injury. State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319, 323
(1979), citing Sappienza, 95 N.E. 381 and State v. Procter, 151 Ohio
App.2d 152, 367 N.E.2d 908 (1977).
The Director of the Akron Center for Reproductive Health
testified at trial that second trimester pregnancies were scheduled for
abortion on the day of Petitioner’s alleged trespass. See Tr. Vol. I, 159.
Moreover, Petitioner testified that she knew abortions would be per-
formed on the date of her alleged trespass because “Most abortion
clinics are in operation on Saturdays. In fact, that’s one of the biggest
days.” Tr. Vol. I, 326. Furthermore, Petitioner testified that her sole
purpose in being present at the abortion clinic on Saturday, May 6,
1989, was to save unborn babies from death. Tr. Vol. J, 326.
Therefore, there can be no doubt that Petitioner had sufficient
evidence to present to the jury the factual question as to whether
14
Petitioner sensed the immediate and impending death of lives in which
the State has declared it has a compelling interest. Petitioner was
unconstitutionally deprived of the jury’s opinion on this issue.
(4) Petitioner was free from any fault in bringing
about the threatening or triggering harm.
There was no evidence presented at trial that Petitioner was at
fault in bringing about the threatening or triggering harm.
(5) The defense of necessity cannot have been
preempted by a legislative enactment.
There was no evidence presented at trial that the defense of
necessity has been preempted by Ohio legislation.
V. PETITIONER’S LACK OF PRIVILEGED CON-
DUCT, AS AN ELEMENT OF THE ALLEGED
MISDEMEANOR, WAS NOT PROVED BEYOND
A REASONABLE DOUBT BY THE PROSECU-
TION.
Proof of the lack of privilege is an element of the misdemeanor
of trespass and, as such, must be proved beyond a reasonable doubt.
State v. Isaac, 44 Ohio Misc. 87, 337 N.E.2d 818 (M.C. 1975);
Beachwood v. Cohen, 29 Ohio App.3d 226, 504 N.E.2d 1186 (App.
1986); Mariemont v. Wells, 33 Ohio Misc.2d 9, 514 N.E.2d 764 (M.C.
1986); State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). See
In re Winship, 397 U.S. 358, 364 (1970).
The relevant definition of necessity as charged by the trial court
is:
“[P]rivilege” means an immunity, license or right con-
ferred by law or bestowed by express or implied grant or
arising out of status, position, office, or relationship, or
growing out of necessity.
Akron City Code Sec. 130.02 (emphasis added). Only one form of
lack of privilege was shown by the prosecution, i.e., lack of consent
by those charged with custody and control of the Akron Reproductive
Health Center on the date of Petitioner’s alleged trespass.
The trial court incorrectly excluded all evidence as to necessity.
Therefore, Petitioner is entitled to a reversal of the judgment against
15
her as a matter of law because there was no proof whatsoever as to the
element of trespass regarding privilege created by necessity. See
Sundermeier, 549 N.E.2d at 565, citing Beachwood, 504 N.E.2d 1186.
CONCLUSION
For the reasons and per authorities cited, this Petition for a Writ
of Certiorari should be granted. This Court should review the issues
of whether Petitioner was unconstitutionally deprived of a meaningful
opportunity to defend herself, whether the defense of unborn children
beyond the first trimester of pregnancy is permitted by the common
law defense of necessity, and whether all elements of Petitioner's
alleged trespass offense were proved beyond a reasonable doubt.
Respectfully submitted,
Robert R. Melnick
Of Counsel: Counsel of Record
John W. Whitehead Daniel G.LaPorte
THE RUTHERFORD THE RUTHERFORD
INSTITUTE INSTITUTE of OHIO
1445 East Rio Road 18 N. Phelps St., Suite 300
Charlottesville, VA 22901 Youngstown, Ohio 44503
(804) 978-3888 (216) 744-8973
Attorneys for Petitioner
APPENDICES
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A-1
The Supreme Court of Ohio
1990 TERM
To wit: December 19, 1990
Case No. 90-1707
ENTRY
City of Akron,
Appellee,
v.
Mary Detwiler,
Appellant.
Upon consideration of the motion for an order directing the Court
of Appeals for Summit County to certify its record, and the claimed
appeal as of right from said court, it is ordered by the Court that said
motion is overruled and the appeal is dismissed sua sponte for the
reason that no substantial constitutional question exists therein.
COSTS:
Motion Fee, $40.00, paid by Daniel G. Laporte.
(Court of Appeals No. 14385)
THOMAS J. MOYER
Chief Justice
A-2
In The Court Of Appeals
Ninth Judicial District
State Of Ohio
County Of Summit
C.A. NO. 14385
CITY OF AKRON
Plaintiff-Appellee
v.
MARY DETWILER
Defendant-Appellant
APPEAL FROM JUDGMENT ENTERED IN THE AKRON
MUNICIPAL COURT OF THE COUNTY OF SUMMIT, OHIO
CASE NO. 89 CRB 3282
DECISION AND JOURNAL ENTRY
Dated: July 5, 1990
This cause was heard upca the record in the trial court. Each error
assigned has been reviewed and the following disposition is made:
QUILLIN, P. J. Defendant-appellant, Mary Detwiler, appeals
her convictions for criminal trespass in violation of Akron City Code
131.08(B)(1), disorderly conduct in violation of Akron City Code
132.01(A)(4), and resisting arrest in violation of R.C. 2921.33. We
affirm.
On May 6, 1989, Detwiler met with other anti-abortion activists
at Summit Mall. She and a group of approximately sixty other activists
went to the premises occupied by the Akron Center for Reproductive
Health, Inc. ("Clinic") at 839 East Market Street, at approximately
7:30 a.m., in order to prevent women from entering the clinic and from
obtaining abortions.
Detwiler positioned herself near the staircase which led to the
entrance of the Clinic on the second floor. Detwiler and the other
members of her group would stand and lock arms, at the direction of
the group’s organizers, anytime a person who might be a patient
A-3
approached the staircase. There were also activists positioned at the
west side of the building, blocking the employee’s entrance. At 9:04
a.m., the police officers began to arrest the individual members of the
group. As the police officers asked each individual, including Det-
wiler, to leave, each individual went “limp.” As a result, the officers
were forced to carry one hundred and ten individuals to the field
booking area and then to the transport vehicles. Only the last male
activist walked through this procedure. A jury found Detwiler guilty
of resisting arrest, criminai trespass and disorderly conduct.
Detwiler raises eleven assignments of error.
ASSIGNMENT OF ERROR 1
“The trial court below deprived appellant of her constitu-
tional right to due process of law by refusing to allow
appellant to present the common law defense of necessity
and to introduce expert medical evidence in support there-
of.”
Detwiler contends that based on the common law defense of
necessity, her conduct was privileged, and thus not in violation of the
criminal trespassing ordinance and was permissible under the disor-
derly conduct ordinance.
In Cleveland v. Sundermeier (1989), 48 Ohio App. 3d 204, the
defendant sought to introduce evidence of necessity as a defense for
trespassing. The defendant argued that it was necessary for him to
warn women seeking an abortion of potential psychological complica-
tions from the procedure because the Cleveland Center for Reproduc-
tive Health did not adequately warn of this post-abortion trauma. /d.
at 207. The court stated:
“The defense of necessity excuses criminal acts when the
harm which results from compliance with the law is greater
than that which results from a violation of the law. See
LaFave & Scott, Criminal Law (1972) 381, Section 50.
Furthermore, necessity is not a defense if alternatives to the
criminal act existed. See Cleveland v. Sabo (May 14,
1981), Cuyahoga App. Nos. 41999 and 42004, unreported,
at 6-7...
A-4
“We do not find the defendant’s desire to impart the
information a valid basis for his defense. Further, as the
trial court ruled, Sundermeier had other alternatives to
trespassing such as public sidewalk picketing and the dis-
semination of information through print and television
media. Thus, we find the trial court properly refused to
allow the jury to consider the defendant’s necessity
defense.”
Id. at 207-08.
In Fairfield Commons Condominium Assn. v. Stasa (1985), 30
Ohio App. 3d 11, appellants claimed that their attempts to stop
abortions from taking place on appellee’s property was a legal neces-
sity which justified their trespass. However, the Sixth District Court
of Appeals upheld the trial court’s determination that the protesting of
abortions was not a legal necessity justifying appellants’ activities
because the United States Supreme Court has found that abortions are
not illegal. Jd. at 22-23.
Detwiler contends that, unlike the participation of protestors in
acts of civil disobedience where their conduct is not causally related
to the avoidance of the threatened harm because the protest itself
cannot save lives, her conduct could save lives.
The necessity defense justifies conduct which otherwise would
lead to civil or criminal liability because the conduct is socially
acceptable and desirable under the circumstances. Note, Necessity as
a Defense to a Charge of Criminal Trespass in an Abortion Clinic
(1979), 48 U. Cin. Law Rev. (1979) 501, 502. When rare and extraor-
dinary circumstances force an individual to choose between obeying
the law or breaking it to avoid a greater harm, society prefers that the
individual choose the lesser evil which promotes some value higher
than the value of literal compliance with the law. /d. at 502-03.
The common law elements of necessity are: (1) the harm must
be committed under the pressure of physical or natural force, rather
than human force; (2) the harm sought to be avoided is greater than,
or at least equal to that sought to be prevented by the law defining the
offense charged; (3) the actor reasonably believes at the moment that
his act is necessary and is designed to avoid the greater harm; (4) the
actor must be without fault in bringing about the situation; and (5) the
A-5
harm threatened must be imminent, leaving no alternative by which
to avoid the greater harm. /d. at 504.
However, some states now permit the defense of necessity where
the source is human force, such as in the prison escape context. /d. at
509. When the harm eminates [sic] from a human source, the harm
must be unlawful before the necessity defense can be used. /d. at 513.
Because an abortion performed prior to viability is not an illegal
procedure, see Roe v. Wade (1973), 410 U.S. 113; Webster v.
Reproductive Health Services (1989), 106 L. Ed. 2d 410, courts that
have found the necessity defense inapplicable base their decision on
the absence of an unlawful act. Moreover, the legality of an abortion
also affects whether Detwiler chose the lesser harm. While Detwiler
believes that an abortion is the taking of a life, the present state of the
law is that abortion can be a legal termination of pregnancy.
Detwiler contends that there were no legal or less harmful
alternatives because judicial or legislative means could not save the
fetus about to be aborted. As a result, the threatened harm was
imminent.
However, because the Supreme Court of the United States has
determined that a woman has a fundamental right to decide to ter-
minate her pregnancy, at least during the first trimester, there was no
need for Detwiler to look for a less harmful alternative. The statutory
defense of necessity was rejected in Erlandson v. State (Tex. App.
1988), 763 S.W. 2d 845, certiorari denied (1989), 107 L. Ed. 2d 110.
Accordingly, we hold that the trial court properly determined that the
privilege of necessity was inapplicable to this case because the im-
minent harm of abortion, which Detwiler sought to avoid, was not a
legally recognized harm. Therefore, the trial court properly excluded
the evidence which Detwiler sought to introduce. The assignment of
error is overruled.
ASSIGNMENT OF ERROR 2
“The trial court deprived the appellant of her constitutional
right to a trial by a jury selected from among her peers by
certain aspects of the trial court’s inquiries to the venire
panel and by refusing to allow counsel to make other
inquiries.”
A-6
Detwiler contends that she was prevented from uncovering
pertinent bias and prejudices of the potential jurors because the trial
court prevented her from inquiring as to (1) whether any female juror
had had an abortion; (2) what the juror’s feelings were on abortion;
(3) whether the jurors believed that an unborn child is a human life;
and (4) the religious background of prospective jurors.
Generally, the scope of the examination of prospective jurors is
within the discretion of the trial court and the judgment will only be
reversed upon a showing that the trial court abused its discretion in
restricting the scope of voir dire. State v. Jenkins (1984), 15 Ohio St.
3d 164, 186.
The record reflects that while Detwiler was precluded from
asking the prospective jurors these four questions, she was permitted
to inquire as to whether the fact that Detwiler was at an abortion clinic
when she was arrested, or that Detwiler had a different opinion on the
issue of abortion than any of the jurors, would influence whether the
juror believed that Detwiler violated the law. She was also permitted
to inquire as to whether the jurors could put their personal opinion
aside, listen to the evidence, and determine the case based on the
evidence. Accordingly, Detwiler was allowed sufficient latitude in
voir dire to establish whether the prospective jurors could set aside
their opinions and approach the matter impartially and could render a
judgment based on the evidence.
Detwiler also contends that the trial court improperly excluded
three veniremen for cause. We disagree.
In reviewing whether the trial court erred in refusing to excuse
a juror for cause when the juror expressed the belief that the defendant
must have done something or he would not be in court, but then stated
that she would follow the law, the Supreme Court of Ohio held:
“***Crim. R. 24 stated in part:
““(B) Challenge for cause. A person called as a juror may
be chailenged for the following causes:
“eee
.
ace
(9) That he is possessed of a state of mind evincing
enmity or bias toward the defendant or the state; but no
person summoned as a juror shal! be disqualified by reason
A-7
of a previously formed or expressed opinion with reference
to the guilt or innocence of the accused, if the court is
satisfied, from the examination of the juror or from other
evidence, that he will render an impartial verdict accord-
ing to the law and the evidence submitted to the jury at the
trial.’ (Emphasis in original. )
“Whether a prospective juror will follow the law as given
by the court is a matter within the discretion of the trial
judge and we will not disturb the court’s ruling on a
challenge for cause, absent an abuse of discretion. State v.
Scott (1986), 26 Ohio St. 3d 92, 26 OBR 79, 497 N.E. 2d
55; State v. Williams (1983), 6 Ohio St. 3d 281,6 OBR 345,
452 N.E. 2d 1323.***.”
State v. Henderson (1988), 39 Ohio St. 3d 24, 27.
Accordingly, veniremen should not be excluded for cause simply
because they voiced a general objection or expressed religious
scruples which could affect their opinion. See Witherspoon v. Illinois
(1968), 391 U.S. 510, 522; Jenkins, supra, at 179. We need only be
satisfied that the potential juror is unwilling to consider all the
evidence presented because of his personal opinions and was com-
mitted to voting against, or in favor of, Detwiler regardless of the facts
and the law as given by the court. See Jenkins, supra, at 182.
William carpenter, the first potential! juror to be excluded, was
questioned by the court as follows:
“see
.
“As I indicated, this event took place on May 6th. It was
an abortion protest on East Market Street.
“Is there anyone present who has any specific knowledge
about that incident either through your own personal
knowledge or discussion with anyone else or by reading or
hearing anything about it in the news media?
“When I ask you these questions, I’m asking you as a group
but I went you to respond as an individual. If anyone has
such information, please respond by raising your hand.
A-8
“All right, sir. What is the knowledge you have of the
circumstances?
“JUROR:
“THE COURT:
“JUROR:
“THE COURT:
“JUROR:
“THE COURT:
“JUROR:
“THE COURT:
It was through the local media, and |
wholeheartedly support what they was doing.
All right, sir. Do you feel that as a result of
your opinion —
Oh, ves. | couldn’t be on this Jury, not on this
miter.
All nght, sir. Your name is, sir?
William Carpenter.
All right, Mr. Carpenter. One of the purposes
for the questions to be asked is to determine
whether or not individuals have opinions as
strongly held as Mr. Carpenter's that they feel
would prevent them from serving impartially
and fairly on a Jury for this issue.
“If you have such an opinion, and you do not
feel that you can lay that opinion aside, then
you must indicate that to this Court.
“Mr. Carpenter as a result of the information
that you've received regarding this and as a
result of your opinion on this issue, do you feel
that you cannot set that aside and act impar-
tially?
No, ma’am, I couldn’t. I’m strongly against
abortion.
All right, Mr. Carpenter. This Court on its own
Motion then will excuse you for cause. Thank
you very much for being with us this morning,
sir.
“eee i (Emphasis added )
(T.0.P. 8-10).
Based on Mr. Carpenter’s response that because of his
knowledge about this specific incident on May 6th and his personal
A-9
opinion on the issue of abortion, he could not set these aside and act
impartially, we cannot say that the trial court erred in excluding Mr.
Carpenter for cause.
Patricia Mahovich, the second potential juror was questioned as
follows:
“ses
.
“JUROR:
“THE COURT:
“JUROR:
“THE COURT:
“JUROR:
“THE COURT:
“MR. BUZZI:
“THE COURT:
“MR. BUZZI:
“see
“THE COURT:
“JUROR:
“THE COURT:
I’m a Roman Catholic and arn strictly against
abortion.
All right, ma’am. What is your name?
I’m number 20, (inaudible) Mahovich.
As a result of your personal religious beliefs,
do you fee! that you could not set those beliefs
aside to fairly and impartially try this matter?
No.
Thank you very much, Mrs. Mahovich. I ap-
preciate —
Your Honor —
Yes.
— could we inquire? I think the Court is
asking the Juror to set aside her convictions
and that places the Juror in a position where
“Mrs. Mahovich, I want to be sure that you
understand that if you cannot set aside any
ideas that you have or any preconceived
opinions and enter into this matter impartially
and be sure you can assure this Court that you
can fairly hear this matter, then we will excuse
you if you are unable to that, ma'am.
(Inaudible)
All right. Thank you very much.***.”
A-10
(T.O.P. at 10-12).
Based on Mrs. Mahovich’s response that a result of her personal
religious beliefs, she could not set aside her opinions and ideas and
fairly and impartially hear this case, we cannot say that the trial court
erred in excluding Mrs. Mahovich for cause.
Carolyn Williams, the third potential juror, was questioned as
follows:
“JUROR: ] am also a born again believer in Jesus Christ
and I do not go for abortion. Positively.
“THE COURT: You feel that would affect your impartiality in
this matter?
“JUROR: Oh, I would go for the baby —
“THE COURT: Thank you, ma’am. And you are?
“JUROR: Carolyn Williams.
“THE COURT: Thank you, Mrs. Williams. We appreciate
your statement. Please see Miss Coleman.
“Yes, ma’am.”
(T.O.P. 12-13).
Based on the trial court’s previous instructions concerning fair-
ness and impartiality and Ms. Williams statement that she would “not
go for abortion” and would find for “the baby”, we can not say that
the trial court erred in excluding Ms. Williams for cause.
The assignment of error is overruled.
ASSIGNMENT OF ERROR 3
“The trial court refused to grant appellant’s motion for a
mistrial on the grounds referred to in assignment of error
no. 2.”
Because we find no prejudicial error in the voir dire conducted
by the trial court, the assignment of error is overruled.
A-11
ASSIGNMENTS OF ERROR
“4. The trial court refused to grant appellant’s motion for a
directed verdict on the charge of criminal trespass, which
motion was made on the grounds that no evidence had been
introduced as to the relationship of the complaining witness,
Akron Center for Reproductive Health, to the operator of the
abortion clinic, nor as io the right of either to control the
common areas at 839 E. Market Street where the alleged
illegal activities took place.
“8. The trial court in its charge to the jury regarding the elements
of criminal trespass refused to specify that appellant must be
found guilty beyond a reasonable doubt of knowingly enter-
ing or remaining on the land or premises of Akron Center
for Reproductive Health without privilege to do so on May
6, 1989, as specified in the complaint.”
Because both assignments of error raise the same issues, they
will be addressed together.
Akron City Code 131.08(B)(1) provides:
“No person, without privilege to do so, shall do any of the
following:
“(1) Knowingly enter or remain on the land or premises of
another;”
“eee 7
Detwiler contends that the trial court improperly instructed the
jury because it failed to specify the parties to the lease agreement in
order to clarify for the jury what constitutes “another” in this instance.
We disagree.
A property owner may trespass upon his property even though
he is its legal owner when he enters the property without the permis-
sion of the party who has custody and control. See State v. Herrin
(1982), 6 Ohio App. 3d 68, 69. In its jury instruction, the trial court
defined land or premises as provided in Akron City Code 131.08(A)
which states:
“(A) For the purpose of this section, ‘LAND OR
PREMISES’ includes any land, building, structure, or place
A-12
belonging to, controlled by, or in custody of another, and
any separate enclosure or room, or portion thereof.”
“eee 7
The lease agreement specifies on page eighteen that all notices which
are properly served on the lessee, shall be addressed as “Greenwich -
Medical Enterprises, Akron, Inc., Akron Center for Reproductive
Health, Suite 5 and 6 - 839 East Market Street, Akron, Ohio 44305.”
The lease provides the lessee with the space located on the second
floor (Suites 5 and 6) together with the joint use with other tenants, of
the parking facilities and all walks and hallways.
Carol Harding testified that while this particular lease had ex-
pired, its terms were carried forward on a month-to-month basis while
the parties negotiated a new lease.
Accordingly, the trial court properly left the factual issue of
which party had custody and control to the jury.
The assignments of error are overruled.
ASSIGNMENTS OF ERROR
“5. The trial court refused to grant appellant’s motion for
directed verdict, and appellant’s reiterated motion for ac-
quittal, on the charge of disorderly conduct as a minor
misdemeanor, which motions were made on the grounds that
the elements of the principal crime were not proved.
“6. The trial court refused to grant appellant’s motion for
directed verdict, and reiterated motion for acquittal, on the
charge of disorderly conduct as a fourth degree mis-
demeanor, which motions were made on the grounds that no
evidence was introduced of any warning to cease and desist
the alleged disorderly conduct.
“9. The trial court failed to charge the jury with respect to the
charge of aiding and abetting disorderly conduct to the effect
that before appellant can be guilty of aiding and abetting, all
of the elements of the principal crime must be proved beyond
a reasonable doubt.”
A-13
Because these assignments of error raise similar issues, they will
be addressed together.
Detwiler contends that the city failed to prove that a principal
offense was committed because there was no evidence that any
member of the group was ordered to cease and desist. As a result, she
could not be convicted of aiding and abetting another in the commis-
sion of disorderly conduct. She also contends that asking the protesters
to leave the premises is not proof of notice to cease and desist. We
disagree.
Akron City Code 132.01(A)(4) provides:
“(A) No person shall recklessly cause inconvenience, an-
noyance, or alarm to another by doing any of the following:
“kee
“(4) Hindering or preventing the movement of persons on
a public street, road, highway, or right-of-way, or to, from,
within, or upon public or private property, so as to interfere
with the rights of others, and by any act which serves no
lawful and reasonable purpose of the offender;”
“eee 7
This section is identical to R.C. 2917.11(A)(4).
Akron City Code 132.01(E), identical to R.C. 2917.11(E),
provides:
“Whoever violates this section is guilty of disorderly con-
duct, 2 minor misdemeanor. If the offender persists in
disorderly conduct after reasonable warning or request to
desist, disorderly conduct is a misdemeanor of the fourth
degree.”
The element necessary under R.C. 2917.11(E) to prove a case
for the fourth-degree misdemeanor is the persistence of proscribed
behavior after a reasonable warning or request to desist. State v.
Reynolds (1985), 25 Ohio App. 3d 59, 60.
In this instance, after Carol Harding, the executive director of
the Clinic, requested that the group leave, Captain Larry Givens of the
Akron Police Department instructed the group that they were engaged
in unlawful activity and that denying access to the premises was a
~
A-14
course of disorderly conduct. Captain Givens then asked the group to
leave the premises and told them that if they chose not to leave they
would be arrested. He warned the group a second time when one of
the officers was injured. Finally, each individual was asked to leave
before they were taken to the booking facility. We cannot say that the
trial court erred in leaving the question of whether Detwiler received
reasonable warning or request to desist to the jury. See Cleveland v.
Egeland (1986), 26 Ohio App. 3d 83, 87.
Detwiler also contends that because this case involves “free
speech”, the scope of the disorderly conduct statute is limited to
situations where “fighting words” are involved.
Detwiler testified that she was not present at 835 East Market to
demonstrate or to picket, but rather to do the affirmative act of saving
lives. Accordingly, the offensive speech provisions are not applicable
in this instance.
The assignments of error are overruled.
ASSIGNMENT OF ERROR 7
“The trial court refused to grant appellant’s motion for
directed verdict on the charge of resisting arrest, which
motion was made on the grounds that the evidence was
undisputed that appellant was placed under arrest prior to
being transported to the field booking area.”
Detwiler contends that the police officers failed to inform her
that she was under arrest or for what reason she was to be arrested in
violation of R.C. 2935.07. As a result, she could not be guilty of
resisting something that was unannounced.
R.C. 2935.07 provides in part:
“Person arrested without warrant shall be informed of
cause of arrest.
“When an arrest is made without a warrant by an officer,
he shall inform the person arrested of such officer’s
authority to make the arrest and the cause of the arrest.
“zee
aniline liana
A-15
“When a person is engaged in the commission of a criminal
offense, it is not necessary to inform him of the cause of
his arrest.”
R.C. 2921.33(A) provides:
“No person, recklessly or by force, shall resist or interfere
with a lawful arrest of himself or another.”
The record reflects that Detwiler was present when Captain
Givens instructed the group at approximately 8:43 a.m. Captain
Givens testified on cross-examination that he warned the entire group
that they were engaging in unlawful activity; that their conduct, by
denying access to the premises, was a course of disorderly conduct;
and that they had already been asked to leave by Carol Harding. He
also instructed the group that they were considered trespassers. Cap-
tain Givens also testified that at that point, he asked them to leave the
premises, and if they chose not to leave, they would be arrested on
those two charges. He also requested that if, in fact, they were arrested,
would they please walk through the booking process into the transport
vehicle. The group was given a few minutes to consider the statement
and then Sergeant Jay Carano began arresting individuals at 9:04 a.m.
Captain Givens also testified that at approximately 11:20 a.m., he gave
a second warning when one of his officers was injured as a result of
carrying these people.
Sgt. Carano testified that he approached Detwiler and asked her
if she would leave; that he waited approximately fifteen seconds; that
she either refused to answer or said no, that she went limp and then
was picked up by four other officers; that she was placed on a stretcher
and was carried to the booking area which was about ten to fifteen feet
away; that she was then photographed, fingerprinted and carried onto
a bus where she remained on the floor; that as the sixty-seventh person
to be arrested in this manner, she was able to witness sixty-six prior
arrests. Sgt. Carano also testified that if Detwiler had said that she
would leave, she would have been allowed to leave.
Detweiler testified that she was present when captain Givens told
the group that if they did nc* leave, they would be subject to arrest;
that he then asked them to leave but that she chose not to leave; that
she was present when Carol Harding was speaking and when Captain
Givens made his second request for the people to stand and to walk to
A-16
the booking area; that she was aware of the prior arrests, and had seen
the arrest procedure for the sixty-six prior cases; that Sgt. Carano
requested her to leave at approximately 1:00 p.m.; and that she fell
into the “fetal position” and went limp.
Based on this evidence, we cannot say that her arrest was in
violation of R.C. 2935.07. Detwiler also contends that once the arrest
took place, she could not be charged pursuant to R.C. 2921.33 because
she submitted to police authority by making no movement to contest
their authority. We disagree.
First, when Detwiler relaxed her muscles and “went limp,” she
could properly be charged with resisting arrest. See Committee Com-
ment to R.C. 2921.33.
Second, the existence of an arrest is dependent upon the presence
of the following elements (1) an intent to arrest, (2) under real or
pretended authority, (3) accompanied by an actual or constructive
seizure or detention of the person, and (4) which is so understood by
the person arrested. State v. Barker (1978), 53 Ohio St. 2d 135,
paragraph one of the syllabus. For purposes of R.C. 2921.33, a lawful
arrest occurs when the defendant surrenders or submits to police
authority or when the police officers obtain control over the defendant.
State v. Huffman (1987), 38 Ohio App. 3d 84, 86. In this instance, the
police officers requested that the entire group, including Detwiler,
leave the premises or, at the very least, walk to tne booking facilities
and then to the transport vehicle. Detwiler did neither of these. Instead,
she forced police officers to carry her through the procedure. There-
fore, we cannot say that the trial court erred in overruling the motion
for a directed verdict where reasonable minds could differ as to
whether she submitted to police authority.
The assignment of error is overruled.
ASSIGNMENT OF ERROR 10
“The trial court allowed the appellant to be convicted of
two or more allied offenses of similar import in violation
of R.C. Section 2941.25(A).”
While R.C. 2941.25(A) provides that a defendant can be con-
victed of only one count of a crime where the defendant’s conduct
aneeaie alutleecaah
pre ne eore ats
Ede oma
eda Ste gle se aS Bs
LE SoA ih cee SAP i aA cle haa all
A-17
constitutes two or more allied offenses of similar import, R.C.
2941.25(B) provides for a conviction on multiple counts where the
offenses are of dissimilar import, or are committed separately, or
committed with separate animus as to each. State v. Bickerstaff(1984),
10 Ohio St. 3d 62, 65.
In this instance Detweiler contends that because her conduct
remained the same from the time she arrived at 898 East Market Street
until her incarceration, all three offenses constitute allied offenses of
similar import.
We have no record of the sentencing proceeding which would
evidence whether this issue was raised before the trial court. Therefore
the claim of error has been waived. State v. Comen (1990), 50 Ohio
St. 3d 206, 211.
The assignment of error is overruled.
ASSIGNMENT OF ERROR 11
“The trial court failed to charge the jury that the Constitu-
tion of The United States and the laws of the State of Ohio,
under certain circumstances, provide that property such as
the Louis Stile Building may be an appropriate location for
the peaceful expression of opinion and limited physical
activity by persons expressing their right to free speech.”
Detwiler contends that because a group of advocates who were
adverse to her beliefs were present and because the premises were
visible to the public and contained more than one tenant, that her
activities were protected under the First Amendment of the United
States Constitution as an exercise of free speech. We disagree.
Detwiler testified that she was not present at the clinic to
demonstrate or to picket on that day, that she had picketed in the past
but that this time she went to rescue babies. Assuming, arguendo, that
her activities would be protected speech, we hold that the property at
835 East Market Street does noi iose its private character merely
because the public is generally invited to use it for designated pur-
poses. See Sundermeier, supra, at 7105-207. Nor do we believe that
Detwiler has presented sufficient factors to distinguish her case from
Sundermeier, supra on this issue. Accordingly, Detwiler and other
A-18
members of her group could properly be excluded from the entrances
of the premises without violating their right to free speech. See
Fairfield Commons Condominium Assn., supra, at 18-20.
The assignment of error is overruled.
The judgment is affirmed.
The Court finds that there were reasonable grounds for this
appeal.
We order that a special mandate issue out of this court, directing
the County of Summit, Akron Municipal Court to carry this judgment
into execution. A certified copy of this journal entry shall constitute
the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall con-
stitute the journal entry of judgment, and it shall be file stamped by
the Clerk of the Court of Appeals at which time the period for review
shall begin to run. App. R. 22(E).
Costs taxed to appellant.
Exceptions.
DANIEL B. QUILLIN
FOR THE COURT
CIRIGLIANO, J.
CONCUR
MAHONEY, J.
CONCURS IN PART AND DISSENTS IN PART SAYING:
I would affirm the judgments of conviction on all three charges.
However, I would sustain the tenth assignment of error as to merger
under R.C. 2941.25 of the charges of trespassing and disorderly
conduct. This is so obvious from the record, that one could say it was
plain error for the court not to merge the trespassing and disorderly
conduct.
I concur in the judgment only in overruling the first assignment
of error. I would recognize the common law defense of necessity.
However, the burden of proving that defense is upon the defendant.
To my mind, she must establish that an abortion was about to be
performed upon a specific woman who was more than three months
pregnant, or upon a minor at any stage of pregnancy where the
A-19
applicable laws dealing with notice and parental consent have not been
complied with. The Supreme Court has approved the legality of
abortions through the first trimester. Until the court decides when a
fetus is a person, I see no reason to deny the defense of necessity to
those who believe that the fetus is viable and is a person at more than
the third month of pregnancy. At least it would get the issue squarely
before the U.S. Supreme Court who must eventually decide the issue.
I would also sustain the second assignment of error as to the
individual venire member’s views on abortion. However, the trial
court’s general inquiry averted any prejudicial error.
APPEARANCES:
DOUGLAS J. POWLEY and CHARLES R. QUINN, Asst.
Prosecutors, 161 S. High St., Akron, OH 44308 for Plaintiff.
ROBERT R. MELNICK, Attorney at Law, 18 N. Phelps St., #300,
Youngstown, OH 44503 for Defendants.
DANIEL G. LaPORTE, Attorney at Law, 50 S. Main St., P 0. Box
1500, Akron, OH 44309 for Defendants.
PAUL F. BUZZI, Attorney at Law, 15 N. Broadway, Suite 100-102,
Akron, OH 44308 for Defendants.
A-20
MUNICIPAL COURT OF AKRON
Journal Entry
STATE OF OHIO MARY DETWILER
COUNTY OF SUMMIT VS 89 CRB 3282
CITY OF AKRON
Defendant having been fully informed of his nghts pursuant to Crim.
Rule 5, to which the court attests by initialing this space ___ has entered
his plea to the charges. And the matter being duly heard and the court
being fully advised in the premises and having asked whether defen-
dant has anything to say as to why judgment should not be pronounced
against him and defendant not showing sufficient cause, it is the
sentence of the law and judgment of the court that defendant pay
PLEA TO CHARGES __ Guilty _X Not Guilty __No Contest
DATE EXCEPTIONS
TRIAL HAD 9-25-89 DATE_._ x Found Guilty Not Guilty
COUNT #1: FINE OF $200 and costs AND BE IMPRISONED IN
THE x CITY WORKHOUSE ______. COUNTY
JAIL FOR THE TERM OF PSi
OTHER 30 days Power St. suspended 30 upon condition
Defendant obey all laws for one year. 6 months to pay.
COUNT #2: FINE OF Scosts only AND BE IMPRISONED IN THE
_x. CITY WORKHOUSE ___ COUNTY JAIL FOR
THE TERM OF.30 days Power St. Suspended
OTHER.30 upon condition Defendant obey all laws for
‘ ‘
RA SE AT yg Ww *< Shel ised | ton «
months to pay
COUNT #3: FINE OF Scosts only AND BE IMPRISONED IN THE
_x. CITY WORKHOUSE ___ COUNTY JAIL FOR
THE TERM OF 30 days Power St. Suspended =. =>_
OTHER.30. upon condition Defendant obey all laws for
one_year and serve 40 hours community service at
B iw *s Shel ‘ised } bati
4 months to pay
SUBSEQUENT COURT ORDERS:_Sentence stayed for 30 days
pending appeal. 11-15-89 _ Jane Bond
i Pe
A-21
CASE NO. __89 CRB 3282 _ ASSIGNED __Bond —
MUNICIPAL COURT OF AKRON
LAWRENCE J. WALSH, CLERK OF COURT
DEFENDANT JANE DOE #67 MARY JANE DETWILER _
ATTORNEY Paul Buzzi 376-5297 PHONE 696-1777/692-1172
DATE OF ARREST/CITE 5-6-89
CHARGES:
CT # 1 Resisting
CT # 2 Criminal Trespass. —
CT #3 Disorderly Conduct
A-22
In The Municipal Court Of Akron
Summit County, Ohio
CASE NO. 89 CRB 3282
JUDGE BOND
CITY OF AKRON
PLAINTIFF
v.
MARY JOAN DETWILER
DEFENDANT
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for hearing on September 19, 1989, upon
motion in limine filed by the City of Akron and a motion for deter-
mination of the admissibility of evidence by the Defendant. The case
proceeded to trial on September 21, 1989.
Rulings on both motions were issued prior to trial. Defendant
requested findings of fact and conclusions of law be issued by this
Court as related to the evidentiary hearing.
Accordingly, this Court makes the following findings of fact and
conclusions of law:
Defendant was charged with Criminal Trespass, ACC 131.08;
Disorderly Conduct, ACC 132.01(A)(4) and Resisting Arrest, R.C.
2921.33.
On May 6, 1989, Defendant voluntarily and intentionaliy went
to the premises occupied by the Akron Center for Reproductive
Health, Inc. in the City of Akron. Akron Center for Reproductive
Health, Inc. operates on those premises a clinic at which abortions are
performed in accordance with Ohio law. Abortions are performed at
those premises regularly six days per week.
The Defendant entered the premises without permission of the
owner cr occupant, intending by her physical presence and actions to
prevent women from entering the clinic. Defendant intended to
prevent abortions from being performed and thereby possibly avoid-
ing or hindering the death of an unborn infant.
A-23
The actions taken by Defendant together with other individuals
were initiated by her, planned in advance and under her control at all
times. Defendant was under no legal duty or obligation. Defendant
could repeat this conduct at will whenever she chose to do so.
Defendant by pretrial motion sought to introduce testimony to
rebut evidence to be presented by the prosecution to prove that
Defendant’s entry on the property was without privilege.
The proffered evidence includes:
1. Testimony of friends of the Defendant that she
reasonably believed her actions on May 6, 1989, were
necessary to avoid or hinder the deaths of unborn infants.
2. Expert medical testimony that the life of a human being
begins at conception.
3. Demonstrative evidence of videotapes and ultrasound
records showing the activities of a fetus in the womb.
The prosecution is required to prove as an element of the offense
of criminal trespass that the Defendant, without privilege to do so,
entered or remained on the land or premises of another. ACC 131.08.
“Privilege” means an immunity, license or right conferred by law,
bestowed by express or implied grant, or rising out of status, position,
office, or relationship, or growing out of necessity. ACC 130.02. See
R.C. 2901.01(L).
Defendant argues her entry on the property was privileged
because it was necessary. Defendant further argues this is not an
affirmative defense pursuant to R.C. 2901.05(C)(2). However, that
issue need not be addressed to dispose of the issue before this Court.
While there is no question that evidence of a privilege growing
out of necessity is admissible regarding the charge of criminal
trespass, the issue is whether based on the facts and the proffer of
Defendant, the particular testimony and evidence sought to be intro-
duced are relevant pursuant to Evid. R. 401 and 402. Relevancy cannot
be determined without examining what does and does not constitute
a “privilege growing out of necessity” as set forth by statute.
In construing an ordinance, this Court may consider pursuant to
ACC 10.14 (C):
A-24
1. The object sought to be attained;
2. The circumstances under which the ordinance was
enacted;
3. The legislative history;
4. The common law or former legislative provisions,
including laws upon the same or similar subjects;
5. The consequences of a particular construction;
6. The administrative construction of the ordinance.
( R.C. 1.149).
In construing this statute consideration is given to the legislative
history, the common law, decisions of other jurisdictions, the conse-
quences of construction and the distinctions between justification and
civil disobedience. , *
The language of the Akron City Code is identical to the State
code for the offense of criminal trespass. While there is no statutory
definition of necessity, privilege is discussed in the Committee Com-
ments to H.B. 511, the enacting legislation for R.C. 2901.01(L).
Allof the four separate types of conduct defined as criminal
trespass require that such conduct be unprivileged.
“Privilege” is defined in new section 2901.01 of the
Revised Code, and, with respect to trespass, is conceived
as being broader than permission as such. It may include
permission, or it may include a privilege growing out of
necessity, or by reason of an emergency, or persons in good
faith answering a call for help or otherwise performing
good offices in adverting danger could claim that an other-
wise unauthorized intrusion is privileged. Persons taking
shelter from danger might claim privilege- the classic rule
that vessels in distress may tie up at a private dock is an
example of this type of justification. Police, inspectors, and
other public servants can claim that an intrusion is
privileged within the proper exercise of their duties. These
examples are not exhaustive.
The nature of the defense of necessity is explained by W. LaFave
& A. Scott, Jr., Criminal Law §50 (1972):
A-25
One who, under the pressure of circumstances, commits
what would otherwise be a crime may be justified by
“necessity” in doing as he did and so not be guilty of the
crime in question. With the defense of necessity, the pres-
sure must come from the physical forces of nature (storms,
privations) rather than from other human beings. (When
the pressure is from human beings, the defense, if ap-
plicable, is called duress rather than necessity.) Also, the
pressure must operate upon the mind of the defendant
rather than upon his body. (When A and B are standing
atop a precipice, and an earthquake causes A to stumble
against B, throwing B over the cliff to his death, A’s
defense to a homicide charge is not that of necessity, for
A’s mind did not will his body against B’s; instead, his
defense is that he did no “act” (a willed movement), and
one cannot be guilty of a crime of action without an act.)
But when A, starving to death, takes and eats B’s food to
save his own life, or when A in an emergency intentionally
kills B to save C and D, he may be eligible for the defense
of necessity.
The rationale of the necessity defense is not that a person,
when faced with the pressure of circumstances of nature,
lacks the mental element which the crime in question
requires. Rather, it is this reason of public policy: the law
ought to promote the achievement of higher values at the
expense of lesser values, and sometimes the greater good
for society will be accomplished by violating the literal
language of the criminal law. The law forbids stealing and
murder, for there are positive values in the right to property
and the right to life; but (as in the case of the starving man)
it is better to save a life than to save the property, and (in
the case of the killing of B to save C and D) it is better that
two lives be saved and one lost than that two be lost and
one saved.
The matter is often expressed in terms of choice of evils:
When the pressure of circumstances presents one with a
choice of evils, the law prefers that he avoid the greater evil
by bringing about the lesser evil. Thus the evil involved in
A-26
violating the terms of the criminal law (taking another’s
property; even taking another’s life) may be less than that
which would result from literal compliance with the law
(starving to death; two lives lost).” Id. at 381-82.
See also 1 Wharton’s Criminal Law §88 (13th ed. 1972); R. Perkins,
Criminal Law 956-61 (2d ed. 1969); Arnolds & Garland, The Defense
of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65
J. Crim. L. & Criminology 289 (1974).
Both the common law and precedent in Ohio recognize the
defense of necessity.
Prior to the enactment of R.C. 2901.01 necessity was recognized
as a defense to trespass in Ohio. In Fulton v. Monahan (1831), 4 Ohio
427, the Court considered necessity as a justification for invasion of
a private right. Although no case in Ohio defines necessity as a
privilege to trespass, some guidance is provided in the use of “neces-
sity" in the former criminal code regarding Sunday labor laws, G.C.
13045. “Necessity ... arises from conditions or circumstances caused
by an agency either in whole or in part, over which man has no
control.” Straka v. State (1914), 25 Ohio Dec. 436, 437, 16 Ohio
N.P.(n.s.) 554.
This is consistent with the commentator’s view expressed by
LaFave and Scott above, necessity is the pressure of circumstances
over which the individual has no control. These circumstances set up
the forced choice which the individual must face. Once these cir-
cumstances have been created, the choice is between mutually ex-
clusive alternatives. The individual facing the impending harm either
breaks the law by one action or by complying with the law, suffers the
alternative harm.
The choice must be forced and there must be no legal alternative.
This principle was discussed by the United States Supreme Court in
United States v Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed 2d 575
(1980). The Court discussed the defenses of necessity and duress and
stated, 444 U.S. at 410, 100 S. Ct. at 634:
... the defense of necessity or choice of evils, traditionally
covered the situation where physical forces beyond the
actor’s control rendered illegal conduct the lesser of two
A-27
evils.... one principal [sic] remains constant: if there was a
reasonable, legal alternative to violating the law, “a chance
both to refuse to do the criminal act and also to avoid the
threatened harm,” the defense [of necessity] will fail.
Nine caSes have dealt with the legitimacy of the necessity
defense against charges of criminal trespass at abortion clinics. All
find the defense inapplicable: Cleveland v. Municipality of
Anchorage, 631 P. 2d 1073 (Alaska 1981); Gaetano v. United States,
406 A. 2d 1291 (D.C. 1979); People v. Stiso, 93 Ill. App. 3d 101, 48
Ill. Dec. 687, 416 N.E. 2d 1209 (1981); People v. Krizka, 92 Ill. App.
3d 288, 48 Ill. Dec. 141, 416 N.E. 2d 36 (1980); City of St. Louis v.
Klocker, 637 S.W. 2d 174 (Mo. App. 1982); Sigma Reproductive
Health Center v. Maryland, 297 Md. 660, 467 A. 2d 483 (1983);
Hoffart v. Texas (1985 Tex. App. Houston (14th Dist.)), 686 S.W. 2d
259, cert.den. _U.S.__, 93 L. Ed. 2d 46, 107 S. Ct. 95, reh. den.
479 U.S. 977, 93 L. Ed 2d 423, 107 S. Ct. 478; State v. Horn (1985
App.) 126 Wis. 2d 447, 377 N.W. 2d 176, aff'd. 139 Wis. 2d 473, 407
N.W. 2d 854; Pursley v. State (1987), 21 Ark. App. 107, 730 S.W. 2d
250. See also, Necessity as a Defense to a Charge of Criminal Trespass
in an Abortion Clinic, 48 U. Cin. L. Rev. 501 (1979).
The defense of necessity has also been uniformly rejected in
trespass cases at nuclear energy or weapons sites and defense contract-
ing sites. Commonwealth v. Capitolo (1985), 508 Pa. 372, 498 A. 2d
806 (reversing Commonwealth v. Capitolo (1984), 324 Pa. Super. 61,
471 A. 2d 462); In Re Weller (1985) 1st Dist. 164 Cal. App. 3d 44,
210 Cal. Rptr. 130; Schermbeck v. State (1985 Texas App. Dallas),
690 S.W. 2d 315; State v. Champa (1985 <1), 494 A. 2d 102; State v.
Marley (1973), 54 Hawaii 450, 509 P. 2d 1095. See generally collected
cases 41 ALR 4th 773, Trespass: State Prosecution for Unauthorized
Entry or Occupation for Public Demonstration Purposes, of Business,
Industrial or Utility Purposes.
The defense of necessity has been denied in a case of trespass in
two churches in Washington, D.C. where defendants and others
entered on a winter night “for the express purpose of opening the doors
of these buildings to homeless persons living in Washington, D.C. to
protect them with shelter for the night.” Griffin v. United States (D.C.
A-28
1982), 447 A. 2d 776, cert.den., _U.S.__, 103 S. Ct. 1879, 76 L.
Ed. 2d 810 (1983).
The defense of necessity has frequently been raised in escape
cases where a prisoner seeks to justify an escape by the threat of harm
present in the prison. United States v. Bailey, 444 U.S. 394, 100S. Ct.
624, 62 L. Ed. 2d 575 (1980); People v. Lovercamp, 43 Cal. App. 3d
823, 118 Cal. Rptr. 110 (1974).
Examining the common law and recent case law certain prin-
ciples may be extracted as required elements of the defense of neces-
sity.
1. The Defendant is faced with circumstances or condi-
tions caused by an agency over which she has no control.
2. The Defendant as a consequence of the circumstances
must elect a course of action between unavoidable alterna-
tives.
3. The choice of alternatives must require the Defendant
to intentionally undertake an illegal act to prevent or al-
leviate an imminent public or private injury.
4. The injury to be avoided must be greater than the harm
done by the illegal act. This is an objective determination
and not controlled by the good faith belief of the Defendant.
5. There must be no reasonable legal alternative to avoid
the imminent harm.
If each of these elements is present, then necessity as creating a
privilege to trespass has been stablished [sic].
The Defendant bases her defense on her entry onto the clinic
property intending to place herself between the entrance and women
attempting to enter the clinic for the purpose of abortion. This she
argues would result in avoiding or hindering the loss of life of unborn
infants.
In considering each element applied to Defendant, it is apparent
that there were no circumstances beyond the control of Defendant
which placed her in an unavoidable situation. She intentionally went
to the clinic on May 6, 1989, to prevent others from entering into the
building. There was nothing unique or compelling at that particular
A-29
time or place. There was no exterior compulsion upon the Defendant
to act in any manner.
The imminent harm which Defendant sought to avoid, abortion,
was neither imminent nor a legally recognized harm. Assuming a
woman was prevented from entering the clinic on May 6, 1989,
Defendant’s action does not prevent the woman from obtaining an
abortion. Although abortion may be morally objectionable to Defen-
dant and others, it is not a legally recognized injury either public or
private. Those seeking to enter the clinic had a right to be free from
criminal interference. Even assuming arguendo, the abortion to be
prevented was a greater harm than the injury of the trespass, the
possibility of achieving that result was remote at best.
The action of Defendant was more symbolic than active preven-
tion of an imminent harm. Given the essentially symbolic nature of
Defendant’s action, there are reasonable legal alternatives to use to
convince others of the harm of abortion and achieve the end she seeks.
Another factor to consider in construing the privilege of neces-
sity is the consequence of a particular statutory construction. If a
privilege to trespass is permitted under these facts, any individual
could enter a clinic or hospital at any time and justify trespass to
achieve the possible prevention of an abortion.
Defendant does not characterize her action as protest or speech.
She argues this was not a demonstration. She asserts that her conduct
was privileged and she is therefore not guilty of illegal trespass.
This contention is in sharp contrast to the individual who-from
moral or personal conviction as an act of conscience, commits an
illegal act. Civil disobedience may be undertaken to dramatize social
injustice, abuse of power or an arbitrary law. But those who so protest
do not seek to avoid the legal sanctions imposed or claim their beliefs
justify an exemption from the validity of the law itself. See generally,
Civil Disobedience and Violence, Wadsworth Publishing Co., Jeffrie
G. Murphy, 1971, Social Protest and Civil Obedience, Sidney Hook,
p. 53.
The rights to free speech, to assembly and to petition the
government for grievances are a cornerstone of the
American system. So, too, is the right to be free from
cc:
A-30
criminal interference. These appellants trespassed on the
rights of others and did so without excuse. Gaetano v.
United States, 406 A. 2d 1291, 1295 D.C. App. 1979, 631
P. 2d at 1081-82.
The privilege of necessity is not applicable in this case.
Jane Bond
Judge
Mr. Douglas Powley, Chief City Prosecutor
Messrs. Robert Melnick, Daniel G. Laporte and Paul Buzzi,
Attorneys for Defendant 4
APPENDIX B
B-1
MEDICAL REFERENCES
Contemporary scientific evidence clearly concludes that the life
of a human being begins at conception, the time when the process of
fertilization is complete. There is an overwhelming agreement on this
point in countless medical, biological, and scientific writings. The
following examples form only a limited sample from the scientific
literature:
Zygote. This cell results from fertilization of an oocyte by
a sperm and is the beginning of a human being.
*** *
Development begins at fertilization, when a sperm unites
with an oocyte to form a zygote (from the Greek zygotus,
meaning “yoked together”). Each of us started life as a cell
called a zygote.
K. Moore, The Developing Human 1, 12 (2d ed. 1977).
In this first pairing, the spermatozoon has contributed its
23 chromosomes, and the oocyte has contributed its 23
chromosomes, thus re-establishing the necessary total of
46 chromosomes. The result is the conception of a unique
individual, unlike any that has been born before and unlike
any that will ever be born again.
M. Krieger, The Human Reproductive System 88 (1969).
[A]ll organisms, however large and complete they may be
when full grown, begin life as but a single cell. This is true
of the human being, for instance, who begins life as a
fertilized ovum ...
I. Asimov, The Genetic Code 20 (1962).
It is the penetration of the ovum by a spermatozoon and the
resultant mingling of the nuclear material each brings to
the union that constitutes the culmination of the process of
fertilization and marks the initiation of the life of a new
individual.
B. Patten, Human Embryology 43 (3d ed. 1968).
The formation, maturation and meeting of a male and
female sex cell are all preliminary to their actual union into
B-2
a combined cell, or zygote, which definitely marks the
beginning of a new individual.
L. Arey, Developmental Anatomy 55 (7th ed. 1974)
A human being originates in the union of two gametes, the
ovum and the spermatozoon.
J. Roberts, An Introduction to Medical Genetics | (3d ed. 1963).
Bisexual reproduction is characteristic of all vertebrates,
and gametogenesis (the production of germ cells) is its first
phase. The next phase, the beginning of the development
of a new individual, is the fusion of two germ cells
(gametes) of different nature; one, the spermatozoon from
the male parent; the other, the ovum from the female parent.
The result of this fusion is the formation of the first cell of
the new individual, the zygote . .
W. Hamilton & H. Mossman, Human Embrvology 14 (4th ed. 1972).
The zygote thus formed [by the moving together of two sets
of chromosomes] represents the beginning of a new life.
J. Greenhill & E. Friedman, Biological Principles and Modern Prac-
tice of Obstetrics 23 (1974).
The zygote is the starting cell of the new organism.
S. Luria, Thirty-Six Lectures in Biology 146 (1975).
A new individual is initiated by a union of two gametes -
a male gamete, or spermatozoon, and a female gamete, or
mature ovum .
J. Brash, Human Embryology 2 (1956).
Fertilization is significant in that new life is created, but
specifically the cardinal features of fertilization are that (1)
the diploid number of chromosomes [46] is reconstituted
and (2) the sex of the conceptus is designated
chromosomally.
J. Thomas, /ntroduction to Human Embryology 52 (1968).
A new individual is inaugurated in a single cell (zygote)
that results from the- union of a male gamete (sper-
matozoon) with a female gamete (ovum or egg).
B-3
T. Torrey, Morphogenesis of the Vertebrates 47 (3d ed. 1971).
The fertilized egg cell - or zygote - contains nuclear
material from both parents. It marks the beginning of the
life of a new human being and is a useful focal point for
presenting all the diverse aspects of organic reproduction.
G. Simpson & W. Beck, Life: An Introduction to Biology 139 (2d ed.
1965).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.