Opinion
No. 106,296.
2012-09-7
STATE of Kansas, Appellee, v. Mark Joel HUNT, Appellant.
Appeal from Shawnee District Court; James M. Macnish, Jr., Judge. Rachel I. Hockenbarger, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; James M. Macnish, Jr., Judge.
Rachel I. Hockenbarger, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Mark Hunt admittedly violated a court order prohibiting him from having contact with his wife, who had obtained the protection order from the district court. Hunt claimed that he had to do so—invoking the common-law defense of necessity—because his wife was ill and might need to be hospitalized, and he feared that he couldn't care for their children should she be hospitalized with the protection order in place. Thus, he took her to see a doctor and to the courthouse to seek to have the protection order lifted.
But the common-law defense of necessity applies only where the defendant had no legal alternatives to violating the law, and Mark didn't need to have contact with Stephanie for her to get medical care or seek a modification of the court order. We affirm Mark's conviction for violating the protection order because even if the common-law necessity defense is recognized in Kansas, Mark's actions did not come within the protection of that defense.
Factual and Procedural Background
Mark and Stephanie Hunt were married several years ago. At the time of the events involved here, they had a 3–year–old son, and Stephanie also had a 9–year–old daughter. Until February 16, 2010, Mark and Stephanie lived together, along with both children. On that date, however, Stephanie obtained a protection-from-abuse order that prohibited Mark from having any contact with Stephanie.
Such orders are serious business, and Kansas law provides criminal penalties for the violation of a civil protection order. Mark was arrested and charged with violating the order based on events that transpired on March 26, 2010.
Stephanie had fallen ill that day; in the morning, she had trouble breathing and walking up the stairs, vomited, and may have had pneumonia. The 3–year–old was in day care and the 9–year–old was at school.
It's not completely clear how Mark and Stephanie ended up together, but the two of them used the speakerphone feature on Mark's cell phone to jointly call the district court to ask how to end the protection order. Both said they were afraid that Mark wouldn't be allowed to care for the children if Stephanie were seriously ill, perhaps hospitalized, and the protection order remained in effect. Mark said he was concerned that the children might end up in foster care (something that actually occurred a few months later when Stephanie was hospitalized for an unrelated illness).
Mark drove Stephanie to a doctor's office. Stephanie admitted that she could have driven herself if she had to, and she agreed that Topeka has a public bus system and that taxis are also available. The doctor gave Stephanie some prescriptions and told her to go to a hospital if her health worsened.
Mark and Stephanie then headed together to the courthouse, with Mark driving. Stephanie's health began to improve by the time they reached the court, according to Mark, who said that she was no longer “doubled over.”
There's some discrepancy in the testimony about what happened at the courthouse. Mark and Stephanie first met with the administrative assistant to the judge who had issued the protection order. The assistant said she asked Mark to step out so that she could speak privately to Stephanie and that Stephanie said she wasn't dismissing the order of her own free will. The assistant said that Stephanie also had a separate conversation with the judge. Stephanie denied that she had separate conversations outside Mark's presence, and she denied saying she was being pressured or persuaded by Mark to dismiss the protection order.
In any event, Mark and Stephanie headed next to the court clerk's office to process the paperwork needed to dismiss the protection order. A sheriff's deputy then spoke with Mark, who confirmed he knew there was an active protection order that prohibited him from having contact with Stephanie. Mark also told the deputy that he had been in contact with Stephanie throughout the day and that they'd driven together to the courthouse. The deputy arrested Mark for violating the protection order, a violation of K.S.A.2009 Supp. 21–3843(a)(l). (The Kansas Criminal Code was recodified effective July 1, 2011, but the criminal statutes in effect at the time of an offense govern, so we have cited to the criminal statutes as they existed at the time of Hunt's offense. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 [2004].)
Mark was convicted in a jury trial. In opening statement, defense counsel claimed that although Mark violated the order, his actions were necessary because of Stephanie's illness. Stephanie testified about an unrelated medical condition that resulted in her hospitalization in June 2010; she said that because the protection order was still in effect, her children were taken into state custody and placed into foster care for several months.
Mark testified in his own defense. He said that Stephanie had tried to commit suicide about 6 months before his arrest, and he said this was another event that had put the children at risk for being placed in state custody. Mark admitted that he had contact with Stephanie despite the no-contact order.
Mark's attorney asked the district court to instruct the jury that Mark's actions could be justified if they were necessary—a necessity defense. The district court refused to do so, and Mark was convicted. He has appealed regarding the district court's refusal to give the jury an instruction about the defense of necessity.
Analysis
Whether an affirmative defense exists to a criminal charge presents a legal question that we must review independently, without any required deference to the district court. State v. Branson, 38 Kan.App.2d 484, Syl. ¶ 1, 167 P.3d 370 (2007); see City of Wichita v. Tilson, 253 Kan. 285, 291, 855 P.2d 911,cert. denied510 U.S. 976 (1993). In addition, the defendant is entitled to jury instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). The evidence must be sufficient, when viewed in the light most favorable to the defendant, to justify a rational factfinder making the findings required to support the defense theory. 289 Kan. at 861.
Mark's necessity defense is not found in any Kansas statute, but he argues that we should adopt it as part of the common law. Kansas has long recognized that the common law is applied here unless modified by statute or court decision. See K.S.A. 77–109; Fergus v. Tomlinson, 126 Kan. 427, Syl. ¶ 1, 268 P. 849 (1928). But the parties initially disagree about whether a common-law necessity defense may be recognized in Kansas at all, based mainly on discussion of the Tilson case.
Tilson arose when an anti-abortion protester blocked public access to a medical clinic that provided abortions and was prosecuted for criminal trespass. Tilson argued that her actions were excused by necessity—preventing the killing of unborn babies. The district court acquitted Tilson based on the necessity defense, but the Kansas Supreme Court reversed. The court didn't determine whether a common-law necessity defense could ever be recognized in Kansas, expressly declining to determine whether that defense “should be adopted.” 253 Kan. at 291. Instead, the court concluded that even if such a defense may be asserted in Kansas, it couldn't apply here: since a woman has a constitutional right to obtain abortion services, the trespasser at an abortion clinic is not preventing a legally recognized harm. And “[i]f recognized as a defense in a criminal case, the justification by necessity defense only applies when the harm or evil which a defendant seeks to prevent by his or her own criminal conduct is a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.” 253 Kan. 285, Syl. ¶ 2.
The State emphasizes passages in Tilson noting that “the necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted or recognized in Kansas.” 253 Kan. at 291. But in another case, State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988), our Supreme Court expressly left the door open to the recognition of common-law defenses in criminal cases. In Scobee, the court noted that although K.S.A. 21–3102(1) abolished common-law crimes, there's nothing in the statute “to indicate that common-law defenses or rules relating thereto were abolished when the current version of the criminal code was enacted in 1969.” 242 Kan. at 428.
Our court recognized the common-law defense of parental discipline in State v. Wade, 45 Kan.App.2d 128, 136–38, 245 P.3d 1083 (2010), rev. denied 292 Kan. 968 (2011). Thus, a parent accused of battery against his or her child may assert the defense that the use of physical force was reasonable and appropriate and for the purpose of safeguarding the child's welfare or maintaining discipline. 45 Kan.App.2d 128, Syl. ¶ 4. Consistent with Mark's argument here, we held that the parent in Wade had a right to a jury instruction regarding this common-law defense. 45 Kan.App.2d 128, Syl. ¶ 5.
We therefore give consideration to whether—if a common-law necessity defense were recognized in Kansas—Mark was entitled to a jury instruction on that defense. As in Tilson, however, we conclude that even if the defense were to be recognized, Mark's actions do not come within the parameters of that defense.
We first must consider what the elements would be for this defense. In a 2007 case, City of Wichita v. Holick, No. 95,340, 2007 WL 518988 (Kan.App.2007) (unpublished opinion), our court revisited the issue in Tilson with another trespassing charge at a Wichita abortion clinic. We noted the traditional elements of the common-law defense of necessity:
“(1) that the defendant was faced with a choice of evils and chose the lesser evil, (2) the defendant acted to prevent imminent harm, (3) the defendant reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and (4) the defendant had no legal alternatives to violating the law.” 2007 WL 518988, at *3 (citing United States v. Turner, 44 F.3d 900, 902 [10th Cir.1995] ).
We conclude that this is a fair statement of the elements of the common-law necessity defense. See Raich v. Gonzales, 500 F.3d 850, 859 (9th Cir.2007); State v. Nadeau, 920 A.2d 452, 455 (Me.2007); DeWitt, The Ultimate Exigent Circumstances, 5 Kan. J.L. & Pub. Pol'y 169, 175 (1996); Note, And Forgive Them Their Trespasses: Applying the Defense of Necessity to the Criminal Conduct of the Newsgatherer, 103 Harv. L.Rev. 890, 893 (1990).
A review of these elements shows that—based on facts not in dispute—Mark didn't meet the requirement that he have no legal alternatives to violating the law. Stephanie had obtained the protection order without Mark's help, and she could have sought its modification or removal without his help. She also could have gotten to the courthouse without Mark's help, whether she had taken a taxi or a bus or driven herself. Her health situation had improved by the time she got to the courthouse, and she was able to drive home from there after Mark's arrest. There was no showing that anything imminent required Mark to take Stephanie to court or to be with her throughout her time at the courthouse.
The same can be said of Stephanie's trip to the doctor. While she certainly wasn't feeling well, she admitted she could have driven herself there, and transportation by taxi or bus (or, in an emergency, ambulance) was also available. Mark was neither a necessary means of transportation nor a necessary party who had to be present either for Stephanie to receive medical care or to attempt to remove the protection order.
We find ourselves in the same position as the courts that decided Tilson and Holick. Neither court found that it had to decide whether a common-law necessity defense would be recognized in Kansas because the defendant didn't come within the parameters of such a defense even if it were to be recognized. Tilson, 253 Kan. at 296;Holick, 2007 WL 518988, at *7. We too leave that call for another day when there is evidence bringing a defendant within the confines of this defense.
The district court's judgment is affirmed.