Jones v. City of Tulsa, M-89-1248

Decision Date27 July 1993
Docket NumberNo. M-89-1248,M-89-1248
Citation1993 OK CR 35,857 P.2d 814
PartiesRichard C. JONES, et al., Appellants, v. The CITY OF TULSA, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

JOHNSON, VICE PRESIDING JUDGE:

The appellants were convicted in Tulsa Municipal Court, City of Tulsa, for Trespassing pursuant to 27 Tulsa Rev.Ord. § 626(a) or § 626(c). The trial judge sentenced each of the forty-two (42) appellants to a $50.00 fine plus the court cost.

On April 29, 1989, the forty-two (42) appellants, with others, entered the premises of Reproductive Services Adoption Affiliates in Tulsa to "rescue unborn children from death." While on the premises, the appellants positioned themselves to block the entrances to the clinic. The director of the clinic demanded those present to leave the premises. When the appellants did not comply, the director contacted the police who responded and arrested the protestors.

The appellants were prepared to use the defense of necessity at trial. However, pursuant to the City of Tulsa's motion in limine, the appellants were prohibited from using the defense when the trial judge concluded the defense would not apply. As a result, the appellants were tried and sentenced and have perfected this appeal to challenge the trial judge's determination about the necessity defense. In addition, certain of the appellants have challenged the sufficiency of evidence presented by the City of Tulsa to satisfy the Trespassing charge. We have reviewed the record, and affirm the decision of the trial court.

Initially, the appellants challenge the trial judge's decision to grant a Motion in Limine in favor of the City. The trial judge properly sustained the City's Motion in Limine to disallow the use of the necessity defense. Appellee correctly points out that Oklahoma does not have a statutory provision for the necessity defense. To review appellants' argument, it is therefore necessary to review the common law and other state law in reference to the facts in the case due to the fact that this is a case of first impression in Oklahoma.

In general, the defense of necessity is allowed when a defendant is faced with the burden of committing a lesser harm to prevent the occurrence of a different and somewhat greater harm. The harm being prevented needs to be significant and immediate. Here, appellants contend this criteria was met because the trespass was carried out to avoid the termination of human life. This conclusion is too remote in time to apply to the necessity-defense.

The Model Penal Code requires the following criteria before one can utilize the necessity defense:

Section 3.02.

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

While this criteria is not binding in Oklahoma, it is clear that the behavior of the appellants do not trigger the defense of necessity under the aforementioned criteria.

Review of the record indicates the appellants were reckless or negligent in creating the situation which gave rise to this case. Absent their conduct, they would not have been faced with the choice of having to choose between different types of "illegal" conduct. In other words, the defendant cannot create the circumstance(s) which gave rise to the choice(s). As in this case, the acts cannot be self-imposed and must come about by some other superseding cause. Obviously, the appellants conduct was not influenced by such an event.

The argument to deny appellants' request does not end here. In addition, it is necessary to analyze whether the appellants' attempt to prevent abortions was actually an effort to thwart illegal activity. The Model Penal Code will not allow the defense of necessity where a legislative purpose clearly disallows it or where a purpose or act declares such conduct lawful.

Under the present status of the law,...

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4 cases
  • Wallace v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 27, 1995
    ... ... Gen., Diane Blalock, Asst. Atty. Gen., Oklahoma City, Appellate Counsel, for appellee on appeal ... OPINION ON MANDATORY ... Petitioner's background and family history; and an affidavit of a Tulsa psychologist, who would express personal opinions about Petitioner's early ... ...
  • Hill v. State
    • United States
    • Florida Supreme Court
    • November 27, 1996
    ...(Minn.Ct.App.1991), review denied (Jan. 30, 1992); City of Missoula v. Asbury, 265 Mont. 14, 873 P.2d 936 (1994); Jones v. City of Tulsa, 857 P.2d 814 (Okla.Crim.App.1993); and State v. Horn, 126 Wis.2d 447, 377 N.W.2d 176 (App.1985), aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987).6 Our concl......
  • McMillan v. City of Jackson
    • United States
    • Mississippi Supreme Court
    • October 23, 1997
    ...State v. Rein, 477 N.W.2d 716 (Minn.Ct.App.1991); City of Missoula v. Asbury, 265 Mont. 14, 873 P.2d 936 (1994); Jones v. City of Tulsa, 857 P.2d 814 (Okla.Crim.App.1993); and State v. Horn, 126 Wis.2d 447, 377 N.W.2d 176 (Ct.App.1985). Hill v. State, 688 So.2d 901, 905 n. 5 ...
  • Lay v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 12, 2008
    ...OK CR 206, 554 P.2d 798, 804. 14. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 533. 15. Id. 16. Id. at 533-34. 17. Jones v. City of Tulsa, 1993 OK CR 35, 857 P.2d 814, 815-816. 18. Gourley v. State, 1989 OK CR 28, 777 P.2d 1345, 1349 (defendant cannot complain of error he invited); Staley v.......

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