State v. Clowes
| Decision Date | 26 November 1990 |
| Citation | 801 P.2d 789,310 Or. 686 |
| Parties | STATE of Oregon, Respondent on Review, v. Brian Woodbridge CLOWES, Petitioner on Review. STATE of Oregon, Respondent on Review, v. Judy Lois HAGER, Petitioner on Review. STATE of Oregon, Respondent on Review, v. Michael James KINSEY, Petitioner on Review. STATE of Oregon, Respondent on Review, v. Rachel A. WOLCOTT, Petitioner on Review. DA 372447-8806, CA A50128 (Control), SC S36922, DA 372448-8806, CA A50129, SC S36946, DA 372450-8806, CA A50132, SC S36933, DA 372446-8806, CA A50136, SC S36946. |
| Court | Oregon Supreme Court |
Richard L. Stradley, Hillsboro, argued the cause and filed the petition, for petitioner on review Brian Woodbridge Clowes.
Norman L. Lindstedt, Lindstedt & Buono, P.C., Portland, argued the cause and filed the petition, for petitioners on review Judy Lois Hager and Rachel A. Wolcott.
William E. McCann, Tillamook, argued the cause and filed the petition, for petitioner on review Michael James Kinsey.
Janet Klapstein, Asst. Atty. Gen., Salem, argued the cause, for respondent on review. With her on the response brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Melanie E. Mansell, Sheridan, filed a brief amici curiae, on behalf of The Rutherford Institute, Charlottesville, Va.
Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.
The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.245, 2 after they had entered the premises of an abortion clinic, attempted to prevent patients who were in the first trimester of pregnancy from having abortions, blocked access to the clinic by sitting in the doorways, and refused to leave when asked. We hold as a matter of law that the defendants are not entitled to assert the choice of evils defense.
Lovejoy Surgicenter (the clinic) is a clinic that performs abortions. On June 18, 1988, defendants were arrested and charged with criminal trespass in the second degree for the conduct described above. Defendants entered not guilty pleas, requested jury trials, and gave timely notice of their intent to rely on the statutory defense of choice of evils, ORS 161.200.
The state filed a motion in limine to exclude any evidence of the defense. At a pretrial hearing, defendants made an offer of proof on the evidence it sought to present to the jury. Defendants contended that their violation of the criminal trespass law was an emergency measure that was necessary to avoid the imminent death of unborn children. The evidence at the pretrial hearing showed, inter alia, that 19 abortions were scheduled at the clinic on June 18, 1988, and that all of the patients were within the first trimester, ranging from 6 to 11 weeks of gestation. 3 There was evidence offered by defendants in the form of expert opinion testimony that life begins at the time of conception. There also was evidence to support defendants' assertion that each abortion involved the taking of a human life. There was no evidence that the women who were to have abortions on the day of defendants' trespass were doing so other than voluntarily or that those who were to perform abortions were compelled to participate. Defendants do not assert that the clinic was unlicensed or otherwise failed to comply with any applicable law.
The trial court found that defendants had proffered sufficient evidence on all the elements of the choice of evils defense, generally, to submit it to the jury. Nevertheless, the trial court granted the state's motion to exclude evidence of the defense on the ground that to admit such evidence would be inconsistent with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). 4 Because of the trial court's ruling, defendants withdrew their request for a jury trial and proceeded to a court trial on stipulated facts. The trial court found defendants guilty. 5
Defendants appealed from the resulting judgment. The Court of Appeals, in an in banc decision, affirmed. State v. Clowes, 100 Or.App. 266, 785 P.2d 1071 (1990). A majority of that court held:
Id. at 274, 785 P.2d 1071. Judge Graber, in a specially concurring opinion, agreed that the choice of evils defense was not available to defendants, but for different reasons. She "would hold as a matter of law * * * that an abortion is not [a 'public or private injury' as those terms have meaning in the context of ORS 161.200(1)(a) ]." Id. at 276, 785 P.2d 1071. Judge Graber also stated that "[d]efendants base their choice of evils defense on the assertion that the criminal trespass statutes should not apply to their protest on moral grounds, against abortion[,]" and "[t]hat is exactly the kind of claim that ORS 161.200(2) forecloses." Id. at 278, 785 P.2d 1071.
We allowed review to decide whether the choice of evils defense, sometimes referred to as the defense of necessity, is available to defendants under the facts of this case.
Defendants first argue that "the trial court abuse[d] its discretion in relation to the motion in limine by requiring [them] to present the entirety of * * * [their choice of evils defense] evidence to the court in a pretrial offer of proof." We disagree.
Evidence which is not relevant is not admissible. OEC 402. The standard to be used in determining whether proffered evidence is relevant is supplied by OEC 401. That rule provides:
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Under OEC 401's relevancy standard, facts must be "of consequence to the determination of the action" (i.e., "material") 6 for them to be relevant. Whether or not facts are of consequence is determined not by the rules of evidence but by the pleadings and the substantive law. McCormick on Evidence 541, § 185 (3rd ed 1984). If under the substantive law the choice of evils defense is not available to defendants in this case, then evidence in support of that defense would not be "of consequence to the determination of the action" and, therefore, would be irrelevant, OEC 401, and inadmissible, OEC 402. The trial judge must decide, under OEC 104(1), whether the proffered evidence satisfies the minimum threshold of relevancy required by OEC 401, i.e., whether the proffered evidence (1) has any tendency to prove or disprove a fact (2) that is "of consequence to the determination of the action."
In State v. Foster, 296 Or. 174, 183, 674 P.2d 587 (1983), we expressly approved the use of a pretrial motion in limine to obtain a ruling on evidence before the evidence is sought to be introduced. See State v. McClure, 298 Or. 336, 340, 692 P.2d 579 (1984) (to the same effect). We recognized that one of the purposes of a motion in limine is to insulate the jury from exposure to harmful inadmissible evidence. State v. Foster, supra, 296 Or. at 183, 674 P.2d 587. In this case, the trial court was well within its discretion when it required defendants to present evidence of their defense of choice of evils in a pretrial offer of proof. 7
Moreover, a review of the legislative history relating to the enactment of ORS 161.200 nowhere demonstrates that the trial judge may not determine in the first instance whether a defendant's evidence relating to the choice of evils defense is admissible. Rather, the history evidences a legislative intent to give the trial court discretion to hold a pretrial hearing to rule on the applicability of the defense. See Minutes, Criminal Law Revision Commission, November 7, 1969, pp. 25-30. See also Commentary, Proposed Oregon Criminal Code 20, § 20 (1970).
Defendants next contend that the trial court erred as a matter of law in excluding evidence in support of their choice of evils defense, ORS 161.200, thereby precluding them from arguing their only putative defense to the criminal trespass charge to the jury.
Before addressing that contention and examining ORS 161.200, which defines the contours of the choice of evils defense, a brief review of the recent history of Oregon legislation concerning abortion is helpful to an understanding of the legal issues presented in this case.
In 1969, the Oregon legislature enacted former ORS 435.405 et seq. Those statutes, which were based on Model Penal Code Section 230.3 (1962), see Comment, Abortion, Oregon Style, 49 Or.L.Rev. 302 (1970), allowed an abortion when (1) there was "substantial risk that continuance of the pregnancy [would] greatly impair the physical or mental health of the mother," 8 (2) "[t]he child would be born with serious physical or mental defect," 9 or (3) "[t]he pregnancy resulted from felonious intercourse." 10 After the 150th day, abortion was permitted only when "[t]he life of the pregnant woman [was] in imminent danger." 11 Under Oregon law, abortions could be performed only by licensed physicians in licensed hospitals. 12 Except in emergency cases, two other physicians had to certify in writing the circumstances justifying an abortion. 13 There were record keeping and reporting requirements. 14
Assistance in self-abortion was unlawful. 15 With some exceptions, it was a crime to perform or aid in an abortion. 16 A doctor's license could be suspended or revoked for...
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