State v. Sahr
| Decision Date | 07 May 1991 |
| Docket Number | Cr. N |
| Parties | The STATE of North Dakota, Plaintiff and Appellee, v. Russell Harry SAHR, Marlene Ann Sahr, Mark Timothy Noah, Brian John Schmisek, Nick M. Breidenbach, Matthew John Noah, Dennis W. Uchtman, Charlene Renee Uchtman, Gail Ranae Brensike, Nyrie Joy Breidenbach, and Ida Lorene Breidenbach, Defendants, and Kathryn Ann Beneda, Defendant and Appellant. CITY OF JAMESTOWN, Plaintiff and Appellee, v. Dennis W. UCHTMAN, Defendant and Appellant (Two Cases). STATE of North Dakota, Plaintiff and Appellee, v. Russell Harry SAHR, Marlene Ann Sahr, Mark Timothy Noah, Brian John Schmisek, and Charlene Renee Uchtman, Defendants and Appellants, and Nick M. Breidenbach, Matthew John Noah, Dennis W. Uchtman, Gail Ranae Brensike, Kathryn Ann Beneda, Nyrie Joy Breidenbach and Ida Lorene Breidenbach, Defendants. STATE of North Dakota, Plaintiff and Appellee, v. Russell Harry SAHR, Marlene Ann Sahr, Mark Timothy Noah, Brian John Schmisek, Nick M. Breidenbach, Matthew John Noah, Charlene Renee Uchtman, Gail Ranae Brensike, Kathryn Ann Beneda, Nyrie Joy Breidenbach, and Ida Lorene Breidenbach, Defendants, and Dennis W. Uchtman, Defendant and Appellant. os. 900098, 900165, 900166, 900173 and 900174. |
| Court | North Dakota Supreme Court |
Joseph F. Larson, II (argued), Asst. City Atty., Jamestown, for plaintiff and appellee, City of Jamestown.
Monty Grant Mertz (argued), Fargo, for defendants and appellants.
Russell Harry Sahr, Marlene Ann Sahr, Mark Timothy Noah, Brian John Schmisek, Charlene Uchtman, Kathryn Ann Beneda, and Dennis W. Uchtman appeal from convictions of criminal trespass for protest activities at abortion clinics in Jamestown and Fargo. The defendants contend that they should have been allowed to present evidence on the defense of necessity to justify their conduct. We affirm.
Dennis W. Uchtman was charged with two violations of the ordinances of the City of Jamestown by trespassing on November 8, 1988, and December 12, 1988, in front of Dr. Robert E. Lucy's clinic on the 2nd floor at the Jamestown Mall. After transfer to Stutsman County Court for jury trial, Uchtman moved to be allowed to present evidence "bearing on the justification defense of necessity or commonly known as 'choice of evils'." Uchtman's supporting affidavit summarized his beliefs:
3. I believe that life begins at conception. I had a reasonable basis to believe and personal knowledge that abortions were to be performed on these dates [November 8 and December 12, 1988] at that location [Dr. Robert Lucy's clinic on the 2nd floor of the Jamestown Mall]. I reasonably, and in good faith, believe that my actions in entering on the private property of another were necessary to prevent a greater harm, that being the destruction of innocent human lives.
The Honorable Mikal Simonson, Stutsman County Judge, limited the admission of evidence:
At his jury trial on April 6, 1990, Uchtman testified that he was "pro-life" and believed that "abortion is murder, and that we need to do what we can to stop murder, to stop the holocaust." However, the trial court granted the prosecutor's motion to strike Uchtman's testimony when he refused to submit to cross-examination. The jury found Uchtman guilty of the criminal trespasses. The trial court sentenced Uchtman to two concurrent 10-day jail sentences, suspended for one year of informal probation on condition that he pay a fine of $100 and costs of $50.
Russell Harry Sahr, Marlene Ann Sahr, Mark Timothy Noah, Brian John Schmisek, Charlene Uchtman, Kathryn Ann Beneda, and Dennis W. Uchtman were each charged with criminal trespass in violation of NDCC 12.1-22-03 for blocking the entries to the Women's Health Organization in Fargo. Kathryn Beneda had a trial without a jury before the Honorable Frank L. Racek, Cass County Judge. Judge Racek found her guilty of criminal trespass, ordered her to serve 30 days in jail with 29 days suspended for one year of supervised probation, and assessed costs of $35. One condition of Beneda's probation directed that she is "not to be within one block of the Women's Health Organization" during probation.
Dennis W. Uchtman had a jury trial before the Honorable Georgia Dawson, Cass County Judge. The jury found Uchtman guilty of criminal trespass. The court fined Uchtman $35, deferred imposition of sentence for one year, and placed him on probation. One condition of Uchtman's probation directed that he "is not to be on the premises of the Women's Health Organization or be within 1 block thereof for the next 1 year period."
The other defendants in Fargo moved in limine that they "be allowed to present evidence in their defense bearing on the justification defense of necessity or 'choice of evils'." To support their defense, they asked
to present evidence which would include, but not be limited to:
a. The medical and scientific fact that life begins at conception.
b. Medical testimony concerning the beginning of life from conception on and the development of an unborn human child.
c. The mechanics and physiology of a suction abortion.
d. The film "The Silent Scream" which depicts through sonogram the events occurring in a suction abortion.
e. As demonstrative evidence the medically preserved bodies of unborn human children.
f. The Defendants' individual testimony concerning their knowledge and understanding that abortions were to occur on the premises they are alleged to have trespassed on, on or about December 29, 1989, and that their actions were necessary to prevent loss of human life.
Judge Dawson denied the motion. After they filed a written offer of the evidence that they would have presented, these defendants were tried without a jury on a stipulation of facts. Judge Dawson found each of them guilty of criminal trespass, imposed on each a fine of $35, and deferred imposition of each sentence for one year of unsupervised probation. As a condition of probation, each defendant was directed "not to present himself [or herself] within 1 block of the Women's Health Organization" during probation.
The appeals in these cases were consolidated to submit three questions: (1) Was Dennis W. Uchtman denied a speedy trial? (2) Should defendants be allowed to present evidence of necessity to justify their conduct? (3) Could the defendants be restricted from access to the abortion clinic during probation?
Dennis W. Uchtman contends that the Stutsman County Court erred in denying his motion to dismiss for violation of his right to a speedy trial. Resolving such a claim requires an evaluation of four factors: length of delay, reasons for delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant. State v. Connery, 441 N.W.2d 651 (N.D.1989); State v. Runck, 418 N.W.2d 262 (N.D.1987). Although "[a] defendant may waive the right to speedy trial by failing to demand a prompt trial," State v. Littlewind, 417 N.W.2d 361, 364 (N.D.1987), no single factor is controlling.
Uchtman was arrested on November 8, 1988, and again on December 12, 1988. He was tried on April 6, 1990. The delay between the arrest and the trial was substantial. At the March 2, 1990, pretrial conference when Uchtman's motion to dismiss was considered, no reasons for the delay were given, other than the prosecutor's statement that "the City doesn't schedule trials."
Arguably, Uchtman asserted his right to a speedy trial in two letters to Judge Harold B. Herseth, Stutsman County Judge, on November 21, 1989, and December 14, 1989, after Uchtman learned that a pretrial conference had been scheduled for January 4, 1990. In both letters Uchtman asked about arranging an earlier trial: "So is there a way that my speedy and public trial could be arranged before this?" (November 21, 1989); "So at this point we need to know what is required of us to bring about our speedy and public trial provided for us by our Constitution." (December 14, 1989). Shortly after these letters, on January 5, 1990, Uchtman demanded a change of judge. Judge Simonson was assigned on January 17, 1990. On January 23, 1990, Judge Simonson scheduled a pretrial conference for March 2, 1990, and trial for April 6, 1990. On February 21, 1990, Uchtman moved to dismiss for delay in trial. The motion was denied, and Uchtman was tried on April 6, 1990.
The assigned judge held the trial with reasonable promptness. Uchtman has not shown how the preceding delay prejudiced his defense. The absence of prejudice substantially weakens his speedy trial claim. Runck, 418 N.W.2d at 267. After considering the relevant factors, we are not persuaded that Uchtman was denied his right to a speedy trial.
The defendants argue that the trial courts erred in preventing them from presenting evidence for their justification defenses of necessity, or, as they choose to describe them, their "choice of evils" defenses. In doing so, the defendants develop six underlying premises:
. [They] have constitutional rights to present a defense under the Fourteenth Amendment to the United States Constitution.
. The Non-personhood of the Unborn under Roe v. Wade Does Not Preclude ... the Necessity Defense.
. The Application of the Necessity Defense has Usually Been to Circumstances in which the Evil Prevented, Like Abortion, is Not Unlawful.
. Roe v. Wade and [following] Opinions do not Prohibit Private Individuals from Non-Violently Attempting to Prevent Loss of Life From Abortions.
. North Dakota has Recognized that Justification can be a Defense in Chapter 12.1-05 of the N.D.C.C.
. The "Choice of Evils" or Necessity Defense Should Apply to Defendants' Actions in this Case.
We conclude that these premises, separately or together, do not justify criminal trespass to...
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