Opinion
Record No. 0958-92-4
August 24, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY RICHARD B. POTTER, JUDGE.
David J. Lytle, pro se; Gordon F. Strunk, pro se; (Jason Craddock, pro se, on briefs), for appellants.
Peter W. Steketee (Robert W. Bendall; Smith and Davenport, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellants, Jason R. Craddock, David J. Lytle and Gordon F. Strunk, were convicted in a jury trial of trespass, for which they were fined $2500 each. We hold that the trial judge did not err by granting the Commonwealth's two motions in limine barring the appellants from presenting evidence in support of their defense that the trespass arose out of the necessity to save human lives. Accordingly, we affirm the convictions.
The elements of the defense of necessity include: "(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of harm." Buckley v. City of Falls Church, 7 Va. App. 32, 33-34, 371 S.E.2d 827, 827-28 (1988) (citingUnited States v. Cassidy, 616 F.2d 101, 102 (4th Cir. 1979)). In order for the defense of necessity to apply, the defendant must first demonstrate the existence of a legally cognizable harm which he or she sought to prevent. Commonwealth v. Brogan, 612 N.E.2d 656, 660 (Mass. 1993); People v. Berguist, 608 N.E.2d 1212, 1218 (Ill.Ct.App. 1993); State v. Bowers, 498 N.W.2d 202, 206 (S.D. 1993); State v. Cozzens, 490 N.W.2d 184, 190-91 (Neb. 1992); State v. Clarke, 590 A.2d 468, 468-69 (Conn.Ct.App.),cert. denied, 593 A.2d 135 (Conn. 1991); Allison v. City of Birmingham, 580 So.2d 1377, 1382, cert. denied, 580 So.2d 1390 (Ala. 1991); People v. Garziano, 281 Cal.Rptr. 307 (Cal.Ct.App.), cert. denied, 112 S.Ct. 659 (1991); Egger v. State, 817 S.W.2d 183, 186-87 (Tex.Ct.App. 1991).
Roe v. Wade, 410 U.S. 113 (1973), and its progeny recognize that a woman has a constitutional right to terminate a pregnancy. That right is not absolute; it is limited by the state's countervailing right to regulate abortions in order to protect the welfare of persons recognized under the Constitution. In conformity with the principles set forth inRoe v. Wade, the Virginia legislature adopted a statutory scheme regulating the performance of abortions. Code §§ 18.2-71et seq.
The appellants have not demonstrated a legally recognized harm that they sought to prevent by blocking passage into the Prince William Women's Clinic. Although the defendants sincerely regard the result of all abortions to be a harm, namely the taking of a life, both the United States Supreme Court and the Virginia legislature have granted women the right to terminate a pregnancy under certain specified conditions. The law will not excuse the crime of trespass for the purpose of interfering with another person's exercise of his or her legal and constitutional rights. Because the harm sought to be prevented by the appellants is not recognized as an injury under the law, the defense of necessity is unavailable. The trial judge, therefore, properly refused the appellants the opportunity to raise the defense of necessity and to present medical evidence in support of that defense that life begins at conception. We reject the appellants' claim that the jury should be entitled to determine as a matter of fact when life begins. See Roe v. Wade, 410 U.S. 113 (1973); Code §§ 18.2-71 et seq.
The appellants also were not entitled to raise the defense of necessity on the theory that they were attempting to prevent illegally performed abortions at the Women's Clinic. No evidence in the record proved that illegal abortions were taking place at the time of the trespass, thus creating an "imminent" threatened harm, or that other non-criminal measures were unavailable to accomplish the appellants' purpose. See Buckley, 7 Va. App. at 34, 371 S.E.2d at 828.
For these reasons, we affirm the appellants' convictions of trespass.
Affirmed.