State v. Higgins

399 Mont. 148

458 P.3d 1036

2020 MT 52

STATE of Montana, Plaintiff and Appellee,

v.Leonard HIGGINS, Defendant and Appellant.

DA 18-0233

Supreme Court of Montana.

Submitted on Briefs: January 29, 2020

Decided: March 3, 2020

For Appellant: Herman Austin Watson, IV, Attorney at Law, Bozeman, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Michael Patrick Dougherty, Assistant Attorney General, Helena, Montana, Stephen A. Gannon, Chouteau County Attorney, Fort Benton, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Leonard Higgins (Higgins) appeals from the jury verdict and subsequent Judgment and Sentenc[e] issued on April 23, 2018, by the Twelfth Judicial District Court, Chouteau County. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in denying Higgins’s request to assert the common law defense of necessity and in refusing Higgins’s jury instructions regarding the common law defense of necessity.

2. Whether the District Court erred in denying Higgins’s motions for directed verdict as to the criminal mischief charge and in ordering $3,755.47 in restitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 19, 2016, Higgins was charged with misdemeanor criminal trespass and felony criminal mischief resulting from Higgins unlawfully entering a pipeline facility near Big Sandy and damaging the pipeline’s property. Prior to trial, Higgins notified the District Court he intended to present the common law defense of necessity.

¶4 After raising a family and retiring, Higgins became increasingly concerned about climate change and the means and speed by which it was being combatted. As such, Higgins began lobbying legislators, organizing rallies, and engaging in various acts of civil disobedience which he believed were designed to educate the public about climate change. On October 11, 2016, after cutting a chain to gain access to the Spectra/Enbridge (the pipeline company) pipeline facility, Higgins cut two more chains to access the valve wheel and used manual controls to shut off the flow of oil. In doing this, Higgins also inadvertently damaged the actuator cover. The pipeline company was provided advance notification of Higgins’s plan to shut down the flow of tar sands oil through the company’s pipeline.

¶5 Higgins characterized his conduct at issue here as another act of civil disobedience. He sought to use the common law necessity defense—presenting evidence and expert testimony to establish the imminence of climate change, the effectiveness of civil disobedience, and the absence of other lawful alternatives—at trial. The State filed a motion in limine to preclude Higgins from presenting a necessity defense, which the District Court granted.¹ At the conclusion of the State’s case, Higgins made a motion for directed verdict on the felony criminal mischief offense asserting the State failed to prove a pecuniary loss in excess of $1,500, which the District Court denied. Following jury trial, the jury found there was sufficient evidence to establish damage in excess of $1,500 and found Higgins guilty of both offenses. Following a restitution and sentencing hearing, Higgins’s sentence for the felony criminal mischief charge was deferred for a period of three years and a concurrent six-month suspended sentence was imposed on the misdemeanor criminal trespass charge. Higgins was also ordered to pay $3,755.47 in restitution. Additional facts will be discussed below as necessary.

STANDARD OF REVIEW

¶6 A district court may determine whether an affirmative defense exists as a matter of law. State v. Leprowse , 2009 MT 387, ¶ 11, 353 Mont. 312, 221 P.3d 648. We review a district court’s denial of an affirmative defense for correctness. State v. Lynch , 2005 MT 337, ¶ 7, 330 Mont. 74, 125 P.3d 1148. We review a district court’s refusal of a jury instruction regarding an affirmative defense for abuse of discretion. State v. Nelson , 2001 MT 236, ¶ 10, 307 Mont. 34, 36 P.3d 405. We review a district court’s examination of a witness for abuse of discretion. State v. Hibbs , 239 Mont. 308, 311, 780 P.2d 182, 184 (1989). We review a district court’s denial of a motion for directed verdict de novo. State v. Swann , 2007 MT 126, ¶ 17, 337 Mont. 326, 160 P.3d 511. Finally, we review a district court’s award of restitution to determine if it is clearly erroneous. State v. Cleveland , 2018 MT 199, ¶ 7, 392 Mont. 338, 423 P.3d 1074.

DISCUSSION

¶7 1. Whether the District Court erred in denying Higgins’s request to assert the common law defense of necessity and in refusing Higgins’s jury instructions regarding the common law defense of necessity .

¶8 Higgins contends his action of accessing the pipeline and shutting off the flow of oil was an act of civil disobedience in protest of the fossil fuel industry to draw attention to climate change. He asserts he has a constitutional right to present a full defense and by denying him the ability to present the common law necessity defense, he was improperly precluded from testifying about his intent. The State counters that the common law necessity defense is not available to Higgins as the common law defense of necessity has been merged into the statutory affirmative defense of compulsion codified at § 45-2-212, MCA, and the elements underlying the necessity defense are no longer applicable in Montana with one exception not applicable here.² City of Helena v. Lewis , 260 Mont. 421, 426, 860 P.2d 698, 701 (1993). The State asserts that when a particular defense is not available as a matter of law, evidence in support of that defense cannot be relevant and should be precluded. As such, excluding Higgins’s testimony and exhibits regarding climate change and its imminent dangers was proper because it was irrelevant. The State also asserts Higgins did testify regarding his intent and motive in engaging in this act of civil disobedience. We agree with the State.

¶9 In Lewis , we explained application of the necessity defense in Montana:

This Court recently clarified the applicability of the "necessity" defense in Montana and concluded that the defense has been codified in § 45-2-212, MCA. State v. Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404. In Ottwell , we explained that the defenses of necessity, justification, compulsion, duress, and the "choice of two evils" have been merged statutorily and labeled "compulsion" under § 45-2-212, MCA. Ottwell , 784 P.2d at 404. Thus, the common law elements and distinctions between the aforementioned defenses are no longer applicable in Montana, with one exception which is inapplicable here. Ottwell , 784 P.2d at 404 ; see also State v. Pease (1988), 233 Mont. 65, 71, 758 P.2d 764, 768.

Lewis , 260 Mont. at 426, 860 P.2d at 701.

¶10 In Nelson , Nelson urged us to recognize the common law defense of necessity and follow the holding of the Supreme Court of Vermont in State v. Shotton , 142 Vt. 558, 458 A.2d 1105 (1983).

In Shotton , a state trooper noticed the defendant driving irregularly on a public highway. [ Shotton , 458 A.2d] at 1105. After following her for a couple of miles, he pulled her over and asked her to exit the vehicle. [ Shotton , 458 A.2d] at 1105-06. He then took her to the police station, where she told him and another officer that her husband had assaulted her and pushed her down a flight of stairs. [ Shotton , 458 A.2d] at 1106. She also told them that the reason she had been driving was to get to the hospital. [ Shotton , 458 A.2d at 1106 ]. The officers then took her to the emergency room, where they discovered that she had multiple rib fractures and would require a five-day hospital stay. [ Shotton , 458 A.2d at 1106 ]. She later testified at trial that her husband was the only other person home that night and that he had been drinking heavily. [ Shotton , 458 A.2d at 1106 ]. She did not have a working telephone in her house and, although the neighbors’ homes were close by, she was unwilling to risk finding them empty. [ Shotton , 458 A.2d at 1106 ]. The court held that this evidence raised legitimate factual issues relating to the defense of necessity. See [ Shotton , 458 A.2d] at 1107. The court therefore reversed and remanded to the trial judge with directions to instruct the jury on the issue of necessity. [ Shotton , 458 A.2d at 1107 ].

Nelson , ¶ 16. We declined to follow the Supreme Court of Vermont’s holding in Shotton , finding the District Court did not abuse its discretion in refusing to give Nelson’s instruction on the defense of necessity, as in opposition to Shotton , Nelson did not involve a medical emergency or any injury to Nelson and Nelson was not blameless in creating the emergency but had self-created his predicament which had multiple solutions.

¶11 In his pre-trial filings, Higgins asserted a common law necessity defense consistent with United States v. Schoon , 971 F.2d 193 (9th Cir. 1991). Under Schoon , to invoke the necessity defense, a defendant must show that: (1) he faced a choice of evils and chose the lesser evil; (2) he acted to prevent imminent harm; (3) he reasonably anticipated a direct causal relationship between his action and the harm averted; and (4) he had no reasonable lawful alternatives to breaking the law. Schoon , 971 F.2d at 195 (citing United States v. Aguilar , 883 F.2d 662, 693 (9th Cir. 1989) ). In Schoon , Schoon, Kennon, and Manning appealed their convictions for obstructing activities of the IRS and for failing to comply with an order of a federal police officer—both of which stemmed from their activities in protest of the United States’s involvement in El Salvador. Thirty people, including Schoon, gained admittance to an IRS office where they splashed simulated blood on the counters, walls, and carpets, generally obstructed the office’s operation, and shouted, "keep America’s tax dollars out of El Salvador." At a bench trial, appellants proffered testimony about conditions in El...