                   IN THE COURT OF APPEALS OF IOWA

                                      No. 14-0271
                                 Filed March 11, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD JESSE YOUNG,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Winneshiek County, David F.

Staudt, Judge.



      Criminal defendant appeals his conviction and sentence for operating

while intoxicated, third offense. AFFIRMED.



      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Andrew VanderMaaten, County Attorney, and Barrett Gipp, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                        2



MCDONALD, J.

      Ronald Young appeals his conviction and sentence for operating while

intoxicated, third offense, in violation of Iowa Code section 321J.2 (2011). Young

contends the district court improperly refused to submit the defense of necessity

to the jury. Young also contends he was denied his right to self-representation.

                                        I.

      Young raises two separate arguments regarding the district court’s

declination of his request to instruct the jury on the necessity defense. First, he

contends the district court erred in refusing to instruct the jury on his requested

defense. Second, he contends the district court’s refusal to instruct the jury on

the defense violated his due process right to present a defense. We conclude

Young failed to preserve error on his due process claim. At no point during the

conference on jury instructions or in posttrial proceedings did Young raise a due

process claim to the district court.   When a party has failed to advance an

argument in the district court, error has not been preserved, and we will not

consider the issue on appeal.     See State v. Tidwell, No. 13-0180, 2013 WL

6405367, at *2 (Iowa Ct. App. Dec. 5, 2013) (discussing reasons for error

preservation rules); see also State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002)

(“The rule of error preservation applies with equal strength to constitutional

issues.”); State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997) (discussing error

preservation). We thus limit our discussion to Young’s claim the district court

erroneously refused to give the requested instruction.
                                        3



      We review jury instruction issues for correction of errors of law. See State

v. Newell, 710 N.W.2d 6, 29 (Iowa 2009).        A trial court must instruct on a

defendant’s theory of defense provided the defendant makes a timely request,

the requested theory of defense instruction is supported by substantial evidence,

and the requested instruction is a correct statement of the law. See State v.

Johnson, 534 N.W.2d 118, 124 (Iowa Ct. App. 1995). In this case, the district

court determined the requested instruction was not supported by the evidence.

On appeal, we determine only whether the trial court correctly determined the

requested instruction did not have evidentiary support. See State v. Hartsfield,

681 N.W.2d 626, 631 (Iowa 2004).

      The necessity defense is protean; potentially applicable in a variety of

circumstances to account for the exigencies of daily life. At common law, the

necessity defense was available when “a man has his choice of two evils set

before him, and being under a necessity of choosing one, he chuses the least

pernicious of the two.” 4 William Blackstone, Commentaries *31-32. Perhaps

the best known case discussing the contour and application of the necessity

defense is United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842). In that

case, the ship William Brown struck an iceberg in the dark of night some 250

miles off the coast of Newfoundland.        The captain, some crew, and some

passengers managed to escape the sinking vessel, crowding into two lifeboats,

one of which contained a significant leak discovered only after being lowered into

the water. For almost a full day, the passengers of the leaking lifeboat alternated

turns rowing and bailing in freezing rain. The defendant, a sailor and crewman,
                                        4



at the first mate’s instruction, tossed overboard some passengers from the

sinking lifeboat so the remainder could have a better chance of survival.

Improbably, the remainder survived, being rescued the following day by a

passing ship, The Crescent. The defendant was tried for manslaughter, and he

asserted the defense of necessity. Id. The court explained, as relevant here, the

defense as follows:

      It is one thing to give a favourable interpretation to evidence in
      order to mitigate an offence. It is a different thing, when we are
      asked, not to extenuate, but to justify, the act. In the former case,
      as I have said, our decision may in some degree be swayed by
      feelings of humanity; while, in the latter, it is the law of necessity
      alone which can disarm the vindicatory justice of the country.
      Where, indeed, a case does arise, embraced by this ‘law of
      necessity,’ the penal laws pass over such case in silence; for law is
      made to meet but the ordinary exigencies of life. But the case does
      not become ‘a case of necessity,’ unless all ordinary means of self
      preservation have been exhausted. The peril must be instant,
      overwhelming, leaving no alternative but to lose our own life, or to
      take the life of another person.

Id. at 366 (emphasis added). The court ultimately rejected the application of the

defense because the ship’s crew owed a duty to the passengers to sacrifice

themselves before the passengers. See id. at 367 (“The sailor is bound, as

before, to undergo whatever hazard is necessary to preserve the boat and the

passengers.   Should the emergency become so extreme as to call for the

sacrifice of life, there can be no reason why the law does not still remain the

same.”). Nonetheless, the court’s emphasis on the imminent, inevitable, and

inescapable nature of the harm necessary to support the defense is instructive

for our purposes.
                                            5



       Iowa has adopted the necessity defense.               Our supreme court first

addressed the issue in State v. Ward, 152 N.W. 501, 503 (Iowa 1915). In Ward,

the court had to determine “whether th[e] defendant ha[d] a right to kill deer that

[was] injuring and destroying his corn” when the law prohibited killing deer. See

152 N.W.2d at 501. The court concluded the defense was available, explaining

that at the time the deer was killed “he was actually engaged in the destruction of

the defendant’s property.” Id. at 502. The court also explained the defense

might be necessary because “the deer was one of great voracity.               He was

capable of doing, and was threatening to do, great injury to defendant’s

property.” Id. The court concluded if it was “reasonably necessary to kill the

deer in question in order to prevent substantial injury to his property, such

fact, . . . would afford justification for the killing.”   Id.   While the case of the

voracious deer is not as compelling as the sinking lifeboat, the Ward court’s

emphasis on the nature of the harm necessary to support the defense is

instructive.

       Our courts have extended the availability of the defense to justify

violations of the law necessary to avoid harm caused by human forces. See

State v. Reese, 272 N.W.2d 863, 866 (Iowa 1976). Despite this extension, a

survey of our case law demonstrates the defense, properly understood, should

be available in only very limited circumstances. See, e.g., State v. Bonjour, 694

N.W.2d 511, 514-15 (Iowa 2005) (holding the defense unavailable to

manufacturing marijuana for medical purposes); Planned Parenthood of Mid–

Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa 1991) (holding the defense not
                                         6



available to excuse criminal activity by those who disagree with the policies of the

government); Reese, 272 N.W.2d at 865 (ruling that defense of necessity could

be available to a charge of escape); City of Des Moines v. Webster, No. 13-1802,

2014 WL 7343445, at *7 (Iowa Ct. App Dec. 24, 2014) (finding there was

insufficient evidence to establish defense of necessity for trespassing homeless).

       Under the modern formulation, we generally look to five different factors to

determine if the defense applies: “1) the harm avoided, 2) the harm done, 3) the

defendant’s intention to avoid greater harm, 4) the relative value of the harm

avoided and the harm done, and 5) optional courses of actions and the

imminence of disaster.” State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981). The

harm must be “present, imminent, and impending, and of such a nature as to

induce well grounded apprehension of death or serious bodily harm if the act is

not done.” Id. Further, the defendant’s violation of the law must be necessary, in

the strict sense of the word, as explained in Holmes. See Holmes, 26 F. Cas. at

366. That is, there must be no other option available to the defendant. See id.

       Turning to the facts of this case, the evidence showed Young was drinking

at a bar with Samantha Coonradt. They left the bar together and went to the

grocery store to purchase more alcohol. Upon leaving the store, Young saw

Robert Coonradt across the street. Robert had assaulted Young a month prior

because Robert believed Young was having an affair with Robert’s wife,

Samantha. Young heard Robert either yelling or talking and, fearing he might be

assaulted, got into his truck and drove away with Samantha in the cab.            A

witness noticed the truck had a flat tire and the rim was sparking. The witness
                                          7



called the police, who sent an officer to find Young. The officer found Young at a

nearby gas station putting air into the deflated truck tire. Young failed sobriety

tests, was arrested, and charged with the instant offense. It is not disputed that

Young was operating his vehicle while intoxicated—driving from the bar to the

grocery store and then the grocery store to the gas station. Young contends,

however, that he had no choice but to drive from the grocery store while under

the influence to avoid being assaulted by Robert.

       We conclude the district court did not err in declining to give the requested

instruction. The district court declined to give the instruction because the harm

was not imminent and because Young had options to avoid harm. We agree in

both respects. The evidence showed only that Robert was across the street.

The harm was not so immediate that Young had no other option but to drive

away intoxicated. Samantha, who was a passenger in Young’s vehicle, could

have driven them away. Young could have locked himself in his vehicle. He also

could have reentered the grocery store and asked for assistance. He could have

fled on foot. He could have obtained assistance from a passerby. He availed

himself of none of these lawful alternatives. See Walton, 311 N.W.2d at 115

(holding that court did not err in refusing to give instruction where the evidence

did not show there was no options “to avoid the possibility of harm”). “If all the

requirements of the defense are not addressed in the defendant’s evidence, trial

court is not obligated to submit the issue to the jury.” Id. Accordingly, the district

court did not err in refusing to give the requested instruction.
                                         8




                                         II.

       In a state criminal trial, a defendant has a Sixth and Fourteenth

Amendment right under the United States Constitution to self-representation.

Faretta v. California, 422 U.S. 806, 821 (1975). Before the right attaches, the

defendant must voluntarily elect to proceed without counsel by “knowingly and

intelligently” waiving his Sixth Amendment right to counsel. Id. at 835. Before a

trial court accepts the request, the court must make the defendant “aware of the

dangers and disadvantages of self-representation, so that the record will

establish that ‘he knows what he is doing and his choice is made with eyes

open.’” Id. (quoting Adams v. United States, 317 U.S. 269, 279 (1942)). Alleged

violations of the Sixth Amendment are reviewed de novo. State v. Rater, 568

N.W.2d 655, 657 (Iowa 1997).

       Young claims the district court interfered with his right of self-

representation when the district court denied his day-of-trial request to proceed

without counsel and his day-of-trial request to continue trial so he could prepare

his defense. We conclude Young failed to invoke his right to self-representation.

To invoke the right to self-representation, the “defendant must knowingly,

intelligently, and unequivocally waive his right to counsel and state his intentions

to represent himself.” Id. at 658 (quoting Hamilton v. Groose, 28 F.3d 849, 861

(8th Cir. 1994), cert. denied, 513 U.S. 1085 (1995)). The record reflects that

Young requested he be allowed to fire his trial counsel and have additional time

to obtain different counsel. When the court denied Young’s request for additional
                                         9



time, Young stated that he wanted to proceed with his trial counsel. There was

no “clear and unequivocal” request to proceed without representation, there was

only a request to fire counsel and a request for more time. Rater, 568 N.W.2d at

568.

       We also conclude the district court’s denial of Young’s request for

continuance did not work a denial of his right to self-representation. Upon a

request to fire or substitute appointed counsel, the trial court must examine to

see if sufficient cause exists and if a continuance is warranted. See State v.

Martin, 608 N.W.2d 445, 449 (Iowa 2000). A trial court does not need to grant a

continuance if there are no specific “good and compelling causes.”         State v.

Clark, 814 N.W.2d 551, 562 (Iowa 2012). After determining that a continuance

for substitution of counsel is not warranted, the trial court should insist that the

defendant choose between current counsel or proceed pro se.            Martin, 608

N.W.2d at 449.     This is proper because it forces the defendant to choose

between two constitutional options. Id. The district court here determined that

there was no good and compelling cause to continue the case. The district court

then forced the defendant to choose between proceeding with counsel or without

counsel, and the defendant chose to proceed with counsel. There was no denial

of his right to self-representation. See Clark, 814 N.W.2d at 562.

       Finally, we also conclude the court did not interfere with Young’s rights

because Young only requested to fire counsel as a delay tactic. The trial court is

permitted to distinguish between a manipulative effort to delay proceedings “and

a sincere desire to dispense with the benefits of counsel.” State v. Wehr, 852
                                         10



N.W.2d 495, 501 (Iowa Ct. App. 2014). On the morning of trial, Young asked to

fire his counsel and continue trial.     This was merely the final of numerous

procedural shenanigans Young invoked to delay trial in a simple case. The trial

information was filed on October 23, 2012. Young asserted his right to self-

representation at arraignment, which the district court granted. Young requested

a continuance of trial. The continuance was granted and trial was moved to

March. Young then obtained private counsel, and the trial was continued to

June. After that, Young filed two more motions to continue, which were granted,

pushing trial back to November 2013. Right before trial, Young then filed two pro

se motions on November 12, 2013: “Demand to Fire Counsel” and “Demand for

Dismissal or Stay to Secure Counsel and Investigated.” These are the motions

supporting his Faretta claim. Given the procedural background, the district court

found Young’s argument that he needed new counsel not credible and found it

“to be a stall tactic to avoid going to trial.” The right to self-representation does

not exist “to be used as a tactic for delay, for disruption, for distortion of the

system, or for manipulation of the trial process. Id.

                                         III.

       For the foregoing reasons, we affirm the defendant’s conviction and

sentence.

       AFFIRMED.
