                     Nos. 92-407 and 92-443
          IN THE SUPREME COURT OF THE STATE OF MONTANA




CITY OF HELENA,
          Plaintiff and Respondent,


JOHN T. LEWIS,
          Defendant and Appellant.

                                                      SEP f! bs
CITY OF HELENA,
          Plaintiff and Respondent,


CLAIRE BRISENDINE,
          Defendant and Appellant.


APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               Hon. Thomas C. Honzel, Judge presiding in No. 92-407
               Hon. Jeffrey Sherlock, Judge presiding inNo. 92-443

COUNSEL OF RECORD:
          For Appellants:
               Patrick F. Flaherty, Attorney at Law, Great Falls
               Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General, Patricia
               J. Jordan, Asst. Attorney General, Helena, Montana
               Robert Wood, Assistant City Attorney, Helena,
               Montana



                               Submitted on Briefs:     May 20, 1993
                                      Decided:   September 20, 1 9 9 3
Filed:


                              Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

    Appellants Claire Brisendine and John Lewis appeal from
separate orders of the First Judicial District Court, Lewis and
Clark County, finding Claire Brisendine guilty of criminal trespass
and disorderly conduct and John Lewis guilty of criminal trespass.
The appeals were consolidated pursuant to order of this Court.      We
affirm.
     We phrase the issues on appeal as follows:
     I)   Did the District Court err in granting the City's motion
in limine to prohibit the Defendants from introducing evidence
regarding the defenses of necessity and justifiable use of force?
     2)   Did the District Court properly instruct the jury in
Lewis' case?

     3)   Did the Defendants possess the requisite mental state for
conviction under the criminal trespass and disorderly conduct
statutes?
     4)   Did   the   prosecution   wrongfully   withhold   exculpatory
material from the Defendants in violation of Bradv v. Maryland?


     Claire Brisendine (Brisendine) and John Lewis (Lewis) attended
a demonstration at the Intermountain Planned Parenthood Clinic
(Clinic) in Helena, Montana, on December 6, 1991. "No trespassing"
signs were posted around the perimeter of the property, and a
statewide injunction forbidding all but patients and staff from
entering the Clinic premises also was posted.       People in groups of
three, Lewis and      Brisendine    included, had   joined themselves
                                    2
together at the neck with bicycle locks and were sitting in
triangular patterns in front of the doorway to the Clinic.            The

Helena City Police were called to the Clinic and informed the
demonstrators that they were trespassing.          Both Brisendine and
Lewis refused to leave when asked to do so by the Clinic director
and the police. The Helena Fire Department arrived and cut off the
bicycle locks. Lewis and Brisendine, among others, were arrested.
Brisendine was charged in City Court with criminal trespass and
disorderly conduct; Lewis was charged with criminal trespass.
     A f t e r their convictions in City Court, both Brisendine and

Lewis appealed to the District Court.       Brisendine was represented
by counsel in District court; Lewis appeared pro se throughout the
proceedings.    In both cases, the City promptly filed a motion in
limine requesting the District Court to prohibit Brisendine and
Lewis from making any references to the propriety of abortion or
any other matters that were not relevant to the charges of criminal
trespass and disorderly conduct. In response to the City's motion
in lirnine, Brisendine filed notice of the affirmative defense of
justifiable use of force under 5 45-3-102, MCA, and also filed a
motion to dismiss the charges.
     In Brisendine's case, District Court Judge Jeffrey Sherlock
granted the City's motion in limine and denied Brisendinersmotion
to dismiss. A t a bench trial h e l d July 31, 1 9 9 2 , Brisendine waived
her right to a jury trial and stipulated that s h e had been on the
Clinic's private property and had obstructed ingress and egress to
the Clinic. Over the City' s abjection, Brisendine made an offer of
proof, testifying briefly as to the motivations behind her actions.
On August 3, 1992, the District Court issued an order finding

Brisendine guilty of disorderly conduct and criminal trespass and
r e i n s t a t i n g the sentence previously imposed by the C i t y Court. Her
sentence    was   stayed pending appeal.
      In Lewis' case, District Court Judge Thomas Honzel granted the
City's    motion in limine.     The charge against Lewis proceeded to
trial, and the jury found him guilty of criminal trespass.                 The
court sentenced Lewis to 180 days in jail, with 179 days suspended
and credit for one day served, imposed a $300 fine, and assessed
jury costs.       Judgment against Lewis was entered on June 23, 1992.
Both Brisendine and Lewis appealed.
      On     November   5,   1992,   this    Court    granted    Lewis'    and
Brisendinefs motion to consolidate the two cases.               Although they
presented distinct arguments regarding their defenses to the
District Court, Brisendine and Lewis have filed a consolidated
brief on appeal.        Therefore, for purposes of discussing their
arguments, Brisendine and Lewis will be referred to collectively as
the Defendants.

     Did the District Court err in granting the City's motion in
limine to prohibit the Defendants from introducing evidence
regarding the defenses of necessity and justifiable use of force?
         In Brisendine's   case, the District Court reasoned that her
opposition to the motion in limine centered around her argument
that Roe v. Wade (l973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d
147, was incorrectly decided.         The District Court concluded that
the activities at the Clinic were legal, and that it could not
                                       4
overrule Roe v. Wade.        For that reason, the court ruled that the
defense of necessity was not appropriate, nor was reference to any
other matter dealing with the abortion process.                  In granting the
City's    lengthy motion       in limine, the District Court allowed
Brisendine to indicate why she was acting as she did on December 6,
1991, but prohibited her from an "extended forayu into the issues

surrounding abortion.         In Lewis' case, the District Court also
granted    an   identical motion        in    limine, but        did   so without
explanation of record.
      On appeal, the Defendants primarily challenge the following
provision of the motion in limine, which excluded all
      "legal   argumentstt or     "legal    documentst1 deemed
      inadmissible as a matter of law, including but not
      limited to the ltnecessity defense," lljustifiable use of
      forcebvdefense, treaties, biblical or moral justification
      for their actions, arguments that abortion is illegal,
      Roe v. Wade is bad law, or that the charges filed against
      the Defendant are unconstitutional.
The Defendants assert that they were improperly "gagged" from
referring to their defenses at trial.                 The City asserts that
because the defenses are inapplicable as a matter of law, they are
necessarily i r r e l e v a n t under Rule 4 0 2 , M.R.Civ.P.,    and, therefore,

properly excluded by the motions in limine.
             purpose             motion         limine                 prevent the
introduction of evidence which               is irrelevant, immaterial, or
unfairly prejudicial."         Feller v. Fox (1989), 237 Mont. 150, 153,
772 P.2d   842, 844.     Accordingly, the authority to grant or deny a
motion in limine "rests in the inherent power of the court to admit
or exclude evidence and to take such precautions as are necessary
to afford a fair trial for all parties."    Feller, 772 P.2d at 844,
quoting Wallin v. Kenyon Estate (1974), 164 Mont. 160, 165, 519
P.2d 1236, 1238.     Thus, we will not overturn a district court's
grant of a motion in limine absent an abuse of discretion.       See
Feller, 772 P.2d at 844; State v. Oman (1985), 218 Mont. 260, 264,
707 P.2d 1117, 1119.   Keeping this standard in mind, we review the
District Courts' decisions to exclude the evidence regarding their
asserted defenses.
     This   Court recently clarified the applicability      of   the
"necessity" defense in Montana and concluded that the defense has
been codified in g 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 5 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. Therefore, we apply the elements of 5 45-2-212, MCA, to
the case before us.
     Montana's compulsion statute reads:
     A person is not guilty of an offense, other than an
     offense punishable with death, by reason of conduct which
     he performs under the compulsion of threat or menace of
     the imminent infliction of death or serious bodily harm
     if he reasonably believes that death or serious bodily
     harm will be inflicted upon him if he does not perform
     such conduct.
Section 45-2-212, MCA.    The compulsion defense does not include
imminent threats of harm to a third party.        State v. Spalding
(1991), 247 Mont. 317, 321, 806 P.2d 1029, 1032.    The statute does
not excuse criminal conduct unless the person assertinq the defense
reasonably believes that death or serious bodily injury will be
inflicted upon him if he does not perform the criminal act.
     The Defendants have not alleged that they reasonably believed
that death or serious bodily injury would be inflicted upon them if
they did not trespass on the Clinic's property.       Therefore, the
defense of compulsion, which the Defendants characterize as the
defense of necessity and/or justification, does not apply to this
case.      We conclude that the District Court did not err in
concluding that the "necessity" defense was inappropriately raised
by the Defendants.
        The Defendants rely exclusively on a Kansas district court
case, City of Wichita v. Tilson (Kan. Dist. Ct. 1992), No. 91 MC
108, to support their argument on appeal.          This reliance is
misplaced for several reasons.     First, the result is based on the
court's analysis of the common law defense of "choice of evils,"
which the court alternatively denominates as "justification by
necessity."     As explained, these defenses are included in the
statutory amalgamation of   §   45-2-212, MCA, in Montana; the common
law elements are not recognized here.       In addition, the case is
presently on appeal to the Kansas Supreme Court.       Moreover, the
Kansas Legislature recently amended        its trespass statute to
specifically include "remaining upon private land or structure in
a manner that interferes with access to or from any health care
facility."    (See Kansas H.B. 2646 Sec. 6(a) (2), which became
effective July 1, 1992, after the Tilson defendant's criminal acts
occurred).   As conceded by Kansas trial court, the same facts may
very well yield different results under the amended statute.
     Finally, the great weight of authority is decidedly against
the Kansas district court's   reasoning in City of Wichita.     The
following cases have rejected the choice of evils or necessity
defense in similar factual situations:       Allison v.    City of
Birmingham (Ala. Crim. App. 1991), 580 So.2d 1377; Cleveland v.
Municipality of Anchorage (Alaska 1981), 631 P.2d 1073; Pursley v.
State (Ark. App. 1987), 730 S.W.2d 250; People v. Garziano (Cal.
App. 1991), 230 Cal.App.3d 241, 281 Cal.Rptr. 307; State v. Anthony
(Conn. App. l99l), 588 A.2d 214; Gaetano v. United States (D.C.
App. l979), 406 A.2d 1291; Hoover v. State (Ga. App. l99l), 402
S.E.2d 92; People v. Krizka (Ill. App. 1980), 416 N.E.2d 36; Sigma
Reproductive Health Center v . State (Md. App. 1983), 467 A.2d 483;
City of St. Louis v. Klocker (Mo. App. l982), 637 S.W.2d 174; State
v. Thomas (N.C. App. lggl), 405 S.E.2d 214; State v. Sahr (N.D.
1991), 470 N.W.2d 185; City of Kettering v. Berry (Ohio App. 1990),
567 N.E.2d    316; State v.   Clowes   (Or. l99O), 801 P.2d    789;
Commonwealth v, Wall (Pa. Super. 1988), 539 A.2d 1325; Crabb v .
State (Tex. App. l988), 754 S.W.2d 742; Buckley v. City of Falls
Church (Va. App. 1988), 371 S.E.2d 827.
     The Defendants also argue that the District Court erred in
excluding evidence regarding "justifiable use of force."      In the
District Court, Brisendine filed notice of her intent to assert
this affirmative defense, relying on 5 45-3-102, MCA.            On appeal,
the Defendants mention the defense in passing but do not explain
its applicability to their situation; nor do they cite any
applicable authority.
     Section 45-3-102, MCA, reads in pertinent part:
     A person is justified in the use of force or threat to
     use force against another when and to the extent that he
     reasonably believes that such conduct is necessary to
     defend himself or another against such other's imminent
     use of unlawful force. . . .
     The     plain   language    of   the    statute clearly    limits   the
applicability of the defense to situations in which the aggressor's
force is "unlawful.11 As noted by the Criminal Law Commission
Comments to 5 45-3-102, MCA, unlawful includes either criminal or
tortious force or threat of force. See also State v. Kills On Top
(1990), 243 Mont. 56, 94, 793 P.2d 1273, 1299.
     Even assuming the Defendants1 acts of criminal trespass
properly could be characterized as the use of force against the
Clinic and, similarly, that the Clinic's               activities could be
characterized as the use of force, the Defendants have not proved
or even alleged that any of the Clinic's activities were "unlawful"
under   §   45-3-102, MCA.      Because all statutory elements must be
satisfied to assert the defense of justifiable use of force, we
need not analyze the remaining elements of the defense; justifiable

use of force is simply not applicable to the facts of this case.
     The Defendants also assert several "historical defenses1'--
comparing     abortion   to     nazism,     slavery,   and   euthanasia--and
arguments concerning when life begins and the constitutionality of
the criminality of their conduct.            We concur with the City's
characterization of   these     arguments; all      are   based    on   the
Defendantsf belief that Roe v. Wade was wrongly decided.                The
District Court's conclusion that it could not overturn the United
States Supreme Court's       decision   in Roe v.     Wade   is equally
applicable to this Court.     That prerogative is left to the United
States Supreme Court        which,   quite    recently, reaffirmed      the
essential holding of Roe v. Wade in Planned Parenthood v. Casey
(1992), 505 U.S. -,   - I      112 S.Ct. 2791, 2804, 120 L.Ed.2d 674,


     Behind the Defendants' appeal is their choice to pursue their
personal beliefs in violation of the law.        We repeat the language
of the Superior Court of ~ennsylvania,which stated:
     We live in a society of laws and no individual is
     entitled to raise himself above the law. We are each
     bound by the law no matter its source. If we were free
     to pick and choose which laws we wished to obey, the
     result would be a society of strife and chaos           . . .
     Democracy allows the citizenry to protest laws of which
     they disapprove. But they must nonetheless obey such
     laws or face the legal consequences.
Commonwealth v. Markum (Pa. Super. 1988), 541 A.2d 347, 350.            The
Alaska Supreme Court also acknowledged the citizen's              right to
protest a law if he or she believes the protest is necessary in
pursuit of a moral cause, but emphasized that:
     [tlhey [philosophers and religionists discussing civil
     disobedience] have been in general agreement that while
     in restricted circumstances a morally motivated act
     contrary to law may be ethically justified, the action
     must be non-violent and the actor must accept the penalty
     for his action. In other words, it is commonly conceded
     that the exercise of a moral judgment based upon
     individual standards does not carry with it legal
     justification or immunity from punishment for breach of
     the law.

Cleveland, 631 P.2d at 1084.

     The same reasoning applies to the Defendants here.    Lewis and
Brisendine are entitled to hold and act upon their personal
beliefs.   Those personal beliefs, however, do not afford the
Defendants immunity from the law.      They must accept the legal
consequences of their choice to trespass on the Clinic's property.
     Having concluded that none of the defenses asserted by the
Defendants are applicable to this case, we hold that the District
Courts did not abuse their discretion in granting the City's
motions in limine.

     Did the ~istsictCourt properly instruct the jury in Lewis'
case?
     The Defendants argue that the District Court erred in refusing
to instruct the jury on Lewis' theory of the case. The Defendants
do not, however, identify which instructions were wrongly given or
wrongly refused. Therefore, we can only assume that this argument
merely carries forward the Defendants' earlier arguments concerning
the defenses of necessity and justifiable use of force.
     A district court need not instruct on an issue if the subject
matter of the instruction is not applicable to the facts or not
supported by   the evidence    introduced at trial.       See Webcor
Electronics v. Home Electronics (19881, 231 Mont. 377, 381, 754
P.2d 4 9 1 , 493. Having determined that the defenses asserted by the
Defendants are not applicable to the facts of this case, we
conclude that the District Court did not err in instructing the
jury.

     Did the Defendants possess the requisite mental state for
conviction under the criminal trespass and disorderly conduct
statutes?
        The Defendants assert that they did not possess the requisite
intent under either 5 45-6-203, MCA, or 5 45-8-101, MCA.             They
claim that because they did not "intend to break the law," they did
not possess a criminal %ens       rea" and their convictions should be
set aside.       This argument verges on the frivolous, as those
concepts of criminal mental state were replaced long ago.             See
State v. Crabb (1988), 232 Mont. 170, 176, 756 P.2d 1120, 1124.
        Under the criminal trespass statute, 5 45-6-203, MCA, the City
had     to   establish   that   the   Defendants   "knowingly"   remained
unlawfully upon the premises of another. Under       §   45-8-101(f), MCA,
the disorderly      conduct     statute, the City    had   to   show that
Brisendine "knowinglyf1
                      disturbed the peace by blocking free ingress
or egress to a private place.           Testimony established that the
Defendants remained on the Clinic's property after they were told
they were trespassing and were asked to leave.                  Brisendine
stipulated that she knowingly blocked the free ingress to the
Clinic. Therefore, we conclude that the City adequately proved the
mental state required by the statutes at issue.

     Did the prosecution wrongfully withhold exculpatory material
from the Defendants in violation of Brady v. Marvland?
        The Defendants assert that the District Court's         refusal to
admit their proffered evidence regarding their asserted defenses
                                      12
amounted    to     an    unconstitutional         withholding     of     exculpatory
evidence, citing Brady v. Maryland (1963),                373   U.S.   8 3 , 8 3 S.Ct.

1194, 10 L.Ed.2d        215.       The most minimal inquiry into the subject
would have revealed that Bradv is not remotely applicable to the
Defendants' situation.             The United States Supreme Court in Bradv
held that suppression bv the prosecution of evidence favorable to
the accused after such evidence was requested in discovery violates
due process where the evidence is material to either guilt or
punishment.      Brady, 373 U.S. at 87, 83 S.Ct. at 1196-7, L O L.Ed.2d
at 218.
     Here, the Defendants at all times possessed the material they
claim was        "wrongfully withheld."           The   City    did    not   withhold
exculpatory material in violation of Brady, nor have the Defendants
argued that the City possessed the disputed information.                          The
District Court's refusal to admit the evidence is totally unrelated
to   the    constitutional           principles    espoused     in     Brady.     The
Defendants' argument is without merit.
     Affirmed.




d/fT-A&
We concur:


           hie    Justice
                         ------'
for Justice James C
