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State v. Christen
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:1997 ME 213
Docket:Som-96-129
Argued:October 8, 1997
Decided:November 4, 1997


Panel:WATHEN, C.J., and ROBERTS, RUDMAN, DANA, and LIPEZ, JJ.

STATE OF MAINE v. DONALD CHRISTEN
WATHEN, C.J.

	[¶1]  Defendant Donald Christen appeals from the judgment entered
in the Superior Court (Somerset County, Marden, J.) following a jury verdict
finding him guilty of unlawfully furnishing marijuana in violation of 17-A
M.R.S.A. § 1106 (1983 & Supp 1996).{1}  On appeal, defendant contends that
the court erred by failing to instruct the jury on the defense of competing
harms.{2}  Defendant also argues that the second sentence of the statutory
formulation of the competing harms defense constitutes a content based
restriction on speech  that violates the First Amendment.  Finding no error,
we affirm the judgment.
	[¶2]  The relevant facts presented at trial may be summarized as
follows:  On April 19, 1993, defendant organized and participated in a public
demonstration on the steps of the Somerset County courthouse. Members of
the press, police officers and approximately 150 other people attended.
During the demonstration, defendant made a speech advocating the
legalization of marijuana and then invited anyone with a medical illness who
needed marijuana to come forward and receive brownies laced with
marijuana.    Six or seven people came forward. Three of those people
addressed the crowd and described their medical conditions.  Defendant,
stating that "he was going to take the people's word that they medically
needed the marijuana" offered the brownies to them.  Six participants ate
the brownies.  Defendant invited the police to take the remaining brownies
as evidence.  The brownies were seized and defendant was issued a
summons for furnishing scheduled drugs. 
	[¶3]  In support of the competing harms defense, defendant
presented the testimony of two of the six participants who received
marijuana from him.{3} Carol Hurley testified that she has glaucoma, that she
believes she could go blind at any moment, and that she believes marijuana
assists her in maintaining her sight.  She also testified that she used
marijuana for recreational purposes and that she had eaten marijuana earlier
on the day of the demonstration to accommodate her medical needs. 
Although she believes that marijuana is helpful in reducing pain and possibly
alleviating her symptoms of glaucoma, she stated that her purpose in eating
the brownies at the demonstration was to "get a little high."  Carl
Cummings, who suffers from ankylosing spondylitis (an inflamation of the
vertebrae), testified about his need for marijuana to avoid pain:
 
Q: What happens if you don't take your medicine?
A: I'm just engulfed with pain.  I can't stand it. I believe that if  I
didn't have marijuana I would probably commit suicide. I don't
believe  that  I would want to go on.
Q: Are you in danger of this happening again if you don't get your
hemp?
A: Every minute - while I'm sitting right here I could have a
muscle spasm.  Anything could happen at any time.

At the close of the evidence, defendant requested a jury instruction on the
competing harms defense.  The court denied defendant's request, stating
that:

[U]nder the circumstances the reasonable hypothesis that would
have to be before the jury to decide is that on the basis of
necessity under reasonable standards of desirability and urgency
the defendant, after forecasting and publicizing and inviting the
media and all other persons to attend, placed himself on the
steps of the courthouse and furnished the marijuana to others,
with a specific supply to law enforcement as evidence, and that
he did do so to avoid imminent physical harm.

	[¶4] "Whether a jury should be instructed on a particular defense in a
criminal case almost always depends on whether the evidence presented at
trial generates the defense." State v. Moore, 577 A.2d 348, 350 (Me. 1990). 
The court must view the evidence in the light most favorable to the
defendant. State v. Sullivan, 1997 ME 71, ¶ 6, 695 A.2d 115, 117.  "A
defense is 'in issue' . . . if the evidence is sufficient to make the
existence of all facts constituting the defense a reasonable hypothesis for
the fact finder to entertain." State v. Case, 672 A.2d 586, 589 (Me. 1996)
(quoting State v. Begin, 652 A.2d 102, 106 (Me. 1995).
	[¶5]  The competing harms defense applies to "conduct which the
actor believes to be necessary to avoid imminent physical harm to himself or
another. . . ."  17-A M.R.S.A. § 103(1) (1983).  Such conduct is justified if
the "desirability and urgency of avoiding such harms outweigh, according to
ordinary standards of reasonableness, the harm sought to be prevented by
the statute defining the crime charged."  Id; see also State v. Moore, 577
A.2d 348, 350 (1990). The evidence must demonstrate that the
"defendant's conduct was necessary because of a specific and imminent
threat of injury to the defendant or another leaving no reasonable alternative
other than violating the law."  Id.
	[¶6]  Initially, we note that in the present case the State brought a
single count of furnishing scheduled drugs.  Defendant could have been
convicted on the basis of furnishing marijuana to any one or more of the six
participants.  Accordingly, defendant needed to demonstrate a necessity to
furnish marijuana to each of the six participants in order to avoid conviction. 
Although defendant presented evidence concerning the two participants
who testified at trial, he failed to present any evidence with respect to the
other four participants.  In such circumstances, any failure to instruct is
harmless.
	[¶7]  Even if we were to focus on the evidence of the threat to the two
witnesses who testified, the defense was not generated.  Although the
symptoms of their chronic illnesses may be eased by the ingestion of
marijuana, neither witness testified to an imminent threat of injury present
at the time of the demonstration that could reasonably serve as the basis for
defendant violating the law.
	[¶8]  Finally, defendant argues that the competing harms defense, as
defined in section 103(1), limits his right to free speech on the basis of
content in violation of the First Amendment.  Because the competing harms
defense was not generated, we need not address the constitutional issue. 
See State v. Bassford, 440 A.2d 1059, 1061 (Me. 1982) (a "fundamental rule
of appellate procedure [is] that a court should avoid expressing opinion on
constitutional law whenever a nonconstitutional resolution of the issues
renders a constitutional ruling unnecessary") (citation omitted).
	The entry is:
					Judgment affirmed.


Attorneys for State: Andrew Ketterer, Attorney General James M. Cameron, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006 David W. Crook, District Attorney William Baghdoyan, Att. Dist. Atty. Court Street Skowhegan, ME 04976 Attorneys for defendant: Nancy Lord, Esq., (orally) Suite 60 3305 West Spring Mountain Road Las Vegas, NV 89102 Patricia A. Danisinka-Wasburn, Esq. P O Box 596 Skowhegan, ME 04976-0596
FOOTNOTES******************************** {1} The statute provides in pertinent part: 1. A person is guilty of unlawfully furnishing scheduled drugs if he intentionally or knowingly furnishes what he knows or believes to be a scheduled drug, and which is, in fact, a scheduled drug. 17-A M.R.S.A. § 1106 ( 1983 & Supp. 1996). {2} The defense is defined as follows: 1. Conduct which the actor believes to be necessary to avoid imminent physical harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the crime charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute. 17-A M.R.S.A. § 103 (1983). {3} Ralph Holt spoke at the rally and testified at the trial about his glaucoma and his need for marijuana for medicinal purposes. He testified, however, that he did not eat any marijuana-laced brownies at the rally because "children are in school - I have to think of my reputation."