State v. Patricia Caswell
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 23
Docket:	Ken-00-155
Submitted	
  on Briefs:	October 6, 2000
Decided:	January 30, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:WATHEN, C.J., and CLIFFORD, RUDMAN, and ALEXANDER, JJ.
Concurring:DANA, and SAUFLEY, JJ.
Dissenting:CALKINS, J.
									

STATE OF MAINE

v.

PATRICIA CASWELL

ALEXANDER, J.

	[¶1]  Patricia Caswell appeals from a judgment entered in the Superior
Court (Kennebec County, Atwood, J.) following a jury trial convicting her of a
third offense of operating under the influence.  The operating under the
influence charge was a Class D offense pursuant to 29-A M.R.S.A. § 2411
(1996 & Supp. 2000) with two prior convictions as aggravating factors.{1}  
Caswell contends that the court erred in (1) ruling that a competing harms
justification, 17-A M.R.S.A. § 103(1) (1983){2} was not generated by the
evidence, and (2) excluding expert testimony in support of her competing
harms justification.  We affirm.

1.  CASE HISTORY

	[¶2]  On August 1, 1996, Caswell and a man with whom she had had a
prior intimate relationship spent the evening drinking alcoholic beverages
at bars in the Augusta area.  Although the couple was using Caswell's vehicle,  
the man was driving because Caswell had just regained her driving privileges
and did not want to drive after consuming alcohol.  
	[¶3]  As the evening progressed, Caswell testified that she began
asking the man to take her home because she had to work the next day. 
Caswell testified that the man was drunk and angry and that he refused to
take her home, ultimately taking her to his residence instead.  Once at the
residence, Caswell testified that she began to walk away.  However, her
companion followed her in her vehicle and demanded that she get in and
return to the residence.  Caswell testified that she consented to get in and
return to the residence because she was afraid.  Caswell testified that she
then agreed to have sexual intercourse with the man because she believed
that she was not going to get home until she did.  During the course of the
sexual encounter, Caswell testified that she was forced to engage in several
degrading sexual acts which she resisted.  Ultimately, she pushed the man
off her and left the residence.  
	[¶4] Caswell testified that when she left, her attacker was lying on the
bed, that she did not know whether or not he was passed out, and that she
did not recall him saying anything to her as she left.  Caswell also testified
that she did not know whether or not the man would follow her, but that
she was afraid he was going to "get ahold" of her again.
	[¶5]  After leaving the residence, Caswell drove her vehicle to an
Irving station in Augusta.  There she stopped, entered the station, and
purchased a package of cigarettes.  Although she stopped, Caswell testified
at trial that she thought that her attacker was following her.  When she
stopped, Caswell also saw two Augusta police officers parked at the Irving
station.  She did not approach the officers.  Caswell testified that she was
not about to tell two strange officers what had happened to her and that she
would have approached the officers only if she had seen her attacker coming
toward her while she was at the Irving station.  
	[¶6]  Officer Struk of the Augusta Police Department was one of the
officers in the Irving parking lot.  He saw Caswell's pick-up truck pull
rapidly into the parking lot and shortly thereafter leave at a high rate of
speed.  He followed Caswell's truck in his cruiser and estimated that it was
travelling at approximately sixty-five miles-per-hour in a forty-five
mile-per-hour zone.  He signaled Caswell to stop and she did.  When Officer
Struk approached Caswell and requested her license and registration, he
saw that she was crying, and he detected a strong odor of alcoholic
beverages.  Caswell informed Struk that she had just broken up with her
boyfriend and admitted that she had been drinking.  Caswell slipped on the
truck running board when she exited and performed poorly on field sobriety
tests.  Struk took Caswell to the Augusta police station where a breathalyzer
test indicated a blood-alcohol level of .12 percent.{3}  Caswell was summonsed
for operating under the influence.     
	[¶7]  At her District Court arraignment, Caswell entered a not guilty
plea and transferred the matter to Superior Court for a jury trial.  See  M.R.
Crim. P. 22(a).  Prior to trial, the State sought to obtain pretrial rulings
excluding (1) Caswell's competing harms justification, and (2) an expert
Caswell proposed to offer in support of her justification.  Ruling on those
issues was deferred to trial.  
	[¶8]  At trial, after the State rested and out of the presence of the jury,
Caswell offered the testimony of a psychologist, Dr. Brian Rines, concerning
the effects of the sexual attack which Caswell had told him had occurred. 
He asserted that because of the sexual attack, Caswell felt an "overwhelming
need to escape," that her judgment was impaired, that it was rational for
her to fear further assault, and that her emotions overrode her thought
processes.  Rines also testified that Caswell's unwillingness to report the
sexual assault to the police officers at the Irving station was consistent with
behavior of other sexual assault victims and that she was driven by a frantic
need to get home.  Rines indicated that Caswell viewed her home as a place
of refuge, although from the evidence presented at trial it was apparent that
the man who Caswell testified had attacked her knew where her residence
was located.  Rines also testified that Caswell told him that she continued to
fear further attack even after she left the Irving station and that, in Rines's
experience, Caswell's fear was reasonable and consistent with that of other
victims of sexual assault.  
	[¶9]  Following the testimony of Rines and Caswell, the court ruled
that the facts presented did not generate the competing harms justification
because there was no evidence of imminent harm to Caswell.  Accordingly,
Rines did not testify.  The court permitted Caswell to testify to all of the
events of the evening, including the sexual attacks.  Although requested by
the defense, the jury was not instructed on the competing harms
justification.  After the jury returned a guilty verdict and the court entered
judgment, Caswell filed this appeal.

II.  COMPETING HARMS JUSTIFICATION

	[¶10]  The principal issue on appeal is whether the evidence was
sufficient to generate the competing harms justification.  There is a
subsidiary issue of whether the court should have excluded the
psychologist's testimony offered in support of the competing harms
justification.  Caswell argues that her subjective belief that a person who had
attacked her might be chasing her is sufficient to generate a competing
harms justification for her continuing to operate her motor vehicle in
violation of 29-A M.R.S.A. § 2411, even after she had stopped for cigarettes
at the Irving station and observed the police officers.  
	[¶11]  In deciding whether a justification issue is generated, the
evidence presented in support of the justification must be viewed in the
light most favorable to the defendant.  See State v. Wilder, 2000 ME 32,
¶ 23, 748 A.2d 444, 450.  However, in competing harms cases, we also
require that the evidence, construed most favorably to the defendant, must
be sufficient to make the existence of all facts constituting the competing
harms justification a reasonable hypothesis for the factfinder to entertain. 
See State v. Poole, 568 A.2d 830, 831 (Me. 1990); State v. Crocker, 506
A.2d 209, 211 (Me. 1986); State v. Knowles, 495 A.2d 335, 338 (Me. 1985);
State v. Glidden, 487 A.2d 642, 644 (Me. 1985); State v. Greenwald, 454
A.2d 827, 830 (Me. 1982).
	[¶12]  We have held that the competing harms justification is not
generated because a defendant claims to subjectively believe that a threat of
imminent physical harm exists.  See Poole, 568 A.2d at 830; State v. Kee,
398 A.2d 384, 385-86 (Me. 1979).  Instead, we require that for the
competing harms justification to be generated, the evidence, viewed most
favorably to the defense, must demonstrate "as a fact" that physical harm
was imminently threatened.  Poole, 568 A.2d at 830; Kee, 398 A.2d at 385-
86.
	[¶13]  On this record, there is no evidence that Caswell was
imminently threatened with physical harm.  When she left her attacker,
Caswell testified that he was lying on a bed, that she did not know whether
or not he was passed out, and that she did not recall him saying anything to
her as she left.  Beyond Caswell's testimony, the record contains absolutely
no evidence that the person who Caswell asserted had attacked and
degraded her was chasing her.  Further, on the particular facts of this case,
any justification for driving while under the influence in order to flee from
the attacker's residence evaporated when Caswell stopped for cigarettes and
observed the Augusta police officers.  
	[¶14]  Caswell's argument would have us change the law regarding
competing harms to (1) eliminate the requirement that the evidence
demonstrate, as a fact, that physical harm was imminently threatened, and
(2) allow a subjective belief that one is being pursued, without more, to
become an excuse for operating under the influence or any other crime that
may be subject to a competing harms justification.  
	[¶15]  We decline Caswell's invitation to change the law to allow
subjective beliefs alone to generate the competing harms justification.  Based
on our prior precedent, the trial court correctly ruled that the competing
harms justification would be excluded because there was no evidence which,
even construed most favorably to Caswell, suggested that physical harm to
her was imminently threatened. 
	The entry is:
			Judgment affirmed.
SAUFLEY, J., with whom DANA, J., joins, concurring.

	[¶16]  I concur in the opinion of the Court concluding that the trial
court properly ruled that the competing harms justification was not
generated by the evidence.  I write separately, however, to address the
meaning and importance to the analysis of Caswell's stop at the Irving
station.
	[¶17]  On the night in question, Caswell's driving must be seen as
occurring in two separate components:  first, when she fled her attacker's
residence, after she had been sexually assaulted, and second, when she left
the Irving station, after she had stopped for cigarettes.  
	[¶18]  In the first instance, Caswell was presented with only two viable
alternatives.  She could remain in the presence of her attacker in an isolated
rural setting, or she could violate the law by driving away from the attacker
while she was under the influence of alcohol.  She presented evidence that
he had, in fact, raped her, that he had followed her and prevented her from
escaping previously that same night, and that she was subjectively terrified
that he might attack her again.  She also presented evidence that she was
alone with him in a relatively isolated setting and that there were no
alternative transportation options available to her.
	[¶19]  If we accept Caswell's testimony on these facts, which we must
for purposes of this analysis, we would have to conclude that she presented
all of the elements necessary to generate the competing harms defense, had
she been stopped while driving away from her attacker.  17-A M.R.S.A.
§ 103(1) (1983).
	[¶20]  Because she was not stopped at that point, however, the
analysis does not end there.  When Caswell arrived at the Irving station, the
facts supporting her competing harms defense changed significantly.  She
was no longer faced with an impossible situation, where she had to decide
between staying with the man who had just sexually assaulted her, or fleeing
from her attacker by driving under the influence.  By the time she had
reached the Irving station, Caswell was away from her attacker's presence,
in a public place, and in the presence of other people, including two
uniformed police officers.  At the same time, there was no evidence
whatsoever that her attacker had, in fact, followed her.  Moreover, once she
reached the public area of the Irving station, she also had alternative
methods of getting home.{4}
	[¶21]  When she chose, instead, to get back into her truck and drive
home under the influence, she did so without the justification that initially
existed when she left her attacker's trailer.  In other words, she was no
longer in the isolated setting where her only reasonable option was to violate
the law.  A defense that is valid initially may be lost by a change in
circumstances.  See United States v. Bailey, 444 U.S. 394, 412-13 (1980);{5}
see also LaFave & Scott, Substantive Criminal Law 619-20 (1986 & Supp.
2001).
	[¶22]  Furthermore, Dr. Rines's testimony does not fill in the gap
created by the absence of any objective facts to support Caswell's belief that
she was imminently threatened with physical harm when she left the gas
station.  See State v. Poole, 568 A.2d 830, 831-32 (Me. 1990).  Caswell's
subjective belief that she was under an imminent threat of physical harm, no
matter how reasonable for someone in her condition, was not sufficient to
generate the defense unless it was accompanied by objective facts
supporting her fear.  See State v. Kee, 398 A.2d 384, 385-86 (Me. 1979).  
At best, Dr. Rines's testimony, if accepted by the jury, would have
demonstrated that Caswell's subjective fear was a natural by-product of the
trauma inflicted on her by her attacker and that her actions were consistent
with the actions of those who have just experienced sexual trauma.  That
evidence, although possibly bolstering the credibility of Caswell's testimony
that she had, in fact, been sexually assaulted on the night in question, would
not have provided the jury with any objective facts regarding the presence of
a continuing threat from her attacker, or the absence of an alternative to
driving herself home from the Irving station.
	[¶23]  Therefore, Dr. Rines's proffered testimony that Caswell felt
compelled to drive home and was not thinking rationally would have
provided the jury with two primary pieces of evidence.  First, it could have
provided evidence of the strength of her subjective belief that she was being
followed and at risk of physical harm, and second, it could have been
understood to demonstrate that Caswell had not formed the intent to drive
under the influence.  Intent is not, however, an element of the crime of
operating under the influence.  Because a charge of OUI does not contain a
mens rea element, Caswell's state of mind was irrelevant.  See Poole, 568
A.2d at 832.
	[¶24]  Ultimately, Dr. Rines's testimony, no matter how compelling in
its explanation of Caswell's emotional state, would not have been sufficient to
demonstrate an objective threat of harm to Caswell or the objective lack of a
legal alternative to drunk driving.  See id. at 831; State v. Moore, 577 A.2d
348, 350 (Me. 1990).  Thus, the court did not err in excluding Dr. Rines's
testimony or in declining to instruct the jury on the defense of competing
harms.
	[¶25]  Accordingly, I join the Court in affirming the judgment of the
Superior Court.

CALKINS, J., dissenting.

	[¶26]  I respectfully dissent.  I disagree that in order to obtain a jury
instruction on the competing harms defense Caswell had to demonstrate
that the man who had followed her and then raped her earlier in the
evening was still "in fact" following her when she drove to, and away from,
the gasoline station.
	[¶27]  While I do not quarrel significantly with the recitation of facts
in the opinion, I add a few more facts because in determining whether there
is sufficient evidence to place an affirmative defense in issue, the evidence
must be viewed in the light most favorable to the defendant.  State v.
Michaud, 1998 ME 251, ¶ 17, 724 A.2d 1222, 1230.  
	[¶28]  Caswell's testimony is replete with her expressions of fear that
her attacker would follow her and "get ahold" of her again.  Her fear was
based upon the fact that he had followed her previously and made her go
with him.  When she finally escaped from the rapist, she felt sick and
wanted to go home.  Caswell was a heavy smoker and needed a cigarette to
calm herself.  When she stopped at the gasoline station, near her home, to
buy cigarettes, she believed her attacker was following her.  The two police
officers she saw in the parking lot of the gasoline station were both men. 
She testified that she was not about to tell two strange men what had
happened to her.
	[¶29]  Dr. Rines, a clinical psychologist with experience in treating
sexual assault victims, interviewed Caswell twice prior to the trial.  In
addition to testifying about Caswell's "overwhelming need to escape" after
the rape, he testified that she was frantic, and her judgment was suspended. 
He testified that this is tantamount to a psychotic state, and it was rational
for her to fear further assault.  Caswell's history of being sexually abused as a
child made the rape even more traumatic.  Rines further testified that
Caswell's addiction to nicotine was a powerful stimulus.  She had a frantic
need to get home, which is a place of refuge, where she could shower, use
mouthwash, and be comforted by the home environment.  Dr. Rines testified
that Caswell told him that she continued to fear further rape even after she
left the gasoline station, and in his experience, her fear was reasonable and
consistent with that of other victims of sexual assault.  He testified that the
fact that Caswell did not want to disclose to the male police officers what
had happened to her was consistent with the actions of other rape victims.
	[¶30]  I agree that a defendant's subjective belief that her conduct is
necessary to avoid the harm is not sufficient to generate a competing harms
instruction.  There must also be evidence that, in fact, the physical harm is
imminently threatened.  See State v. Poole, 568 A.2d 830, 831 (Me. 1990).  
However, we have never held that the competing harms defense requires
that the defendant experience the actual conduct from which the defendant
is fleeing.  We only require that the threat of imminent harm exist.  In this
case the requirement that the threat of imminent harm actually exists is
present.  There is evidence that Caswell was chased after and raped a short
time earlier.  Although there is no evidence that the rapist was following her
when she arrived at and departed from the gasoline station, the fact that he
had followed after her earlier that evening is highly probative of the
imminent nature of the threat that he would do so again.  The existence of
the imminent threat was reasonable because of what Caswell's assailant had
done to her earlier in the evening.  I do not agree with the concurring
opinion that the stop at the gasoline station broke the chain of events and
caused the threat of imminent harm to disappear.  The threat of imminent
harm, both before and after Caswell stopped at the station, was created by
the rapist's actions that evening.{6}
	[¶31]  I strongly disagree with the assertion in the majority opinion
that allowing the competing harms defense in this case would do away with
the requirement that physical harm be imminently threatened and would
create a change in the law eliminating all requirements of the competing
harms defense except the subjective belief of the defendant.  If Caswell's
testimony was only that she believed she was being followed, and if there
was no evidence that she had been followed and raped shortly before her
conduct that led to her detention by the police, then the assertion in the
opinion would be correct.  However, here we have significant evidence that
makes the existence of the imminent threat more than subjective; the
evidence is sufficient to demonstrate the reasonable and factual existence of
an imminent threat. 
	[¶32]  I also write separately to address the issue of the admissibility
of Dr. Rines's testimony.  His testimony was admissible because it was
relevant to the issue of whether Caswell had a reasonable alternative to
driving.  By case law we have crafted an additional requirement to the
competing harms defense, which is that there must be evidence that the
defendant's conduct is necessary because there is "no reasonable alternative
other than violating the law."  State v. Moore, 577 A.2d 348, 350 (Me. 1990). 
This element of the defense is a judicial interpretation of the requirement of
showing the necessity of the conduct, that is, the conduct of the defendant
can be seen as necessary to avoid the imminent physical harm when there is
no reasonable alternative.{7} 
	[¶33]  Because the trial court found that there was insufficient
evidence to allow the competing harms defense to go to the jury, the court
ruled that Rines's testimony was not relevant. "'Relevant evidence' means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence."  M.R. Evid. 401.  Rines's
testimony made the lack of a reasonable alternative more probable than it
would have been without the evidence.  Dr. Rines's testimony was that
because Caswell was suffering from rape trauma, she was not acting as
logically as someone who had not been raped might have acted.  The fact
that Caswell did not want to talk to the officers about what had just
transpired was consistent with the actions of other rape victims.  Because
the lack of a reasonable alternative is an element of the defense, its
existence is a fact of consequence.  Dr. Rines's testimony was, therefore,
relevant and should have been admitted.{8}
	[¶34]  A jury, upon hearing all of the evidence and upon being given a
competing harms instruction, may have decided that the State had
disproven the existence of the competing harm.  It could have chosen not to
believe that Caswell was raped or that she was afraid her rapist was following
her.  Perhaps the jury would have concluded that Caswell had a reasonable
alternative.  Caswell's jury, however, was not given the opportunity to
determine the viability of the competing harms defense.  In my opinion, the
evidence, viewed in the light most favorable to Caswell, was sufficient to put
the competing harms defense in issue, and the jury should have been given
the opportunity to decide it.
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