TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00343-CR

Cesar Carmona Mojica, Sr., Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-07-027, HONORABLE JACK H. ROBISON, JUDGE PRESIDING

M E M O R A N D U M    O P I N I O N

A jury found appellant Cesar Carmona Mojica, Sr., guilty of fourteen counts of
knowingly causing serious bodily injury to a child.  See Tex. Penal Code Ann. § 22.04(a)(1), (e)
(West Supp. 2008).  The jury assessed punishment for each count at imprisonment for life.
Appellant contends that the trial court erred by overruling his motion to suppress his statement to
the police, by allowing an unfairly prejudicial demonstration during the trial, by allowing a witness
to testify to the contents of hospital records without the required predicate, and by failing to grant
a mistrial when a State witness gave a news interview following his testimony.  We overrule these
contentions and affirm the judgments of conviction.

BACKGROUND

The complainants were appellant's three children:  twins AmM and CM and their
older sister, AnM.  In October 2006 when the children were taken from the home by child protective
services workers, AmM and CM were two years and nine months old, and AnM was three-and-a-half
years old.  There was testimony that none of the children had been to a hospital or seen a doctor since
their birth.
The medical evidence showed that AmM had fifty-six documented injuries, including
"multiple skin lesions almost all over her," several of which were bite marks.  She had seven
fractured ribs, one of which had been broken in three places, four broken bones in her hands, and
both of her femurs had been fractured.  AmM weighed only nineteen pounds, and she had diminished
muscle mass and brain atrophy resulting from acute and chronic malnutrition.  She was not verbal
and could not or would not walk.
CM had fifty-seven documented injuries.  Like his twin sister, CM had "lesions that
appeared to be bite marks, and there were multiple other scratches and scars and so on."  In addition,
he "had patterned bruising that appeared to have been caused by some kind of a looped cord or whip
or some kind of object.  And those lesions were very striking."  CM had two broken ribs, three
broken fingers, two fractures in his left foot, and a fractured femur.  CM was not as seriously
malnourished as AmM, but he also had diminished muscle mass and weighed only twenty-two
pounds.  He, too, was non-verbal and could not or would not walk.
AnM had twenty-eight documented injuries, including lacerations in her mouth and
a missing tooth.  She had bite marks on her abdomen, back, arms, legs, and buttocks.  AnM did not
have any skeletal injuries, and her nutritional status was much better than that of her
younger siblings.
Both in his statement to the police following his arrest and in his trial testimony,
appellant admitted striking and biting the children, but he denied knowing or remembering how their
ribs, fingers, and legs had been fractured.  Appellant attributed his poor memory of events to the fact
that he was intoxicated much of the time.  Appellant also testified that he was physically abused as
a child, and he explained his treatment of his own children as "the way I was raised.  I thought it was
the right thing.  And now I know I wasn't doing the right thing."   A defense psychologist conducted
a "culpability analysis" and testified that, in his opinion, appellant had not knowingly injured his
children, but had instead acted recklessly or negligently.

DISCUSSION
Motion to Suppress
Appellant gave a video-recorded oral statement to the police following his arrest. (1)
He contends that the statement should have been suppressed because he was not advised of his rights
in compliance with Miranda and article 38.22.  Miranda v. Arizona, 384 U.S. 436, 467-73 (1966);
Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West 2005).  Appellant also contends that
the police continued to interrogate him after he requested counsel.  See Edwards v. Arizona,
451 U.S. 477, 484-85 (1981).
A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion.
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  This means that the ruling will be
upheld if it is reasonably supported by the record and is correct under any applicable legal theory.
Id.  The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight
to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We give the trial court almost complete
deference in determining historical facts, but we review de novo the trial court's application of the
law to those facts.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
The State contends that appellant did not preserve his contentions for review.  First,
the State argues that appellant waived any complaints regarding the admission of the statement by
testifying at trial and admitting his guilt.  The only authority cited by the State is a court of appeals
opinion applying the "DeGarmo doctrine."  See Taylor v. State, 819 S.W.2d 248, 249 (Tex.
App.--Waco 1991, no pet.); see also DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex. Crim. App.
1985).  This doctrine has been largely disavowed by the court of criminal appeals.  See Leday
v. State, 983 S.W.2d 713, 720-26 (Tex. Crim. App. 1998).  A defendant's admission of guilt at trial
does not estop him from contending on appeal that his custodial statement was inadmissible.
Id. at 725.
Alternatively, the State complains that appellant's trial objection did not mention
Miranda or article 38.22, but cited only the Fifth and Sixth Amendments.  The objection to which
the State refers, however, was not directed to the admission of appellant's statement.  Moreover,
Miranda and Edwards are Fifth Amendment opinions.  See Miranda, 384 U.S. at 467-73; Edwards,
451 U.S. at 480. (2)  Finally, the contentions appellant now makes were raised at the pretrial
suppression hearing and overruled by the trial court.  See Tex. R. Evid. 103(a)(1).  Appellant's
contentions were preserved.
Following appellant's arrest, San Marcos police detective Adrian Marin was assigned
to interview him because the officer is bilingual. (3)  The transcription of the interview reflects that
after entering the interview room and introducing himself, Marin asked appellant a few preliminary
questions in English, to which appellant responded in English.  Marin then asked appellant if he
would prefer to be advised of his rights in Spanish or English.  Appellant chose Spanish.  From that
point forward, the interview was conducted in Spanish.
Marin advised appellant of his rights by reading from a Spanish-language
admonishment and waiver of rights form then in use by the San Marcos police.  It is undisputed that
this document was not a wholly accurate translation into Spanish of the admonishments required by
Miranda and article 38.22.  According to a translation into English that both parties agree is accurate,
the form advised appellant of his rights as follows:

 You have the right to remain silent and to say nothing and any statement that you
make may be used against you in your trial.

 Any statements spoken or written that you make may be used as evidence against
you in court.

 You have the right to have your attorney present to notify you before and during
questions of a policeman or of lawyers representing the state.

 If you are too poor to obtain the services of an attorney then the court will point one
out to you free of service and he may give you advise before and during questions.

 You may decide to talk to whoever you want and you may decide to stop talking
with it at any time.

 These rights are continued and may be urgently pressed by you at any time you so
wish.

Appellant argues that the fourth admonishment, that "the court will point [an attorney]
out to you free of service," did not adequately convey the information that, if appellant were unable
to afford an attorney, one would be appointed to represent him.  Appellant contends that as a result,
he did not knowingly waive his right to appointed counsel during questioning.
The Spanish-to-English transcription of the recorded interview reflects that as Marin
was advising appellant of his right to have counsel present during questioning, appellant interrupted
to ask, "But I don't have money?"  Marin responded, "Wait, wait, OK?"  After completing the third
admonishment and confirming appellant's understanding of his right to have a lawyer present, Marin,
referring to the fourth admonishment, told appellant, "What does it say?  Read it for me." (4)  Appellant
replied, "What it says is that if you're too poor to obtain the services of a lawyer . . . then the court
will point you a free lawyer of service and he can give advice before and during questions."
Appellant added, "That means that you can give me the lawyer . . .  because I don't have money."
Marin responded, "And that is the question that you . . . asked me, right?"  Appellant answered,
"Yes."  Marin asked, "OK.  Do you still have questions or not?"  Appellant answered, "No."
In overruling appellant's motion to suppress, the trial court acknowledged that "it [the
admonishment form] may not be a perfect translation."  But the court continued, "[T]he places that
have been pointed out where it is not exactly right, if you listen to the conversation afterwards
between the two in the colloquy, it is clear to me that the defendant did understand what rights he
was waiving and made a voluntary waiver."
Appellant did not testify at the suppression hearing, and whether he fully understood
his rights must be deduced from his words and actions at the time he gave his statement.  With
respect to his right to appointed counsel, the transcription confirms that appellant understood that
"you can give me the lawyer . . . because I don't have money."  The trial court did not abuse its
discretion by concluding that, when appellant waived his right to counsel during questioning, he did
so with the understanding that counsel would be appointed for him if he wished.
Appellant also contends that he asked for counsel, but Marin did not honor this
request and continued his questioning.  When a suspect asserts his right to counsel, all interrogation
must cease until counsel is provided or until the suspect personally reinitiates the conversation.
Edwards, 451 U.S. at 484-85; Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995).  A
suspect's request for counsel during questioning must be clear and unambiguous.  Davis v. United
States, 512 U.S. 452, 459 (1994).  Whether the mention of a lawyer constitutes a clear invocation
of the right to counsel will depend on the statement itself and the totality of the surrounding
circumstances.  Id. at 461-62.  The suspect must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.  Id. at 458-59.
The record shows that after advising appellant of his rights, Marin read the waiver
of rights to appellant and showed him where to sign.  This exchange followed, as shown in the
Spanish-to-English transcription:

[Appellant:] Then, if, if I sign that, I'm renouncing all of these?

[Marin:] Yes . . . .

. . .

[Appellant:] If I also don't want to give up the service of the lawyer?

[Marin:] Pardon me?

[Appellant:] I don't want to give up the service of the lawyer.

[Marin:] Then you want your lawyer present here?

[Appellant:] Not right now.  But for court and all that.

[Marin:] Yes, they can give you a lawyer. . . .  This only says that I want to talk to
you without your lawyer present.  Do you understand?

[Appellant:] Oh, OK. . . .

. . .

[Appellant:] But, I still keep on having my rights with a lawyer?

[Marin:] You have your rights.

[Appellant:] Just that those rights, right now, just here with us?

[Marin:] Yes.  Those are continued.

[Appellant:] OK. [NVA]

. . .

[Marin:] But I want to talk to you without your lawyer.

[Appellant:] OK. [NVA]

[Marin:] Do you understand?

[Appellant:] Yeah. [NVA]

[Marin:] OK.  And you're fine with that or, or do you want your lawyer present?  It's,
we need to make it very clear here.

[Appellant:] And is there a lawyer right now?

[Marin:] No, right now there's no lawyer.  Right now there's not a lawyer here with
you.  You don't have a lawyer.  But, if you want to wait, I want to know right now.
Because I want to talk to you right now.  And right now you don't have.  We need to
be very clear here.

[Appellant:] Then, let's do it without a lawyer.

[Marin:] Pardon me?

[Appellant:] Let's talk without a lawyer.

[Marin:] Without a lawyer?

[Appellant:] Yes. [NVA]

[Marin:] OK.  Because you have the right, you, you asked me: "Well, I don't have a
lawyer."  Then I'm tellin' you, the court will point it a free lawyer for ya if no, if you
don't have . . . if you're very poor.  It says here, right?

[Appellant:] Uh-huh.

[Marin:] But I want, I want to be very clear that you want to talk to me.  And uh, uh,
talk to me about this case without your lawyer.

[Appellant:] [NVA]

[Marin:] But I need to say, if you want to wait, it's, it's your right, like it says here.

[Appellant:] Nah.

[Marin:] OK.  We need to be very clear here.  What do you want to do?

[Appellant:] Let's talk without a lawyer.

Appellant urges that he unambiguously invoked his right to counsel during
questioning when he said, "I don't want to give up the service of the lawyer," and again when he
asked, "And is there a lawyer [here] right now?"  But when these statements are considered in the
context of all that was said by both appellant and Marin, we agree with the trial court's conclusion
that appellant did not clearly invoke his right to counsel during questioning.  To the contrary, the
record as a whole shows that appellant knowingly waived that right with the understanding that he
retained his right to appointed counsel at trial.  No Edwards violation is shown.
Appellant's contention that his oral statement to the police was inadmissible and
should have been suppressed is overruled.

Demonstration
There was evidence that appellant struck CM with a looped electrical cord.  During
her testimony, Detective Jeri Skrocki, one of the investigating officers and a certified police
instructor in family violence and child abuse cases, conducted a demonstration in which she struck
a table in the courtroom with an electrical cord found in appellant's residence.  The record reflects
that Skrocki took the cord and looped it "very similar to what we saw in the pictures of [CM's]
back."  She then demonstrated as follows:

Basically, what I do when I instruct officers is I'll pick up an object . . . .
Oftentimes it's an extension cord or something like that.  And then I'll explain to
them if I hit somebody, I can hit (indicating)--that's not using a whole lot of force,
as you-all saw.  I barely even hit.  That's going to leave a big sting.

If you have somebody who's angered, in a frenzy, and you take a little bit
more of a strike to it (indicating), that's going to give you a whole lot more.  And just
by virtue of the sound, you can hear the difference between the impacts of what
you're seeing.

The same, of course, would be true if you're--if you're using this
(indicating).  You've got that (indicating).  It's a big difference.

Appellant contends that the trial court erred by permitting this demonstration over his
timely objection.  He urges that the demonstration was unfairly prejudicial and that the prejudice
outweighed any probative value the demonstration might have had.  See Tex. R. Evid. 403.  We
review the trial court's ruling for an abuse of discretion.  Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh'g).  We consider the probative value of the evidence, the
potential to impress the jury in some irrational but indelible way, the time needed to develop the
evidence, and the proponent's need for the evidence.  Erazo v. State, 144 S.W.3d 487, 489 (Tex.
Crim. App. 2004).
The State had little need for Skrocki's demonstration, which in itself had minimal
probative value.  Several medical witnesses described the looped lesions, and the State introduced
a number of photographs showing the looped marks of varying ages on CM's body. This evidence
was far more probative of the nature of appellant's abusive conduct than the officer's hitting the table
with the electrical cord.  Moreover, it did not require a demonstration for the jury to understand that
if a person strikes a child with a looped electrical cord, the child is likely to be injured, and that the
degree of injury will increase the harder the child is hit.
But if the trial court abused its discretion by permitting the demonstration, the
error did not affect appellant's substantial rights under the circumstances of this case.  See
Tex. R. App. P. 44.2(b).  Appellant admitted biting and striking his children.  The State introduced
dozens of photographs showing that the complainants' bodies were literally covered with scars and
lesions.  In addition to seeing the photographs depicting the complainants' external injuries, the jury
heard medical testimony describing the complainants' many broken bones, the complainants'
malnutrition, and the adverse physiological and psychological consequences, some of them
permanent, suffered by the complainants as a result of their abuse at appellant's hand.  We find no
subsequent mention of the demonstration during the arguments of counsel.  We are satisfied that the
relatively brief demonstration by the officer did not significantly contribute to either the finding of
guilt or the punishment.  No reversible error is presented.

Hospital Records
During her testimony, Skrocki was asked if the use of a looped electrical cord to hit
CM was consistent with the medical findings.  Appellant objected that this was a matter outside of
the witness's knowledge.  The objection was sustained.  The prosecutor then established through a
series of questions that, in the course of her investigation, the officer reviewed the medical records
and conferred with the doctors and nurses.  Following this, the prosecutor again asked Skrocki if
"those marks [were] consistent with the medical findings of Brackenridge Hospital."  Appellant
objected that the question called for hearsay.  After receiving the prosecutor's assurance that
"someone from Brackenridge" was going to testify, the objection was overruled.  Skrocki testified
that the use of an electrical cord was consistent with the medical findings.
Appellant now contends that trial court erroneously permitted the introduction of the
hospital records through Skrocki without the proper predicate.  This is not the objection appellant
made at trial, nor is it what happened at trial.  The hospital records were admitted in evidence later
in the trial after the proper predicate was laid and without objection by appellant.  In addition, one
of the examining physicians testified without objection that CM "had patterned bruising that
appeared to have been caused by some kind of looped cord or whip or some kind of object."  No
error is presented.

Mistrial
Finally, appellant asserts that the trial court should have granted his motion for
mistrial after a State witness gave an interview to the press.  Alternatively, appellant urges that the
court should have granted his motion to strike the witness's testimony.
The witness was Stefan Bjes, an Addison, Illinois, police officer, who testified at the
punishment stage regarding appellant's involvement in gang-related criminal activities in that city.
At the conclusion of his testimony, the officer was released to return to Illinois.  The court told him,
"I don't think you're going to be seeing anybody to discuss your testimony with, so we don't have
to explain the witness rule to you."  The prosecutor then indicated to the court that the rule had been
explained to the officer.
When trial resumed the next day, appellant moved for a mistrial complaining that as
Bjes left the courthouse, he gave an interview that had been broadcast on television in which he
stated that appellant was a violent gang member.  The court replied, "That was his testimony, I think,
wasn't it?"  Counsel did not deny this, but said, "The fact is the witnesses have been instructed not
to speak with anyone.  He could have had an influence on all other witnesses."  The court corrected
counsel, "No.  They have been instructed not to . . . the witness rule does not include the press that
I'm aware of.  They're not to talk to other witnesses.  And the witnesses are not supposed to be
watching--I don't know what--go ahead and finish your objection."  Counsel then moved for a
mistrial "on grounds of prosecution misconduct."  The motion was denied.  Counsel asked that
Bjes's testimony be stricken from the record.  This was also denied.
Appellant asserts that the prosecutors "were under a duty as officers of the Court to
instruct their witnesses to avert their comments from the press.  The State however breached this
duty . . . ."  There is no support for this assertion in the record.  The record does reflect that
appellant's trial attracted a good deal of media attention, and the trial court repeatedly admonished
the jurors to avoid all news accounts of the trial.  However, there was and is no evidence that any
other witness or any juror saw or heard Bjes's televised statements.
Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable
errors.  Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).  Whatever the propriety of
Bjes's decision to speak to the press following his testimony, appellant's motion for mistrial was not
supported by any showing of prejudice, much less incurable prejudice, arising out of the officer's
conduct.  The trial court did not abuse its discretion by overruling the motion for mistrial or by
refusing to order Bjes's testimony stricken from the record.
The judgments of conviction are affirmed.

				___________________________________________
				Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   July 8, 2009
Do Not Publish
1.        The video was introduced in evidence (State's exhibit 118) but not shown to the jury,
presumably because the interview was conducted in Spanish.  Two Spanish-to-English transcriptions
of the interview were introduced in evidence at the guilt stage (State's exhibits 119 and 209).  These
transcriptions are identical except that certain references to extraneous matters were redacted from
exhibit 209.  The unredacted transcription was introduced again at the punishment stage (State's
exhibit 274).  The transcriptions introduced at trial differ slightly from the transcription introduced
at the pretrial suppression hearing (State's pretrial exhibit 2).  The primary difference is that in the
trial exhibits, the interpreter added the notations "NVD" (non-verbal denial) and "NVA" (non-verbal
agreement) where appropriate to indicate appellant shaking or nodding his head.  In this opinion, all
quotations from the interview are taken from the transcription introduced at trial.
2.        In his brief, appellant erroneously states that Miranda and Edwards were based on the Sixth
Amendment.
3.        Appellant was born in Mexico and moved to the United States when he was twelve years old.
He was twenty-two years old at the time of his arrest.  The record reflects that appellant speaks and
understands English.  He expressly declined the services of a translator at his trial, and he testified
in English.
4.        Marin testified, and the transcription confirms, that appellant was reading the admonishments
as Marin read them to him.


580 So.2d 1377 (1991)
William D. ALLISON III and Lois Guice Coleman
v.
CITY OF BIRMINGHAM.
6 Div. 257 and CR 89-1061.
Court of Criminal Appeals of Alabama.
February 1, 1991.
Rehearing Denied March 15, 1991.
*1378 Douglas H. Schofield, Birmingham, for appellant.
Otis MacMahon and Annetta H. Verin, Birmingham, for appellee.
Albert L. Jordan and Timothy S. Ritchie of Wallace, Brook & Byer, Birmingham, amicus curiae for appellant.
TYSON, Judge.
On November 18, 1988, a demonstration against abortion was staged at the Birmingham Women's Medical Clinic in Birmingham, Alabama. As a result of this demonstration, approximately 100 protesters, including the appellants in this case, William D. Allison III and Lois Guice Coleman, were arrested and charged with criminal trespass in violation of the Birmingham Municipal Code. The appellants stipulated to a prima facie case in the Birmingham Municipal Court and they were found guilty and were fined $25.00. The appellants appealed their convictions to the Jefferson County Circuit Court, where they were tried by a jury in separate trials. The evidence at both trials showed that on November 18, 1988, numerous Birmingham police officers, expecting a protest on that day, arrived at the Birmingham Women's Medical Clinic around noon. Police tape was placed across the property line of the clinic. A short time later, approximately *1379 200 protesters gathered at the clinic and most of them crossed the police barrier and blocked the entrance to the clinic. The director of the clinic, Belinda Henson, gave at least four warnings to the protesters over a police bullhorn. Her statements to the protesters were that "You have been advised that you have entered or are remaining unlawfully upon the premises of Birmingham Women's Medical Clinic. I am asking you to leave or you will be arrested." Captain Cochran of the Birmingham Police Department also gave several warnings to the same effect over the bullhorn. When the protesters refused to move, Cochran told Lieutenant Trucks to begin arresting the protesters. Before Trucks made an arrest, he would ask each protester whether they would cooperate and leave the premises. If a protester refused to leave, and nearly all of the protesters did refuse, Trucks would arrest that protester for criminal trespass. Trucks arrested both of these appellants at this protest.
The juries found both appellants guilty of criminal trespass. Allison was fined $35 and Coleman was fined $10. Their cases have been consolidated on appeal.[1]

I
Prior to both trials, the City of Birmingham made a motion in limine asking the trial court to
"preclude the defendant[s], her[his] witnesses, and/or defense counsel from referring in any manner to the following subject matter and/or defenses:
"1. Justification or motive for the alleged act committed by herself[himself], another, or third person.
"2. That defendant's beliefs afforded her[him] a legal justification of defense for her[his] act, for herself[himself], another or third person.
"3. Medical or scientific evidence regarding `the humanity of the unborn child.'
"4. Medical or scientific evidence regarding the health and safety of the unborn children of women seeking abortion.
"5. Use of force in defense of another or a third person.
"6. Use of duress in defense of another or a third person.
"7. Asserting statutory or case law allegedly relating to inducing or attempting to induce abortion, miscarriage or premature delivery of a woman. (Ex.Sec. 13A-13-7, Code of Alabama, 1975).
"8. Emergency, necessity and/or coercion to save another life or a third person.
"9. Bona fide belief argument, based on moral, ethics.
"10. Abortion or the `medical procedures' performed at the Birmingham Women's Medical Clinic or at any abortion clinic; or to feticide." (C.R. 398-99.)[2]
The trial court granted the City's motion, and the appellants contend this was error. Specifically, the appellants argue that they should have been allowed to put on evidence concerning the defense of necessity, defense of third persons, duress, and mistake of law and of fact. We will address each of these defenses separately.

A
Section 13A-3-21(a), Code of Alabama 1975, states that "[e]xcept as otherwise expressly provided, justification or excuse under this article is a defense." Various defenses are set out in the subsequent statutes (see § 13A-3-22 through § 13A-3-30). Although the specific defense of necessity is not codified within these statutes, the commentary to § 13A-3-21 explicitly states that "[w]hile much law is covered in this article, no codification can be complete, and these formulations are not intended to preclude *1380 further judicial, or statutory, development of these, or other, justifications."
Thus, our recognition of the necessity defense must be derived from the common law.[3] One of the best compilations that we can find concerning the common law defense of necessity is set out in Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501 (1979).[4]
"Necessity is a type of justification defense. Conduct which otherwise would lead to civil or criminal liability is justified because it is socially acceptable and desirable under the circumstances. When a situation forces an individual to choose between obeying the law or breaking it to avoid a greater harm, society prefers that the individual choose the lesser evil. The defense is based on determining that the act, though technically violative of the law, is legal because the factual situation negates the validity of the normal rules of liability. The penal laws are designed to meet only the ordinary exigencies of life. When rare and extraordinary circumstances arise, necessity justifies conduct `which promotes some value higher than the value of literal compliance with the law. The defense applies only when the actor makes a voluntary choice not to comply with the law, and focuses on the desirability, not the possibility, of compliance.
"Although recognized long ago in the common law, the defense of necessity is poorly developed in Anglo-American jurisprudence. Fearing its abuse, few courts were willing to accept the defense; those courts that did accept it failed adequately to express their rationales in terms of the relevant principles. The defense is most often confused with duress, an excuse defense. Excuse, which includes mistake and insanity as well as duress, focuses on the individual and his capacity to commit the act. If excusing conditions are found, only this particular defendant is excused, although his action is not termed legal. In contrast, if an action is justified by necessity, then a new rule of law is created which instructs all future actors faced with the same conflict of values how to act.
"Despite confusing case law, the necessity concept is `anciently woven into the fabric of our culture.' The common law elements of the defense are: 1) the harm must be committed under the pressure of physical or natural force, rather than human force; 2) the harm sought to be avoided is greater than (or at least equal to) that harm sought to be prevented by the law defining the offense charged; 3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid the greater harm; 4) the actor must be without fault in bringing about the situation; and 5) the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm. Most cases do not require that an actual peril exist; a wellfounded and reasonable belief is sufficient. Therefore, if an actor is actually mistaken in his belief, he may still use the defense. Although the defense is subjective as to facts, it is objective as to values. The action chosen must be the lesser evil."
Note, supra, at 504. Although the early cases required that the harm to be avoided be caused by natural forces, the modern trend among courts, legislatures, and commentators has been to recognize harm caused by human beings as well. See City of St. Louis v. Klocker, 637 S.W.2d 174, 176 (Mo.App.1982); Note, supra, at 508-09. However, "[w]hen the harm emanates from a human source, the harm must be unlawful[5]*1381 before the necessity defense can be used." City of Akron v. Detwiler, No. 14385, slip op. at 6-7 (Ohio App. July 1990) (1990 WL 95683); Klocker; Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981).
Numerous courts have considered the necessity defense in cases of criminal trespass involving abortion clinics and virtually every court has rejected the use of this defense when asserted in this context,[6]see State v. O'Brien, 784 S.W.2d 187, 192 (Mo. App.1989), holding that "political protests of abortion cannot create a privilege to violate criminal trespass laws under the defense of necessity." City of Kettering v. Berry, 57 Ohio App.3d 66, 567 N.E.2d 316 (Ohio App.1990). Although the courts have employed various reasons for rejecting the necessity defense in trespass-abortion clinic cases, most of the courts which have considered these cases have found that because abortion is legal, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973),[7] the harm sought to be avoided is not unlawful and, thus, the greater harm is the trespass. See Cleveland; Bird v. Municipality of Anchorage, 787 P.2d 119 (Alaska App.1990) ("necessity defense applies only where alleged harm sought to be avoided arose either from the physical forces of nature or from unlawful human acts," other lawful alternatives available and "actions not reasonably designed to actually prevent the threatened harm," and defendants "failed to show that the harm they sought to avoid was greater than the harm reasonably foreseeable from their actions"); Crabb v. State, 754 S.W.2d 742 (Tex.App.1988), cert. denied, ___U.S. ___, 110 S.Ct. 65, 107 L.Ed.2d 32 (1989) ("harm sought to be avoided, abortion, was not clearly greater than the harm caused by the trespass, which was the loss of the constitutional right to privacy"); People v. Krizka, 92 Ill.App.3d 288, 416 N.E.2d 36, 48 Ill.Dec. 141 (1980) ("`injury' prevented by the acts of criminal trespass is not a legally recognized injury"); Erlandson v. State, 763 S.W.2d 845 (Tex.App.1988), cert. denied, ___ U.S. ___, 110 S.Ct. 152, 107 L.Ed.2d 110 (1989) (necessity defense not allowed because defendants failed "to show that the clinic's staff or its patrons were acting other than within the constitutionally recognized principles which permit abortion"); Klocker (threatened harm must be public or private injury and since abortions "are a constitutionally protected activity and, therefore, legal, their occurrence cannot be a public or private injury"); Commonwealth v. Markum, 373 Pa.Super. 341, 541 A.2d 347, appeal denied, 520 Pa. 615, 554 A.2d 507 (1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1533, 103 L.Ed.2d 837 (1989) (justification or necessity defense not available because abortion is constitutionally sanctioned activity and thus cannot be considered "public disaster" within meaning of justification statute); Kettering (abortion, because it is legal, cannot be classified as a harm and thus "greater harm per se" is the criminal trespass); Detwiler (abortion not legally recognized harm); Gaetano v. United States, 406 A.2d 1291 (D.C.1979); People v. Crowley, 142 Misc.2d 663, 538 N.Y.S.2d 146 (Just.Ct.1989); O'Brien (necessity defense not available "when the harm sought to be avoided [abortion] remains a constitutionally protected activity and the harm incurred [trespass] is in violation of the law"); Buckley v. City of Falls Church, 7 Va.App. 32, 371 S.E.2d 827 *1382 (1988) (other legal alternatives available); State v. Horn, 126 Wis.2d 447, 377 N.W.2d 176 (1985), aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987) (other alternatives available); Sigma Reproductive Health Center v. State, 297 Md. 660, 467 A.2d 483 (1983) (other legal alternatives available and "necessity is not a valid defense for criminal trespass charges involving political or moral protest, particularly those involving abortion clinics"); Pursley v. State, 21 Ark.App. 107, 730 S.W.2d 250 (1987) (no evidence of imminent danger or injury); State v. Rasmussen, 5 Fam.L.Rep. (BNA) 2037, 2038 (Hennepin County Ct., Minn., Oct. 5, 1978).
We must also agree that necessity is not a valid defense to the charge of criminal trespass involving abortion clinics. Clearly, abortion is one of the most controversial and divisive issues in this country. However,
"The United States Supreme Court has held that a woman's right to choose abortion is constitutionally protected. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Consequently, the abortion services provided by the [Birmingham Women's Medical] clinic are legal. In light of Roe it is not appropriate for this court to determine the legal status of abortion. We therefore hold that it is unreasonable to believe that one must commit an act of criminal trespass in order to prevent an activity that is legal and constitutionally protected. If appellants attempt to change the legal status of abortion, they must do so within channels provided by our democratic form of government. A contrary holding would allow an individual to violate the law without sanction whenever he felt the government had not made the proper choice between conflicting values."
Horn, 126 Wis.2d at 455-456, 377 N.W.2d at 180.
The appellants argue that the United States Supreme Court's decision in Roe v. Wade regarding the legality of abortion is inapplicable because "it dealt with direct state action [as opposed to action by individuals] prohibiting abortion." (Appellants' brief, p. 51.) This very argument was addressed and dismissed by the Illinois Appellate Court in Krizka. In that case, the court stated that this "argument ignores the fact that defendants' convictions did not arise from the violation of the constitutional rights of pregnant women, but rather, were the result of defendants' acts of criminal trespass." Krizka, 92 Ill. App.3d at 290, 416 N.E.2d at 37, 48 Ill.Dec. at 142. We must agree.
The appellants also contend that the State of Alabama has made a legislative choice that abortion is illegal in Alabama and, thus, that the necessity defense is available to them because the harm sought to be avoided is illegal under Alabama law. Section 13A-13-7 provides:
"Any person who willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose, shall on conviction be fined not less than $100.00 nor more than $1,000.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months."
This argument lacks merit. Roe v. Wade held that statutes like the one above are unconstitutional. Robak v. United States, 658 F.2d 471, 475 (7th Cir.1981). Furthermore, our holding
"that a justification defense may not be raised if the asserted `harm' is legal is not dependent upon whether such conduct has been made legal through legislative choice or judicial fiat. 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. Were we free to pick and choose which laws we wished to obey, the result would be a society of strife and chaos. Therefore, even if the legislature [has] *1383 made a clear choice regarding abortion[8], the justification defense [is still] unavailable because abortion is lawful by virtue of the United States Constitution[9]. Certainly, justification may not be asserted as a grounds for interference with a person's right to free speech even though that right has not been legislatively approved. Free speech has been constitutionally approved, as has a woman's right to abortion. Democracy allows the citizenry to protest laws of which they disapprove. But they must nonetheless obey such laws or face the legal consequences. To allow the defense of justification to those who willingly and intentionally break the law would encourage criminality cloaked in the guise of conscience."
Markum, 373 Pa.Super. at 348, 541 A.2d at 350.

B
Section 13A-3-23(a), Code of Alabama 1975, provides:
"A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he uses a degree of force which he reasonably believes to be necessary for the purpose."
"Unlawful physical force" must be used by the other person in order to support a defense-of-third-persons claim. As we stated above, abortion is not unlawful and the Birmingham Women's Medical Clinic was licensed to perform abortions at this time. See Crabb; Erlandson. There is no evidence that any unlawful physical force was used against the women patients of the clinic. Furthermore, this defense justifies one's use of physical force to defend himself or another person. "By the express language of the statute, the defense only applies when the defendant has used force." Erlandson, 763 S.W.2d at 852. There is no evidence in the record that either of these appellants used force. We also note that the identification of fetuses as "persons" in the abortion context has been rejected by the United States Supreme Court in Roe v. Wade. Cleveland, 631 P.2d at 1080; Bobo v. State, 757 S.W.2d 58, 63 (Tex.App.1988). Whatever rights the unborn have in Alabama in tort or probate or other areas of the law, these rights remain subject to the United States Constitution. O'Brien, 784 S.W.2d at 192. Thus, the defense-of-third-persons defense was not available to these appellants.

C
Although the trial judge did charge the jury on the defense of duress, the appellants argue that he did not allow them to present any evidence on the duress defense. Section 13A-3-30(a), Code of Alabama 1975, states: "It is a defense to prosecution that the actor engaged in the proscribed *1384 conduct because he was compelled to do so by the threat of imminent death or serious physical injury to himself or another." "In order for duress to excuse a criminal act, it [the threatened harm] `must be present, imminent and impending, and of such a nature as to induce a wellgrounded apprehension of death or serious bodily harm if the act is not done.'" Trammell v. Disciplinary Board of the Alabama State Bar, 431 So.2d 1168, 1171 (Ala.1983). There is absolutely no evidence that these appellants were compelled to commit this trespass by the threat of imminent death or serious physical injury to themselves or another person. A threat is defined as "[a] communicated intent to inflict physical or other harm on any person or on property. A declaration of an intention to injure another or his property by some unlawful act." Black's Law Dictionary 1326 (5th ed. 1979). The threats must be unlawful and, as we have already stated, abortion is not unlawful under the present law. Nor was there any evidence that the threatened harm was imminent. Thus, the defense of duress was unavailable to these appellants. Sigma; Cleveland. Although the trial court improperly charged the jury on the defense of duress, the appellants were certainly not harmed by this error.

D
The appellants also contend that the trial judge should have allowed them to present evidence on mistake of fact and mistake of law. Section 13A-2-6, Code of Alabama 1975 provides that,
"(a) A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief of fact unless:
"(1) His factual mistake negatives the culpable mental state required for the commission of an offense; or
"(2) The statute defining the offense or a statute related thereto expressly provides that such a factual mistake constitutes a defense or exemption; or
"(3) The factual mistake is of a kind that supports a defense of justification as defined in article 2 of chapter 3 of this title.
"(b) A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless his mistaken belief is founded upon an official statement of the law contained in a statute or the latest judicial decision of the highest state or federal court which has decided on the matter.
"(c) The burden of injecting the issue of mistake of law under subsection (b) of this section is on the defendant, but this does not shift the burden of proof.
"(d) A mistake of law, other than as to the existence or meaning of the statute under which the defendant is prosecuted, is relevant to disprove the specific state of mental culpability required by the statute under which the defendant is prosecuted."
The appellants seem to argue that they should have been relieved of liability under § 13A-2-6(a)(3) for the offense of trespass because they contend their factual mistake, their belief that the unborn are persons, would have supported a defense-of-thirdpersons defense. First of all, we are not sure that the appellants' beliefs were a mistake of fact rather than a mistake of law, in light of the United States Supreme Court's decision in Roe v. Wade, in which the Court held that fetuses are not persons with regard to the abortion context. However, assuming that their beliefs were a mistake of fact, we do not believe that they were entitled to claim mistake of fact as a defense under § 13A-2-6(a)(3). The typical example of a mistake of fact under (a)(3) is as follows:
"[D]uring a heated verbal altercation between X and Y, X, who has a general reputation for violence and is rumored to carry a pistol, suddenly reaches for his bulging pocket, and Y, in fear of great bodily harm, strikes X a stunning blow in the face with his fist. Although X did not have a pistol, Y is not criminally liable for assault and battery because his factual mistake was a kind that supports a defense of justification under *1385 § 13A-3-22." (Commentary to § 13A-2-6.)
In the above example, Y is not criminally responsible, because he had reason to believe that X was about to pull a gun and shoot him (X had a reputation for violence, was rumored to carry a pistol, and reached for his bulging pocket). Due to Y's mistake of fact (X did not have a gun), he could claim self-defense. The appellants in brief state that "[i]f one assumes that the court's interpretation of Roe v. Wade is correct, defendants in the instant case were clearly mistaken." (Appellants' brief, p. 60-61). Although the appellants were mistaken, the question is whether their mistake was reasonable. Certainly, the appellants cannot argue that their mistake of fact (or law) was reasonable, since they were obviously aware of Roe v. Wade prior to the time they took their action. Furthermore, even if the mistake had been reasonable, this mistake would not support a defense-of-third-persons defense because the other requirements of that defense were not met. As we stated above, the appellants were not entitled to claim the defense of defense of third persons because the other person (the abortion clinic) was not using "unlawful physical force" and there was no evidence that the appellants used any type of physical force. Thus, the trial court properly refused to allow the appellants to put on evidence of mistake of fact. See also Hoffart v. State, 686 S.W.2d 259 (Tex.App.1985), cert. denied, 479 U.S. 824, 107 S.Ct. 95, 93 L.Ed.2d 46 (1986) (trial court did not err by failing to give instruction on mistake of fact in case involving criminal trespass of abortion clinic).
Further, the appellants claim that they were not criminally responsible due to a mistake of law under § 13A-2-6(d). They argue that their "mistaken beliefs relate[d] to the requisite mental state." The offense of criminal trespass requires that one act knowingly. The commentary to the criminal trespass statutes (§ 13A-7-2 through § 13A-7-4) states, "`Knowingly' is an element of all degrees of criminal trespass. Hence a person who trespasses upon premises accidentally, or who honestly believes that he is licensed or privileged to enter is not guilty of any offense, irrespective of possible liability on the civil side." The appellants argue that they reasonably believed that they were licensed to remain because they thought they that one of the justification defenses would be available to them.[10] Again, we are not convinced this is a mistake of law rather than a mistake of fact. If indeed it is a mistake of fact, the mistake is clearly unreasonable in light of our discussion above. However, if it is a mistake of law, their argument must fail under § 13A-2-6(d), which provides that "[a] mistake of law, other than as to the existence or meaning of the statute under which the defendant is prosecuted, is relevant to disprove the specific state of mental culpability required by the statute under which the defendant is prosecuted." The appellants claim that their mistake that a justification defense would be available to them is relevant to disprove the claim that they acted "knowingly." This is incorrect. When a defendant is entitled to raise a justification defense, he admits that he knowingly committed the offense. However, he claims that his conduct is excused or justified.
*1386 Thus, the appellant was not entitled to claim a mistake of law.
In light of our decision that the appellants were not entitled to claim any of the justification defenses or a mistake of fact or of law, the trial court correctly granted the prosecution's motion in limine and properly refused to allow them to offer any evidence to support these justification claims. Erlandson; Horn.

II
The following occurred on re-direct examination of Belinda Henson by the prosecutor during Allison's trial:
"Q. I see. Now, do you perform pap smears at the Birmingham Women's Medical Clinic?
"A. Yes, sir.
"Q. Pregnancy tests?
"A. Yes, sir.
"Q. Are birth control pills issued at the advice and consent of the doctors there?
"A. Yes, sir.
"Q. In other words, you do a multitude of things there?
"A. Yes, sir.
"Q. Is that correct?
"A. Yes, sir.
"THE COURT: I don't think this is admissible." (R. 172-73.)
The prosecutor then pursued another line of questioning. On recross-examination, the following occurred:
"Q. Ms. Henson, Mr. MacMahon asked you about several types of services, and I believe he mentioned the pap smears. You also perform abortions; is that not correct?
"MR. MacMAHON: Objection, Your Honor.
"THE COURT: I also told him that that was inadmissible.
"MR. SCOFIELD: Your Honor, he opened the door.
"THE COURT: I didn't let him open the door, and I told you I wasn't letting it in." (A.R. 173-74.)
Appellant Allison contends that he should have been allowed to ask Henson whether the clinic performed abortions, since the prosecutor opened the door on the subject by asking her whether the clinic performed pap smears and pregnancy tests. We disagree. The trial judge stated that he thought the prosecutor's questions called for evidence that was irrelevant and inadmissible at the time the questions were asked. When defense counsel questioned Henson about whether the clinic performed abortions, the trial judge sustained the objection and told defense counsel that he had not let the prosecution open the door on this matter and he was not allowing defense counsel to go into the matter of abortion. "The determination of the relevancy of a particular line of questioning lies within the sound discretion of the trial court." Bryan v. State, 453 So.2d 765, 767 (Ala.Crim.App.1984). Clearly, the trial court did not abuse his discretion in this instance. Furthermore, we fail to see how Appellant Allison was harmed by the trial court's sustaining the objection to defense counsel's question as to whether the clinic performed abortions. The fact that this clinic performed abortions was well known to this jury. In fact, the trial judge told the jury in his opening statement to them that the clinic was an abortion clinic. Thus, we find no error here.

III
During Coleman's trial, the prosecutor introduced into evidence a videotape of the protest. The videotape was a compilation of two separate tapes of the incident. However, portions of the two tapes had been deleted in the compilation, allegedly because it was believed that the deleted portions violated the motion in limine. On cross-examination, defense counsel sought to introduce into evidence a videotape of the deleted portions of the original two tapes. Defense counsel argued that since the prosecutor had offered a portion of the videotapes, he had a right to play the deleted portions of the videotapes. Defense counsel's tape was then played for the court outside the presence of the jury. After the tape was played, the prosecutor moved to exclude the tape and stated:

*1387 "Our motion in limine which is prior to this trial as I understand was granted, Your Honor. One of the grounds was that they would not go into the issue of abortion. On the segment of the tape that was just played from 12:42 through 12:43 Reverend Pinto was making an oration out there to all people about abortion and life and so forth and so on, which this Court I understood had prohibited from coming in. It's a violation of the Court's order.
"Number two, I did not see the Defendant present on this [part of the] film so therefore it's not material." (C.R. 214.)
The trial judge then made the following remarks:
"And I might just as well tell you now, the preacher gave sermon by himself on abortion. He gave a sermon on we'll take your little children. We'll take them. If you don't want them we'll take them home with us. We'll look after them. I guess we is the organization he belongs to. Also, there was another sermon from somebody which I heard very distinctly about little children and killing little children. Then there was a long series of prayer, including the Lord's Prayer. I think it violates every rule I've made about this case." (C.R. 216.)
The trial court then refused to allow defense counsel to show this videotape to the jury. Appellant Coleman contends on appeal that the trial court's ruling was error.
While the general rule is that "[w]hen one party puts into evidence part of a conversation, document, or transaction, the opposing party is entitled to introduce the whole of it." Pyles v. State, 448 So.2d 416, 420 (Ala.Crim.App.1983). However, this rule "is subject to an important qualification; i.e., those parts of the previously introduced conversation [, document, or transaction] relating to entirely separate and independent subjects, or to matters not relevant to the issues on trial, may not be brought out." R.C. Bottling Co. v. Sorrells, 290 Ala. 187, 189, 275 So.2d 131 (1973).
We do not find that the trial judge erred by refusing to allow defense counsel to show the deleted portions of the videotape. "It is likewise a matter for the trial court in the exercise of his sound discretion to determine whether the motion picture [videotape[11]] will aid the jury or tend to confuse or prejudice the jury." International Union, etc. v. Russell, 264 Ala. 456, 470, 88 So.2d 175 (1956), aff'd, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958). See also C. Gamble, McElroy's Alabama Evidence, § 123.06 (3d ed. 1977). "If a motion picture contains both relevant and irrelevant sequences it should be carefully edited before it is shown to the jury so as to eliminate everything except the relevant scenes." C. Scott, Photographic Evidence, § 1298 (2d ed. 1969). One portion of the videotapes was deleted because the matters depicted were the subject of the motion in limine which was granted prior to trial. Nothing in the edited portions of the videotape which was introduced by the prosecutor violated the motion in limine and, thus, the door was not "opened" to allow defense counsel to put into evidence matters which the trial court had held were inadmissible prior to trial. The other portions of the videotapes which were deleted were parts in which appellant Coleman was not shown. Clearly, these portions were not relevant to the trial of this appellant and the trial judge correctly refused to allow them into evidence. "If the rule was otherwise, the court and the jury might be compelled to listen to a long recital of matters [or watch hours of a videotape], not at all connected with any matter or thing in controversy between the parties." 29 Am.Jur.2d Evidence § 268 (1967). We find no error here.

IV
During his oral charge to the jury in Allison's trial, the trial court told the jury *1388 that a person who, regardless of his intent, enters or remains upon property which at the time is open to the public does so with license and privilege until he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. (A.R. 387-89.) See Ala.Code, § 13A-7-1(4) (1975). Appellant Allison seems to argue that there was no personal communication of the revocation of license and that Henson and Lieutenant Trucks were not authorized to communicate the revocation. These arguments lack merit.
The evidence at trial showed that Henson and Captain Cochran gave numerous notices over the bullhorn to the crowd warning them that they were trespassing and requesting that they leave the premises. The warnings given to the group were sufficient notice. Clemons v. City of Birmingham, 277 Ala. 447, 449, 171 So.2d 456 (1965). Furthermore, Lieutenant Trucks testified that he personally told each person before he arrested them that they were trespassing and gave them a chance to leave. Clearly, there was sufficient evidence that there was a personal communication to these two appellants that there was a revocation of license.
There is no doubt that Henson, as director of the clinic, was a person authorized to communicate the revocation. As stated by our Supreme Court,
"To hold that the pastor of a church or a managerial officer of a corporation or other designated official with authority in excess of that of only an employee, does not have the power to warn off a trespasser, or to warn against trespassing,... without, as to the pastor, the express authorization of the governing board of the church, or, as to the president, general manager or general superintendent of a corporation, the express authorization of the stockholders or board of directors, is neither practical nor useful and we have found no prior case in Alabama which intimates that such is or should be the law. This statement does not apply to a situation where there is proof that the pastor or the manager did not have such authority.
"A tramp or a vandal could trespass on corporate property, ready or threatening to inflict personal or property injury, and under such a holding, the officials in charge would be powerless to warn the trespasser to leave without some prior express authorization."
Johnson v. State, 277 Ala. 655, 658, 173 So.2d 824 (1964). See also Horn (abortion clinic staff was authorized to give notice of trespass); Cleveland (building security supervisor of abortion clinic was authorized to give notice as agent of owner or occupant). Lieutenant Trucks was also authorized to give notice. See Huff v. State, 16 Ala.App. 345, 77 So. 939 (1918) (police officer authorized to give warning where minister of church told him to act); Horn ("police officer may serve as an agent of an owner or occupant to give notice of a trespass").

V
The following excerpts of the record are from the court's oral charge to the jury during Coleman's trial.
"All right. Ladies and gentlemen, as you know the charge is criminal trespass. This is what the law says, this is what the City Code says, a person is guilty of criminal trespass if he knowingly enters or remains unlawfully in or upon premises....
"Now, what does it mean when it says knowingly? Knowingly means that you are aware of it. You had some knowledge, whether it be given to you by someone else or whatever, that you had some kind of knowledge. It means that a person was aware and acts knowingly with respect to the conduct or circumstances described in the statute, that's the trespass, when he is aware that his conduct is of the nature or that the circumstance exists, which basically says this, that if you are knowingly aware ofas I will lengthen the charge out a little more in detail, then that is one element that the City must convince you of beyond a reasonable doubt, that in this case that the Defendant knowingly entered *1389 or remained unlawfully on the premises. This is what the book says entered and remained means. A person enters or remains unlawfully in or upon premises when he is not licensed, invited, or privileged to do so. A person who, regardless of his intent, enters or remains in or upon the premises which are at the time open to the public, does so with a license and privilege unless he defies a lawful order not to remain or not to enter or remain personally communicated to him by the owner of the premises or other authorized persons. That's what the code section says and that is the law.
"....
"Now, as a practical matter, where there is a multitude of people, or a lot of people, obviously it's up to how a consent or request to terminate comes. That says there, what it says, it also says and the law says that consent is terminated when a person knows or has reason to know that the possessor of the property, and I have defined what a possessor is, shall remain on the premises [sic]. In other words, that the possessor is no longer willing to have that person remain on the premises when the person knows it or has a reason to know it." (C.R. 323-25.) (Emphasis added.)
Appellant Coleman contends that the court's use of the phrase "reason to know" was error because, she says, it lessened the prosecution's burden of proof with regard to the mens rea element ("knowingly") of this offense. In light of the facts of this case and the remainder of the court's oral charge, we find that the court's use of the phrase "reason to know" in this context was correct.
The evidence at trial showed that Henson and Captain Cochran told the crowd several times over the bullhorn that they were trespassing and that if they did not leave they would be arrested. Lieutenant Trucks also told each person this before he arrested them. It is obvious that the court used the phrase "reason to know" to explain the concept of withdrawal of consent because of Coleman's testimony. Coleman testified that she has a hearing impediment and that she could not hear what Henson or Cochran said over the bullhorn or what Trucks said to her personally because of the noise of the crowd and because she was "singing and praying." However, Coleman did not ask Trucks, a uniformed officer, what he was saying after he spoke to her. If a "reason to know" that withdrawal of consent to enter or remain is not sufficient, then, in situations such as the one at bar, each person could claim that they did not know that consent had been withdrawn because they could not hear (or listen) to the person withdrawing the consent because of their own actions. Furthermore, the court explicitly stated that the word "knowingly," as it relates to the mens rea element of the offense, requires that the person be aware of and act knowingly with respect to the conduct or circumstances described in the statute. The obvious interpretation of the court's oral charge is that a person is guilty of criminal trespass if he knowingly enters or remains unlawfully in or upon premises after he knows or has reason to know that consent for him to enter or remain has been withdrawn. There is no error here.

VI
The appellants contend that the trial court erred by refusing to give their written requested charges on mistake of fact, the defense-of-third-persons defense, the defense of necessity, the definition of "knowingly," and the definition of justification. In light of the above discussion, we conclude that the trial judge correctly refused to instruct the jury on the above matters. Erlandson; Pursley.
For the reasons stated above, the appellants' convictions are affirmed.
AFFIRMED.
All the Judges concur.
NOTES
[1]  It should be noted that "[t]here are currently pending in the Circuit Court of Jefferson County in excess of five hundred cases that have been stayed pending this Court's decision" in this case. Appellant's brief, p. 2.
[2]  References to the record of Coleman's trial will be cited as "C.R." and references to the record of Allison's trial will be cited as "A.R."
[3]  Section 1-3-1, Code of Alabama 1975, provides that "[t]he common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature."
[4]  Other courts have also referred to this law review discussion of the common law defense of necessity. See City of Kettering v. Berry, 57 Ohio App.3d 66, 567 N.E.2d 316 (Ohio App. 1990); City of Akron v. Detwiler, No. 14385 (Ohio App. July 1990) (1990 WL 95683).
[5]  "This view [that the harm must be unlawful if it emanates from a human source] has been challenged. See discussion in Comment, The Necessity Defense in Abortion Clinic Trespass Cases, 32 St. Louis U.L.J. 523, 527." State v. O'Brien, 784 S.W.2d 187, 192, n. 5 (Mo.App. 1989).
[6]  The appellants have cited us to several lower court decisions which have accepted the necessity defense in this context. However, all of these cases, except a case by a Nebraska District Court (which was not appealed to a higher court), have been superseded by a higher court decision in their particular jurisdictions.
[7]  The appellant seems to argue that the United States Supreme Court's decision in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), modified the Court's decision in Roe v. Wade. While the opinion in Webster "expanded the role of the states in regulating abortions, [it] expressly left Roe v. Wade (citation omitted) `undisturbed.'" State v. O'Brien, 784 S.W.2d 187 at 190 (Mo.App. 1989).
[8]  We are unwilling to say that the legislature has made a clear choice regarding abortion since this statute is essentially adopted from Title 14, § 9, Code of Alabama 1940 (Recompiled 1958). Merely because a law, which was found to be unconstitutional after it was passed by the legislature, has not been explicitly repealed by the legislature does not, in any way, mean that the legislature still approves of the unconstitutional law. For example, Art. IV, § 102, Constitution of Alabama of 1901, is entitled "Miscegenation laws" and it states that "[t]he legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro." This law was found to be unconstitutional, see United States v. Brittain, 319 F.Supp. 1058 (N.D.Ala.1970), but it has never been repealed. Certainly, it would be ludicrous to say that the legislature has made a "clear choice" concerning miscegenation because this unconstitutional statute has never been rescinded. Furthermore, the State Board of Health has promulgated regulations (as authorized by the legislature, see § 22-2-2(6), Code of Alabama 1975) regulating abortion clinics and abortion procedures in this state. We note that the legislature has also enacted statutes concerning parental consent to performing an abortion upon a minor. See Ala.Code, § 26-21-1 through § 26-21-8 (1975).
[9]  Likewise, the proclamation by Governor Guy Hunt opposing abortion which is cited by the appellants, is not superior to the Supreme Court or the Constitution of the United States. See State v. O'Brien, 784 S.W.2d 187, 192 (Mo.App. 1989) (presidential proclamation opposing abortion would not alter the law as declared by the United States Supreme Court).
[10]  In Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981), the Alaska Supreme Court addressed this same contention but in a context similar to that set out in § 13A-2-6(b), which states that "[a] person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless his mistaken belief is founded upon an official statement of the law contained in a statute or the latest judicial decision of the highest state or federal court which has decided on the matter." In that case, the appellants argued that their acts of trespass upon an abortion clinic should be excused "on the ground that they honestly and reasonably believed that the defense justified their presence at the Clinic," Cleveland, 631 P.2d at 1083, and the appellants cited two lower court judicial decisions from another state with identical facts in which the defendants had been acquitted on the grounds of necessity. The Alaska Supreme Court held that an individual was justified only in relying on statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed and, thus, that the appellants could not claim mistake of law.
[11]  "Duly verified sound or silent videotapes of relevant subjects are admissible in evidence in both civil and criminal cases on the same basis as motion picture films and subject to the same rules applicable to photographic evidence." C. Scott, Photographic Evidence, § 1294 (2d ed. 1969) (1987 Supp.).


100 P.3d 905 (2004)
Kim W. DUNN, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.
No. A-8677.
Court of Appeals of Alaska.
November 5, 2004.
*906 John Marston Richard, Gorton & Logue, Anchorage, for Appellant.
John E. McConnaughy III, Assistant Municipal Prosecutor, and Frederick H. Boness, Municipal Attorney, Anchorage, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION
COATS, Chief Judge.
Kim W. Dunn pleaded no contest to driving under the influence and was sentenced to 140 days to serve. (His mandatory minimum sentence was 120 days.) Dunn argues that his rights to due process and equal protection were violated because AS 28.35.030(b) and (r)(4), which define the penalties for misdemeanor driving while under the influence, required the district court to consider all his previous convictions, not just convictions obtained during the past ten years, in calculating his mandatory minimum sentence for that offense.
For the reasons discussed below, we affirm Dunn's sentence.

Facts and proceedings
On April 13, 2002, Dunn was arrested for driving under the influence after his pick-up truck hit two parked cars in the parking lot of the Chilkoot Charlie's bar in Anchorage. Dunn took a breath test, which revealed a breath alcohol level of .152 percent. Dunn was charged under the Anchorage Municipal Code with driving under the influence.[1] He ultimately pleaded no contest to that charge. Because he had three previous convictions for drunk driving offenses  two in 1990 and one in 1993  he faced a mandatory minimum sentence of 120 days to serve.[2]
Dunn filed a motion to preclude the district court from counting his 1990 convictions in determining his mandatory minimum sentence. Dunn challenged the constitutional validity of those prior convictions, arguing that his right to an independent chemical test had not been fully honored in those earlier cases. But Dunn's primary challenge was to a 2001 amendment to the municipality's drunk driving law. Before that amendment, a motorist convicted of driving while intoxicated (DWI) faced increasingly severe mandatory minimum sentences based on the number of drunk driving offenses the motorist had committed within the previous ten *907 years.[3] In 2001, the Anchorage Assembly, mirroring changes in state law, eliminated this ten-year "look-back" and required sentencing courts to count all a motorist's prior DWI convictions in calculating the motorist's mandatory minimum sentence  including convictions more than ten years old.[4] Dunn argued that eliminating this ten-year look-back limitation violated his rights to due process and equal protection of the laws, and that the district court was thus required to disregard his two 1990 convictions in calculating his minimum sentence.
On appeal, Dunn challenges the state's drunk driving law. As Dunn acknowledged in his briefing below, he was not convicted or sentenced under state law. Rather, he was convicted of violating the parallel municipal ordinance, Anchorage Municipal Code 9.28.020. However, we have addressed Dunn's claims because for relevant purposes the state and municipal law appear to be the same.[5]
District Court Judge Gregory J. Motyka denied Dunn's challenge to his prior drunk driving convictions (together with similar claims raised in eighteen other cases). Judge Motyka ruled that Dunn and the other defendants could not collaterally attack the constitutionality of their prior convictions in their current cases. Although Judge Motyka noted that the defendants had also raised due process and equal protection challenges to the current driving while intoxicated statute, he did not resolve those constitutional claims.
The defendants filed a joint motion for reconsideration, asking Judge Motyka to reconsider his decision that they were barred from collaterally attacking their prior convictions at or before sentencing in their current cases. But the defendants did not press Judge Motyka for a ruling on their constitutional challenges to the legislature's or assembly's decision to eliminate the ten-year look-back.
Judge Motyka denied the motion for reconsideration. Following that decision, Dunn pleaded no contest to driving under the influence.
Dunn appeals his sentence.

Discussion

Dunn's constitutional claims were not preserved
On appeal, Dunn claims that AS 28.35.030(r)(4) violates due process by directing courts to consider convictions more than ten years old in calculating the minimum sentence for a drunk driving offense. Dunn argues that the legislature did not have a "compelling interest" to eliminate the ten-year look-back limitation because tougher penalties for drunk driving over the past several decades had not succeeded in reducing traffic fatalities. He also argues that the current drunk driving statute violates equal protection because it treats offenders with prior convictions that are more than ten years old the same as offenders with more recent convictions.
These are not the same arguments Dunn advanced in the district court. Although Dunn claimed below that a life-long look-back violated due process, he did not argue that eliminating the ten-year look-back failed to advance the state's interest in reducing traffic fatalities; nor did he present evidence on the rate of traffic fatalities in Alaska. Instead, Dunn argued that the life-long look-back violated due process because it did not give courts discretion "to find `manifest injustice' and step outside the so-called `mandatory minimums.'"
Dunn's equal protection claim has also changed on appeal. In district court, he did not argue that the legislature needed a "compelling interest" to justify eliminating the ten-year look-back for prior drunk driving convictions. Rather, he argued that there was no "rational basis" for classifying persons with convictions more than ten years old *908 the same as those with more recent convictions.
Furthermore, it appears that Dunn never obtained a ruling from the district court on these constitutional challenges. But even assuming that Dunn preserved the claims he raises on appeal, we conclude that he has not shown that the legislature violated the constitution by eliminating the ten-year limitation in former AS 28.35.030(o)(4).

Why we conclude that Dunn's constitutional claims fail
Dunn argues that the legislature infringed on his fundamental right to liberty by eliminating the ten-year look-back limitation, and that this amendment to the state's drunk driving law violated due process because it lacked a "close and substantial relationship" to the legislature's stated goal of reducing traffic fatalities.
As Dunn implicitly conceded in his briefing below, this is the wrong test. "[A] person who stands to be sentenced upon conviction of a crime has no fundamental right to liberty. In such cases, `the individual interest affected ... is the relatively narrow interest of a convicted offender in minimizing the punishment for an offense.'"[6] When a legislative enactment does not infringe on a fundamental right, the enactment violates substantive due process only if it has "no reasonable relationship to a legitimate government purpose."[7] As the Alaska Supreme Court has explained:
It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people. The constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy.
A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification.[[8]]
Dunn asserts that the state's goal in eliminating the ten-year look-back limitation was reducing traffic fatalities. As the Municipality points out, Dunn bases this assertion on findings and intent that were not adopted until several months after his offense.[9] But even if we assume that these findings accurately reflect the legislature's earlier intent, Dunn has not shown that the legislature's action had no reasonable basis. Dunn cites statistics showing no appreciable decrease over the past several decades in the total number of alcohol-related traffic fatalities in Alaska, despite increasingly severe penalties for drunk driving during that period. But, as the Municipality points out, these statistics prove little. Dunn has not taken into account increases in population or vehicle miles traveled in the state; the Municipality points to National Highway Traffic Safety Administration statistics showing a 51 percent drop (measured in terms of vehicle miles traveled) in alcohol-related traffic fatalities in Alaska between 1982 and 2001. Furthermore, the findings and intent relied on by Dunn indicate that the legislature's goal was reducing alcohol-related traffic accidents and alcohol-related fatalities. Dunn provided no statistics on alcohol-related traffic accidents.
A number of rational inferences can be made linking a driver's higher number of lifetime drunk driving convictions with the *909 driver's increased risk of causing traffic accidents and fatalities. A motorist who has disregarded the law and driven while intoxicated in the past might be more likely to do so in the future. In addition, the legislature could have concluded that offenders with repeated convictions, including those whose convictions reach over more than a decade, might be particularly resistant to rehabilitative and deterrent efforts, such that public safety is best served by isolating those offenders for a substantial period of time. Because Dunn has not refuted these rational bases for eliminating the ten-year look-back, we reject his due process claim.
Dunn also argues that classifying an offender with convictions that are more than ten years old the same as an offender with convictions that are less than ten years old violates the equal protection clauses of the federal and state constitutions.[10] Dunn appears to be arguing that this classification is over-inclusive  that is, that offenders with convictions more than ten years old are not similarly situated with (and thus must be sentenced more leniently than) offenders with more recent convictions.[11]
But Dunn was sentenced more leniently based on the age of his convictions. If two of Dunn's three prior convictions had been obtained after 1996, he would have been guilty of a felony and subject to a mandatory minimum sentence of 240 days to serve.[12] Because his convictions were earlier than that  two in 1990 and one in 1993  he was guilty of a misdemeanor and subject to a minimum sentence of only 120 days to serve.[13] Only a motorist with one previous DWI conviction faces the same minimum sentence  20 days to serve  regardless of the date of that prior conviction.[14] Dunn has not addressed this means of classifying groups for sentencing purposes, much less shown that this classification has no "fair and substantial relation" to the legitimate governmental objective of reducing traffic accidents and fatalities.[15]
To the extent that Dunn is arguing that his equal protection rights were violated because he was not treated more leniently than other misdemeanor defendants with more recent prior convictions, his claim has no merit. Under Alaska's three-part, sliding scale equal protection analysis, there are three factors this court must balance in resolving Dunn's claim: "the significance of the individual right purportedly infringed, the importance of the regulatory interest asserted by the state, and the closeness of the fit between the challenged statute and the state's asserted regulatory interest."[16]
As we have previously noted, the interest affected here "is the relatively narrow interest of a convicted offender in minimizing the punishment for an offense."[17] The government, by contrast, "has a strong and direct interest in establishing penalties for criminal offenders and in determining how those penalties should be applied to various classes of convicted felons."[18] Dunn asserts that the legislature is constitutionally bound to treat drunk driving offenders with convictions more than ten years old more leniently than offenders with more recent convictions. *910 But we are not convinced that the constitution requires this distinction. This is a question of sentencing policy, and "the legislature, not this court, is primarily responsible for adopting sentencing policies."[19] We therefore reject Dunn's equal protection claim.[20]

Conclusion
Dunn's sentence is AFFIRMED.
NOTES
[1]  Anchorage Municipal Code (AMC) 9.28.020(A).
[2]  AMC 9.28.020(C)(1)(d).
[3]  See Anchorage Ordinance 2001-51 (eff. Feb. 27, 2001).
[4]  See Anchorage Ordinance 2001-150 (eff. Aug. 28, 2001).
[5]  See generally AS 28.01.010 (barring municipalities from enacting traffic laws that are inconsistent with state law); Simpson v. Anchorage, 635 P.2d 1197 (Alaska App.1981) (discussing what constitutes "inconsistent with state law" for purposes of AS 28.01.010).
[6]  Monroe v. State, 847 P.2d 84, 89 (Alaska App.1993) (quoting Maeckle v. State, 792 P.2d 686, 689 (Alaska App.1990)).
[7]  State v. Niedermeyer, 14 P.3d 264, 267 (Alaska 2000) (quoting Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).
[8]  Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452.
[9]  See Ch. 60, §§ 1, 58, SLA 2002.
[10]  U.S. Const., amend. XIV, § 1, cl. 2; Alaska Const., art. 1, § 1.
[11]  See generally Laurence H. Tribe, American Constitutional Law § 16-2, at 1438 (2d ed.1988) (noting that "equality can be denied when government fails to classify, with the result that its rules or programs do not distinguish between persons who, for equal protection purposes, should be regarded as differently situated") (emphasis in original).
[12]  AS 28.35.030(n) provides in relevant part: "A person is guilty of a class C felony if the person is convicted under (a) of this section and has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense."
[13]  AS 28.35.030(b)(1)(D).
[14]  AS 28.35.030(n); AS 28.35.030(b)(1)(B).
[15]  See Svedlund v. Anchorage, 671 P.2d 378, 383 (Alaska App.1983).
[16]  Anderson v. State, 904 P.2d 433, 436 (Alaska App.1995).
[17]  Maeckle, 792 P.2d at 689.
[18]  Anderson, 904 P.2d at 436.
[19]  Id.
[20]  See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 272 (Alaska 2003) ("Since analysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach we use under the Equal Rights Clause of the Alaska Constitution, it follows from our conclusion that the state Equal Rights Clause is not violated, that the federal Equal Protection Clause is also not violated.").


664 F.2d 1339
Carl BARND, Plaintiff-Appellee,v.The CITY OF TACOMA, Steven Stockinger, Jerry Bahr, LeeRevelle, John Does 1 through 10, Defendants-Appellants.
No. 80-3345.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 2, 1981.Decided Jan. 4, 1982.

Dale W. House, Seattle, Wash., for defendants-appellants.
Sverre O. Staurset, Graves & Staurset, Tacoma, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before HUG and FARRIS, Circuit Judges, and REED,* District Judge.
FARRIS, Circuit Judge:

1
Carl Barnd, his wife and their minor child initiated this action against the City of Tacoma and three of its police officers under 42 U.S.C. § 1983.  They alleged false arrest and imprisonment of Mr. Barnd causing physical injuries, emotional distress, and loss of earnings and earning capacity.  Defense counsel referred to Barnd's prior arrests during his opening statement to the jury.  The district court declared a mistrial and ordered defense counsel to personally pay jury costs, witness and expert costs, and attorney's fees totalling $2,911.72.  Defense counsel appeals only the personal sanction.  We remand.

FACTS

2
Just prior to counsels' opening statements, Barnd's attorney requested, through a motion in limine, an order preventing defendants from offering evidence of Barnd's criminal record.  The motion was predicated on Fed.R.Evid. 609 (use of convictions to impeach).  Defense counsel opposed the motion, explaining that evidence of prior arrests would be offered as substantive evidence tending to prove that the arrest and imprisonment at issue did not cause emotional distress or impair plaintiff's ability to earn a living.

3
The court responded:THE COURT: Well we will look at it again, but I think if you are going into the question of damages, the probative value might outweigh the prejudice value.1

4
Barnd's attorney then offered to remove "psychological damages" as an element of damages, but the court still denied the motion, making the following statements:

5
THE COURT: Well it will come I imagine when counsel asks have you ever been convicted of a crime, and if there is no evidence in, I am sure you are going to object.

6
THE COURT: Everybody worries about everything, Counsel.  I don't know where it is yet, so I don't want to rule on it.  Why give an order in limine when we don't know what the evidence is going to be yet?

7
THE COURT: I know, Counsel, but these cases have a way, sometimes they don't come out the way counsel think they are going to come out.  All I am saying is that if it is in the record, then I am going to allow it.

8
After additional unrelated motions, the jury was brought in and the attorneys proceeded with opening statements.  With respect to damages, Barnd's attorney told the jury that Barnd and his family were so fearful after the arrest that they moved to a new residence outside the city of Tacoma.  He also told the jury that Barnd had been out of work since the day of the arrest, implying that the arrest was the cause of Barnd's unemployment.2

9
Defense counsel responded to the claims of fear and unemployment:

10
Mr. Barnd has made a number of claims in this case, and the indication is that he is entitled to punish the City of Tacoma and the officers because they arrested him and fingerprinted him and put him in jail and took his picture.  You will discover that Mr. Barnd has been arrested and fingerprinted and had has been placed in cells for a number-

11
at which point Barnd's attorney objected, and defense counsel, still before the jury, defended his reference to prior arrests:

12
Yes, and (opposing counsel) has raised the point that this man is somehow entitled to a lot of money because he has been arrested, and I am simply trying to put in perspective that it is nothing new for Mr. Barnd.

13
Barnd's attorney moved for a mistrial.  After argument outside the presence of the jury, a mistrial was declared.  The district court found that the jury was tainted, that the taint was deliberate and intentional, and that it was doubtful whether any precautionary instruction could correct the situation.  The district court did not make a finding that defense counsel actually violated a court order or that counsel intended to cause a mistrial, nor did the district court make an express finding that defense counsel willfully abused judicial process or acted in bad faith.  Sanctions were imposed two days later after consideration of defense counsel's additional legal arguments and protestations of good faith made orally and by affidavit.

ANALYSIS

14
The record does not reflect whether, in imposing sanctions, the district court relied upon 1) its inherent powers, 2) 28 U.S.C. § 1927 (unreasonably and vexatiously increasing costs), 3) W.D. Wash. Local General Rule 3(d) (similar to § 1927), or 4) 18 U.S.C. § 401 (contempt power), or some combination of the above.

I. Inherent Powers of the Trial Court

15
"The inherent powers of federal courts are those which 'are necessary to the exercise of all others.' "  Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (quoting United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812)).  "Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion."  Roadway Express, 447 U.S. at 764, 100 S.Ct. at 2463.

16
A trial court's inherent powers unquestionably include the power to assess attorney's fees against any counsel who willfully abuses judicial process or otherwise conducts litigation in bad faith.  See id. at 766, 100 S.Ct. at 2464.  However, "(l)ike other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record."  Id. at 767, 100 S.Ct. at 2464.

17
Assessment of attorney's fees and other costs in this instance would serve to protect the trial court's control of the trial process by deterring similar conduct in the future, see National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976), and would promote the just, speedy, and inexpensive determination of actions consistent with Fed.R.Civ.P. 1.  The sanctions also would partially remedy the prejudice to Barnd and punish (and hopefully reform) defense counsel.  The question here is whether upon this record one can reasonably conclude that defense counsel willfully abused judicial process or otherwise acted in bad faith.  See Roadway Express, 447 U.S. at 766, 767, 100 S.Ct. at 2464, 2465.  The district court made no such finding and in the absence of a definitive ruling on the motion in limine, which the court declined to make, we question whether as a fact the reference was willful or in bad faith.

18
The trial court did find that the taint was deliberate and intentional, that Fitzer purposefully made the impermissible references for the improper motive of prejudicing the jury.  It is this finding which causes us to remand for a finding of fact on the question of bad faith rather than reverse the award of sanctions.  In the absence of specific findings of fact, our review of the record suggests that defense counsel acted imprudently and contrary to the district court's intended but unstated position that references to Barnd's prior arrests were not to be made in front of the jury until after a final ruling on admissibility had been made.  Defense counsel did not, however, violate any express order.

19
Even though the record suggests that the evidence may have been admissible for the purpose stated, admissibility (or the high probability of admissibility) would not excuse a willful abuse of judicial process.  Counsel must obey even erroneous orders.  Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193, 197 (9th Cir. 1979).  We question, however, whether the district court considered that admissibility would defeat the chain of causation.  Even if defense counsel did taint the jury, it would not have been necessary to declare a mistrial if the same evidence would have been admitted during the course of the trial.

20
II. 28 U.S.C. § 1927 and Local General Rule 3(d)

21
Both 28 U.S.C. § 1927 and Local General Rule 3(d) provide that an attorney who so multiplies the proceedings in any case as to increase costs "unreasonably and vexatiously" may be required by the court to satisfy personally such excess costs.

22
Whether defense counsel increased the costs "unreasonably and vexatiously" within the meaning of § 1927 depends on whether the language "unreasonably and vexatiously" is applied literally or whether it implies a bad faith or intentional misconduct requirement not explicit in the statute.  The latter approach is suggested by Asai v. Castillo, 593 F.2d 1222, 1225 (D.C.Cir.1979) (bad faith requirement); United States v. Ross, 535 F.2d 346, 349 (6th Cir. 1976) (intent or recklessness); Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969) (a "serious and studied disregard for the orderly processes of justice"); and West Virginia v. Charles Pfizer & Co., 440 F.2d 1079, 1092 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971) (a "clear showing of bad faith").

23
We are persuaded by those decisions which require intent, recklessness or bad faith.  Therefore we hold the sanctions could not be authorized by § 1927 without additional findings of fact.  Whether defense counsel acted recklessly or in bad faith or intended to increase costs by causing a mistrial is a question that remains unresolved by the record.

24
Local General Rule 3(d) differs from § 1927 in two respects.  First, it lists several examples of increasing costs unreasonably and vexatiously, none of which apply here.  Second, it has not been amended to expressly allow assessment of attorney's fees against the offending attorney.  These differences, if they do anything, narrow the coverage of Rule 3(d).  We conclude that the sanctions here also are not authorized by Local Rule 3(d) absent additional findings of fact.

III. Contempt Power

25
Presumably any contempt sanction would have been civil rather than criminal, since the sanctions were remedial rather than punitive.  See Scott and Fetzer Co. v. Dile, 643 F.2d 670, 675 n.7 (9th Cir. 1981); United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980).

26
Upon the record, the only basis for a contempt sanction is 18 U.S.C. § 401(1) (obstruction of justice).  However, if the conduct was not punishable under the district court's inherent powers, a contempt sanction under § 401(1) also was not appropriate.  See Roadway Express, 447 U.S. at 764, 100 S.Ct. at 2463 (citing the contempt sanction as one of the trial court's inherent powers).

27
We therefore remand to the district court to either withdraw the personal sanctions or enter specific findings of fact on 1) whether defense counsel acted willfully or in bad faith and 2) what factors precluded mention of the subject matter of the motion in limine after the district court denied the motion.

28
REMANDED.

HUG, Circuit Judge, dissenting:

29
I respectfully dissent.  I would reverse on the ground that there was no clear order of the court which had been violated.  A motion in limine had been made by the plaintiff.  The motion was not granted by the trial judge.  He indicated that he would consider whether the evidence could be admitted at some later date, after the facts had been more fully developed at trial.

30
The whole purpose of a motion in limine is to prevent the opposing side from asking a question or making comments in opening statements or otherwise bringing before the jury some fact which the movant believes will damage his case by the mere mention of it.  A motion in limine can be granted and then later reconsidered when the opposing party brings it to the attention of the court in the light of the evidence which has been admitted.  However, when a motion in limine has been denied, or at least not granted, this is certainly not a clear order for an attorney to avoid mentioning the subject or asking questions about it.

31
In my opinion, it was an abuse of discretion for the district court to have imposed this severe sanction on defense counsel for doing something that was not a clear violation of any order that the court issued.  It seems at most to be a violation of what the judge may have intended rather than what the judge said.  In my view, the inherent power of the court would not extend to levying sanctions of this type when the order alleged to have been violated was unclear.

*
 Honorable Edward C. Reed, Jr., United States District Judge for the District of Nevada, sitting by designation

1
 In fact the amount of damages was the only issue to be decided by the jury.  The trial court already had stated that it would grant a motion for summary judgment or direct a verdict in Barnd's favor on the issue of liability.  Subsequent to the mistrial the case was tried and Barnd was awarded $10,500

2
 These references to Barnd's emotional distress and unemployment were part of the following explanation of physical injuries:
We are talking here not only about a one person, we are going to ask you for damages of course for the broken nose, for the beating about the face and head and back that he took, but Mr. Barnd and his family were so fearful after this incident occurred, ... they were so frightened from this beating and the actions of the police that two days afterward they had gone to a rental company and asked them to help them find a place outside the City of Tacoma, because if this was the way they were going to be treated, they didn't know what was coming next, so they moved, they moved out in the country.  This happened on June 14th of last year, and he had an operation on August 9th for the correction of nose problems, it took him several months to recover from the beating and the operation, and the problem with his lip where he had bruises in and around his front teeth, and he has been out of work since then.  Up to the present time he has been looking for work again, trying to find a way to support his family, and it has been tough.