Shortly after midnight on May 22, 1976, Dale Nelson drove his four-wheel drive truck onto a side road off the Steese Highway near mile 68. His truck became bogged down in a marshy area about 250 feet off the highway. Nelson testified that he was afraid the truck might tip over in the soft ground. He and his two companions, Lynnette Stinson and Carl Thompson, spent an hour unsuccessfully trying to free the vehicle. At about 1:00, Nelson began walking with Stinson down the highway. An acquaintance drove by and offered to help, but was unable to render much assistance. He then drove Nelson and Stinson to a Highway Department Yard where heavy equipment was parked. The yard was marked with “no-trespassing” signs. After waiting several hours for someone to come by, they decided to take a dump truck and use it to pull out Nelson’s vehicle. The dump truck also became stuck. At approximately 10:00 that morning a man identified only as “Curly” appeared. His vehicle was also stuck further down the highway. Curly offered to assist Nelson. They returned to the heavy equipment yard and took a front-end loader, which they used to free the dump truck. They then used the dump truck to free Curly’s car. The dump truck was returned to the equipment yard, but when Nelson attempted to use the frontend loader to free his own truck the front-end loader also became bogged down. Frustrated and tired after twelve hours of attempting to free his vehicle, Nelson and his companions quit and went to sleep. Two of them slept in a tent. One of them went to sleep in the truck. They were awakened by a Highway Department employee, who placed them under citizen’s arrest. Considerable damage was done to both the front-end loader and the dump truck as a result of Nelson’s attempt to free his truck. Ultimately, the truck was pulled from the mud three days later. Nelson was convicted in district court of reckless destruction of personal property in violation of AS 11.20.515(b) and joyriding in violation of AS 28.35.010. This conviction was affirmed on appeal to the superior court. The sole question presented is whether the jury was properly instructed on the defense of necessity.

Nelson requested an instruction which read: You are instructed that the defendant is allowed to use a motor vehicle of another person without permission if the use is for an emergency in the case of immediate and dire need. You are further instructed that once the defendant has raised the issue of emergency or necessity, the state must prove the lack of emergency or necessity beyond a reasonable doubt.

Over Nelson’s objection, the court gave an instruction on the necessity defense which read as follows: You are instructed that it is a defense to a crime such as joyriding or taking someone else’s motor vehicle without his permission that the person acted out of necessity in a case of immediate and dire need. However, such a defense exists only when natural forces create a situation wherein it becomes necessary for a person to violate the law in order to avoid a greater evil to himself or his property. The harm which is to be avoided must be the greater harm and it must be immediate and dire. Where a reasonable alternative other than violating the law is available in order to avoid the harm the defense of necessity is not applicable.

Nelson argues that the jury instruction was erroneous because it allowed the jury to apply what he calls an “objective, after-the-fact” test of need and emergency, rather than a “subjective, reasonable man” test. By this we assume Nelson means that he was entitled to have explained to the jury that they must view the question of necessity from the standpoint of a reasonable person knowing all that the defendant did at the time he acted.

We affirm the conviction. We note at the outset that the instruction proposed by Nelson is similarly lacking of any explicit language allowing the jury to find necessity if there was a reasonable belief that an emergency existed as opposed to an actual emergency. Thus even if Nelson’s proposed instruction had been given verbatim the alleged error would not have been corrected. Beyond this, however, we find any error in the instruction given to have been harmless.

The defense of necessity may be raised if the defendant’s actions, although violative of the law, were necessary to prevent an even greater harm from occurring. The rationale of the necessity defense is not that a person, when faced with the pressure of circumstances of nature, lacks the mental element which the crime in question requires. Rather, it is this reason of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law. Commentators generally agree that there are three essential elements to the defense: (a) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.

The instruction given adequately describes these requirements for the jury. Nelson argues that he was entitled to wording which would explicitly allow the jury to find a necessity defense if a reasonable person at the time of acting would have believed that the necessary elements were present. Nelson is correct in stating that the necessity defense is available if a person acted in the reasonable belief that an emergency existed and there were no alternatives available even if that belief was mistaken. Moreover, the person’s actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs. Assuming that the instruction given was not worded adequately to convey these concepts to the jury, we would find the error harmless, for Nelson failed to make out a case for the necessity defense.

The “emergency” situation claimed by Nelson to justify his appropriation of the construction equipment was the alleged danger that his truck, stuck in the mud, might tip over, perhaps damaging the truck top. However by the time Nelson decided to use the equipment the truck had already been stuck for several hours. The dire nature of the emergency may be judged by the fact that some twelve hours later, having unsuccessfully attempted to remove the vehicle from the mud, one of Nelson’s companions fell asleep in the truck, which had still not tipped over. Nor can it be said that Nelson had no lawful alternatives in his situation. The record shows that during the time Nelson was trying to free the vehicle people stopped on several different occasions and offered their services in the form of physical assistance, rides, or offers to telephone state troopers or a tow truck. Finally, it cannot be said that the harm sought to be avoided in this case potential damage to Nelson’s truck was greater than the harm caused by Nelson’s illegal actions. Even disregarding the actual damage to the equipment caused by Nelson’s use, the seriousness of the offenses committed by Nelson were disproportionate to the situation he faced. The legislature has made this clear by making reckless destruction of personal property a crime punishable by imprisonment for up to one year and a $5,000 fine, and joyriding punishable by imprisonment for up to one year and a $1,000 fine. 8 The equipment taken by Nelson was marked with no trespassing signs. Nelson’s fears about damage to his truck roof were no justification for his appropriation of sophisticated and expensive equipment.

Alaska Supreme Court, Selections from “Nelson v. State, 597 P.2d 977,” 1979.

On May 19, 1999, Charles K. and two of his friends were playing in the woods with BB guns. All three became involved in shooting the BB guns at several younger children who were riding their bicycles in the area. Appellant was then 13 years old, and the victims were 10 years of age. Although two of the victims were struck by the BBs, nobody was hurt because “the respondents were far away” at the time of the occurrence. Charles and his friends were apprehended the same day and admitted their involvement. Thereafter, all three juveniles were charged with delinquency based on the offenses of assault and conspiracy. We focus here on what happened to Charles. Charles’s case was “informally adjusted” by the Department of Juvenile Justice (the “Department”), after the victims and their families indicated that “they wanted consequences but not necessarily court services,” and agreed to informal adjustment. As part of the informal adjustment, Charles was required to attend both the Juvenile Education Training Seminar and the Victim Awareness Education Program, and to write an apology letter. Because Charles successfully complied with all conditions, and no further services were indicated, the Department recommended closure of the case. Notwithstanding the Department’s recommendation, the State filed a delinquency petition on August 16, 1999, alleging that Charles K. was a delinquent child. An adjudicatory hearing was held on October 6, 1999. Pursuant to negotiations with the State, Charles entered a plea of “involved” to conspiracy to commit second degree assault of three victims.

As a result of the plea, the State dismissed the remaining charges against Charles, including first degree assault and reckless endangerment. The disposition hearing followed immediately. With respect to disposition, Ms. Josephson, a representative of the Department, advised the court of the programs Charles had already completed in connection with the informal adjustment. She also said that no further services were indicated and therefore she recommended closure of the case…

Appellant’s counsel further said: I’m in agreement with the—the Department’s recommendation. Frankly, I think this is a case that—that fits the statutory definition of not a delinquent child. Other than the facts of the offense, there’s nothing before the Court that tells us that Charles is in need of guidance, treatment or rehabilitation. It’s indicated that the case is here at the State’s Attorney’s election, not due to informal adjustment recommended and flubbed; not due to victims are incensed and seeking justice… In response, the State said: Your Honor, I ask that you not make a finding .of no delinquency. But I would agree that it’s actually kind of refreshing that they probably don’t need at this point any further services. I—it sounds like they are all on the ball, and it sounds like their parents are—are on the ball, too, and really come down hard on them. And I think that with that in place, there’s not much more the Department could do.

The juvenile court refused to dismiss the petition, reasoning that appellant met the definition of “delinquent child” on the date of the offense, even if he did not need services on the date of disposition. Instead, the court opted to close the case, given that no services were then needed. The court explained: The definitions of delinquent act and delinquent child are set out, as [appellant’s counsel] indicated, 3-801(k) and (l). Delinquent act means an act—an act which would be a crime if committed by an adult. Obviously, that—there has been such here. Delinquent child is a child who has committed a delinquent act and requires guidance, treatment or rehabilitation. And I take that to not necessarily to be—to mean as of the date of the adjudication, but rather as of the date of the—of the offense. And I think that these—that these young men did—did require guidance and some degree of rehabilitation at that time. So I’m not going to dismiss the petitions. How—because I do find that—that they were, by virtue of these acts, delinquent children. However, I am going to go along with the recommendation that no—since no further services are necessary at this point, that the—that the cases can be closed….

On appeal, appellant contends that the juvenile court erred by finding him delinquent and by failing to dismiss the delinquency petition. Appellant claims that, because the juvenile court found that he was not in need of services at the time of disposition, he was not a delinquent child under the Juvenile Causes Act/ Therefore, in appellant’s view, the juvenile court was required to dismiss the delinquency petition. Moreover, appellant contends that the court was not entitled, as an alternative, simply to close the case without a disposition. He argues: The strained interpretation of the ruling of the Juvenile Court Judge in this case—that the dispositional needs of the child are to be judged not at the time of the disposition, but rather at the time of the commission of the delinquent act—does not comport with the plain language of the statute, the prior decisions of this Court, or common sense. The State counters that, based on the court’s determination at the disposition hearing that no further services were required, the court properly exercised its discretion to close the case without disposition. Further, the State argues that the juvenile court did not abuse its discretion in closing the case, because dismissal would have terminated the court’s jurisdiction and diminished appellant’s plea.

The question, then, is whether the Act or the Maryland Rules pertaining to Juvenile Causes, Rules 11-101 to 11-121, permitted the trial court to find Charles a delinquent child on the basis of his earlier commission of a delinquent act if, at the time of disposition, he did not require any services or treatment.

The process by which a child is determined to be delinquent consists of a two-step procedure: an adjudicatory hearing, then a disposition hearing. Only after the adjudicatory judge finds that the child has committed a delinquent act and the dispositional judge finds that the juvenile is in need of guidance, treatment or rehabilitation, can a juvenile be classified as a “delinquent child.”

Thus, when a juvenile court finds after an adjudicatory hearing that a juvenile has committed a delinquent act, the child is not necessarily delinquent. The Act establishes by its terms two co-equal conditions that combine to establish delinquency under the statute: a delinquent act and a current need for services. Md. Rule C.J. § 3-820 delineates the range of possible dispositions following a finding that the juvenile committed a delinquent act: (d) Permitted dispositions on petition.—(1) In making a disposition on a petition, the court may: (i) Place the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate; (ii) Subject to the provisions of paragraph (2) of this subsection, commit the child to the custody or under the guardianship of the Department of Juvenile Justice, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency on terms that the court considers appropriate to meet the priorities set forth in § 3-802 of this subtitle, including designation of the type of facility where the child is to be accommodated, until custody or guardianship is terminated with approval of the court or as required under § 3-825 of this subtitle; or (iii) Order the child, parents, guardian, or custodian of the child to participate in rehabilitative services that are in the best interest of the child and the family.

The State agrees that Charles did not need services, but does not address whether the court erred in finding that Charles was a delinquent child. Rather, it argues that, at the disposition, the court had the discretion to close the case, rather than to dismiss it, even if it found that no treatment, guidance, or rehabilitative services were necessary. As we noted, the State complains that dismissal would have precluded the court from exercising revisory power in the matter and would have vitiated appellant’s admission to the delinquent act.

There is no ambiguity about the meaning of “a child who has committed a delinquent act.” As the court below noted, that phrase speaks to the past. In contrast, the other requirement for delinquency is embodied in the phrase “requires guidance, treatment, or rehabilitation.” What we find most significant is the change of tenses within the statutory definition. Although the commission of a delinquent act is stated in the past tense, the requirement for guidance, treatment, or rehabilitation is clearly expressed in the present tense. Therefore, to satisfy the statutory definition of a delinquent child, the court had to find that Charles had committed a delinquent act and that he currently is in need of guidance, treatment, or rehabilitation. Here, the juvenile court found that appellant met the first of these two conditions, but not the second. Therefore, appellant did not meet the statutory definition of a “delinquent child.” Moreover, C.J. § 3-820(d) is not ambiguous. It specifically enumerates the permitted dispositions with regard to a petition, and closing the case without ordering services is not one of them. Nor do the two Maryland rules on which the State relies confer upon a juvenile judge the authority that the State suggests. The construction of the Act and rules as urged by the State would engraft upon them a meaning not evident from the plain text. In reaching these conclusions, we are mindful of the broad social purposes that undergird the Juvenile Causes Act and the special role of the juvenile court in seeking to protect and rehabilitate children. Indeed, the courts of Maryland have steadfastly construed the Act “to reflect the principle that juvenile proceedings are special in nature and are not criminal proceedings.” Consistent with the salutary purposes of the Act, we do not believe a judge is authorized to retain jurisdiction after expressly finding at the disposition that a juvenile is not in need of services or treatment. Accordingly, we conclude that the court erred in finding that appellant is a delinquent child and in failing to dismiss the delinquency petition.

Court of Special Appeals of Maryland, Selections from “In Re: Charles K, 135 Md. App. 84,” 2000.