240
Argued and submitted October 12, 2018, affirmed April 1, petition for review
denied August 27, 2020 (366 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL AARON STRICKLAND,
aka Michael Strickland,
Defendant-Appellant.
Multnomah County Circuit Court
16CR41718; A165019
463 P3d 537
Defendant appeals a judgment of conviction for unlawful use of a weapon,
menacing, and disorderly conduct, arising out of an incident in which he brandished a handgun at a crowd when he felt threatened. He contends that the
trial court erred in excluding evidence of a past experience defendant had that
he asserts would have supported a claim of self-defense. Held: The evidence of
defendant’s past experience was not relevant to the defense of self-defense. The
legal standard for assessing the reasonableness of a person’s belief about the
need for force or the extent of force necessary turns on an objective evaluation of
the circumstances and not the personal perceptions of the individual defendant.
A defendant’s subjective honest belief that a perceived threat is imminent is not
enough to justify the use of self-defense. Although defendant’s past experience
might have caused him to fear for his safety, it did not make more or less probable
the existence of any fact that is of consequence to the determination of the claim
of self-defense—viz., whether a reasonable person in defendant’s circumstance at
the time that he brandished the weapon would have believed that he was at risk
of imminent use of unlawful physical force and whether brandishing the weapon
was the degree of force reasonably necessary for defendant’s self-defense. The
trial court therefore did not err in excluding the evidence as irrelevant.
Affirmed.
Thomas M. Ryan, Judge.
Robert E. Barnes, California, argued the cause for appellant. Also on the briefs were Barnes Law, California, and
Mark J. Geiger.
Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
Cite as 303 Or App 240 (2020) 241
ARMSTRONG, P. J.
Affirmed.
242 State v. Strickland
ARMSTRONG, P. J.
Defendant appeals a judgment of conviction, after
a bench trial, for 10 counts each of menacing and unlawful
use of a weapon, and one count of disorderly conduct. The
charges arose out of an incident at a demonstration in downtown Portland at which defendant brandished a handgun
at a crowd when he felt threatened. Defendant raises six
assignments of error. We write to address only defendant’s
contention that the trial court erred in granting the state’s
motion in limine to exclude as irrelevant evidence of a prior
incident, in which defendant was injured by a person whom
he had surreptitiously filmed. Defendant contends that the
evidence was relevant to show his state of mind in support
of his contention that he brandished the handgun in self-defense. We review the trial court’s ruling excluding the
disputed evidence for legal error, State v. Titus, 328 Or 475,
481,
982 P2d 1133 (1999) (“[W]e must review determinations
of relevance for errors of law.”), conclude that the trial court
correctly excluded the evidence, and therefore affirm.
The facts are undisputed. Defendant attended a
public demonstration in Portland with a video camera and
filmed speakers and demonstrators. He openly carried a
semi-automatic handgun in a hip holster. The state presented evidence that defendant was known to several of
the demonstrators, and they decided to confront him and
tell him to leave the demonstration. Four demonstrators
wearing bandanas over their faces approached defendant
aggressively, calling him a racist and telling him in strong
language to get away. As defendant backed away, the demonstrators continued to move toward him. One of the demonstrators noticed defendant’s handgun and pushed defendant away. Defendant responded that he was not a racist
and told the person, “Take your hands off me.”
Defendant continued to move backwards, holding
his camera in one hand and twice placing his other hand on
the handgun, which was holstered at his hip, causing people in the crowd to cry out. A person carrying a large news
camera stepped between defendant and the four bandanaed
demonstrators, creating some distance between them as
defendant continued to back away. In the conduct that gave
Cite as 303 Or App 240 (2020) 243
rise to the instant charges, defendant took the handgun
from its holster, held it with two hands, and scanned the
crowd with it from left to right. After placing the handgun
back in its holster, defendant continued to engage with and
speak to those in the crowd. Defendant ultimately walked
away from the demonstration and was arrested. Based on
his wielding of the handgun, defendant was charged with 10
counts of menacing and unlawful use of a weapon and one
count of disorderly conduct.
Before trial, the prosecution anticipated that defendant would seek to introduce evidence—in support of a
defense of self-defense—that he had been involved in an
altercation the year before in which his arm had been broken after he had surreptitiously filmed a person at a restaurant. The person involved in that altercation had no connection to the demonstration or to the conduct charged in this
case. The state asserted that evidence of the earlier event
was irrelevant to the charged offenses and filed a motion in
limine to exclude it. The trial court agreed and granted the
state’s motion.
On appeal, defendant asserts that the evidence of
the prior incident was relevant to show that he acted in self-defense in brandishing the handgun. ORS 161.209 provides
that a person is justified in using physical force against
another person for self-defense
“from what the person reasonably believes to be the use
or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably
believes to be necessary for the purpose.”
Defendant contends that the evidence of the prior incident
would show “what force defendant reasonably believed was
necessary to defend himself in the moment,” and would have
helped the trier of fact understand why defendant feared for
his safety and felt the need to protect himself by brandishing a handgun.
Defendant correctly notes that the threshold for relevance of evidence is low. See OEC 401 (relevant evidence is
evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without
244 State v. Strickland
it”). Evidence is admissible if it “can support a reasonable
inference that is material to the case.” State v. Turnidge
(S059156), 359 Or 507, 512-13,
373 P3d 138 (2016). Here, we
conclude that the disputed evidence does not meet that low
threshold.
The legal standard for assessing the reasonableness
of a person’s belief about the need for force or the extent of
force necessary turns on an objective evaluation of the circumstances in which physical force has been used or threatened, and not on the personal perceptions of the individual
defendant. State v. Bassett, 234 Or App 259,
228 P3d 590,
rev den,
348 Or 461 (2010) (“A defendant’s subjective ‘honest
belief’ that a perceived threat is great or imminent is not
enough to justify” the use of self-defense.). See also State v.
Oneill,
256 Or App 537, 545-46,
303 P3d 944, rev den,
354
Or 342 (2013) (in assessing a defendant’s reasonable belief
in a choice-of-evils defense, “reasonableness” is an objective
standard that is measured from the perspective of “a person
of ordinary intelligence and understanding” and does not
take into account “the unique history or mental characteristics of any particular defendant”). That objective standard
requires that we assess how a reasonable person would have
assessed the circumstances in which defendant found himself at the time that he brandished the weapon. Defendant’s
evidence of his past experience was offered to show how he,
personally, might have perceived the events and why he,
personally, felt fearful, but it was not relevant to the defense
of self-defense.
We recently addressed the issue of the standard for
proof for self-defense in State v. Hollingsworth, 290 Or App
121,
415 P3d 83 (2018). There, believing that an intruder
was in his apartment, the defendant fired a gun, and the
bullet passed through the wall into a neighbor’s apartment
where a family slept. The defendant, who was charged
with unlawful use of a weapon and reckless endangerment, asserted that he had acted in self-defense. Over the
defendant’s objection, the state introduced evidence of the
defendant’s past calls to 9-1-1 dispatchers and past interactions with police to refute the defendant’s claim that he had
acted in self-defense. On appeal, we concluded that the trial
court had erred in admitting the evidence for that purpose,
Cite as
303 Or App 240 (2020) 245
because, although the evidence of the defendant’s 9-1-1 calls
and interactions with police might have explained what the
defendant, personally, believed at the time that he fired the
gun, it was not relevant or “probative one way or another
of the circumstances that defendant confronted that night
and, thus, did not bear on whether a reasonable person, in
the same circumstances, would perceive the force used by
defendant to be necessary.” Id. at 129; cf. State v. Jones,
296
Or App 553, 576,
439 P3d 485, rev den,
365 Or 557 (2019)
(“[T]he ‘reasonableness’ question when it comes to a self-defense claim is whether the circumstances as known to the
defendant would lead a reasonable person who experiences
those same circumstances to perceive the use of force to be
necessary.” (Emphasis in original.)).
Here, as in Hollingsworth, defendant’s past experience was not probative of the claim of self-defense that
defendant asserted. The person with whom defendant had
been involved in the earlier altercation was not one of the
demonstrators who aggressively approached defendant. See
State v. Scott, 265 Or App 542,
335 P3d 1283 (2014) (evidence that the defendant had previously been assaulted
by the complainant was relevant to the defendant’s claim
that he acted in self-defense). The prior confrontation had
taken place outside of a restaurant after defendant had
filmed a person surreptitiously, not at a public gathering
where defendant filmed in the open. The only commonality between the two circumstances was that defendant had
been filming. Although defendant’s past experience might
have caused him to fear for his safety, as in Hollingsworth,
it did not make more or less probable “the existence of any
fact that is of consequence to the determination” of the claim
of self-defense—viz., whether a reasonable person in defendant’s circumstance at the time that he brandished the
weapon would have believed that he was at risk of imminent use of unlawful physical force and whether brandishing the weapon was the degree of force reasonably necessary
for defendant’s self-defense. The trial court therefore did not
err in excluding the evidence as irrelevant.
Affirmed.
