No. 581 August 21, 2024 463
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL ROBERT RAY JACKSON,
Defendant-Appellant.
Grant County Circuit Court
22CR29547; A180386
Robert S. Raschio, Judge.
Argued and submitted June 17, 2024.
Carla E. Edmondson, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Kate E. Morrow, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
JACQUOT, J.
Reversed and remanded.
464 State v. Jackson
Cite as 334 Or App 463 (2024) 465
JACQUOT, J.
In this criminal appeal, a jury found defendant
guilty of driving under the influence of intoxicants (DUII),
ORS 813.010. Defendant assigns error to the trial court’s
refusal to instruct the jury on the choice-of-evils defense.
He contends that the trial court was required to instruct
the jury on that defense because there was some evidence to
support each element. The state argues that the trial court
correctly refused to provide the choice-of-evils instruction.
We reverse and remand.
We review for legal error a trial court’s refusal to
provide a requested jury instruction, and in doing so, we
view the record in the light most favorable to the requesting party. State v. Paul, 289 Or App 408, 409,
410 P3d 378
(2017). “A defendant is entitled to have the jury instructed
on a defense if the instruction correctly states the law and
if there is any evidence to support” each element of the
defense. State v. Whiteley,
331 Or App 585, 586,
546 P3d
956 (2024). “[T]he choice-of-evils defense is one that, when
properly raised, the state must negate beyond a reasonable
doubt, ORS 161.055(1)[.]” State v. Phillips,
317 Or App 169,
171-72,
503 P3d 1282 (2022) (internal quotation marks and
citation omitted).
Thus, the trial court must instruct the jury on the
choice-of-evils defense, as provided by ORS 161.200, unless
the record is devoid of evidence that would allow the jury to
find these three things regarding the defendant:
“(1) his conduct was necessary to avoid a threatened
injury; (2) the threatened injury was imminent; and (3) it
was reasonable for him to believe that the need to avoid
that injury was greater than the need to avoid the injury
that … the statute that he was found to have violated …
seeks to prevent.”
Id. at 174 (internal quotation marks and citation omitted;
ellipses in Phillips). When we review the record to determine
whether there was any evidence to support each of those elements, we view the evidence in the light most favorable to
defendant, the proponent of the instruction.
Id. at 172. “For
purposes of that determination, the ‘quantum’ of evidence
466 State v. Jackson
is irrelevant, State v. Brown,
306 Or 599, 603 n 3,
761 P2d
1300 (1988), as is the existence of contrary evidence, State
v. Costanzo,
94 Or App 516, 518 n 1,
766 P2d 415 (1988). ‘[T]
he court’s role is not to weigh the evidence, but merely to
determine if any evidence would support the defense.’ [Id.]
at 518 n 1.” State v. Clowdus,
326 Or App 36, 38-39,
530 P3d
525 (2023).
With those standards in mind, we recount the evidence supporting the choice-of-evils defense, as well as some
relevant context.
Defendant, who, at the time of these events, was
retired, traveled off and on in a van, and often parked it
overnight on “pull-offs” and forest roads because he could
not afford campsite fees. On a day in June, he pulled his van
onto a graveled area adjacent to Highway 395. There were
no signs or gates on the property. Defendant always checked
for “No Trespassing” signs. He planned to stay there for the
night. Between 6:15 and 8:00 p.m., defendant drank a little
more than two beers.
Around 8:00 p.m., the property’s tenant arrived. In
his car, the tenant “zoomed up” next to defendant’s van and
skidded to a stop. The tenant glared at defendant and said,
“Who the hell are you?” When defendant answered that
he was “hanging out for the night,” the tenant responded,
“Well, you’re on my private property and you need to F’ing
leave now.”
Defendant testified that he was fearful about getting into a physical altercation with the tenant for multiple
reasons. He described himself as “a 61-year-old with back
problems” and the tenant as “a much younger guy.” He considered that if any physical altercation took place, it “isn’t
going to help me. I’m gonna end up hurt.” Defendant also
considered that he was in a rural area where “a lot of people
have guns.” Defendant characterized the tenant’s demeanor
during the encounter as “aggressive.” He described the
tenant as having “a glare and a stare. And I did not want
to see the next step, which could have been a big one.”
Defendant thought that he was “in no position to fight anybody.” Defendant felt that he was “okay” to drive under the
Cite as 334 Or App 463 (2024) 467
circumstances; he started his van and drove away. The
tenant “stared” at him “the whole time.” Defendant felt that
it was “absolutely” unsafe for him to stay at the property,
and he did not feel that it was unsafe for him to drive.
The tenant testified that defendant was “very
respectful” and polite, did not argue, and left immediately
after being told to leave. Tenant had a gun in his truck that
he retrieved and placed in his hip holster. The property had
previously had a sign indicating that it was private property
and listed an individual to contact for inquiries about mining gold, but it was gone—perhaps the wind blew it away.
Some time since the encounter with defendant, the tenant
moved a number of large boulders to block the entrances to
the property.
After defendant pulled onto the road, he looked in
his rearview mirror and saw a vehicle that was the same
color as the tenant’s vehicle. He thought that the tenant was
following him, and “was catching up” to him. Defendant was
“panicked and freaked out” as he drove, because he thought
“that this altercation could keep going and get even worse.”
In addition, “[t]here was no place for [him] to pull over at
any point[.]” He testified, “If I saw another place that I could
pull off, I would have.” He also explained that, because he
thought the tenant was following him, he was concerned
about “pulling off and allowing him to come up right behind
me, again[.]” Defendant was “on edge.”
After defendant had been driving for about five minutes, the speed limit changed from 50 to 30 miles per hour
as he approached Canyon City. But defendant did not see the
speed limit sign until it was too late, because he was looking
in his mirrors for the car behind him. He was pulled over for
speeding because he was traveling 40 miles per hour.
Defendant was “fully” cooperative with the State
Trooper who stopped him. Defendant was still “freaked out,”
his “adrenaline was going,” and he was in a panic. He told
the trooper what had happened and that he had felt that
he was being chased. There were empty “alcohol containers”
and an odor of alcohol in defendant’s van. Defendant performed field sobriety tests, in which the trooper observed
468 State v. Jackson
two “clues” for each eye during the horizontal gaze nystagmus test, but no “clues” during the walk-and-turn test or
the one-leg-stand test. Other than defendant’s speed, the
trooper had not observed any signs of poor driving prior to
stopping defendant. Defendant ultimately provided a breath
sample that registered as 0.11 blood alcohol content, and he
was charged with DUII.
At trial, defendant sought a jury instruction on the
choice-of-evils defense; it was discussed pre-trial and the
trial court deferred ruling until the close of evidence. At the
close of evidence, the state objected to the court instructing
the jury on the defense, arguing that there was insufficient
evidence that defendant had no choice but to drive while
intoxicated, and that there was insufficient evidence that
the threatened harm persisted until the time that defendant was stopped for speeding. The trial court denied the
instruction. In the course of ruling, the court explained that
there was sufficient evidence of the three elements of the
defense at the outset of defendant driving.
“Certainly, the court would find that [defendant] had
the—would have the right to have a jury instruction read
if he had left that property and gone to the next place to
pull over and parked. The testimony is that he was—feared
he was being followed. However, the contrary testimony
offered by the defense is, he wasn’t.”
The trial court determined that choice-of-evils would allow
driving and stopping at the first place that he could pull
over. But the trial court concluded that defendant’s statements on cross-examination undercut his defense.
“So under cross-examination, the district attorney
asked [defendant] if there were other places for him to pull
over, prior to him being stopped in Canyon City, and his
answer was, there was not a place where I could park for
the evening.”
The trial court appears to have understood defendant’s
statement on cross that there was no place that he could
have parked for the night as expressing his only concern,
and the court discounted (or perhaps did not recall) defendant’s statements that, before he was stopped, “[t]here was
no place for me to pull over at any point,” and that he was
Cite as 334 Or App 463 (2024) 469
concerned about “pulling off and allowing [the tenant] to
come up right behind me, again[.]”
We reiterate that, when determining whether a
defendant is entitled to an instruction on the choice-of-evils
defense, the facts must be viewed in the light most favorable to the defendant. When a defendant gives inconsistent
testimony, typically it is for the jury to decide what part of
the testimony to credit, if any. As we explained in Whiteley,
“Although it is true that defendant’s testimony, primarily on
cross-examination, could undermine his defense at times by
contradicting some of his direct examination testimony, no
legal principle compels the factfinder to believe defendant’s
most damaging” testimony on cross-examination and to
disbelieve the testimony he gives that supports his defense.
311 Or App at 589. Further, in this instance, the testimony
is not necessarily contradictory. Defendant could have had
more than one consideration in mind in deciding to continue
driving.
Viewing the evidence in the light most favorable
to defendant and drawing reasonable inferences, a reasonable factfinder could find the following. Defendant pulled off
the road onto a graveled area that had no gates or signs.
Believing it to be public property, he thought it was a place
where he could spend the night in his van. Thinking he had
stopped for the night, defendant drank a few beers. The
tenant abruptly and aggressively arrived and confronted
defendant in a hostile manner. He ordered defendant off of
his property. Defendant reasonably feared that the confrontation might become physical, that he would not be able to
defend himself against the tenant, that he would likely be
hurt, and that it was possible that the tenant had a gun.
Because he thought he could drive safely, defendant thought
that it would be better for him to drive despite having consumed a little more than two beers, than it would be to stay
on the property and continue the confrontation, which he
felt was absolutely unsafe.
After pulling onto the road, defendant was concerned that the danger remained or had escalated, because
he believed that the tenant was following him and was
catching up. Defendant did not consider it safe to pull over
470 State v. Jackson
anywhere before the point where he was stopped, because
he remained concerned that the tenant would resume
the confrontation if he pulled over, and that he would be
hurt in a physical altercation. Defendant’s driving was not
noticeably impaired, at least over a short time of observation. Defendant’s assessment of the tenor of the confrontation between himself and the tenant is supported by defendant’s testimony as well as inferences that may be drawn
from the tenant’s testimony that defendant left immediately, without arguing, after the tenant told him to leave,
and that the tenant immediately retrieved a gun from his
car and holstered it on his hip when defendant was 100
yards away.
On appeal, the state argues, as an alternative
ground for affirmance, that there was insufficient evidence
that defendant faced a threat of imminent injury at the time
that he decided to drive. As the trial court did, we conclude
that there was sufficient evidence to support that element,
and we reject that argument without further discussion.
The state also argues, as it did below, that there
was insufficient evidence for the jury to find that defendant
had no reasonable alternative but to drive, thus committing
DUII, and that, even if there was no reasonable alternative
at the outset, the circumstances justifying defendant’s decision to drive had ended at some time before he was stopped
for speeding. The state’s view of the evidence is inconsistent
with our standard of review. As previously noted, considering the evidence in the light most favorable to the proponent
of the instruction means that we do not attempt to resolve
conflicts in the evidence, including in a defendant’s own testimony. If the testimony provides evidence to support giving
the instruction, that evidence is considered in the analysis.
If there is sufficient evidence on each element of the defense,
then it will be for the jury to resolve any conflicts.1
1
The state acknowledges that “disputed evidence is typically not a basis for
denying a requested jury instruction[.]” But, it argues, citing a civil case addressing summary judgment, Henderson-Rubio v. May Dept. Stores, 53 Or App 575,
583-85,
632 P2d 1289 (1981), that “a party ordinarily cannot create an evidentiary dispute by contradicting their own testimony.” We do not see how “creating
an evidentiary dispute” has any relevance in this context where the existence of
an issue of material fact is not part of the analysis at all.
Cite as
334 Or App 463 (2024) 471
In sum, there was evidence in the record from
which a factfinder could reasonably find that (1) defendant’s
conduct was necessary to avoid a threat of injury; (2) the
threat was imminent; and (3) it was reasonable for defendant to believe that the need to avoid the threat of harm was
greater than the need to avoid the harm that the statute
that he violated seeks to prevent. The trial court therefore
erred by not giving the choice-of-evils instruction. We also
conclude, in light of all of the evidence, that the error was
not harmless.
Reversed and remanded.
