State v. Johnson

26                   November 19, 2025            No. 985

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                    MARIE JOHNSON,
                   Defendant-Appellant.
              Washington County Circuit Court
                   21CR50981; A182536

     Brandon M. Thompson, Judge.
     Submitted June 24, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
     KAMINS, J.
     Reversed and remanded.
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         KAMINS, J.
          Defendant appeals a judgment of conviction for fleeing or attempting to elude a police officer. She raises three
assignments of error. She argues that the court erred by
(1) failing to instruct the jury on the choice-of-evils defense;
(2) giving a jury instruction that implicitly directed the jury
to find defendant’s belief that the arrest warrant was invalid
unreasonable; and (3) imposing attorney fees without sufficient evidence to establish defendant’s ability to pay. We
reverse and remand on the first assignment of error, which
obviates the need to address the second and third assignments. Nevertheless, we address the second assignment
because it is likely to arise on remand.
         Regarding the first assignment of error, we review
a trial court’s refusal to provide a requested jury instruction for legal error. State v. Jackson, 

,

 (2024). “A criminal defendant is entitled to
have the jury instructed in accordance with [their] theory
of the case if the instruction correctly states the law and
there is evidence to support giving it.” State v. McNally,

, 

 (2017). We review the record
in the light most favorable to the party requesting the jury
instruction—in this case, defendant. Jackson, 

.
         Defendant, a Black woman, arrived at her son’s
school to pick him up and was still seated in the driver’s
seat of her parked car when she was approached by two officers. One officer stood next to defendant’s door and told her
that she had a Texas arrest warrant. Defendant believed
that there was a court order resolving the warrant, which
she presented to the officers, and despite repeatedly asking
to see the warrant, neither officer showed it to her. One of
the officers instead stated, “When you go to jail, you’ll have
a copy,” and that “[the warrant]’s at the Washington County
Jail.” One of the officers also placed spike strips behind her
car, though defendant did not see them. When the officers did
not believe her, defendant felt frightened, threatened, and
scared for her life. She believed the officers lacked the authority to arrest her and feared they would harm her. “[B]ecause
[she did not] want to die,” defendant closed her car door,
28                                           State v. Johnson

backed up, and drove out of the parking lot. One of the officers followed defendant in his car using lights, sirens, and
the public address system. Defendant did not hear or see
the officer’s car, although she later pulled over for what
turned out to be an unrelated police car. At that point,
defendant called 9-1-1, asked why the police were after her,
and informed the dispatcher that she was “afraid of getting
killed.”
         The trial court must instruct the jury on the choice-of-evils defense under ORS 161.200(1) if there is evidence
from which jurors could determine: (1) the defendant’s conduct was necessary to avoid a threatened injury; (2) the
threatened injury was imminent; and (3) it was reasonable
for the defendant to believe that the threatened injury was
greater than the potential injury of his illegal actions. 

The defense is not available if it would be inconsistent “with
some other provision of law,” meaning that a specific value
choice was made by the legislature to preclude the defense.
ORS 161.200(1); State v. Phillips, 

, 

 (2022) (interpreting ORS 161.200(1)).
         The trial court denied defendant’s request that
it give the choice-of-evils instruction because, in part, it
believed the choice-of-evils defense did not apply in the event
of a legally valid arrest warrant. See State v. Clowes, 

, 

 (1990) (choice-of-evils defense unavailable
if “inconsistent with some other provision of law” (internal citation omitted)). That reasoning is incorrect; the legislature has not made an explicit or implicit policy choice
that a choice-of-evils defense instruction would be inconsistent with an arrest subject to a valid warrant. Nothing
in the criminal code addresses the application of defenses
like choice of evils to the crime of attempt to elude. Indeed,
we have previously applied the choice-of-evils defense in
attempt-to-elude cases. See State v. Matthews, 

, 

 (1977) (concluding that choice-of-evils defense instruction should have been given in attempt- to-elude case); cf. State v. Oneill, 

,

, rev den, 

 (2013) (determining that
defendant was not entitled to choice-of-evils instruction in
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escape case, not due to a warrant but because defendant’s
perception of immediate threat was not reasonable).
          Viewing the record in the light most favorable to
the defendant, there is evidence from which a jury could
conclude that she believed that her “conduct was necessary to avoid a threatened injury [and that] the threatened
injury was imminent.” See State v. Freih, 

, 

 (2015) (defendant’s conduct is “necessary”
if defendant “had no reasonable alternative but to commit
the crime …”). Defendant believed she had proof that the
officers lacked authority to arrest her, but they refused to
review her documents. They then refused her request to see
the warrant—indeed, they told her that she had to go to
jail to see it. She was blocked into her car by the officer’s
position by her door, and she felt threatened and scared for
her life. And, shortly after fleeing, she stopped to call 9-1-1.
Overall, defendant feared the officers would harm her if she
stayed, which, if believed by the jury, would leave her no reasonable alternative but to flee. See Jackson, 

 (concluding defendant’s conduct was necessary
where defendant’s testimony indicated the inciting encounter was aggressive, even where the other participant’s testimony did not). And the threat of injury was imminent when
she fled. See Matthews, 

 (defendant was
entitled to a choice-of-evils instruction where evidence indicated that defendant sought to avoid imminent assault by a
police officer); cf. Oneill, 

 (defendant was
not entitled to a choice-of-evils instruction where the only
evidence offered to support a choice-of-evils instruction was
that defendant’s personal history caused her to believe the
threatened injury was imminent).
         The third element requires that “it was reasonable
for the defendant to believe that the threatened injury was
greater than the potential injury of [her] illegal actions.”
State v. Seamons, 

, 

 (2000).
“[A] defendant’s perception of a threat [must] be reasonable as gauged by an objective ‘reasonable person’ standard, rather than a subjective, defendant-specific standard.”
Oneill, 

. Evidence previously discussed—
defendant’s belief that her documents disproved the validity
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of the warrant, the officers’ disregard of her objections and
request to see the warrant, the officers’ placement of spike
strips behind her car, and one officer’s statement that she
would have to go to jail before she could see the warrant supports the reasonableness of defendant’s belief that the risk
of harm to her was greater than the injury of her fleeing.
Defendant is also a Black woman and faces a disproportionate risk of police violence. See Jeffery Fagan & Alexis D.
Campbell, Race and Reasonableness in Police Killings, 100
Bos U L Rev 951, 1007-08 (2020) (“Black women are 1.4 times
more likely than white women to be killed by police.”); State
v. Reyes-Herrera, 

, 

 (2021) (court did
“not foreclose” considering defendant’s “language, race, and
culture in deciding what a ‘reasonable person’ in defendant’s
position would believe”).
         Considering the record in the light most favorable
to the defendant, defendant’s testimony is sufficient for a
juror to determine that a reasonable person would believe
that the officers created a threat of imminent physical injury
greater than the injury of defendant’s offense—driving away
(before pulling over and calling 9-1-1). See Jackson, 

 (“[C]onsidering 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 …. If the
testimony provides evidence to support giving the instruction, that evidence is considered in the analysis.”). Because
there is evidence to support the elements of a choice-of-evils
defense and it is not inconsistent with other provisions of law,
the court erred by failing to so instruct the jury. The error
is not harmless because it prevented the jury from having a
complete understanding of the applicable law and that may
have affected the verdict. Cf. State v. Leckenby, 

, 

 (2005) (failure to instruct on a lesserincluded offense is not a harmless error because “the jury
did not have a complete statement of the law that applied to
the case” and that may have impacted the outcome).1
    1
      The state argues any error is harmless because evidence supports instruction on the choice-of-evils defense only for the acquitted escape charge and not
defendant’s attempt-to-elude charge. Because the state repeatedly referred to
the same course of conduct as supporting both claims during trial and the jury
instructions referred to the escape charge as “part of the same act and transaction” as the attempt-to-elude charge, defendant had no reason to address the
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         We address defendant’s second assignment of error
because it is likely to arise on remand. In defendant’s second
assignment, she argues that the trial court erred by giving
a jury instruction that bolstered the state’s case by implicitly directing the jury to determine that defendant’s belief
was unreasonable:
       “The court instructs you that while the defendant may
    have had a belief that other legal proceedings and documents should have made it so there was not a warrant from
    Texas, they did not in fact effect the validity of the Texas
    warrant.”

The state first responds that defendant failed to preserve
this assignment of error because her objection to the instruction did not put the court or the state on notice that she
was objecting to it as a comment on the evidence. However,
defendant did object to the instruction at trial, arguing it
went to “the knowing element [which is] what the jury gets
to decide.” That objection put both the court and the state on
notice as to the contention that the court improperly commented on a factual determination within the purview of
the jury, and therefore sufficiently preserved the issue. See
State v. Weaver, 

, 

 (2020) (claim
preserved where defendant raised the issue at trial sufficiently to put the court and state on notice even though
defendant did not use the direct term for the claim).
         Turning to the merits, under ORCP 59E, a court
may not instruct the jury “with respect to matters of fact,
nor comment thereon.” See ORS 136.330(1) (making ORCP
59E applicable in criminal actions). We review whether a
jury instruction improperly comments on the evidence for
legal error. State v. Newcomer, 

, 

 (2014).
        The jury instruction unnecessarily drew the jury’s
attention to an undisputed fact, the validity of the warrant,
which bolstered the state’s argument that defendant’s belief

conduct separately in the trial court, and the state cannot now argue the charges
are based on separate facts. See State v. Burgess, 

, 

(2012) (holding a new factual theory could not be raised on appeal by respondent
where appellant had no opportunity or reason to raise the issues during the trial).
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in the invalidity of the warrant was unreasonable. The
attempt-to-elude charge required the jury to conclude that
the defendant “did unlawfully and knowingly, while still in
the vehicle, flee or attempt to elude a [pursuing] police officer,” meaning defendant “act[ed] with an awareness” that
she was eluding police. ORS 161.085 (emphasis added). By
emphasizing the validity of the warrant, the instruction created an impression that defendant’s belief that the warrant
was invalid was unreasonable and that she knew the warrant was valid. Because the instruction was both unnecessary and prejudicial to defendant, it was improper. See State
v. Naudain, 

, 

 (2012), rev den,

 (2013) (concluding jury instruction was improper
where the court gave an instruction on an undisputed fact
that implicitly supported the state’s argument such that it
prejudiced the defendant).
        Reversed and remanded.