State v. Brown

Decision Date29 September 1988
PartiesSTATE of Oregon, Respondent on Review, v. Richard Edward BROWN, Petitioner on Review. TC 10-87-01282; CA A45416; SC S35186.
CourtOregon Supreme Court

Shaun S. McCrea, McCrea, P.C., Eugene, argued the cause and filed the petition for petitioner on review.

Brenda Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

LENT, Justice.

The first issue is what a defendant must prove to establish the defense described in ORS 811.180(1)(a) to a charge of driving while suspended. The statute provides:

"(1) In addition to other defenses provided by law * * * it is an affirmative defense to the offenses described in ORS 811.175 [driving while suspended or revoked] * * * that:

"(a) An injury or immediate threat of injury to a human being or animal, and the urgency of the circumstances made it necessary for the defendant to drive a motor vehicle at the time and place in question[.]"

The second issue is whether the evidence was sufficient to require submission to the jury of defendant's affirmative defense under that statute. 1 We hold that the evidence here was sufficient to present a question for the jury.

The statutory text raises some questions. Must there be an actual injury or immediate threat thereof or only an appearance thereof? What is the meaning of "injury"? We shall address these questions as we proceed.

Defendant appeals his conviction for driving while suspended. He does not dispute that he was driving while his license was suspended; rather he seeks to raise the affirmative defense provided by ORS 811.180. 2

After defendant had rested, the state moved to withdraw the defense from the jury's consideration on grounds that the evidence was insufficient to allow the jury to consider the defense. During argument on the motion, the state cited State v. Haley, 64 Or.App. 209, 667 P.2d 560 (1983). In that case the court held that defendant must prove two things: that there was an immediate threat of injury to a person or an animal and that the urgency of the circumstances required the defendant to drive to avert or remedy the emergency. The court stated that "if either element of the defense lack[s] evidentiary support, the trial judge ha[s] the authority to withdraw the defense from the jury's consideration." 64 Or.App. at 213, 667 P.2d 560.

Though this trial court's statements are not completely clear, it appears that the court interpreted Haley to permit it to evaluate whether the evidence established the existence of the defense before submitting the case to the jury. The court told the parties, "I'll grant the Motion. I don't think you can make it on either prong. That defense will be removed from the jury." The court then told the jury:

"I have, what is called stricken the Defendant's asserted defense based upon necessity, called the 'Defense of Necessity.' In order to have you consider that defense the Defendant has to bring forward sufficient evidence that there's statutory language of injury or immediate threat of injury to human being or animal, that that threat existed and the urgency of the circumstances made it necessary for the Defendant to drive at the time and place in question.

"I rule as a matter of law that the evidence presented was not sufficient to allow you to consider that defense, so that is out of this case at this point * * *."

The defendant was convicted, and the Court of Appeals affirmed his conviction without issuing an opinion. State v. Brown, 90 Or.App. 445, 752 P.2d 1316 (1988). Defendant argued on appeal that a defense should be withdrawn from the jury's consideration only if the record contains no evidence on an essential element of the defense.

In civil cases, the jury must be permitted to consider every claim on which the plaintiff has presented some evidence tending to establish each element of that claim. See, e.g., Wagner v. Kaiser Foundation Hospitals, 285 Or. 81, 84, 589 P.2d 1106 (1979), wherein the court stated:

"It is * * * fundamental that in determining whether to withdraw an allegation from consideration by the jury it is not the function of the court to weigh conflicting evidence. If an allegation is supported by any competent evidence, including the testimony of a single witness, it is the exclusive function of the jury to decide whether to believe that testimony, despite the fact that all other witnesses may have testified to the contrary."

See also Manning v. Helbock, 135 Or. 262, 266, 295 P. 207 (1931) ("Plaintiff was clearly entitled to have his theory submitted to the jury if there was any competent evidence to support it."); Anderson v. Wallowa National Bank, 100 Or. 679, 700, 198 P. 560 (1921) (same); Woods v. Wikstrom, 67 Or. 581, 588-89, 135 P. 192 (1913) (stating same test for motions for nonsuit). Only when there is no evidence to support an element may the claim be withdrawn from the jury's consideration. 3

The same rule obtains in criminal cases. 4 In Latshaw v. Territory of Oregon, 1 Or. 140, 142 (1855), the court wrote:

"Whenever there is any evidence tending to prove a fact within the issue, the jury must pass upon it; and it is error for the court to instruct them that such a fact does or does not exist, that it has or has not been proven. But when there is no evidence tending to prove a fact, and counsel seek by instructions or argument to submit the question to the jury, the court, in its discretion, may very properly say to the jury that no such question can arise in the case. The court is not bound to give instructions which, although as abstract propositions of the law may be correct, yet with reference to the case made are irrelevant. Such instructions can only serve to embarrass the minds of the jury by burdening their deliberations with the considerations of questions of fact, and the application of principles of law that are foreign to the issue they have sworn to try. We think there was no evidence given to the jury that an 'assault was made.' " (Emphasis in original.)

iSee also State v. Newlin, 92 Or. 589, 594, 182 P. 133 (1919) ("A party is entitled to have his theory of the case presented to the jury if there is evidence to support such theory.").

The rationale for this rule is twofold. First, Article VII (Amended), section 3, of the Oregon Constitution decrees that a fact decided by a jury may not be reexamined unless the reviewing court can affirmatively say that there is no evidence to support the jury's decision. A corollary to the provision is that if there is any evidence to support each element of a theory for which a party contends, the theory must be submitted for the jury's consideration, no matter whether the judge is persuaded. Wootten v. Dillard, 286 Or. 129, 136, 592 P.2d 1021 (1979); Shepler v. Weyerhaeuser Company, 279 Or. 477, 483-84, 569 P.2d 1040 (1977).

Even without the constitutional provision, the jury's role as the factfinder would dictate that it should be permitted to consider any theory for which the record contains some evidence, if there is a conflicting theory, or if the evidence itself is in conflict. That is because it is the jury's task, not the court's, to weigh evidence, judge the credibility of witnesses and the reliability of their testimony, and to resolve conflicts in the evidence. See, e.g., Shepler v. Weyerhaeuser Company, supra.

Though this case concerns evidence introduced in support of an affirmative defense, rather than a claim or a charge, the test is the same. By raising an affirmative defense, the defendant seeks to avoid criminal responsibility for acts that might otherwise constitute a crime. If the defense is established, the defendant is not guilty of a crime, even if he committed acts that otherwise would constitute a crime. But a defendant must prove certain facts to establish the defense, just as a plaintiff must establish as a factual matter the elements of a civil claim or the state must establish as a factual matter the elements of a criminal charge. 5

A defendant's task, therefore, in establishing an affirmative defense is the same as that facing a plaintiff on a civil claim: to introduce enough evidence, first, to get to the jury, and second, to meet the requisite burden of proof in the judgment of the jury. Because the task is the same, it is proper to use the same test to decide whether the evidence is sufficient to require that the defense be submitted to the jury. We hold that, as in civil cases, an affirmative defense to a criminal charge may be withdrawn from the jury's consideration only if there is no evidence in the record to support an element of the defense.

Before describing the evidence, we must decide whether the defendant must prove after the fact that an injury or an immediate threat of injury to a human being actually existed or whether one of them appeared to exist. The word "threat" implies something that has not yet actually happened and requires a driver who attempts to rescue someone from a "threat of injury" to make a judgment about the existence of that threat. Since it would often be a matter for speculation whether a threat of injury "actually" exists, the "actual" test is inconsistent with making the defense available to someone who drives to avert a threat of injury.

Furthermore, the "actual" test is inconsistent with the reason for the existence of the defense. Presumably the defense exists because the legislature recognized that there are circumstances in which it is preferable that a person drive to effect a rescue than to refrain from driving because of the suspension. 6 Requiring defendant to establish after the fact that an injury or threat of injury "actually" existed might dissuade a suspended driver from taking action to avert an emergency if the driver believes, but is uncertain, whether the injury or threat of injury exists. Given its reason for establishing the defense,...

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