State v. Dart

• Citation: 312 Or.App. 288,491 P.3d 813
• Decision Date: 16 June 2021
• Docket Number: A165099 (Control), A165100
• Court: Court of Appeals of Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Theodore Edwin DART II, Defendant-Appellant.

312 Or.App. 288

491 P.3d 813

STATE of Oregon, Plaintiff-Respondent,

v.Theodore Edwin DART II, Defendant-Appellant.

A165099 (Control), A165100

Court of Appeals of Oregon.

Argued and submitted March 22, 2019.

June 16, 2021

Mark Kimbrell, 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.

Hannah K. Hoffman, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Defendant appeals his convictions in these criminal cases, which were consolidated for trial and appeal. In Case No. 16CR64901, the jury acquitted defendant of menacing (Count 1) and found him guilty of second-degree criminal trespass (Count 2). In Case No. 17CR02656, the jury found defendant guilty of third-degree criminal mischief (Count 1) and second-degree criminal trespass (Count 2). The cases were based on two occasions when defendant took action in relation to diesel-engine "semi-trucks" that neighbors had left running on their property for extended periods of time.

On appeal, defendant first assigns error to the trial court's failure to give his requested choice-of-evils jury instruction on the second-degree criminal trespass charge (Count 2) in Case No. 16CR64901.¹ In his second assignment, which is related to the first, he assigns error to the trial court's pretrial ruling that, for the charges in Case No. 16CR64901, the jury could not consider evidence of two statutes that relate to limits on commercial-vehicle-engine idling. Defendant argues that the evidence was relevant to the choice-of-evils defense that he should have been allowed to present on Count 2. In his third assignment, he challenges the trial court's exclusion of evidence concerning defendant's post-traumatic stress disorder (PTSD), which he contends was relevant to his choice-of-evils defense for all counts and also relevant to whether he had the required mental state for third-degree criminal mischief. We affirm.

Because defendant's assignments of error address pretrial rulings on whether defendant would be allowed to present a choice-of-evils defense for each of the two incidents, including rulings excluding evidence on the basis of relevance and declining to give a requested jury instruction, we recount the pertinent evidence in the record as of the time that the court made those rulings.² We view the evidence in support of the choice-of-evils defense in the light most favorable to defendant. State v. Payne , 366 Or. 588, 607, 468 P.3d 445 (2020) ("[A] reviewing court must view the evidence in the light most favorable to the party requesting the instruction.").

Defendant lives in a residential neighborhood in a small town in Oregon. Some of the residents in defendant's neighborhood have diesel-engine semi-trucks that they sometimes start up and leave running for a period of time. Defendant and his housemate, Hill, are bothered by the noise and smell from the idling trucks. Defendant is particularly affected by the sound and smell of the idling diesel trucks due to PTSD that he suffers because of an accident at sea in which he had to cling to a barrel of diesel fuel for 31 hours. Defendant has tried to speak with the neighbors³ to ask them to stop idling their trucks, has informed them that they are violating the law by idling their trucks for long periods of time, and has sought enforcement of those laws by reporting the issue to local law enforcement officials.⁴ In addition, he has brought the issue to the attention of the city council. On two occasions, as relevant here, defendant engaged in conduct that led to criminal charges against him.

Before trial, defendant made an offer of proof for the trial court to determine whether he would be able to present evidence to support a choice-of-evils defense and have the jury instructed on the defense. Defendant and Hill testified as part of the offer of proof.

Defendant testified that, in January 2016, defendant approached a neighbor, Gregg, who had recently moved in. Defendant introduced himself, and said, "By the way, I've got a problem with your truck and here's an ordinance and all these rules that you're supposed to abide by." In response, he "got * * * a verbal assault with some foul language," and Gregg said that he was "going to be [defendant's] nightmare neighbor."

Case No. 16CR64901 is based on an October 5, 2016, incident involving Gregg's truck. On that occasion, according to defendant, Gregg's truck, which was parked less than 150 feet from defendant's bedroom, was started at 4:45 in the morning. It was still idling 45 minutes later. Defendant went onto Gregg and Davidson's property and knocked on the front door of the house. No one answered, so he knocked harder. Then both Gregg and Davidson came to the door. Defendant testified that his purpose in going to their house was "[t]o get them to be a good neighbor. To, you know, abide by the laws. I quoted the laws [to] them again and asked them to please shut the truck off or please move it right now." Gregg told defendant to leave, and defendant responded that he would, "but you need to shut your truck off and you need to abide by these laws."⁵ According to defendant, "this is probably about the fifteenth time that they've been requested to be a good neighbor." After that, Gregg and Davidson stepped out onto their porch, and Gregg pushed defendant off the porch. Defendant landed in some landscaping rocks. According to defendant,

"that's when I jumped up with a rock * * * in my left hand. Because I didn't know what was happening. I never expected them to do that.

"And I was just; I had a rock in my left hand. I'm right-handed.

"* * * * *

"I'm [a] totally nonviolent person.

"* * * * *

"I was tossing it up in the air in my left hand to see what was going on with them, because, you know, I didn't know if they had a weapon or what."

Defendant dropped the rock and walked away. Defendant denied that he had threatened anyone with the rock and said that he was defending himself.

When asked about the harm that he had been experiencing from the truck idling before he went over to Gregg and Davidson's property, defendant said that he woke up "in a panic" and that he had tried listening to music to calm down, but the truck kept idling. Asked if he had any "mental or physical manifestations" related to the truck idling, he responded, "We never had any physical." As a result of that incident, defendant was charged with second-degree trespassing for entering Gregg and Davidson's property, and menacing.

Case No. 17CR02656 is associated with another incident, on January 1, 2017, involving a different neighbor, Wisdom. Defendant testified during the offer of proof that Wisdom had never previously parked his truck at his home. One day around that date, defendant had been complaining about the trucks in his neighborhood to the city and to the state police. Then, according to defendant, the next day, "the City came up with their backhoe * * * and plowed out for, with all this snow that we had, plowed out for Mr. Wisdom to park his truck right on our property line." Then, a day or two later, Wisdom started up his truck at about 6:00 in the morning and left it idling for over an hour. According to defendant, the sheriff's department was called, but no one was available to come out. Defendant's attorney was also called, as well as "the City" and a city councilor.

After the truck had been idling for about an hour, defendant went over to Wisdom's house and knocked on the door. There was no answer. Defendant entered the truck and shut the engine off. Forty minutes later, defendant noticed that the truck was running again. He went to Wisdom's door and knocked, and there was no answer. He again entered the truck and shut the engine off, and this time he took the key. He went back home and called his lawyer and the sheriff and told them what he had done. He also called the city councilor again. Then, within 20 minutes, a sheriff's deputy arrived.

Defendant identified "the noise and the smell" of the diesel as bothering him before he decided to enter Wisdom's vehicle. He was "aggravated" by the noise and smell, in connection with his PTSD. Defendant was charged with second-degree trespassing for entering the truck, and third-degree criminal mischief for taking the key.

" ‘A choice of evils defense is a defense of justification,’ State v. Oneill , 256 Or. App. 537, 539, 303 P.3d 944, rev. den. , 354 Or. 342, 313 P.3d 1126 (2013), and the ‘trial court has a screening function in determining whether the evidence is sufficient to send the choice of evils question to the jury,’ State v. Marsh , 186 Or. App. 612, 615, 64 P.3d 1141, rev. den. , 335 Or. 655, 75 P.3d 899 (2003)." State v. McPhail , 273 Or. App. 42, 48, 359 P.3d 325 (2015). To be entitled to a choice-of-evils instruction, a defendant must present sufficient evidence from which a factfinder could find the required elements of the defense, and the proposed instruction must correctly state the law. Oneill , 256 Or. App. at 539-40, 303 P.3d 944. We have summarized the choice-of-evils defense statute, ORS 161.200, to require evidence that:

"(1) a 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."

State v. Seamons , 170 Or. App. 582, 586, 13 P.3d 573 (2000). To show that criminal conduct was ‘necessary’ for purposes of the choice-of-evils defense, the defendant must put forth evidence that would allow the factfinder to find that there was no reasonable alternative but to commit the crime. State v. Freih , 270 Or. App. 555,...