State v. Freih

• Decision Date: 22 April 2015
• Docket Number: C112594CR,A153893.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Hassan Ali FREIH, Defendant–Appellant.
• Court: Oregon Court of Appeals

270 Or.App. 555

348 P.3d 324

STATE of Oregon, Plaintiff–Respondent

v.Hassan Ali FREIH, Defendant–Appellant.

C112594CR

A153893.

Court of Appeals of Oregon.

Submitted Oct. 31, 2014.

Decided April 22, 2015.

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Senior Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and WOLLHEIM, Senior Judge.

Opinion

LAGESEN, J.

Defendant failed to appear for a court date in connection with misdemeanor charges against him and, as a result, was charged and convicted of one count of failure to appear in the second degree, in violation of ORS 162.195(1)(a).¹ On appeal, he assigns error to the trial court's pretrial ruling that he was not entitled to raise a choice-of-evils defense under ORS 161.200, and would not be entitled to a jury instruction on the choice-of-evils defense; defendant sought to defend against the charge on the ground that, in the light of his mother's medical condition, he had no choice but to miss his court date. We affirm.

We review the trial court's ruling that defendant would not be entitled to an instruction on the statutory choice-of-evils defense for legal error, viewing the record in the light most favorable to defendant to determine whether a jury permissibly could find the statutory elements of the defense from the facts² or evidence contained in the record. State v. Boldt, 116 Or.App. 480, 483, 841 P.2d 1196 (1992) ; State v. Matthews, 30 Or.App. 1133, 1136, 569 P.2d 662 (1977). “[A]n affirmative defense to a criminal charge may be withdrawn from the jury's consideration only if there is no evidence in the record to support an element of the defense.” State v. Brown, 306 Or. 599, 605, 761 P.2d 1300 (1988).

ORS 161.200 sets forth the elements of the statutory choice-of-evils defense. It provides in pertinent part:

“(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:

“(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

“(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

ORS 161.200(1). As we have explained, to be entitled to an instruction on the defense, defendant had to offer evidence sufficient to allow the jury to find

“(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 ORS [162.195], the statute that he was found to have violated, seeks to prevent.”

Boldt, 116 Or.App. at 483, 841 P.2d 1196.

Among other things, to show that criminal conduct was “necessary” within the meaning of ORS 161.200, defendant was required to put forth evidence that would allow the jury to find that he had no reasonable alternative but to commit the crime: “[F]or a defendant's conduct to be ‘necessary’ to avoid a threatened injury, he must show that no other course of action was available to him but to ‘choose an evil.’ ”

State v. Miles, 197 Or.App. 86, 93, 104 P.3d 604 (2005). To show that the injury that the defendant sought to avoid was “imminent” within the meaning of the statute, defendant was required to show that the threat of injury existed at the time that defendant committed his offense. Boldt, 116 Or.App. at 483–84, 841 P.2d 1196. Because defendant's offense was failure to appear for a required court date, that means defendant was required to put forth evidence that would allow a jury to find that the alleged threat of injury “existed on the day that defendant was scheduled to appear[.]” Id. at 484, 841 P.2d 1196.

In his offer of proof in support of his claimed entitlement to present a choice-of-evils defense, defendant indicated that he would testify to the following facts at trial if he were permitted to pursue the defense:

Defendant's 91–year–old mother lives in Jordan. Approximately two weeks before his scheduled court date, defendant received a phone call from his aunt in Jordan. Defendant's aunt informed him that his mother was severely ill and had had a stomach operation that had become infected, leading to other medical issues. Defendant's mother also had hearing problems, could not walk, was in pain and was taking multiple medications. Defendant's family members in Jordan were taking care of defendant's mother. They wanted defendant to travel to Jordan and assist them in taking care of her. Defendant called his attorney's office, but was informed that his attorney was on vacation for two weeks. Defendant also contacted the trial court, but was told to “talk to [his] lawyer to deal with it.” Defendant nonetheless immediately flew to Jordan. Defendant did so because he “love[s] [his] mom and * * * wanted to assist her.” He did not return for his court date two weeks later, but, instead, remained in Jordan for three months.

On appeal, defendant argues—as he did below—that that evidence as to why he missed his court date was sufficient to entitle him to present a choice-of-evils defense to the charge of failure to appear and to receive a jury instruction on that defense. In particular, defendant argues that the evidence would be sufficient to permit a factfinder to find that it was necessary for defendant to commit the crime of failure to appear as an emergency measure “in order to avoid the psychological harm of failing to care for his ailing mother.”³

We disagree. We assume without deciding that a threatened psychological harm to a defendant or a third party could, in some circumstances, qualify as a “private injury” within the meaning of ORS 161.200(1)(a) that would support the giving of an instruction on the choice-of-evils defense if the other criteria for the defense are met. See Paul H. Robinson, 2 Criminal Law Defenses § 124(b)(1), 47–48 (1984) (“deprivation of a defendant's opportunity to see his dying mother” could potentially qualify as an injury under the choice-of-evils defense). However, even accepting that the claimed psychological harm would be sufficient to invoke ORS 161.200, defendant's offer of proof was insufficient to establish entitlement to a jury instruction on the choice-of-evils defense because it was insufficient to permit a finding either that it was “necessary” for defendant to miss his court date in order to avoid that threatened psychological harm, or that that threatened psychological harm remained “imminent” as of defendant's court date, as those terms have been construed by our court.

Regarding whether it was “necessary” for defendant to commit the crime of failure to appear in order to avoid the psychological harm resulting from not caring for his mother, defendant's offer of proof would not permit a...