State v. Oneill

• Decision Date: 15 May 2013
• Docket Number: A143742.,081255480
• Citation: 303 P.3d 944,256 Or.App. 537
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Ashley Maria Dawn ONEILL, aka Ashley Maria Daw O Neil, aka Ashley Maria Dawn O Neil, aka Ashley Maria Dawn Fackler, Defendant–Appellant.
• Court: Oregon Court of Appeals

256 Or.App. 537

303 P.3d 944

STATE of Oregon, Plaintiff–Respondent,

v.Ashley Maria Dawn ONEILL, aka Ashley Maria Daw O Neil, aka Ashley Maria Dawn O Neil, aka Ashley Maria Dawn Fackler, Defendant–Appellant.

081255480; A143742.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 2011.

Decided May 15, 2013.

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

WOLLHEIM, J.

Defendant was convicted of escape in the third degree, ORS 162.145(1), for fleeing the custody of arresting officers. On appeal, she assigns error to the trial court's refusal to give a jury instruction on the choice of evils defense when there was evidence that she perceived an imminent threat of sexual abuse by the officers. For the reasons that follow, we affirm.¹

We review a trial court's refusal to give a jury instruction for legal error and state the facts that support giving the instruction in the light most favorable to the party who requested it. State v. Nebel, 237 Or.App. 30, 32, 238 P.3d 423,rev. den.,349 Or. 370, 246 P.3d 482 (2010).

Defendant was arrested on an outstanding warrant by two male officers, Deputy Derry and Officer Garrison, around 9:00 p.m., in a residential neighborhood. Derry told defendant that she was under arrest and Garrison placed her in handcuffs. As Deny escorted defendant to the police car, she began screaming that he was hurting her and trying to rape her. Defendant then broke free from the officers and started running down an alleyway until Deny caught her. Defendant, visibly irate, told Deny that she was afraid to be searched by a male officer and wanted a female officer.² When Deny asked defendant why she ran, defendant replied that she had been sexually abused in the past and was afraid that it would happen again. Based on her flight, defendant was charged with third-degree escape.

At trial, defendant offered the testimony of a psychologist, Dr. Frehling, who had evaluated defendant. Frehling explained that defendant had been diagnosed with post-traumatic stress disorder (PTSD), and that PTSD causes people to be afraid for their lives or safety and to believe that the underlying traumatic events are recurring even though they might not be. Frehling explained that false perceptions can easily trigger a fight or flight response that is not necessarily “a realistic response” or “what's required of the situation.” According to Frehling, defendant may have felt threatened during the arrest, causing her to experience a flight or fight response that compelled her to get away from the threat.

In light of the foregoing evidence, defendant requested a jury instruction based on ORS 161.200, the statutory choice of evils defense, on the ground that her conduct was necessary as an emergency measure to avoid imminent injury by the officers.³ Defendant argued that a reasonable person with defendant's history-that is, someone with PTSD and who was a victim of sexual abuse-would have perceived an imminent injury and fled to protect herself. The court declined to give the instruction for lack of any evidence to support it.

On appeal, defendant assigns error to the trial court's refusal to give the choice of evils jury instruction when the record contained evidence that she believed the arresting officers were going to sexually assault her. The state responds that ORS 161.200 does not allow a defendant to raise a choice of evils defense “unless her actions were in fact necessary to avoid imminent injury—not merely that she believed that was the case.” (Emphasis in original.)

A choice of evils defense is a defense of justification. A defendant is entitled to a jury instruction on a defense of justification if there is any evidence from which jurors could infer that the required elements of that defense are present and the proposed instruction correctly states the law. State v. Smith, 107 Or.App. 647, 651, 813 P.2d 1086 (1991) (citing State v. McBride, 287 Or. 315, 599 P.2d 449 (1979)); see also State v. Marsh, 186 Or.App. 612, 615, 64 P.3d 1141,rev. den.335 Or. 655, 75 P.3d 899 (2003) (establishing that trial court determines whether evidence is sufficient for a reasonable jury to find each requirement has been met); State v. Matthews, 30 Or.App. 1133, 1136, 569 P.2d 662 (1977) (“Whenever evidence relating to the defense of justification is raised by a defendant, it is for the lower court at trial and for this court on review to determine whether that evidence entitles him to a jury instruction.”). If the court determines that the evidence supports giving the instruction, then the jury determines the weight of the evidence and whether the defense has been established. Marsh, 186 Or.App. at 615, 64 P.3d 1141.

The justification instruction that defendant requested—a choice of evils instruction—is available when a defendant presents any evidence from which a jury could infer that the requirements of ORS 161.200 are met. Matthews, 30 Or.App. at 1136, 569 P.2d 662.ORS 161.200 provides:

“(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.

“(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.”

We have summarized 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).

On appeal, the parties initially frame the issue as whether ORS 161.200 requires an actual threat of injury or can be interpreted to include a defendant's mere perception of a threat of injury. According to defendant, the statutory choice of evils defense is broad enough to encompass a situation in which, in light of defendant's particular circumstances, namely PTSD and a history of being sexually assaulted, she “reasonably believed” that threatened injury was imminent, thereby justifying her conduct in fleeing from the police. In support of that understanding of the defense, defendant does not point to any statutory language in ORS 161.200. Rather, defendant relies on judicial gloss—specifically, State v. Brown, 306 Or. 599, 761 P.2d 1300 (1988)—for the proposition that evidence of a perceived threat of injury is sufficient to raise the choice of evils defense under that statute.⁴

The state responds that, “[b]y its terms, ORS 161.200 allows the [choice of evils] defense only when conduct ‘is necessary’ to prevent imminent injury,” and not when a defendant “reasonably believes” that her action is necessary for that purpose. In support of its view of the statute, the state cites other justification defenses adopted at the same time as ORS 161.200 that expressly conditioned their application on a defendant's “reasonable belief that the conduct was necessary to avoid imminent harm. It is telling, the state argues, that ORS 161.200 does not contain the same “reasonably believes” language as those contemporaneously enacted provisions. See State v. Haugen, 349 Or. 174, 202, 243 P.3d 31 (2010) (reasoning that the legislature's use of a qualifying term in one section and not another “demonstrates that the legislature knew how to use such a term but did not do so”). Alternatively, the state argues that, even if a defendant's “reasonable belief” is enough under the statute, the belief must be objectively reasonable. In the state's view, defendant's belief was not objectively reasonable under the circumstances.

Because it is the linchpin of defendant's argument and provides context for our analysis, we begin with the case law describing or applying ORS 161.200. In Brown, the Supreme Court considered the scope of ORS 811.180(1)(a), which provides an affirmative defense under the vehicle code. The provision, which is similar to ORS 161.200, provides an affirmative defense to the crime of driving while suspended when “[a]n 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 question in Brown was whether that statute requires “that an injury or an immediate threat of injury to a human being actually existed or whether one of them appeared to exist.” 306 Or. at 605, 761 P.2d 1300 (emphasis added). The defendant in Brown had argued on appeal that he was entitled to raise a necessity defense under ORS 811.180(1)(a) because the record contained evidence from which a jury could conclude that, based on a frantic phone call from his friend, the defendant drove while suspended because he reasonably believed at the time of the offense that his friend was in danger. Id. at 607, 761 P.2d 1300.

The court held that, notwithstanding the...