State v. Burney

Brief Fact Summary.

Defendant appeals a conviction for being an ex-convict in possession of a firearm. Defendant attempted to raise the “choice of evils” defense, but was rejected by the trial court.

Synopsis of Rule of Law.

In Oregon, the “choice of evils” statute is an available defense to a defendant who has been charged as being a convicted felon in the possession of a firearm in violation of state law.

Facts.

Prior to his move to Portland, Oregon, Burney’s (Defendant) friend left a pistol underneath the seat of his pickup truck. However, Defendant, a convicted felon, did not realize it was there. Once in Portland, Defendant was returning from a birthday party when his truck would not start. Defendant thought the truck would start if he let it sit for a while. During that time, Defendant went to a nearby club, had a glass of wine, and played a few games of pool for money. As he left the club, Defendant saw a man he had won money from playing pool coming after him with a broken-down cue stick. Once he reached the truck, Defendant reached under the seat to grab a tire iron, but felt the pistol instead. Defendant pointed the pistol at Griffin’s legs and told him to get away. Griffin left, but Defendant could not start the truck. Shortly thereafter, the police arrived, found the pistol, and arrested Defendant for being an ex-convict in possession of a firearm in violation of ORS 166.270. At trial, Defendant attempted to raise the “choice of evils” defense, but was rejected by the trial court. The trial judge found Defendant guilty and he appealed.

Issue.

Whether the “choice of evils” statute is an available defense to a defendant who has been charged as being a convicted felon in the possession of a firearm in violation of state law.

Held.

Yes. Defendant’s conviction is reversed and the case is remanded for a new trial. In Oregon, the “choice of evils” statute is an available defense to a defendant who has been charged as being a convicted felon in the possession of a firearm in violation of state law.

Discussion.

Defendant argues that the trial judge erred in refusing to allow him to assert the affirmative “choice of evils” defense. Set out in ORS 161.200, the defense provides that conduct which would otherwise be criminal is justified when (1) the conduct is necessary as an emergency measure to avoid an imminent injury and (2) 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 criminal offense that would otherwise be charged. The trial judge concluded that the defense is not available to one charged as an ex-convict in possession of a firearm. However, the “choice of evils” statute contains no such express exception. On the contrary, a defendant charged as being an ex-convict in possession of a firearm is just as entitled to utilize the defense as any other defendant. The court has previously held that a defendant is entitled to the defense if there is evidence that (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 need to avoid the injury was greater than the need to avoid the injury the statute seeks to prevent. Here, the trial judge found all of the elements applied, yet refused to instruct the jury on the law. The State argues that such error by the trial judge does not warrant reversal of Defendant’s conviction. Specifically, the State claims that the evidence that Defendant was, in fact, in possession of a firearm as a convicted felon is sufficient to justify the conviction. While the evidence produced at trial was sufficient to find that Defendant could be guilty of the offense, the evidence was not such as to require the trial court to find Defendant guilty. The reason for Defendant’s hiding of the gun was not established. Defendant may have intended to return the pistol to his friend or may have intended to turn it over to the police as soon as practicable. It would be unconscionable to hold Defendant guilty for continuing to possess a gun which came into his possession rightfully, unless he had a reasonable opportunity to get rid of it in a manner which would not create a public peril. Defendant was never asked what his intent was. The question is one for a trier of fact.