Info on choice of evils (CoE) defense, as limited in 1999 Oregon State legislature


recent court of appeals decision in State v Miles.  Source:


here is the relevant part of the opinion



We now turn to defendant's second assignment of error, in which he asserts that he should not have been barred from asserting the choice-of-evils defense under ORS 161.200. (2) ORS 161.200(1) provides, in pertinent part:


"Unless inconsistent * * * 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."


Defendant asserts that his manufacture of marijuana was medically necessary to avoid an imminent private injury such that he should be provided the choice-of-evils defense under ORS 161.200. In State v. Ownbey, 165 Or App 132, 996 P2d 510, adh'd to on recons, 168 Or App 525, 7 P3d 653 (2000), rev den, 331 Or 584 (2001), we addressed precisely this issue. In Ownbey, we held that a defendant, charged with the manufacture of marijuana and claiming that marijuana was medically necessary, was not entitled to the choice-of-evils defense because to grant him the defense would have been "inconsistent with the law in existence at the time of defendant's offense." Id. at 136. We noted that ORS 161.200 precludes the application of the choice-of-evils defense when it would be "inconsistent * * * with some other provision of law." In interpreting that text, we stated:


"Although the phrase 'inconsistent with some other provision of law' is not defined in ORS 161.200, the court in [State v. Clowes, 310 Or 686, 698, 801 P2d 789 (1990),] explained that that language means 'that the legislature's decision prevails if and when it makes specific value choices, and that 'competing values which have been foreclosed by deliberate legislative choice are excluded from the general defense of justification[.]'"


Id. at 135 (some internal quotation marks and citation omitted). At the time of the offense involved in Ownbey, Oregon voters had not yet enacted the OMMA, and the legislature, although considering legalizing marijuana for medical use in both 1993 and 1997, had declined to do so. Id. at 136 n 3. We reasoned that "when, as here, the legislature has already balanced the competing values that would be presented in a choice-of-evils defense and made a choice, the court is precluded from reassessing that judgment." Id. at 136.


Since our decision in Ownbey, Oregon voters enacted the OMMA; therefore, the rationale of Ownbey no longer supports a conclusion that a legislative judgment has been made that the choice-of-evils defense is not available under these circumstances. The OMMA provides defendants charged with the possession or manufacture of limited amounts of marijuana the choice-of-evils defense if certain prerequisites set out in ORS 475.319(3) are met. Nevertheless, because we conclude that defendant has failed to present legally sufficient evidence to be entitled to the choice-of-evils defense under ORS 161.200, we need not resolve the question of whether defendant satisfied these prerequisites. (3)


We have interpreted ORS 161.200(1) to require that, in order to assert the choice-of-evils defense, a defendant must present evidence that "(1) [his] 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 P3d 573 (2000). The trial court determined that defendant failed to adduce sufficient evidence of those elements to present the defense to the jury. See State v. Troen, 100 Or App 442, 445-46, 786 P2d 751, rev den, 310 Or 791, 801 P2d 841 (1990), cert den, 501 US 1232 (1991) (explaining that the trial court must make that threshold determination). Because we conclude that defendant has not presented evidence that his conduct was "necessary" to avoid a threatened injury, we agree and decline to address the other required elements.


For 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." See, e.g., Teague v. Motor Vehicles Div., 124 Or App 25, 860 P2d 905 (1993) (holding that, because there was substantial evidence to support the Motor Vehicles Division's finding that the defendant "had other options" besides driving while intoxicated, the defendant was precluded from asserting the choice-of-evils defense, having failed to establish the necessary factual basis for its application because "he would not have been in a position that required him to 'choose an evil'"); State v. Webber, 85 Or App 347, 352, 736 P2d 220, rev den, 304 Or 56 (1987) (holding that the defendant was not entitled to the choice-of-evils defense because the defendant failed to provide sufficient evidence as to why it was "necessary" for him to kill a deer without first obtaining a permit to do so); State v. Waller, 22 Or App 299!

, 302-03, 538 P2d 1274 (1975) (holding that the evidence was sufficient to conclude beyond a reasonable doubt that it was not "necessary" for the defendant to beat her son to prevent her male companion from doing so, stating that "[t]he facts suggest a number of reasonable alternatives rendering defendant's actions unnecessary").


In State v. Hund, 76 Or App 89, 708 P2d 621 (1985), rev den, 300 Or 477 (1986), the defendants, environmental activists convicted of disorderly conduct for obstructing a logging company's log trucks from removing previously felled old-growth timber from a loading area, sought to introduce evidence that their actions were justified under the choice-of-evils defense. The evidence showed that the logging company had authority from the Forest Service to remove the timber and that the defendants' prior attempts to obtain federal court orders stopping the company's actions had been unsuccessful. Id. at 92. In upholding the trial court's refusal to admit evidence in support of the choice-of-evils defense, we explained:


"If [the logging company's] actions were illegal, defendants had legal means available to stop them. They attempted to do so and were rebuffed. * * * That defendants, or others asserting defendants' position, had time to go to a court with power to act shows that there was no 'emergency' requiring immediate extra-legal action."

Id. at 92-93.


Likewise here, if marijuana manufacture was necessary to address defendant's chronic pain and nausea, as opposed to the pain relief available to him through other channels, defendant had legal means of obtaining that relief under the OMMA. Defendant failed to present evidence of an inability to follow the legal course of action--compliance with the OMMA–or that there was an "'emergency' requiring immediate extra-legal action."


Zukowski and two other doctors to whom defendant was referred refused to recommend defendant's use of marijuana, and defendant testified that they refused to do so pursuant to a policy of defendant's insurance carrier. Although that evidence, taken in the light most favorable to defendant, suggests that defendant's use of marijuana may have been necessary despite the fact that he was rebuffed by three doctors, defendant did not present any evidence that he was foreclosed--financially or otherwise--from obtaining the necessary recommendation from another doctor. To the contrary, following defendant's indictment for the manufacture of marijuana, defendant was able to obtain authorization from Leveque that he be permitted to use marijuana to alleviate his pain and nausea. Although Leveque was not defendant's attending physician at the time he gave his authorization, defendant has not presented any evidence that Leveque could not have taken the necessary steps to become defendant's attending physician. Additionally, defendant testified that, at one point, he was able to go without marijuana for three months. This precludes any inference that defendant was confronted with an "'emergency' requiring immediate extra-legal action."


In short, based on the record adduced below, viewed in the light most favorable to defendant, a jury could not infer from defendant's evidence that, in order to obtain what he claimed to be medically necessary marijuana, his only choice was to engage in the illegal manufacture of marijuana.


footnote 3. ORS 475.319(3) provides that a defendant charged with the possession or manufacture of marijuana who claims that the marijuana provides medically necessary benefits may assert the choice-of-evils defense only if he has "taken a substantial step to comply with the provisions of [the OMMA]." Neither party, at trial or on appeal, addressed whether any of the steps taken by defendant to obtain the support of his physicians for a registry identification card constituted a "substantial step to comply" with the OMMA.


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