State v. Phillips

169

Argued and submitted December 3, 2021, reversed and remanded

January 26, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

DUSTEN WADE PHILLIPS,

Defendant-Appellant.

Lane County Circuit Court

18CR75015, 19CR40162;

A172538 (Control), A172782

503 P3d 1282

A jury found defendant guilty of first-degree animal abuse. A dog had

charged defendant and defendant shot it once in self-defense, and then a second

time, according to defendant, to relieve the dog’s suffering from the first shot. The

animal abuse charge was based on the second shot only; the state did not dispute

that the first shot was justified by self-defense. Defendant properly raised the

statutory choice-of-evils defense, ORS 161.200, but the trial court did not allow

defendant to present the defense and did not instruct the jury on it. On appeal,

defendant contends, among other things, that the trial court erred when it pre-

vented defendant’s choice-of-evils defense from going to the jury. Held: The record

in this case would allow for a jury to infer that the elements of the choice-of-evils

defense were present. The trial court erred when it ruled that defendant could

not present the defense to the jury through argument and, correlatively, when it

declined to instruct the jury on the defense. That error was not harmless.

Reversed and remanded.

Kamala H. Shugar, Judge. (Judgment entered October 4,

2019) (A172538)

Maurice K. Merten, Judge. (Judgment entered September 18,

2019) (A172782)

Francis C. Gieringer, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Peenesh Shah, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

170 State v. Phillips

Before James, Presiding Judge, Lagesen, Chief Judge, and

Kistler, Senior Judge.

LAGESEN, C. J.

Reversed and remanded.

Cite as 317 Or App 169 (2022) 171

LAGESEN, C. J.

A jury found defendant guilty of first-degree animal

abuse under ORS 167.320(1)(a) for shooting a dog. The dog

had charged defendant and defendant shot it once in self-

defense, and then a second time because, according to defen-

dant, the dog was suffering great pain from the first shot.

The animal abuse charge was based on the second shot only;

the state did not dispute that the first shot was justified by

defendant’s need to defend himself from the dog’s attack.

Defendant properly raised the statutory choice-of-evils

defense, ORS 161.200, through pretrial notice, as allowed

by ORS 161.055(3). He asserted that the second shot was

needed to euthanize the dog because the dog was in great

pain from the first shot, and because there were no nearby

veterinary clinics. Those facts were sufficient, in his view,

to require the trial court to let the jury consider his choice-

of-evils defense. The trial court did not allow defendant to

present the defense and declined defendant’s request to

instruct the jury on it.

On appeal, defendant contends, among other things,

that the trial court erred when it concluded that defendant

was not entitled to present a choice-of-evils defense and did

not instruct the jury on that defense. We agree with defen-

dant that the trial court erred when it ruled that defendant

could not present the defense to the jury through argu-

ment and, correlatively, declined to instruct the jury on the

defense. We conclude further that the error was not harm-

less. We therefore reverse and remand.

A defendant is entitled to have the jury instructed

on a properly-raised defense if, when the record is viewed in

the light most favorable to defendant, there is any evidence

to support the presence of each element of the defense. State

v. Moreno, 287 Or App 205, 209, 402 P3d 767 (2017). Said

another way, “A defense to a criminal charge, such as choice

of evils, should be withdrawn from the jury’s consideration

only if there is no evidence in the record to support an ele-

ment of the defense.” Id. (internal quotation marks omitted).

Although a defense such as the choice-of-evils defense is one

that, when properly raised, the state must negate beyond a

reasonable doubt, ORS 161.055(1), “[a] choice of evils defense

172 State v. Phillips

is a defense of justification, 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. McPhail,

273 Or App 42, 48-49, 359 P3d 325 (2015), rev den, 358 Or 529

(2016) (internal citation and quotation marks omitted).

We review “to determine whether defendant pre-

sented any evidence to support the defense[ ] he sought to

assert and evaluate that evidence in the light most favorable

to defendant.” State v. Miles, 197 Or App 86, 88, 104 P3d

604, rev den, 338 Or 488 (2005).

In this case, defendant raised the choice-of-evils

defense by giving pretrial notice, as allowed by ORS

161.055(3), which states,

“The state is not required to negate a defense as defined

in subsection (1) of this section unless it is raised by the

defendant. ‘Raised by the defendant’ means either notice in

writing to the state before commencement of trial or affir-

mative evidence by a defense witness in the defendant’s

case in chief.”

The state then moved in limine to preclude defendant from

raising the defense. Following a hearing on the state’s motion,

the court ruled, “I am not going to allow any reference to the

choice of evils defense in opening statement, in jury selection

or throughout the trial.” The court instructed defendant that

should a “renewed basis” for the defense arise, it may recon-

sider allowing the defense and permitted defendant to testify

about “why he shot the dog the second time,” so long as the

choice-of-evils defense was not mentioned. At the close of evi-

dence, defendant again requested that the jury be instructed

on the choice-of-evils defense, but the court, after consider-

ing the matter overnight, did not deliver the instruction.

Because the record reflects that the trial court considered

whether to withdraw the defense from the jury pretrial and

then reconsidered that decision at the end of trial, we review

the court’s decision against the entire record, although we

note that the evidence at trial did not depart in any signifi-

cant way from how the evidence developed pretrial.

When the evidence is viewed in the light most

favorable to defendant, it reveals the following. Defendant

entered a house where several people were present. One

Cite as 317 Or App 169 (2022) 173

of them owned a dog and, at first, restrained the dog by

blocking it in a bedroom. Then, the dog’s owner “smiled and

stepped aside and the dog come ripping out of the bedroom

around the corner of the couch by the fireplace with its teeth

baring, and it was obvious it was going to attack.” As the dog

charged toward him, defendant pulled out his gun and shot

the dog. The dog “made a loud yelp and walked back like two

steps to the stove and was screaming in pain[.]” Defendant

then stated out loud that “[he] would put the dog out of its

misery,” and, although the owner was there, “[n]obody told

[him] not to.” When defendant aimed for the second shot, the

dog “was laying down, screaming, horribly in pain.” He shot

the dog a second time and immediately left the house. With

regard to the second shot, defendant did not think he had

other options because of the dog’s wounded condition, and

because there were no nearby veterinary clinics:

“I could have left and left that dog screaming in pain and

I would have felt that that would have been horrible. That

would have been abuse to the animal, I thought, because it,

you know what I mean, it was mortally wounded.

“It was, you know, and it was screaming in horrible

pain. I didn’t think I had another option.

“* * * * *

“And when I said that I would put it out of its misery,

and nobody said not to, I, you know. I [thought] that’s what,

you know, I should do. I don’t think anything suffering is

any good.”

Defendant explained that he had “grown up on a farm,” and

had “seen animals that were injured bad,” and thought that

“the dog was injured bad.” He explained further that the

nearest veterinary clinic was in Springfield and estimated

that it would take about 45 minutes to an hour to get there.

Defendant also testified that he did not think the dog would

survive the trip to the vet and that “it would have been inhu-

mane to let it suffer to try to get to the vet to put it to sleep

for it not to make it.”

Defendant asserts that, on these facts, the trial

court erred when it did not allow him to raise the choice-of-

evils defense allowed by ORS 161.200. The state responds

174 State v. Phillips

that the trial court correctly declined to let defendant raise

the defense.

ORS 161.200 sets out the elements of the choice-of-

evils defense. It states, in relevant part:

“(1) Unless inconsistent with other provisions of chap-

ter 743, Oregon Laws 1971, defining justifiable use of physi-

cal 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 mea-

sure 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 moral-

ity, 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. When a defendant has properly raised the

defense in the manner specified in ORS 161.055(3), a trial

court must instruct the jury on the choice-of-evils defense

under ORS 161.200, unless the record is devoid of evidence

that would allow the jury to find three things:

“(1) his conduct was necessary to avoid a threatened injury;

(2) the threatened injury was imminent; and (3) it was rea-

sonable for him to believe that the need to avoid that injury

was greater than the need to avoid the injury that * * * the

statute that he was found to have violated * * * seeks to

prevent.”

State v. Heaton, 310 Or App 42, 46, 483 P3d 1209, rev den,

368 Or 637 (2021) (citation omitted).1 Here, defendant asserts

1

Although we long have said that a defendant’s evidence must be such that

a jury could find in the defendant’s favor on the choice-of-evils defense, see, e.g.,

State v. Boldt, 116 Or App 480, 483, 841 P2d 1196 (1992), and have characterized

it as an affirmative defense, State v. Oneill, 256 Or App 537, 543-44, 303 P3d 944,

rev den, 354 Or 342 (2013), that description risks miscommunicating the nature of

defendant’s evidentiary burden as established by the legislature. The governing

statutes place the burden of disproving the defense on the state. The choice-of-evils

defense defined by ORS 161.200 is not an affirmative defense, because chapter 743,

Or Laws 1971, did not “declare[ ]” it to be an affirmative defense. ORS 161.055(2).

As a result, “the state has the burden of disproving the defense beyond a reason-

able doubt” whenever a defendant raises the defense by either pretrial notice or by

presenting the evidence in the defendant’s case in chief. ORS 161.055(1), (3).

Cite as 317 Or App 169 (2022) 175

that his conduct was necessary to avoid prolonging the dog’s

suffering from the injury caused by the first shot. Therefore,

unless inconsistent with other provisions of law, defendant

was entitled to an instruction on the defense if the evidence

would allow the jury to find (1) that shooting the dog a sec-

ond time was necessary to avoid the dog’s prolonged suffer-

ing; (2) that the dog’s prolonged suffering was imminent;

and (3) that it was reasonable for him to believe that the

need to avoid the dog’s prolonged suffering was greater than

the need to avoid causing the additional serious physical

injury to the animal—in this case, the death of the animal.

There is no provision of law that precludes the avail-

ability of a choice-of-law defense in these circumstances.

See State v. Clowes, 310 Or 686, 697-98, 801 P2d 789 (1990)

(explaining that the statutory text, “inconsistent with some

other provision,” means that “specific value choices” made by

the legislature via statutory law prevail over an otherwise

available justification defense).2

As for whether the evidence would allow an infer-

ence that the dog’s prolonged suffering was imminent,

defendant’s testimony would allow a factfinder to find the

dog had been shot once, was “screaming” in pain, and that

a trip to the vet to euthanize the animal would immediately

result in that prolonged pain. See McPhail, 273 Or App at

50 (imminence requires that threat of injury existed at the

time that defendant committed his offense).

The next question is whether the evidence would

allow for the inference that defendant’s act of shooting the

dog a second time was necessary to avoid the dog’s immi-

nent prolonged suffering. “To show that criminal conduct

was necessary within the meaning of ORS 161.200(1)(a),

defendant is required to put forth evidence that would allow

the jury to find that he had no reasonable alternative but to

commit the crime. In other words, the evidence must allow

for the inference that the defendant had no other course of

2

On the contrary, as defendant points out, the legislative history of ORS

167.320 indicates that the legislature was told that the law would “[a]llow[ ] for

[a] defense of ending an animal’s life to alleviate its suffering,” i.e., the choice-of-

evils defense. Testimony, Senate Committee on Judiciary, SB 230, Feb 15, 2001,

Ex O (statement of Stephen Otto).

176 State v. Phillips

action than committing the crime charged in order to avoid

a threatened injury.” Heaton, 310 Or App at 46-47 (internal

citations and quotation marks omitted).

Defendant’s evidence allows for that inference here.

According to defendant’s testimony during his offer of proof,

the dog was screaming, lying on its side, and, based on

defendant’s experience growing up on a farm, which gave

him firsthand experience with badly injured animals, was

“mortally wounded.” Defendant saw “no choice” but to shoot

the animal to alleviate its suffering. Defendant voiced his

intention to put the dog out of its misery, and neither the

dog’s owner nor anyone else present responded by suggest-

ing a different course of action. Moreover, there was no

nearby veterinary assistance, with the closest veterinarian

being 45 minutes to an hour away, so there was no apparent

alternative way to euthanize the animal.

That evidence would allow a reasonable jury to find

that defendant had no reasonable alternatives to shooting

the dog a second time to prevent its prolonged suffering.

Although the evidence would not compel the finding—a rea-

sonable jury certainly could view the situation differently—

it would allow the finding. Said another way, on this record,

reasonable jurors could differ as to whether defendant had

no other reasonable alternatives, which means that defen-

dant created a jury question on the defense.

In concluding to the contrary, the trial court rea-

soned that defendant had alternatives to shooting the dog a

second time: simply leaving after shooting it the first time

in what the state does not dispute was self-defense, driving

45 minutes to an hour to seek out veterinary care (or leave

that option open to the owner) despite what appeared to be

a mortal wound, or “hand[ing] his gun to the owner and

let[ting] the owner make” the decision to “put[ ] the dog out

of [its] misery.” Although those all might have been alter-

natives, on these facts, a reasonable jury could reject the

notion that they were reasonable alternatives to the course

of action that defendant did take. Simply put, a reasonable

jury, viewing the evidence in the light most favorable to

defendant, could infer that the dog was mortally wounded,

making it unreasonable for defendant to simply walk away.

Cite as 317 Or App 169 (2022) 177

A reasonable jury also could infer that handing the gun to

the owner was not a reasonable option because the evidence

would allow an inference that the owner assented to defen-

dant’s proposal to put the dog out of its misery, and there

is no basis in this record to infer that the owner desired

to shoot the dog himself, rather than have defendant do it.

A reasonable jury could also find that driving to a veter-

inary clinic was not a reasonable option because it would

prolong the dog’s suffering until it could be euthanized by

a veterinarian. Again, a jury would not have to make those

findings—it could easily view facts differently—but it would

not be unreasonable for the jury to see the evidence as

demonstrating that defendant lacked reasonable alterna-

tives to shooting the dog a second time to put it out of its

misery.

Finally, the evidence also had to be such that it

would allow for the inference that “it was reasonable for

[defendant] to believe that the need to avoid” the dog’s pro-

longed suffering was “greater than the need to avoid” caus-

ing the additional serious physical injury to the animal.

The standard is of an objectively reasonable person “of ordi-

nary intelligence and understanding, not a person with the

unique history or mental characteristics of any particular

defendant.” State v. Oneill, 256 Or App 537, 544, 303 P3d

944, rev den, 354 Or 342 (2013).

Here, the facts would allow for that inference. When

viewed in defendant’s favor, the dog was already seriously

injured by defendant’s first shooting which, again, the state

has not disputed was justified in self-defense. The second

shot, on which the state based the prosecution, was intended

to alleviate the suffering caused by the serious physical

injury inflicted by the justified initial shooting. The stat-

ute under which defendant was charged, which prohibits

the knowing or reckless infliction of serious physical injury

on an animal, ORS 167.320, “reflect[s] a legislative concern

that animals be protected from unnecessary pain, trauma,

and suffering[.]” State v. Fessenden, 258 Or App 639, 648,

310 P3d 1163 (2013), aff’d, 355 Or 759, 333 P3d 278 (2014). In

a sense, then, defendant’s choice to attempt to alleviate the

dog’s suffering was in the spirit of the statute under which

178 State v. Phillips

he is charged, or so a jury could infer. In other words, a jury

could infer that it is reasonable to euthanize a suffering

animal—necessarily injuring it further by causing its death—

to eliminate the animal’s suffering from a preexisting seri-

ous injury.

In short, the record in this case would allow for a

jury to infer that the elements of the choice-of-evils defense

were present. Defendant was entitled to a jury instruction

on the defense.

Opposing this conclusion, the state makes three

main arguments. First, the state contends that the assigned

error is not preserved with respect to defendant’s challenge

to the court’s failure to deliver the instruction. We disagree.

Defendant properly raised the defense by pretrial notice and

presented evidence sufficient to allow the defense to go to

the jury, but the trial court erroneously ruled that he had

not done so. Defendant also requested the instruction again

at the end of trial and submitted a written request for the

instruction. The trial court considered the issue overnight

but did not give the instruction. That is sufficient to pre-

serve a contention that the trial court erred by not instruct-

ing the jury on the defense.

Second, the state argues that, in this instance,

permitting the choice-of-evils defense would be contrary to

another provision of law. The state concedes that there may

be circumstances when intentionally causing an animal’s

death is necessary to prevent unnecessary suffering but

argues that, based on “competing values which have been

foreclosed by deliberate legislative choice,” only an animal’s

owner can usually make that decision. See Clowes, 310 Or at

698. That, the state contends, is because animals are gener-

ally considered property and thus relevant statutes give pet

owners “final authority” over the euthanasia of their ani-

mals. For example, the state points to ORS 686.440, which

provides civil immunity for a veterinarian who decides to

euthanize “a seriously injured or seriously ill animal,” but

only if the veterinarian “does not know who owns the ani-

mal or is unable to contact an owner of the animal before a

decision must be made with respect to emergency treatment

or euthanasia.” While the state is correct that established

Cite as 317 Or App 169 (2022) 179

law generally protects an animal owner’s right to have a say

in the euthanasia of an animal, that law does not persuade

us that the legislature intended to categorically prohibit a

defendant from raising a choice-of-evils defense on facts like

those present here. Significantly, the record here would allow

for the inference that the owner tacitly consented to defen-

dant’s conduct, such that the owner had the opportunity to

have a say in whether his injured dog should be euthanized

at the time and in the manner proposed by defendant.3

Third, the state contends that the evidence is insuf-

ficient to support a finding of necessity because of the owner’s

presence. But, for reasons discussed above, on these facts,

the owner’s presence, on its own, does not compel an infer-

ence that defendant had other reasonable courses of action

available, as the state necessarily would be required to

prove to negate the choice-of-evils defense.

Harmless Error. Even though defendant was pre-

cluded from explicitly raising a choice-of-evils defense before

the jury, related evidence was permitted. However, it can-

not be concluded that the evidence would not have been pre-

sented differently had defendant been allowed to formally

raise the choice-of-evils defense, nor can it be concluded that

the jury would have weighed the evidence the same. Insofar

as the court erred by preventing defendant from raising the

choice-of-evils defense, that error was not harmless.

The facts of this case, viewed in the light most favor-

able to defendant, could allow a jury to find that defendant

reasonably believed that shooting the dog a second time was

necessary to alleviate the dog’s suffering and that it was

reasonable for him to believe that the need to avoid the dog’s

prolonged suffering was greater than the need to avoid caus-

ing serious physical injury to the animal. Because of that,

3

The state did not call the owner of the dog at trial to contradict defendant’s

testimony that he had announced his intention to put the dog out of its misery

before he shot it the second time, and that no one had said anything in response.

The only evidence offered by the state to contradict defendant’s testimony was

testimony from the deputy sheriff who investigated the incident. Although the

deputy sheriff testified that she did not hear from defendant that he announced

his intentions, that testimony, on its own and viewed in a light most favorable to

defendant, is not sufficient to preclude the possibility of a reasonable jury finding

that the owner tacitly consented to defendant’s proposed course of action.

180 State v. Phillips

the trial court erred when it withdrew the choice-of-evils

defense from the jury. That is, on this set of facts, reason-

able jurors could have a range of reasonable perspectives on

whether the defendant’s conduct was justified by the choice-

of-evils defense. Some reasonable jurors could conclude that

it was; others could conclude that it was not. That deter-

mination, though, is one that defendant, having exercised

his right to have a jury decide his case, is entitled to have

resolved by the jury on this record. We therefore reverse his

conviction on that basis and remand for a new trial.

That leaves a few other matters to wrap up. Our

conclusion that the court erred in failing to instruct the jury

on the choice-of-evils defense obviates the need to address

defendant’s third assignment of error, in which defendant

contends that the trial court erred by not instructing the

jury or otherwise communicating to it that the state’s pros-

ecution was based on defendant’s second shot only, and not

the first shot. In another assignment of error, defendant con-

tends that the evidence is insufficient to support his con-

viction and that the trial court, therefore, erred in denying

his motion for judgment of acquittal. Having reviewed the

record, we reject that contention.

Reversed and remanded.