State v. Clowdus

36

Argued and submitted February 24, reversed and remanded May 17, 2023

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAMION MICHAEL CLOWDUS,

Defendant-Appellant.

Washington County Circuit Court

21CR11551; A177572

530 P3d 525

Defendant was convicted of driving while suspended, ORS 811.182(4), after

he drove his car approximately 200 feet from where his girlfriend had left it in

the middle of the road. On appeal, defendant argues that, because there was evi-

dence to support each element of the defenses of necessity, ORS 811.180(1)(a), and

choice of evils, ORS 161.200, the trial court erred in refusing to instruct the jury

on those defenses as he had requested. Held: The trial court erred in refusing

to give the instructions. When a criminal defendant requests a jury instruction

on a defense, the court must give the instruction if it states the law correctly

and there is evidence to support each element of the defense. Here, regardless of

whether a jury would ultimately have found in defendant’s favor on the defenses,

the evidence was legally sufficient to go to the jury as to both necessity and choice

of evils.

Reversed and remanded.

Janelle F. Wipper, Judge.

George W. Kelly argued the cause and filed the brief for

appellant.

Robert W. Wilsey, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Reversed and remanded.

Cite as 326 Or App 36 (2023) 37

AOYAGI, P. J.

Defendant was convicted of driving while sus-

pended, ORS 811.182(4), after he drove a car approximately

200 feet from where his girlfriend had left it in the middle

of the road. On appeal, defendant assigns error to the trial

court’s refusal to instruct the jury on the defenses of neces-

sity, ORS 811.180(1)(a), and choice of evils, ORS 161.200.

We agree with defendant that the court erred in failing

to give those instructions and, accordingly, reverse and

remand.

When a criminal defendant requests a jury instruc-

tion on a defense, the court must give the instruction if it

states the law correctly and there is evidence to support

each element of the defense. State v. Cruz-Gonzalez, 256

Or App 811, 813, 303 P3d 983, rev den, 354 Or 61 (2013). We

review the refusal to give a jury instruction for legal error,

stating the facts in the light most favorable to the party who

requested it. State v. Oneill, 256 Or App 537, 538, 303 P3d

944, rev den, 354 Or 342 (2013). We therefore describe the

facts in the light most favorable to defendant.

On a February night just before 11:00 p.m., defen-

dant was a passenger in a car driven by his girlfriend, B.

Defendant and B started arguing, including about the fact

that defendant had bought the car for B as a gift, which B

felt defendant was holding over her head. B became so upset

that she stopped the car in the middle of Baseline Road in

Hillsboro, told defendant to “take the car then,” exited the

car, and “stormed off” on foot. B left the car “in the middle of

the road.” Baseline Road is a “main thoroughfare” and one

of two “very main arterial roadways” in the area. It has four

car lanes, two bike lanes (one on each side), and no shoulder.

The road is “heavily trafficked,” and sometimes there are

“vehicles that drive fast,” although traffic was less busy at

11:00 p.m.1

1

There was no direct evidence as to how busy the road was specifically at the

time of the incident. The police officer who testified did not remember what the

traffic was like, and the gas station attendant was asked how busy the road was

but answered how busy the gas station was. The parties seem to agree, however,

that it could at least be inferred that the road was less busy at 11:00 p.m. than

other times of day.

38 State v. Clowdus

After B left, defendant, who has a suspended driver’s

license, drove B’s car approximately 200 feet and parked it

at a gas station. The gas station attendant soon approached

the car and was unable to rouse defendant, who had fallen

asleep, so he called the police. When the police arrived for

a welfare check, defendant initially denied driving the car

but then admitted to having driven it a short distance as

described above. Defendant called B in front of the police,

and B walked back and met them at the gas station, where

she talked to the police. B later testified that she and defen-

dant had been arguing, that she stopped the car in the mid-

dle of the road and walked away, and that they were “almost

to the gas station” when she stopped.

Defendant was charged with driving while sus-

pended. He filed a pretrial notice of intent to rely on the

necessity defense and, at trial, asked the court to instruct

the jury on both necessity and choice of evils. Necessity is an

affirmative defense that applies specifically to the offense of

driving while suspended. ORS 811.180(1)(a). Choice of evils

is a justification defense that also applies to driving while

suspended. ORS 161.200 (choice of evils); ORS 811.180(1)(a)

(referring to ORS 161.200 as another “defense[ ] provided

by law” for driving while suspended). The state objected to

defendant’s requested instructions, arguing that there was

no evidence that anyone was injured or that there was an

immediate or imminent threat of injury to anyone, as well

as that alternatives existed to defendant driving the car.

The trial court agreed with the state and did not instruct

the jury on either the necessity defense or the choice-of-evils

defense. On appeal, defendant challenges the refusal to give

those two instructions.

As to each defense, it is undisputed that the requested

instruction was legally correct, but it is disputed whether

there was any evidence to support the defense. For pur-

poses of that determination, the “quantum” of evidence is

irrelevant, State v. Brown, 306 Or 599, 603 n 3, 761 P2d

1300 (1988), as is the existence of contrary evidence, State v.

Costanzo, 94 Or App 516, 518 n 1, 766 P2d 415 (1988). “[T]he

court’s role is not to weigh the evidence, but merely to deter-

mine if any evidence would support the defense.” Costanzo,

94 Or App at 518 n 1. That is both because it is the jury’s job

Cite as 326 Or App 36 (2023) 39

as factfinder to weigh the evidence, including deciding cred-

ibility and resolving conflicts in the evidence, and because

the Supreme Court has interpreted Article VII (Amended),

section 3, of the Oregon Constitution as requiring that a

theory “must be submitted for the jury’s consideration, no

matter whether the judge is persuaded[,]” if there is any evi-

dence to support all of the elements of the theory. Brown,

306 Or at 604.

For purposes of determining whether any evidence

supports a defense, it is important to keep in mind that

jurors are permitted to make “reasonable inferences” from

evidence but are not allowed to engage in “speculation and

guesswork.” State v. Bivins, 191 Or App 460, 467, 83 P3d

379 (2004). Jurors also may rely on common experience or

common knowledge in making reasonable inferences. Id. at

469 (a factfinder could reasonably infer, based on common

experience, that an open-handed slap makes a distinctive

sound); see also Dodge v. Tradewell Stores, 256 Or 514, 515-

16, 474 P2d 745 (1970) (a jury could reasonably infer, based

on common knowledge, that vinyl or asbestos flooring is slip-

pery when wet); Skeeters v. Skeeters, 237 Or 204, 214, 389

P2d 313, reh’g den, 237 Or 242, 391 P2d 386 (1964) (although

a jury cannot be permitted to speculate, it may rely on com-

mon experience to draw inferences).

Ultimately, “[if] there is an experience of logical

probability that an ultimate fact will follow a stated nar-

rative or historical fact, then the jury is given the oppor-

tunity to draw a conclusion because there is a reasonable

probability that the conclusion flows from the proven facts.”

Bivins, 191 Or App at 467 (internal quotation marks omit-

ted); see also State v. Hedgpeth, 365 Or 724, 733, 452 P3d

948 (2019) (“[R]eferences to ‘logic’ do not mean that a rea-

sonable inference must follow ‘necessarily’ or in the form

of a ‘logical syllogism.’ ‘Logic’ includes ‘principles of deduc-

tion or inference.’ Webster’s Third New Int’l Dictionary 1330

(unabridged ed 2002). And it has long been settled law in

Oregon that a party may rely on reasonable inferences aris-

ing from circumstantial evidence to establish elements of a

criminal offense.”). Conversely, if the conclusion that needs

to be drawn from the evidence to prove an element requires

“too great an inferential leap” or “the stacking of inferences

40 State v. Clowdus

to the point of speculation,” then the evidence is insufficient.

Bivins, 191 Or App at 468 (internal quotation marks omit-

ted). Whether an inference is reasonable on a particular

record is a question of law. Id. at 467. Also, if more than one

reasonable inference may be drawn from the evidence, it is

for the jury to decide between them. Hedgpeth, 365 Or at

732.

With those principles in mind, we conclude that the

trial court erred in refusing to instruct the jury on the affir-

mative defense of necessity. ORS 811.180(1)(a) establishes

an affirmative defense to the offense of driving while sus-

pended when there was “[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.” Breaking

that into elements, the two elements of the necessity defense

are (1) an injury or immediate threat of injury to a human or

animal, and (2) circumstances that were urgent enough to

make it necessary for the defendant to drive at the time and

place that he did. State v. Haley, 64 Or App 209, 212-13, 667

P2d 560 (1983). The defendant is not required to prove that

a threat of injury actually existed, only that he reasonably

believed that it did and that the information available to him

would cause a reasonable person to believe the same. Brown,

306 Or at 605-06 (“The word ‘threat’ implies something that

has not yet actually happened and requires a driver who

attempts to rescue someone from a ‘threat of injury’ to make

a judgment about the existence of that threat.”).

Regarding the first element of necessity, the jury

could have found on this record that defendant believed that

leaving B’s car where it was posed an immediate threat of

injury to other people on the road. Although defendant did

not testify, a person’s subjective belief may be reasonably

inferred in appropriate circumstances. See Costanzo, 94

Or App at 520 (the defendant’s friend’s testimony regarding

the circumstances of the defendant’s driving was sufficient

evidence to put the necessity defense to the jury, including

allowing an inference “that defendant reasonably believed

that [his friend]’s medical situation threatened imminent

injury”); State v. Sweet, 93 Or App 642, 645-46, 763 P2d

739 (1988) (the defendant’s wife’s testimony regarding an

Cite as 326 Or App 36 (2023) 41

emergency driving situation was sufficient evidence to put

the necessity defense to the jury, including as to whether

the defendant “actually and reasonably believed” that there

was an immediate threat of injury); see also, e.g., State v.

Hamilton, 285 Or App 315, 326, 397 P3d 61 (2017) (recog-

nizing generally that a police officer’s subjective belief may

be inferred from other evidence, but concluding that the

particular record did not allow a reasonable inference that

the officers held a particular subjective belief, where their

express statements indicated a different subject belief).

Here, the jury could have found that B stormed

off during an argument, leaving her car in the “middle of

the road” on a “main thoroughfare” late at night, and that

defendant then drove the car a distance of only about 200

feet, parked it, and fell asleep. From that evidence, a jury

could reasonably infer that defendant moved the car because

he believed that leaving it in the middle of the road posed

an immediate threat of injury to people in other vehicles,

who would not expect to encounter a stopped vehicle in the

middle of the road and could be injured by crashing into it

or attempting to swerve around it. The fact that defendant

drove the car only about 200 feet is particularly relevant to

it being reasonable to infer that he moved the car to avoid

someone hitting it, as there is no other apparent reason to

drive such a short distance and park. A jury could also find

that defendant’s belief of an immediate threat of injury was

reasonable under the circumstances. Based on common

experience, a jury could infer that, on a main thoroughfare

in an urban area, the arrival of other vehicles was inevitable

and imminent, even at the less trafficked hour of 11:00 p.m.

Regarding the second element of necessity, the jury

could find on this record that defendant reasonably believed

that the circumstances were urgent enough to make it nec-

essary for him to drive B’s car a short distance to get it off

the roadway. See Brown, 306 Or at 607 (“[W]hether there

was such urgency is to be tested by the defendant’s reason-

able belief, and defendant’s reasonable belief must be estab-

lished by evidence of the same criteria as that concerning

the reasonableness of a defendant’s belief that there was

injury or threat thereof.”). The jury could properly consider

as relevant to that issue the seriousness of the injury sought

42 State v. Clowdus

to be avoided—that is, injuries attendant to a motor vehi-

cle crash—and that defendant would not have had time to

move the car if he waited until he saw a vehicle approaching

in a manner suggestive of an impending crash. See Sweet,

93 Or App at 645 (“As to the [second element of the neces-

sity defense in ORS 811.180(1)(a)], both the magnitude of the

actual or threatened injury and the time necessary to avert

or remedy the injury or threatened injury are circumstances

to consider.”).

The state’s arguments as to why the evidence was

insufficient to prove the necessity defense do not persuade

us; rather, we view them as arguments better directed to

the jury. For example, the state points to the fact that defen-

dant initially denied driving the car at all, but it was for the

jury to decide whether that undermined defendant’s later

statements to the police in a way that would undermine

the defense. The state also argues that, even if defendant

believed that there was an immediate threat of injury to

others and that it was urgent to move the car off the road-

way, such belief was unreasonable as a matter of law. See

Brown, 306 Or at 607 (the reasonableness of the defendant’s

belief “must be a question for the jury” unless there is no

evidence allowing a finding that it was reasonable). The

trial court appears to have agreed, pointing to the lack of

evidence of a “close call.” However, a jury could find that the

circumstances were urgent enough to necessitate moving

the car immediately, without waiting for a near crash.

Accordingly, the trial court erred in refusing to

instruct the jury on the necessity defense. A jury might not

have found in defendant’s favor in the end, but there was

enough evidence that it could have found in his favor, which

is dispositive.

We next consider the choice-of-evils defense in

ORS 161.200, which is “somewhat similar” to the necessity

defense in ORS 811.180(1)(a) but more general in applica-

tion. Brown, 306 Or at 605 n 6 (describing the defenses as

“somewhat similar” and referring to choice of evils as the

“generalized necessity defense”). Subject to certain excep-

tions, conduct that would otherwise constitute an offense

“is justifiable and not criminal” when it “is necessary as an

Cite as 326 Or App 36 (2023) 43

emergency measure to avoid an imminent public or private

injury” and “[t]he 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(1).

Unlike necessity, which is an affirmative defense

on which the defendant bears the burden of proof, choice of

evils is a justification defense that, “when properly raised,

the state must negate beyond a reasonable doubt.” State v.

Phillips, 317 Or App 169, 171-72, 503 P3d 1282 (2022); see

also ORS 161.055 (stating the burden of proof for affirmative

defenses and for defenses “other than” affirmative defenses).

However, “the trial court has a screening function in deter-

mining whether the evidence is sufficient to send the choice

of evils question to the jury.” Phillips, 317 Or App at 172

(internal quotation marks omitted).

We have described the choice-of-evils defense as

having three elements. State v. Boldt, 116 Or App 480, 483,

841 P2d 1196 (1992). First, the conduct must be “necessary”

to avoid a threatened injury. Id. Conduct is necessary only if

the defendant had “no reasonable alternative but to commit

the crime.” Phillips, 317 Or App at 175. Second, the threat-

ened injury must be “imminent,” Boldt, 116 Or App at 483,

which means “immediate, ready to take place, or near at

hand,” City of Eugene v. Adams, 313 Or App 67, 72, 495 P3d

187, rev den, 368 Or 787 (2021) (internal quotation marks

omitted), as assessed from the perspective of an objective

reasonable person, Oneill, 256 Or App at 545. Third, it must

be reasonable for the defendant to believe that the need

to avoid the threatened injury outweighed the injury that

the violated statute seeks to prevent. Boldt, 116 Or App

at 483. Whether “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” is judged “according to ordinary standards

of intelligence and morality.” ORS 161.200(1)(b).

In refusing to give an instruction on the choice-of-

evils defense, the trial court focused on the second element,

44 State v. Clowdus

pointing to a lack of evidence of an “imminent” threat of

injury, such as evidence of other crashes on Baseline Road,

heavy traffic, or the like. We conclude that the evidence was

sufficient to create a jury question on whether there was

an “imminent” threat of injury, for essentially the same

reasons that it was sufficient to create a jury question on

whether there was an “immediate” threat of human injury

for purposes of the first element of the necessity defense.2

As to the first element of choice of evils, the state

argues that it was not necessary for defendant to drive the

car 200 feet to the gas station, because there were other

alternatives. The state posits that defendant could have

instead called B and tried to persuade her to come back and

move the car herself, physically pushed the car off the road

(by himself at night), left the car where it was and turned

on the emergency flashers to warn other drivers, called the

police nonemergency line, or walked to the gas station for

help. Those are all arguments that the state could have

made to the jury, but we are unpersuaded that they pre-

clude finding for defendant as a matter of law. Hypothetical

alternatives are relevant only insofar as a jury finds that

a reasonable alternative existed under the circumstances.

Phillips, 317 Or App at 176 (“Although those all might have

been alternatives, on these facts, a reasonable jury could

reject the notion that they were reasonable alternatives to

the course of action that defendant did take.” (Emphasis

in original.)). The jury might have been persuaded by the

state’s arguments. However, “on this record, reasonable

jurors could differ as to whether defendant had no other rea-

sonable alternatives, which means that defendant created a

jury question on the defense.” Id.

Finally, as to the third element of choice of evils,

a jury could find on this record that defendant reasonably

believed that the threatened injury to other drivers and their

2

Whereas the necessity defense requires “[a]n injury or immediate threat of

injury to a human being or animal,” ORS 811.180(1)(a), the choice-of-evils defense

requires “an imminent public or private injury[,]” ORS 161.200(1)(a), which we

have construed to include property damage, Haley, 64 Or App at 215. In this

case, someone crashing into B’s vehicle in the middle of the road would neces-

sarily cause property damage, in addition to risking injury to the humans in the

vehicle.

Cite as 326 Or App 36 (2023) 45

passengers posed by B’s car being parked in the middle of

Baseline Road late at night outweighed the injury that ORS

811.182 (creating the offense of driving while suspended)

seeks to prevent, particularly because defendant drove the

car only 200 feet.

Because there was sufficient evidence to create a

jury question on the choice-of-evils defense, the court erred

in refusing to instruct the jury on that defense.

In sum, the trial court erred by refusing to instruct

the jury on the necessity and choice-of-evil defenses. We

readily conclude that those errors were not harmless and,

accordingly, reverse and remand for a new trial. Cf. Phillips,

317 Or App at 180 (“[O]n this set of facts, reasonable 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 determination,

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.”).

Reversed and remanded.