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State v. Freih

Court of Appeals of Oregon

April 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
HASSAN ALI FREIH, Defendant-Appellant

Submitted October 31, 2014.

Page 325

C112594CR. Washington County Circuit Court. James Lee Fun, Jr., Judge.

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Senior Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

OPINION

Page 326

[270 Or.App. 556] LAGESEN, J.

Defendant failed to appear for a court date in connection with misdemeanor charges against him and, as a result, was charged and convicted of one count of failure to appear in the second degree, in violation of ORS 162.195(1)(a).[1] On appeal, he assigns error to the trial court's pretrial ruling that he was not entitled to raise a choice-of-evils defense under ORS 161.200, and would not be entitled to a jury instruction on the choice-of-evils defense; defendant sought to defend against the charge on the ground that, in the light of his mother's medical condition, he had no choice but to miss his court date. We affirm.

We review the trial court's ruling that defendant would not be entitled to an instruction on the statutory choice-of-evils defense for legal error, viewing the record in the light most favorable to defendant to determine whether a jury permissibly could find the statutory elements of the defense from the facts[2] or evidence contained in the record. State v. Boldt, 116 Or.App. 480, 483, 841 P.2d 1196 (1992); State v. Matthews, 30 Or.App. 1133, 1136, 569 P.2d 662 (1977). " [A]n affirmative defense to a criminal charge may be withdrawn from the jury's consideration only if there is no evidence in the record to support an element of the defense." State v. Brown, 306 Or. 599, 605, 761 P.2d 1300 (1988).

[270 Or.App. 557] ORS 161.200 sets forth the elements of the statutory choice-of-evils defense. It provides in pertinent part:

" (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 ...

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