State v. Clowdus ( 2023 )

36 May 17, 2023 No. 258
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAMION MICHAEL CLOWDUS,
Defendant-Appellant.
Washington County Circuit Court
21CR11551; A177572
Janelle F. Wipper, Judge.
Argued and submitted February 24, 2023.
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.