State v. Heaton ( 2021 )

42
Argued and submitted January 16, 2020, affirmed March 17, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN ROBERT HEATON,
Defendant-Appellant.
Douglas County Circuit Court
17CR48970; A168229
483 P3d 1209
Defendant drank beer to the point that he could not legally drive, then
entered the backyard of a home that did not belong to him. The homeowner
ordered defendant to leave multiple times and ultimately threatened to get a gun
to shoot him. Scared, defendant left the yard and drove to the parking lot of a
fire department a few blocks away where, soon after, police caught up to him. A
jury found defendant guilty of felony driving under the influence of intoxicants
(DUII) under ORS 813.011(1), which makes DUII a felony when a defendant has
been convicted of DUII twice or more in the preceding 10 years. On appeal, defen-
dant contends that (1) one of the prior convictions on which his present conviction
is based is legally insufficient to count as a qualifying prior conviction under
ORS 813.011(1) because his guilty plea was entered outside the 10-year window;
(2) the trial court erred when it declined to instruct the jury on the statutory
choice-of-evils defense; and (3) the trial court imposed a $2,000 fine based on an
erroneous understanding of the scope of its authority and without making ade-
quate findings. Held: The trial court did not err. The prior DUII conviction that
defendant challenged was within the 10-year statutory window because the plea
and judgment of conviction were entered in accordance with ORS 813.255 after
defendant failed to finish diversion. Defendant was not entitled to a choice-of-
evils instruction, because the evidence did not allow for the reasonable inference
that defendant had no other course of action but to drive under the influence in
order to avoid being shot. Defendant’s challenge to the $2,000 fine conflicted with
the record and was otherwise unpreserved.
Affirmed.
Ann Marie Simmons, Judge.
Nora Coon, 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.
Cite as 310 Or App 42 (2021) 43
Before Lagesen, Presiding Judge, and Powers, Judge,
and Sercombe, Senior Judge.
LAGESEN, P. J.
Affirmed.
44 State v. Heaton
LAGESEN, P. J.
A jury found defendant guilty of felony driving under
the influence of intoxicants (DUII) under ORS 813.011(1),
which makes DUII a felony when a defendant has been
convicted of DUII twice or more in the preceding 10 years.
On appeal, defendant challenges his conviction and a fine
imposed at sentencing. We affirm.
According to the evidence at trial, defendant drank
beer to the point that he could not legally drive, and then
entered the backyard of a home that did not belong to him.
One homeowner (who was not armed at the time) yelled at
defendant, ordered him to leave multiple times, and ulti-
mately threatened to get a gun to shoot him; the other
homeowner called the police. Scared, defendant left the
yard and walked back to his truck, which was parked at the
church next door. In view of the homeowners, he drove to the
parking lot of a fire department a few blocks away, had two
more beers, and started watching a John Wayne movie on
a portable video player, soon to be interrupted by the police
officers responding to the homeowners’ call.
For his drive to the fire station, the state charged
defendant with a felony under ORS 813.011 for driving under
the influence of intoxicants, having “been convicted of driv-
ing under the influence of intoxicants * * * at least two times
in the 10 years prior to the date of the current offense,” ORS
813.011(1), and a jury found him guilty. At sentencing, the
trial court imposed a $2,000 fine, among other penalties.
On appeal, defendant contends that (1) one of the prior con-
victions on which his present conviction is based is legally
insufficient to count as a qualifying prior conviction under
ORS 813.011(1); (2) the trial court erred when it declined
to instruct the jury on the statutory choice-of-evils defense;
and (3) the trial court imposed a $2,000 fine based on an
erroneous understanding of the scope of its authority and
without making adequate findings. We address those issues
in sequence.
Prior conviction. Defendant first contends that one
of his two prior convictions is legally insufficient to count
as one of the two convictions required to elevate a misde-
meanor DUII to a felony under ORS 813.011(1). Noting that
Cite as 310 Or App 42 (2021) 45
ORS 813.011 specifies that, to count, a conviction must occur
“in the 10 years prior to the date of the current offense,” ORS
813.011(1), defendant argues that one of his two convictions
should not be treated as falling within that time frame. The
conviction in question was based on the guilty plea that
defendant made as a prerequisite to entering diversion.
Defendant’s guilty plea was outside of the 10-year window,
but, in accordance with ORS 813.255, the plea and judgment
of conviction were entered within the 10-year window after
defendant failed to finish diversion. Defendant argues that
the relevant date should be the date that he made the plea
as part of his petition to enter diversion.
Our review is for legal error. See State v. Donathan,
281 Or App 781, 785-86, 383 P3d 946 (2016), rev den, 360 Or
752 (2017). As defendant acknowledges, his argument is not
in harmony with our decision in Donathan. There, in con-
struing what it means to have been “convicted” previously
for purposes of ORS 813.010(5), we concluded that a person is
convicted upon a “finding of guilt.” Id. at 785-86. Addressing
how that conclusion squares with Oregon’s diversion stat-
utes, ORS 813.200 to 813.255, we explained that a finding of
guilt is not made at the time a court accepts a diversion peti-
tion. Rather, a finding of guilt (if any) occurs when the guilty
plea is entered, something that does not occur under ORS
813.255 unless and until a defendant fails to complete diver-
sion. Id. Although Donathan addressed ORS 813.010(5) and
not ORS 813.011(1), the parties agree that there is no basis
to conclude that those similarly worded provisions should
be construed differently. Also, we have already extended
Donathan’s holding to an ORS 813.011(1) case, relying on
the textual similarities between ORS 813.010(5) and ORS
813.011(1). State v. Rumley, 295 Or App 667, 432 P3d 1204,
rev den, 365 Or 192 (2019). Applying Donathan here, the
finding of guilt pertaining to the conviction at issue was
made at the time the court entered defendant’s plea after
he failed to complete diversion. Because that event undis-
putedly occurred within the 10-year period contemplated by
ORS 813.011(1), the court correctly ruled that the conviction
at issue was a qualifying one.
Choice-of-evils instruction. Defendant next asserts
that the trial court erred when it declined to instruct the
46 State v. Heaton
jury on the choice-of-evils defense under ORS 161.200. We
review for legal error, viewing the record in the light most
favorable to defendant, as the party requesting the instruc-
tion. State v. Paul, 289 Or App 408, 409, 410 P3d 378 (2017).
ORS 161.200 sets out the elements of the choice-of-
evils defense. It states, in relevant part:
“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 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(1).
As we have explained, to be entitled to a choice-of-
evils instruction under ORS 161.200, a defendant must pres-
ent 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. Boldt, 116 Or App 480, 483, 841 P2d 1196 (1992). In
this instance, the evidence falters on the first factor, if not
all of them.
“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.’ ” Paul, 289 Or App at 412 (quoting State v. Freih, 270
Or App 555, 557, 348 P3d 324 (2015) (brackets omitted)). In
other words, the evidence must allow for the inference that
Cite as 310 Or App 42 (2021) 47
the defendant had “no other course of action” than commit-
ting the crime charged in order to avoid a threatened injury.
Freih, 270 Or App at 559.
Here, defendant contends that the record would
allow for the reasonable inference that he had “no other
course of action” but to drive under the influence of intoxi-
cants in order to avoid the evil of getting shot by the home-
owner. We disagree. Although we must view the record in
the light most favorable to defendant on that point, the facts
here, when viewed in that light, do not add up to a rational
conclusion that defendant was left with no choice but to
drive while intoxicated.
The homeowner’s threat to shoot came in the con-
text of him ordering defendant to leave the property and,
by the time defendant started driving, he had left the
homeowner’s property. Although both homeowners watched
defendant after he left the property, there is no evidence
that they came after defendant or reiterated the threat to
shoot after defendant’s trespass ceased. There is no evidence
that the homeowner ever got his gun or brandished it. The
fire station to which defendant drove to get away was just a
few blocks away, a short walk, and the evidence below was
not developed enough to allow for the rational inference
that it was faster or safer for him to retrieve his car and
drive rather than just walk. Along the same lines, defen-
dant did not develop the evidence about the area between
the church and the fire station, so there is no basis to infer
that defendant lacked other potential safe harbors that he
could have reached on foot, had the homeowner actually
been coming after him. Under those circumstances, it would
not be reasonable to infer that defendant had no choice but
to drive under the influence of intoxicants, instead of simply
going straight to the fire station (or other closer location) on
foot, to avoid the threat of being shot. Although defendant
was likely scared and may have viewed driving as his best
option, the choice-of-evils defense requires a showing of no
other options. That showing was not made here.
Fine. In his final assignment of error, defendant
challenges the trial court’s imposition of a $2,000 fine, but
48 State v. Heaton
part of his challenge conflicts with the record and part of it
is not preserved.
Defendant first argues that the trial court erro-
neously believed that it was required to impose the fine,
although, in actuality, it had the discretion not to. But, as the
state points out, defense counsel explicitly alerted the court
that the fines were not mandatory, so the court knew that it
had a choice to make. For that reason, there is no reason to
think that the court thought the fines were mandatory.
Defendant alternatively argues that the court did
not adequately consider his ability to pay, as required by
ORS 161.645. But defendant presented evidence to the court
on the point at sentencing, which makes it difficult to con-
clude that the court did not consider it.
Finally, to the extent that defendant argues that
the trial court was required to make a better record of its
consideration of defendant’s financial resources than it did,
that argument is not preserved. See State v. Anderson, 363
Or 392, 410, 423 P3d 43 (2018) (“If defendant believed that
further explanation than the trial court provided was nec-
essary for meaningful appellate review, it was incumbent on
him to request it.”).
Affirmed.