State v. Freih

Under ORS 161.200, in order for a defendant to raise the affirmative defense of "choice-of-evils" against a charge of failure to appear in court, the defendant must be under threat of imminent psychological harm on the date (or shortly after) the defendant failed to appear.

Defendant failed to appear for a court date in connection with misdemeanor charges, and was charged and convicted for one count of failure to appear in the second degree. Defendant claimed that he had no choice but to miss the court date because of his mother’s medical condition. On review for legal error, the Court examined the trial court’s decision that Defendant would not be entitled to an instruction on the statutory choice-of-evils defense. The Court reviewed the the facts and evidence in the record in the light most favorable to defendant to determine whether a jury could permissibly find the statutory elements of the defense. “[A]n affirmative defense to a criminal charge may be withdrawn from the jury’s consideration only if there is no evidence in the record to support an element of the defense.” Defendant’s offense was failure to appear, which required evidence that would allow a jury to find that an alleged threat of injury existed on the day the defendant was scheduled to appear. The court concluded that it was not “necessary” for the defendant to fail to appear in order to avoid the threat of injury, or psychological harm resulting from not caring for his mother. The Court held that Defendant’s offer of proof was insufficient to show that Defendant had “no other course of action” available to him but to commit the crime. Affirmed.