State v. McPhail

The defenses of self-defense and choice of evils require an imminence element to be satisfied. Imminence will be found when the proponent of the defense is faced with a direct threat of immediate injury at the time. Preemptively arming oneself to prevent violence at an unknown point in the future does not satisfy the imminence element.

Defendant appeals a conviction for unlawful possession of a weapon by a prison inmate (ORS 166.275). Defendant assigns error to the trial court for not allowing him to present the defenses of self-defense and choice of evils. At a pretrial hearing to determine whether the defenses could be used, defendant offered testimony from five inmates who conveyed that defendant was under life threatening conditions from the Skinhead gang in the prison. Additionally, the inmate testimony confirmed defendant’s statement that he was trying to move to a cell block without gang activity and that the prison had been unwilling to do so. The court agreed with the state’s argument that the defenses required an immanency element which was not present in relation to the defendant’s circumstances. The Court agreed with the pretrial hearing decision to disallow the defenses of self-defense and choice of evils because there was not an imminent threat of injury to the defendant at the time he committed the offense of possessing the weapon. Affirmed.