State v. Moreno

There is no error in a trial court’s refusal to give a jury instruction that is incomplete. State v. Wan, 251 Or App 74, 83 (2012).

Defendant appealed a judgment of conviction for resisting arrest. Defendant assigned error to the trial court denial of Defendant’s request that Uniform Criminal Jury Instruction (UCrJI) 1103, on the “choice of evils” defense, be given to the jury. Defendant argued that the choice of evil jury instruction is a complete statement of the law because the defense applied even if the jury found he used physical force when he resisted arrest.  The State argued that the proposed instruction was not complete because it “did not inform the jury that, if it found that defendant had used physical force, the choice-of-evils defense would not apply.” There is no error in a trial court’s refusal to give a jury instruction that is incomplete. State v. Wan, 251 Or App 74, 83 (2012). Also, competing values which have been foreclosed by deliberate legislative choice are excluded from the general defense of justification. State v. Clowes, 310 Or. 686, 698, 801 P2d 789 (1990).  The Court of Appeals held that since competing values which have been foreclosed by deliberate legislative choice are excluded from the general defense of justification, the trial court did not err in declining to give the choice of evils jury instruction. The Court held the Oregon State Legislature deliberately chose to prohibit the use of physical force to resist arrest by an officer in ORS 161.260. In this case, if the jury had found Defendant used physical force, the choice of evils defense would not apply. Since the Defendant’s instruction did not inform the jury of this, it was incomplete.  Affirmed.