State v. Clowdus

“For purposes of [determining whether there is any evidence to support a defense], the ‘quantum’ of evidence is irrelevant, State v. Brown, 306 Or 599, 603 n 3, 761 P2d1300 (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 determine if any evidence would support the defense.’ Costanzo, 94 Or App at 518 n 1.”

Defendant got into an argument with his girlfriend while he was a passenger in her car on a February night at around 11:00 p.m. During the argument, Defendant’s girlfriend stopped the car in the middle if a “heavily trafficked,” four-lane, “main thoroughfare” and got “stormed off.” Defendant then drove her car on a suspended license to a gas station approximately 200 feet away where he fell asleep. Defendant was then convicted of driving while suspended in violation of ORS 811.182(4). Defendant made a pretrial motion requesting jury instructions on necessity and choice-of-evils defenses, which were denied for lack of evidence “that there was an immediate or imminent threat of injury to anyone.” On appeal, Defendant assigned error to the trial court’s refusal to give the requested jury instructions. “For purposes of [determining whether there is any evidence to support a defense], the ‘quantum’ of evidence is irrelevant, State v. Brown, 306 Or 599, 603 n 3, 761 P2d1300 (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 determine if any evidence would support the defense.’ Costanzo, 94 Or App at 518 n 1.” The Court held that the trial court erred in refusing to give the requested instructions, and citing State v. Phillips, 317 Or. App. 169 (2022), the Court concluded that the errors were not harmless. The Court reasoned that a jury could reasonably conclude that the necessity defense applied because leaving the car in the middle of the road at night could have caused immediate threat of injury to oncoming drivers. Using similar logic, the Court reasoned that a reasonable jury could conclude the choice-of-evils defense applied in this situation because the harm prevented by moving a parked car out of the middle of the street late at night could outweigh the harm sought to be prevented by the offense of driving while suspended. Reversed and remanded.