State v. Whiteley

"A defense to a criminal charge, such as choice of evils, should be withdrawn from the jury’s consideration only if there is no evidence in the record to support an element of the defense."

(1) Defendant’s license was suspended and he was intoxicated. He was living out of a van which contained all of his property. A man who appeared to be armed threatened to call the cops on him if he did not leave. The defendant elected to try and drive away, but was pulled over and cited by a police officer he did not know was there. He sought a “choice of evils” instruction to be given to the jury. The trial court denied the instructions. He was convicted of driving while suspended, driving while intoxicated, and a probation violation based on the former. He appealed. 

(2) The defendant contested the trial court’s denial of a “choice of evils” instruction. 

(3) He argued that a criminal defendant is entitled to submit any instructions supported by the record, and that a fact finder could conclude that his conduct was reasonably necessary. 

(4) The state argued that no rational fact-finder could find that the defendant actually and reasonably believed the defendant’s criminal conduct was necessary.

(5) There must be evidence that the defendant’s conduct was necessary to avoid a reasonably-perceived and imminent threat to support a “choice of evils” instruction. Defenses to criminal charges should only be removed from a jury’s consideration when there is no evidence to support it.  

(6) The court reviewed the facts most favorable to the defendant and found that a fact-finder could conclude this illegal driving was necessary to avoid a reasonably-perceived, imminent threat to himself and his property.

(7) The court held it was an error to exclude the requested instructions.