No. 581 August 21, 2024 463

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL ROBERT RAY JACKSON,

Defendant-Appellant.

Grant County Circuit Court

22CR29547; A180386

Robert S. Raschio, Judge.

Argued and submitted June 17, 2024.

Carla E. Edmondson, Deputy Public Defender, argued 

the cause for appellant. Also on the brief was Ernest G. 

Lannet, Chief Defender, Criminal Appellate Section, Office 

of Public Defense Services.

Kate E. Morrow, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and 

Jacquot, Judge.

JACQUOT, J.

Reversed and remanded.
464 State v. Jackson
Cite as 334 Or App 463 (2024) 465

JACQUOT, J.

In this criminal appeal, a jury found defendant 

guilty of driving under the influence of intoxicants (DUII), 

ORS 813.010. Defendant assigns error to the trial court’s 

refusal to instruct the jury on the choice-of-evils defense. 

He contends that the trial court was required to instruct 

the jury on that defense because there was some evidence to 

support each element. The state argues that the trial court 

correctly refused to provide the choice-of-evils instruction. 

We reverse and remand.

We review for legal error a trial court’s refusal to 

provide a requested jury instruction, and in doing so, we 

view the record in the light most favorable to the requesting party. State v. Paul, 289 Or App 408, 409, 410 P3d 378 

(2017). “A defendant is entitled to have the jury instructed 

on a defense if the instruction correctly states the law and 

if there is any evidence to support” each element of the 

defense. State v. Whiteley, 331 Or App 585, 586, 546 P3d 

956 (2024). “[T]he choice-of-evils defense is one that, when 

properly raised, the state must negate beyond a reasonable 

doubt, ORS 161.055(1)[.]” State v. Phillips, 317 Or App 169, 

171-72, 503 P3d 1282 (2022) (internal quotation marks and 

citation omitted).

Thus, the trial court must instruct the jury on the 

choice-of-evils defense, as provided by ORS 161.200, unless 

the record is devoid of evidence that would allow the jury to 

find these three things regarding the defendant:

“(1) his conduct was necessary to avoid a threatened 

injury; (2) the threatened injury was imminent; and (3) it 

was reasonable for him to believe that the need to avoid 

that injury was greater than the need to avoid the injury 

that ** * the statute that he was found to have violated ** * 

seeks to prevent.”

Id. at 174 (internal quotation marks and citation omitted; 

ellipses in Phillips). When we review the record to determine 

whether there was any evidence to support each of those elements, we view the evidence in the light most favorable to 

defendant, the proponent of the instruction. Id. at 172. “For 

purposes of that determination, the ‘quantum’ of evidence 
466 State v. Jackson

is irrelevant, State v. Brown, 306 Or 599, 603 n 3, 761 P2d 

1300 (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.’ [Id.] 

at 518 n 1.” State v. Clowdus, 326 Or App 36, 38-39, 530 P3d 

525 (2023).

With those standards in mind, we recount the evidence supporting the choice-of-evils defense, as well as some 

relevant context.

Defendant, who, at the time of these events, was 

retired, traveled off and on in a van, and often parked it 

overnight on “pull-offs” and forest roads because he could 

not afford campsite fees. On a day in June, he pulled his van 

onto a graveled area adjacent to Highway 395. There were 

no signs or gates on the property. Defendant always checked 

for “No Trespassing” signs. He planned to stay there for the 

night. Between 6:15 and 8:00 p.m., defendant drank a little 

more than two beers.

Around 8:00 p.m., the property’s tenant arrived. In 

his car, the tenant “zoomed up” next to defendant’s van and 

skidded to a stop. The tenant glared at defendant and said, 

“Who the hell are you?” When defendant answered that 

he was “hanging out for the night,” the tenant responded, 

“Well, you’re on my private property and you need to F’ing 

leave now.”

Defendant testified that he was fearful about getting into a physical altercation with the tenant for multiple 

reasons. He described himself as “a 61-year-old with back 

problems” and the tenant as “a much younger guy.” He considered that if any physical altercation took place, it “isn’t 

going to help me. I’m gonna end up hurt.” Defendant also 

considered that he was in a rural area where “a lot of people 

have guns.” Defendant characterized the tenant’s demeanor 

during the encounter as “aggressive.” He described the 

tenant as having “a glare and a stare. And I did not want 

to see the next step, which could have been a big one.” 

Defendant thought that he was “in no position to fight anybody.” Defendant felt that he was “okay” to drive under the 
Cite as 334 Or App 463 (2024) 467

circumstances; he started his van and drove away. The 

tenant “stared” at him “the whole time.” Defendant felt that 

it was “absolutely” unsafe for him to stay at the property, 

and he did not feel that it was unsafe for him to drive.

The tenant testified that defendant was “very 

respectful” and polite, did not argue, and left immediately 

after being told to leave. Tenant had a gun in his truck that 

he retrieved and placed in his hip holster. The property had 

previously had a sign indicating that it was private property 

and listed an individual to contact for inquiries about mining gold, but it was gone—perhaps the wind blew it away. 

Some time since the encounter with defendant, the tenant 

moved a number of large boulders to block the entrances to 

the property.

After defendant pulled onto the road, he looked in 

his rearview mirror and saw a vehicle that was the same 

color as the tenant’s vehicle. He thought that the tenant was 

following him, and “was catching up” to him. Defendant was 

“panicked and freaked out” as he drove, because he thought 

“that this altercation could keep going and get even worse.” 

In addition, “[t]here was no place for [him] to pull over at 

any point[.]” He testified, “If I saw another place that I could 

pull off, I would have.” He also explained that, because he 

thought the tenant was following him, he was concerned 

about “pulling off and allowing him to come up right behind 

me, again[.]” Defendant was “on edge.”

After defendant had been driving for about five minutes, the speed limit changed from 50 to 30 miles per hour 

as he approached Canyon City. But defendant did not see the 

speed limit sign until it was too late, because he was looking 

in his mirrors for the car behind him. He was pulled over for 

speeding because he was traveling 40 miles per hour.

Defendant was “fully” cooperative with the State 

Trooper who stopped him. Defendant was still “freaked out,” 

his “adrenaline was going,” and he was in a panic. He told 

the trooper what had happened and that he had felt that 

he was being chased. There were empty “alcohol containers” 

and an odor of alcohol in defendant’s van. Defendant performed field sobriety tests, in which the trooper observed 
468 State v. Jackson

two “clues” for each eye during the horizontal gaze nystagmus test, but no “clues” during the walk-and-turn test or 

the one-leg-stand test. Other than defendant’s speed, the 

trooper had not observed any signs of poor driving prior to 

stopping defendant. Defendant ultimately provided a breath 

sample that registered as 0.11 blood alcohol content, and he 

was charged with DUII.

At trial, defendant sought a jury instruction on the 

choice-of-evils defense; it was discussed pre-trial and the 

trial court deferred ruling until the close of evidence. At the 

close of evidence, the state objected to the court instructing 

the jury on the defense, arguing that there was insufficient 

evidence that defendant had no choice but to drive while 

intoxicated, and that there was insufficient evidence that 

the threatened harm persisted until the time that defendant was stopped for speeding. The trial court denied the 

instruction. In the course of ruling, the court explained that 

there was sufficient evidence of the three elements of the 

defense at the outset of defendant driving.

“Certainly, the court would find that [defendant] had 

the—would have the right to have a jury instruction read 

if he had left that property and gone to the next place to 

pull over and parked. The testimony is that he was—feared 

he was being followed. However, the contrary testimony 

offered by the defense is, he wasn’t.”

The trial court determined that choice-of-evils would allow 

driving and stopping at the first place that he could pull 

over. But the trial court concluded that defendant’s statements on cross-examination undercut his defense.

“So under cross-examination, the district attorney 

asked [defendant] if there were other places for him to pull 

over, prior to him being stopped in Canyon City, and his 

answer was, there was not a place where I could park for 

the evening.”

The trial court appears to have understood defendant’s 

statement on cross that there was no place that he could 

have parked for the night as expressing his only concern, 

and the court discounted (or perhaps did not recall) defendant’s statements that, before he was stopped, “[t]here was 

no place for me to pull over at any point,” and that he was 
Cite as 334 Or App 463 (2024) 469

concerned about “pulling off and allowing [the tenant] to 

come up right behind me, again[.]”

We reiterate that, when determining whether a 

defendant is entitled to an instruction on the choice-of-evils 

defense, the facts must be viewed in the light most favorable to the defendant. When a defendant gives inconsistent 

testimony, typically it is for the jury to decide what part of 

the testimony to credit, if any. As we explained in Whiteley, 

“Although it is true that defendant’s testimony, primarily on 

cross-examination, could undermine his defense at times by 

contradicting some of his direct examination testimony, no 

legal principle compels the factfinder to believe defendant’s 

most damaging” testimony on cross-examination and to 

disbelieve the testimony he gives that supports his defense. 

311 Or App at 589. Further, in this instance, the testimony 

is not necessarily contradictory. Defendant could have had 

more than one consideration in mind in deciding to continue 

driving.

Viewing the evidence in the light most favorable 

to defendant and drawing reasonable inferences, a reasonable factfinder could find the following. Defendant pulled off 

the road onto a graveled area that had no gates or signs. 

Believing it to be public property, he thought it was a place 

where he could spend the night in his van. Thinking he had 

stopped for the night, defendant drank a few beers. The 

tenant abruptly and aggressively arrived and confronted 

defendant in a hostile manner. He ordered defendant off of 

his property. Defendant reasonably feared that the confrontation might become physical, that he would not be able to 

defend himself against the tenant, that he would likely be 

hurt, and that it was possible that the tenant had a gun. 

Because he thought he could drive safely, defendant thought 

that it would be better for him to drive despite having consumed a little more than two beers, than it would be to stay 

on the property and continue the confrontation, which he 

felt was absolutely unsafe.

After pulling onto the road, defendant was concerned that the danger remained or had escalated, because 

he believed that the tenant was following him and was 

catching up. Defendant did not consider it safe to pull over 
470 State v. Jackson

anywhere before the point where he was stopped, because 

he remained concerned that the tenant would resume 

the confrontation if he pulled over, and that he would be 

hurt in a physical altercation. Defendant’s driving was not 

noticeably impaired, at least over a short time of observation. Defendant’s assessment of the tenor of the confrontation between himself and the tenant is supported by defendant’s testimony as well as inferences that may be drawn 

from the tenant’s testimony that defendant left immediately, without arguing, after the tenant told him to leave, 

and that the tenant immediately retrieved a gun from his 

car and holstered it on his hip when defendant was 100 

yards away.

On appeal, the state argues, as an alternative 

ground for affirmance, that there was insufficient evidence 

that defendant faced a threat of imminent injury at the time 

that he decided to drive. As the trial court did, we conclude 

that there was sufficient evidence to support that element, 

and we reject that argument without further discussion.

The state also argues, as it did below, that there 

was insufficient evidence for the jury to find that defendant 

had no reasonable alternative but to drive, thus committing 

DUII, and that, even if there was no reasonable alternative 

at the outset, the circumstances justifying defendant’s decision to drive had ended at some time before he was stopped 

for speeding. The state’s view of the evidence is inconsistent 

with our standard of review. As previously noted, considering the evidence in the light most favorable to the proponent 

of the instruction means that we do not attempt to resolve 

conflicts in the evidence, including in a defendant’s own testimony. If the testimony provides evidence to support giving 

the instruction, that evidence is considered in the analysis. 

If there is sufficient evidence on each element of the defense, 

then it will be for the jury to resolve any conflicts.1

1 The state acknowledges that “disputed evidence is typically not a basis for 

denying a requested jury instruction[.]” But, it argues, citing a civil case addressing summary judgment, Henderson-Rubio v. May Dept. Stores, 53 Or App 575, 

583-85, 632 P2d 1289 (1981), that “a party ordinarily cannot create an evidentiary dispute by contradicting their own testimony.” We do not see how “creating 

an evidentiary dispute” has any relevance in this context where the existence of 

an issue of material fact is not part of the analysis at all.
Cite as 334 Or App 463 (2024) 471

In sum, there was evidence in the record from 

which a factfinder could reasonably find that (1) defendant’s 

conduct was necessary to avoid a threat of injury; (2) the 

threat was imminent; and (3) it was reasonable for defendant to believe that the need to avoid the threat of harm was 

greater than the need to avoid the harm that the statute 

that he violated seeks to prevent. The trial court therefore 

erred by not giving the choice-of-evils instruction. We also 

conclude, in light of all of the evidence, that the error was 

not harmless.

Reversed and remanded.