Caseflicks

Court of Appeals of Oregon • 1980

State v. Burney

49 Or. App. 529 | 619 P.2d 1336 | 1980 Ore. App. LEXIS 3857

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Takeaway

In short, this case holds that Oregon's choice-of-evils defense can excuse an ex-convict's emergency possession of a firearm, but whether later possession remains justified depends on the facts, including the defendant's intent and opportunity to safely relinquish the weapon.

Background

Burney, an ex-convict, unknowingly transported a friend's pistol from Idaho to Portland in his pickup. Weeks later, after his truck broke down near a Portland Burger King, Burney played pool at a nearby club. A man named Griffin, from whom Burney had won money, behaved belligerently and left the club carrying a broken cue stick.

Burney testified that, as he returned to his truck, Griffin ran toward him and appeared ready to attack. Reaching under the truck seat for a tire iron, Burney instead found the pistol. He pointed it at Griffin's legs and told him to leave; Griffin did. Burney put the pistol back under the seat. Police soon arrived, searched the truck, and found the gun. Burney admitted that he had pointed it at Griffin because Griffin threatened him with the cue stick.

At the bench trial, the judge stated that he believed Burney's account but ruled that Oregon's choice-of-evils defense was categorically unavailable to a charge of ex-convict in possession of a firearm. The court therefore convicted Burney. He appealed, challenging that legal ruling.

Issues

Issue #1

Whether the choice-of-evils defense under ORS 161.200 is available to an ex-convict charged with possessing a firearm.

Holding

Yes. An ex-convict may invoke the choice-of-evils defense when the evidence otherwise satisfies the statute's requirements.

Reasoning

ORS 161.200 contains no express exception for the offense of ex-convict in possession of a firearm, and the court found no basis to imply one. The statute generally justifies otherwise criminal conduct when it is necessary as an emergency measure to prevent an imminent injury whose gravity clearly outweighs the harm targeted by the criminal statute.

A prior felony conviction does not strip a person of the right to defend against an imminent threat of injury. Thus, in appropriate circumstances, the choice-of-evils defense can justify an ex-convict's temporary resort to a weapon that the person would otherwise be forbidden to possess.

Under the court's earlier cases, the defense is available when the defendant's conduct was necessary to avoid a threatened injury, the injury was imminent, and it was reasonable to regard avoiding that injury as more important than avoiding the injury the charged statute seeks to prevent. The trial judge apparently found those elements present but refused the defense solely because of the nature of the charge. That categorical premise was legally wrong.

Issue #2

Whether the trial court's error was harmless because Burney retained the pistol after the immediate threat from Griffin ended.

Holding

No. The evidence permitted, but did not compel, a finding that Burney's continued possession was unlawful; the issue required factual resolution at a new trial.

Reasoning

The state correctly argued that Burney's possession after Griffin left could support a conviction. A choice-of-evils justification for taking up the gun during an emergency would not necessarily justify retaining it after the danger had passed.

But the record did not establish why Burney put the gun back under the seat or what he intended to do with it. If he intended to keep it or return it to its owner in Idaho, continued possession could be criminal. If he intended to surrender it to police as soon as reasonably possible, however, continued possession might remain justified.

The court reasoned that it would be unconscionable to convict a person for retaining a weapon that came into the person's possession rightfully unless and until the person had a reasonable opportunity to dispose of it without creating a public danger. Because Burney was never asked about his intent and permissible inferences ran both ways, the trier of fact had to decide the question. The conviction was therefore reversed and the case remanded for a new trial.