State v. Vanderzanden

337 P.3d 150, 265 Or. App. 752, 2014 Ore. App. LEXIS 1318
CourtCourt of Appeals of Oregon
DecidedOctober 1, 2014
DocketD115461T; A152270
StatusPublished
Cited by2 cases

This text of 337 P.3d 150 (State v. Vanderzanden) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vanderzanden, 337 P.3d 150, 265 Or. App. 752, 2014 Ore. App. LEXIS 1318 (Or. Ct. App. 2014).

Opinion

GARRETT, J.

Defendant and two companions, Black and Brown, traveled to a state forest in December 2011 to gather firewood. Black drove the three men in his truck. Defendant cut the firewood, and Brown loaded it into the truck. Black helped with the loading until it became too painful for him. He had a previous neck injury that was aggravated by driving on the rough road, changing a tire at the site, and loading the firewood. After several hours, Black wanted to leave because snow was beginning to fall and it would soon be dark. Black asked defendant to drive the truck because of his severe neck pain, lack of any cell phone service, and Brown’s inability to use the truck’s manual transmission. Defendant drove despite that his driver’s license had been revoked. A sheriffs deputy stopped the vehicle on their return home.

Defendant was charged with driving while his license was revoked, in violation of ORS 811.182. At trial, defendant stipulated that he committed the act, but he raised the affirmative defense of necessity. The jury convicted defendant, and he was sentenced to three years of bench probation. On appeal, defendant raises two assignments of error regarding the trial court’s jury instructions on the defense of necessity. Because we resolve the first assignment of error in defendant’s favor, we reverse and remand.

In his first assignment of error, defendant argues that the trial court should have given the following jury instruction requested by defendant:

“You do not need to find that the urgency of the circumstances actually made it necessary for the defendant to drive in order to acquit him; you only need to find that the defendant reasonably believed that the urgency of the circumstances made it necessary for him to drive.”

The trial court declined to give defendant’s requested instruction. Instead, the court gave the following instruction, which incorporated the uniform instruction on necessity:

“To the charge of DRIVING WHILE REVOKED [defendant] has raised an affirmative defense that injury [754]*754or immediate threat of injury to a human being and the urgency of the circumstances made it necessary for him to drive a motor vehicle at the time and place in question.
“If he [proves] this affirmative defense then he is not GUILTY of the charge of DRIVING WHILE REVOKED.
“In this case to establish this affirmative defense [defendant] must prove by a preponderance of the evidence that:
“1. [Defendant] reasonably] believed that there was an injury or an immediate threat of injury to a human being. And
“2. The urgency of the circumstances made it necessary for him to operate a motor vehicle at the time and place in question.”

Defendant objected to the trial court’s instruction, arguing that the second numbered part of the instruction was incorrect because it failed to frame the “urgency of the circumstances” in terms of defendant’s “reasonable belief.” Defendant’s requested instruction, he contends, cured that deficiency.

A defendant is entitled to a jury instruction if the instruction correctly states the law and evidence in the record supports the instruction. State v. Cruz-Gonzelez, 256 Or App 811, 813, 303 P3d 983, rev den, 354 Or 61 (2013). Failure to give a requested instruction is not error if the trial court’s instruction adequately covers the subject of the requested instruction. Leiseth v. Fred Meyer, Inc., 185 Or App 53, 57, 57 P3d 914 (2002), rev den, 335 Or 443 (2003) (citing State v. Tucker, 315 Or 321, 332, 845 P2d 904 (1993). We reverse only if the instructional error prejudiced defendant. Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (explaining that reversal is necessary “if the trial court’s failure to give the requested instruction probably created an erroneous impression of the law in the minds of the members of the jury and if that erroneous impression may have affected the outcome of the case”).

The difference between the instruction that defendant wanted and the instruction that the trial court gave is the reference, in the former, to defendant’s “reasonable belief.” To determine whether defendant was entitled to the [755]*755instruction that he requested, we turn first to the statute. The necessity defense that defendant raised at trial is codified at ORS 811.180(l)(a), which allows a defendant to avoid liability for driving while revoked, among other charges, if defendant proves the existence of “[a]n injury or immediate threat of injury to a human being or animal, and the urgency of the circumstances made it necessary for the defendant to drive a motor vehicle at the time and place in question [.]”

Although the text of the statute frames the issue in purely objective terms, the Supreme Court has held that the defense applies if a defendant reasonably believes that there was an injury or threat of injury that, under the circumstances, required the defendant to drive a vehicle. State v. Brown, 306 Or 599, 606, 761 P2d 1300 (1988). The court in Brown explained that “a defendant’s perception of circumstances that constitute an injury or immediate threat thereof has to be reasonable in all the circumstances” and “a defendant himself must reasonably have believed there to be such an injury or threat.” Id. Furthermore, “whether there was such urgency is to be tested by the defendant’s reasonable belief, and defendant’s reasonable belief must be established by evidence of the same criteria as that concerning the reasonableness of a defendant’s belief that there was injury or threat thereof.” Id. at 607 (emphasis added).

On appeal, defendant argues that the trial court’s instruction was incorrect and prejudicial because it only partially incorporated the “reasonable belief’ component. That is, the first part of the trial court’s instruction directed the jury to determine whether defendant reasonably believed that there was an “injury or immediate threat of injury to a human being.” The second part, however, directed the jury to decide whether the “urgency of the circumstances made it necessary for [defendant] to drive a motor vehicle at the time and place in question,” without reference to defendant’s reasonable belief. Thus, defendant contends, even though he was entitled to acquittal under Brown if the jury found that he reasonably believed that the circumstances were sufficiently urgent to require him to drive, the instruction that the trial court gave allowed the jury to convict defendant if the jury made its own determination that the circumstances were not sufficiently urgent.

[756]*756In response, the state argues: (1) that the trial court’s instruction was not erroneous, and (2) that, even if the instruction was erroneous, defendant was not prejudiced by it. We reject both arguments.

The state’s first contention is that the trial court’s instruction was not erroneous because it adequately stated the law. The state points out that the necessity defense is codified at ORS 811.180

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Related

State v. Roberts
427 P.3d 1130 (Court of Appeals of Oregon, 2018)
State v. Moreno
402 P.3d 767 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
337 P.3d 150, 265 Or. App. 752, 2014 Ore. App. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vanderzanden-orctapp-2014.