State v. Moreno, 402 P.3d 767

Background

Jackson County deputies arrested defendant and transported him to jail; en route he appeared unresponsive and was taken to a hospital, medically cleared, then returned to the patrol car before being handcuffed.
Defendant asked for handcuffs to be placed in front due to medical conditions (stating he had cancer on his arms); officers insisted on rear handcuffing and planned two linked sets for spacing.
As officers began to cuff him behind his back, defendant "aggressively" separated his hands, turned, tried to lift/roll a shoulder, and tensed his arm; officers nonetheless completed handcuffing and charged him with resisting arrest among other offenses.
At trial defendant sought a jury instruction on the statutory "choice of evils" justification (ORS 161.200 / UCrJI 1103), arguing his movements were to avoid serious pain or harm from cuffing given his medical condition.
The trial court refused UCrJI 1103 as "unduly confusing"; the jury convicted him of resisting arrest and other charges; defendant appealed solely challenging refusal to instruct on choice of evils.
The court considered whether the proposed instruction correctly and completely stated the law and whether evidence supported it, focusing on whether the defense is precluded when the defendant used "physical force" to resist arrest (ORS 161.260).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by refusing UCrJI 1103 (choice of evils)	State: instruction incomplete because it did not tell jury that choice of evils is unavailable if defendant used physical force to resist arrest	Defendant: UCrJI 1103 correctly and completely states law and evidence supported it because resisting arrest does not require physical force and his conduct was not physical force	Court: No error — instruction incomplete because it failed to account for ORS 161.260 bar when physical force used
Whether ORS 161.260 forecloses choice of evils when defendant used physical force to resist arrest	State: ORS 161.260 reflects a legislative choice preventing justification by force against arresting officer	(Implicit) Defendant: choice of evils can apply even if some resistance occurred due to medical necessity	Court: ORS 161.260 constitutes a deliberate legislative choice; choice of evils unavailable when defendant used physical force to resist arrest
What constitutes "physical force" for preclusion under ORS 161.260	State: adopts prior definitions — use of strength or power, not incidental contact	Defendant: (argued his actions were non-forceful medically compelled movements)	Court: Physical force = actual use of strength or power; evidence allowed jury to find defendant used physical force
Whether evidence supported submission of choice of evils to jury	Defendant: his medical condition made cuffing dangerous, supporting necessity/imminence/reasonableness elements	State: evidence also permitted finding of physical-force resistance, which would bar defense	Court: Even assuming some evidentiary support, instruction was incomplete because it omitted the ORS 161.260 limitation; refusal affirmed

Key Cases Cited

State v. Clowes, 310 Or. 686 (court explains that an "inconsistent with some other provision" exception reflects deliberate legislative choices)
State v. Wan, 251 Or. App. 74 (instruction completeness evaluated in light of law and facts)
State v. Remsh, 221 Or. App. 471 (evidence held sufficient to show defendant used physical force when he jerked away and officer had to grab entire body)
State v. Kreft, 270 Or. App. 150 (defines "physical force" as the actual use of strength or power rather than incidental contact)
Purdy v. Deere & Co., 281 Or. App. 407 (trial court errs when instruction fails to completely and accurately inform jury of applicable legal parameters)
State v. Seamons, 170 Or. App. 582 (elements required to establish choice of evils defense)
State v. Oneill, 256 Or. App. 537 (standard of review for instruction refusal)