Defendant appeals his conviction for failing to appear. ORS 162.205. He argues that the trial сourt erred when it refused to give his requested jury instructions on the defenses of choice of evils 1 and duress. 2 We reverse.
Aftеr being charged with delivery of a controlled substance, defendant was released on the condition that he appear in court on May 21, 1991. When he appeared on that day, he was ordered to appear again on June 14,1991, which he failed to do. At his trial on the failure to appear charge, defendant testified that he did not appear because, during the first wеek in June, he had been kidnapped by two men who took him to Portland, put him on a train and warned him not to appear in court:
“Q. [W]hy didn’t you appear in court?
‘ ‘A. I had every intention of fulfilling my obligation but I was threatened. I was paid а visit by a couple of people and told that if I didn’t leave town some bad things were going to hаppen to me because of these other charges.
“Q. Were they specific about what the bad things would be?
“A, They were going to break my legs to start with.
“Q. All right. Did they indicate that it would end there?
“A. No.
“Q. What did they go on to threaten?
*483 “A. They just said it could all happen to you.
(<* * * * *
“Q. What did‘it could all happen’mean?
“A. I took it to mean possibly murder.
(C* * * * *
“Q. [B]ack to the time that you werе threatened, what was your feeling at that point in time? What was going through your head?
“A. When I was first accosted by these two men that came down to the boat dock, I was afraid that they were going to kill me. They told me first they was going to break my legs if I showed up for court to this thing, to testify against these people and that other things could happen. They said, ‘Get your coat. We’re leaving. We’rе gone.’
“I was scared. I’m still scared.”
We evaluate the evidence in the light most favorable to the party seeking the instructions.
State v. Brown,
To establish the choice of evils defense under ORS 161.200, defendant had to offer evidence that would be sufficiеnt for the jury to find that: (1) his conduct was necessary to avoid a threatened injury; (2) the threatened injury wаs 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 ORS 162.205, the statute that he was found to have violated, seeks to prеvent. In order to constitute duress under ORS 161.270, the danger must be “present, imminent, and impending.”
State v. Fitzgerald,
In order for a threatened injury to be “imminent” under either ORS 161.200 or ORS 161.270, the threat must
*484
exist at the time of the commission of the charged offense.
State v. Jackson,
In this case, the jury could infer that defendant was under a continuing threat that, if he appeared in court on June 14, his legs would be broken or he would be murdered. Unlike in
State v. Fitzgerald, supra,
and in
State v. Whisman, supra,
the threat of injury, if there was one, existed on the day that defendant was scheduled to appear and was conditionеd on what he might do on that date. Under those circumstances, we hold that the threat about which defendant testified was “imminent” within the meaning of ORS 161.200 and ORS 161.270. It was for the jury to determine the weight of the evidencе, including whether defendant reasonably believed that the threat would be carried out if he aрpeared.
See State v. Brown, supra,
Reversed and remanded for a new trial.
Notes
ORS 161.200 provides:
“(1) Unless inconsistеnt with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable аnd not criminal when:
“(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
“(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirаbility of avoiding the injury sought to be prevented by the statute defining the offense in issue.”
ORS 161.270 provides:
“(1) The commission of acts which would otherwise constitute an offense, other than murder, is not criminal if the actor engaged in the proscribed conduct because the actor was coerced to do so by the use or threatened use of unlawful physical force upon the actor or a third person, which force or threatened force was of such nature or degree to overcome earnest resistance.”