Defendant appeals a judgment of conviction for fourth-degree assault, ORS 163.160, harassment, ORS 166.065, resisting arrest, ORS 162.315, and interfering with a peace officer, ORS 162.247. His sole challenge on appeal is to his conviction for resisting arrest. Defendant contends that the trial court erred when it declined to give defendаnt’s requested jury instruction on the choice of evils defense. We review the trial court’s refusal to give the requested jury instruction for errors of law and, as explained below, affirm. See State v. Oneill,
The following facts are undisputed. Jackson County Sheriffs Department Officers LaFord and Emel arrested defendant at his home. While thе officers were transporting him to jail, the officers noticed that defendant had leaned over in his seat. When the officers tried to get his attention, defendant did not respond. As a result, LaFord and Emel stopped the patrol car on the side of the road to get defendant out of the car and сalled for an ambulance to transport him to the hospital for further medical evaluation. Defendant was subsequently medically cleared for transport and lodging in the jail. When leaving the hospital, defendant got into the back seat of the patrol car before the officers were able to handcuff him. Emel informed defendant that he needed to be handcuffed to ride in the back of the patrol car. Defendant asked the officers to “put [the handcuffs] in front of [him].” Defendant also put his arms out in front of him, to which the one of the officers responded, “We’re not putting handcuffs in front, we have tо put them behind. We’ll put two sets of cuffs onf.]”
Ultimately, defendant got out of the backseat, faced the patrol car, and put his hands behind his back. As Emel began to put the handcuffs on defendant, “defendant aggressively separated his hands, [and] turned his body.” The officers told defendant to “stop resisting,” and defendant attempted to lift and roll his shoulder backward, which LaFord characterized as “another form of aggression of not wanting to be handcuffed.” LaFord wаs able to get defendant’s right arm behind his back with his hand up. LaFord testified that he felt defendant stiffen his arm, although it was not to the point that LaFord could not control it. LaFord told defendant, “Stop resisting. Knock it off.” After one of the officers told defendant that he was being charged with resisting arrest, defendant responded, “Oh yeah. I told you to quit twisting my arms. I have cancer everywhere.” Ultimately, Emel was able to handcuff defendant and transport him to jail.
At trial, defendant’s theory in defense of the charge of resisting arrest was that, due to his medical issues, when the officers handcuffed him to transport him from the hospital to jail, he responded the way that he did only to avoid serious pain and harm to his health. Based on that evidence, defendant sought to present the defense of choice of evils, ORS 161.200, which provides:
“(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with somе other provision of law, conduct which would otherwise constitute an offense is justifiable and 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 desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
“(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of thе statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.”
Defendant requested Uniform Criminal Jury Instruction (UCrJI) 1103, which states:
“The defense of choice of evils has been raised. Conduct that would otherwise constitute an offense is justifiable and not criminal when:
“(1) The defendant’s conduct is necessary as an emergency measure to avoid an imminent injury; and
“(2) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of the defendant’s avoiding the injury clearly outweigh thedеsirability of avoiding the injury sought to be prevented by the law that makes [insert charged crime] a crime.
“The burden of proof is on the state to prove beyond a reasonable doubt that this defense does not apply.”
(Emphasis in original.) After the close of the evidence and prior to instructing the jury, the trial court declined to give UCrJI 1103 because it would be “unduly confusing to the jury.” The jury found defendant guilty of, among other crimes, resisting arrest, ORS 162.315.
A defendant is entitled to a requested jury instruction if the instruction correctly states the law and is supported by sufficient evidence in the record. State v. Vanderzanden,
If the jury instruction that a party requests “is not correct in all respects,” there is no error in the trial court’s refusal to give the instruction. Hernandez v. Barbo Machinery Co.,
On appeal, defendant contends that the trial court erred when it refused to give UCrJI 1103 because, in his view, the instruction is both a correct and comрlete statement of the law and is supported by the evidence in the record. We conclude that, even assuming without deciding that there was evidence in the record to support defendant’s proposed choice of evils instruction, his proposed instruction was not complete and, thеrefore, it was not error for the trial court to refuse to provide it to the jury.
The parties agree that UCrJI 1103 is a correct statement of the law as to the choice of evils defense; however, they dispute whether it was a complete statement of the law as it applies to this case. We understand defendant’s argument as to the completeness of the instruction to be that, because physical force is not a necessary element of resisting arrest and because defendant’s actions did not constitute physical force, the instruction was complete. In response, the state argues that, although the jury could have found that defendant did not use physical force to resist arrest, given the facts of the case, the jury could have found the opposite. Therefore, according to the state, because UCrJI 1103 “did not inform the jury that, if it found that defendant had used physical force, the choiсe-of-evils defense would not apply,” it
To determine whether defendant’s requested instruction was a complete statement of the law in these circumstances, we first consider the choice of evils statute, ORS 161.200. It begins: “(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct that would otherwise constitute an offense is justifiable and not criminal!.]” In State v. Clowes,
The state argues that there is a relevant statute that demonstrates a “deliberate legislative choice” to foreclose thе use of the choice of evils defense to a charge of resisting arrest in the circumstances of this case. The state points to ORS 161.260, a provision of the justification section of Oregon Laws 1971, chapter 743. ORS 161.260 states that “[a] person may not use physical force to resist an arrest by a peаce officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful.” We agree with the state that ORS 161.260 contains language that presents the type of deliberate legislative policy choice contemplated by Clowes. ORS 161.260 expressly prohibits a person from using physical force to resist arrest by an officer who is known or reasonably appears to be a peace officer. Thus, a defendant who uses physical force to resist arrest under the conditions set forth in ORS 161.260 may not successfully rely on a defense of choicе of evils.
Because we conclude that a defendant who uses physical force to resist arrest under the conditions set forth in ORS 161.260 may not present the defense of choice of evils, we next consider what constitutes physical force. In a different context, we have previously defined physical force as the “actual use of strength or power” as opposed to “actual but incidental physical contact.” State v. Kreft,
To reach a conclusion whether defendant’s requested jury instruction was complete, we must determine whether there was evidence of defendant’s actions from which the jury could conclude that he used physical force as we have described it above. See Wan,
Given our conclusion that the evidence presented at trial raises an issue of fact as to whether defendant used physical force to resist arrest, we also conclude that defendant’s requested jury instruction on the choice of evils defense was not a complete statement of the law. Defendant’s proposed instruction did not inform the jury that it could consider the choice of evils defense in this case only if it determined that defendant did not use physical force to resist arrest by an officer who was known or reasonably appeared to be a peace officer. ORS 161.260; see Purdy,
Affirmed.
Notes
The reference to “two sets of cuffs” conveyed that the officers planned to link the sets of cuffs together, as they had previously, to allow more space between defendant’s hands.
ORS 162.315 provides, in relevant part:
“(1) A person commits the crime of resisting arrеst if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.
“(2) As used in this section:
«⅜⅜⅜⅜⅜
“(c) ‘Resists’ means the use or threatened use of violence, physical force or any other means that creates a substantiаl risk of physical injury to any person and includes, but is not limited to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to an officer. Passive resistance does not constitute behavior intended to prevent being taken into custody.”
For the purpose of the criminal code, ORS 161.015(6) defines “physical force” in a manner that is neither particularly illuminating for the purpose of this case, nor limiting in its scope. It states that ‘“physical force’ includes, but is not limited to, the use of an electrical stun gun, tear gas, or mace.” ORS 161.015(6). That definition of physical force was added to the criminal code in 1995 when the legislature, in the same bill, defined several new crimes that involved the use of stun guns, tear gas, or mace. Or Laws 1995, ch 651, §§ 1-5.
When a court concludes as a matter of law that a defendant’s actions were “inconsistent” with the criminal code or some other provision of law, the defendant would not be entitled to the choice of evils instruction or defense under ORS 161.200. See Clowes,