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Law School Case Brief

State v. Burney - 49 Or. App. 529, 619 P.2d 1336 (1980)


In Oregon, a defendant is entitled to the choice of evils defense if there is evidence that: (1) his conduct is necessary to avoid a threatened injury; (2) the threatened injury is imminent; and (3) it is reasonable for defendant to believe that the need to avoid the injury was greater than the need to avoid the injury which the other statute seeks to prevent.


Defendant Richard Allen Burney was walking toward his truck when he sensed someone coming up behind him. Burney reached into his truck for a tire iron to defend himself, but found a pistol that a friend had left in the truck without Burney's knowledge. The person who was pursuing Burney saw the pistol, retreated, and informed police that Burney possessed a firearm. After police searched Burney's vehicle and found the pistol, Burney was arrested. After trial in Oregon state court Burney was  convicted of being an ex-convict in possession of a firearm pursuant to Ore. Rev. Stat. § 166.270. Burney appealed, contending that the trial court erred in refusing to consider the "choice of evils" defense, Ore. Rev. Stat. § 161.200, in assessing the evidence presented at trial because Burney had feared for his safety on the night in question. 


Was Burney entitled to the choice of evils defense?




The state court of appeals held that the "choice of evils" defense was available to Burney, who had been previously convicted of a felony and may have justified his resort to the weapon, which was otherwise unlawful for him to possess. Further, the court ruled, the evidence was not such as to require the trial court to find Burney guilty.

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