## Facts

- Burney was an ex‑convict (previously convicted of rape in Utah).
- Before Burney moved to Portland, Oregon, a friend left a pistol under the seat of Burney’s pickup truck, without Burney’s knowledge.
- Several weeks later in Portland, Burney was returning from a birthday party when his truck would not start.
- Believing the truck might start if it sat for a while, Burney went to a nearby club, drank a glass of wine, and played pool for money.
- Burney won money from a man named Griffin.
- As Burney left the club, Griffin approached him in a threatening manner carrying a broken pool cue.
- Burney went to his truck and reached under the seat for a tire iron to defend himself, but instead felt the pistol.
- Burney pointed the pistol toward Griffin’s legs and told him to get away; Griffin retreated.
- Burney still could not start the truck.
- Police arrived shortly thereafter, were told Burney had a gun, found the pistol under the truck seat, and arrested Burney.
- Burney was charged with being an ex‑convict in possession of a firearm in violation of ORS 166.270.
- At a bench trial, Burney sought to raise the statutory “choice of evils” defense under ORS 161.200; the trial court refused to consider it, ruling the defense was not available for this charge.
- The trial court found Burney guilty, and Burney appealed.

## Issues

1. Whether the “choice of evils” defense in ORS 161.200 is legally available to a defendant charged under ORS 166.270 (ex‑convict in possession of a firearm).
2. Whether the trial court erred by refusing to consider the defense and by failing to make findings on facts material to necessity, including the reason for and length of Burney’s possession after the immediate threat ended.

## Decision

- The Court of Appeals reversed the conviction and remanded for a new trial.
- The court held ORS 161.200 is not automatically barred in prosecutions under ORS 166.270.
- Because the trial court treated the defense as unavailable as a matter of law, it did not resolve factual questions required to determine whether Burney’s possession was justified, including whether any continued control of the gun after Griffin retreated was still necessary.

## Legal Principles

- A statutory justification defense applies according to the legislature’s text; absent an express statutory exclusion, courts should not create an offense-based bar to ORS 161.200.
- Under ORS 161.200, otherwise criminal conduct may be justified if it is necessary as an emergency measure to avoid an imminent public or private injury and the threatened injury clearly outweighs the harm the criminal statute seeks to prevent.
- The justification analysis is fact-dependent and includes the scope and duration of the defendant’s conduct; even if initial possession is justified by immediate danger, continued possession must be justified by a continuing emergency need (such as safe disposal) rather than some other purpose.
- When there is evidence supporting ORS 161.200, the trier of fact must evaluate whether the statute’s requirements are met instead of rejecting the defense categorically.

## Conclusion

State v. Burney held that Oregon’s statutory “choice of evils” defense can apply to an ex‑felon-in-possession charge and reversed Burney’s conviction because the trial court refused to consider the defense and did not make the findings needed to decide whether Burney’s brief use—and any continued possession—of the pistol was necessary to avoid imminent injury.


State v. Burney, 619 P.2d 1336 (1980)