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State v. Ko

Summarized by: 

Date Filed: 09-08-2011
Case #: A142884
Ortega, P.J., for the Court; Rosenblum, S.J.; & Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/A142884.pdf

Criminal Law: To violate a stalking protective order, statements made to protected persons must constitute unequivocal threats; and in order to prove a choice-of-evils defense, the defendant must prove that his conduct did not exceed what was necessary to avoid the purported evil.

Defendant was convicted on three counts of violating a stalking protective order (SPO). The SPO in question was held by defendant’s uncle and cousin, and the violations took place as defendant was entering a courtroom during his trial for previous violations of the same SPO. Regarding Count 3, defendant argued that because his act of speaking to the victims in this case did not constitute an unequivocal threat, the trial court erred in denying his motion for acquittal. The Court of Appeals agreed, and reversed the trial court’s judgment as to Count 3. Regarding Counts 2 and 4, defendant argued that the trial court should have submitted a choice-of-evils jury instruction, because those counts involved only his physical presence near the victims, which he argued was necessary for him to attend the trial in question. The Court of Appeals disagreed, and affirmed the decision of the trial court. The Court found that because defendant’s conduct went above that of what was required to attend the trial, and rose to the level of intimidation, he was not entitled to a choice-of-evils instruction. Conviction on Count 3 reversed; remanded for resentencing; otherwise affirmed.