People v. Fontes

Colorado Court of Appeals · Criminal Law

Criminal Lawchoice of evilsaffirmative defensesharmless errormarital privilegechoice of evilsnecessityaffirmative defense

Facts

Defendant was arrested after presenting a false identification card to a convenience store clerk and attempting to cash a forged payroll check for $454.75. His wife testified for the prosecution that he intended to use the money to buy food for their children, but the trial court later struck that testimony under the marital privilege statute and instructed the jury to disregard it. In his offer of proof, defendant asserted that his children had serious health problems, had not eaten for more than twenty-four hours, and that three food banks had turned him away. The trial court refused to allow a choice of evils defense or evidence that concern for his children compelled the crimes.

Issue

Whether the trial court erred in refusing to instruct the jury on the affirmative defense of choice of evils and in refusing to allow that theory as a general defense. Whether the trial court also erred in denying a new trial after defendant’s wife briefly testified for the prosecution despite the marital privilege issue.

Rule

Choice of evils is available only when the charged crime was necessary as an emergency measure to avoid an imminent public or private injury arising through no conduct of the actor and of sufficient gravity to outweigh the criminal conduct. The defendant must present substantial evidence of a sudden and unforeseen situation requiring immediate action, must show no reasonable legal alternative, must show the criminal conduct did not exceed what was reasonably necessary, and must show a direct causal connection between the act and the harm to be avoided. Economic necessity alone cannot support the defense. A denial of a new trial is reviewed for abuse of discretion, and any assumed error is harmless if it did not prejudice substantial rights.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pueblo, Nora Salazar broke into a closed neighborhood pharmacy at 2 a.m. and took several cans of infant formula. She later offered proof that her six-month-old son had been crying from hunger all evening, but she also admitted the child had been fed earlier that day and that she expected a family friend might bring supplies the next morning.

Is Nora entitled to a choice of evils instruction on these facts?

Explanation. The majority rule requires substantial evidence that the crime was necessary as an emergency measure to avoid an imminent injury, arising from a sudden and unforeseen situation requiring immediate action. Here, the facts show hardship and concern, but not an imminent injury demanding immediate criminal conduct. The defense is not automatic merely because children are involved, and the opinion did not require that the threat come from another person's crime. (Derived from People v. Fontes (n.d.).)