Darryl A. Prodell v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR 07-1169
Opinion Delivered
DARRYL A. PRODELL
APPELLANT
V.
STATE OF ARKANSAS
JUNE 4, 2008
APPEAL FROM THE HOWARD
COUNTY CIRCUIT COURT,
[NO. CR-2007-14-2]
HONORABLE CHARLES A.
YEARGAN, JUDGE
APPELLEE
AFFIRMED
JOHN B. ROBBINS, Judge
Appellant Darryl A. Prodell was convicted by a jury of being a felon in possession of
a firearm. He was sentenced as a habitual offender to fifteen years in prison. Mr. Prodell’s
sole argument on appeal is that the trial court erred in refusing to submit his proffered jury
instruction on the “choice of evils” defense. We affirm.
It was stipulated at trial that Mr. Prodell has a prior felony conviction. The State’s
evidence concerning Mr. Prodell’s possession of a firearm included the testimony of Robert
McKellar, a pawn broker. Mr. McKellar testified that on January 10, 2007, Mr. Prodell
entered American Pawn and was paid a total of $100 in exchange for a .50 caliber muzzleloading firearm, a printer/copier, and some tools. A pawn ticket was admitted into evidence
showing that Mr. Prodell had pawned these items.
Darryl Prodell’s father, Darwin Prodell, testified in Darryl’s defense. Darwin testified
that Darryl has a wife and three children, and that he gave the firearm to his son to help him
financially. Darwin explained:
I am familiar with the allegation that Darryl possessed a firearm, as I owned the
firearm, a .50 caliber muzzle loader. Darryl came into possession of the firearm
because they were strapped for money and we had been trying to help them as much
as we could and it was another item that I could give him to pawn to get money to
pay the bills. I was familiar with his financial circumstances and I would consider their
financial situation at the time to be an emergency for them. He had my permission
to take it to the pawn shop and it was my idea for him to do so. It was a quick way
to get some extra cash and it was just laying around doing nothing anyway. I didn’t
see any harm in it. I didn’t just give him money because we’re strapped, too.
The appellant proffered the following jury instruction pursuant to AMI Crim. 2d 702:
JUSTIFICATION - CHOICE OF EVILS
Darryl Prodell, Defendant, asserts as a defense to the charge of Possession of a Firearm
by Certain Persons that he was forced by circumstances to choose between two evils.
This is a defense only if:
First: His conduct was necessary as an emergency measure to avoid an
immediate public or private injury; and
Second: The desirability and urgency of avoiding that public or private injury
outweighed, according to ordinary standards of reasonableness, the harm sought to be
prevented by the law prohibiting Possession of a Firearm by Certain Persons.
Darryl Prodell, Defendant, in asserting this defense, is required only to raise a
reasonable doubt in your minds. Consequently, if you believe that this defense has
been shown to exist, or if the evidence leaves you with a reasonable doubt as to his
guilt of Possession of a Firearm by Certain Persons, then you must find him not guilty.
The trial court refused to give the instruction, and Mr. Prodell now asserts that this ruling was
erroneous.
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The “choice of evils” statute is Ark. Code Ann. § 5-2-604 (Repl. 2006), which
provides in pertinent part:
(a) Conduct that would otherwise constitute an offense is justifiable when:
(1) The conduct is necessary as an emergency measure to avoid an imminent
public or private injury; and
(2) According to ordinary standards of reasonableness, the desirability and
urgency of avoiding the imminent public or private injury outweigh the injury sought
to be prevented by the law proscribing the conduct.
(b) Justification under this section shall not rest upon a consideration pertaining
to the morality or advisability of the statute defining the offense charged.
The law is clear that a party is entitled to an instruction on a defense if there is sufficient
evidence to raise a question of fact or if there is any supporting evidence for the instruction.
Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). In Jones v. State, 336 Ark. 191, 984
S.W.2d 432 (1999), our supreme court held that a party is entitled to a jury instruction when
it is a correct statement of the law and there is some basis in the evidence to support giving
the instruction.
Where the defendant has offered sufficient evidence to raise a question of fact
concerning a defense, the instructions must fully and fairly declare the law applicable to that
defense; however, there is no error in refusing to give a jury instruction where there is no
basis in the evidence to support the giving of the instruction. Yocum v. State, 325 Ark. 180,
925 S.W.2d 385 (1996). On appeal, our role is not to weigh the evidence to determine if the
justification instruction should have been given, but rather we limit our consideration to
whether there is any evidence tending to support the existence of a defense. Humphrey, supra.
If there is such evidence, then the justification instruction must be submitted to the jury for
a factual determination. See id.
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In the present appeal, Mr. Prodell argues that there was a basis in the evidence for
giving a “choice of evils” instruction. He directs us to his father’s testimony, where his father
testified as to appellant’s desperate financial situation and stated that he gave appellant the
muzzle loader to pawn for extra money. Mr. Prodell submits that this was an emergency
situation and that he was trying to prevent a private injury to his family by pawning the
muzzle loader at his father’s direction. Mr. Prodell asserts that there was no evidence that he
used or intended to use the firearm, or that he was engaged in any conduct beyond
temporarily possessing the firearm solely for the purpose of pawning it. Under such
circumstances, appellant contends that the trial court abused its discretion in failing to give
his proffered instruction. We disagree.
Even accepting Mr. Prodell’s father’s testimony as true, it still failed to support the
existence of a “choice of evils” defense. This defense is to be rarely used and is narrowly
construed and applied, see Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997), and the
commentary to section 5-2-604 states that the defense requires extraordinary attendant
circumstances. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 539 (2004). Illustrations
of situations that might permit recourse to this defense include: (1) the destruction of
buildings or other structures to keep fire from spreading; (2) breaking levees to prevent
flooding a city, while in the process causing flooding of an individual’s property; and
(3) temporary appropriation of another’s vehicle to remove a seriously injured person to a
hospital. Whisenant, supra. Where reasonable, legal alternatives to the charged conduct can
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be pursued or the necessity has ended, the “choice of evils” defense is not available. See Polk,
supra.
In the instant case, there was testimony that Mr. Prodell was generally “strapped for
money.” However, this failed to rise to the level of the extraordinary attendant circumstances
required to invoke the “choice of evils” defense. See People v. Fontes, 89 P.3d 484, 486
(Colo. App. 2003)(holding that choice-of-evils defense cannot be based on economic
necessity). The testimony of appellant’s father did not demonstrate the requisite temporal
urgency to justify appellant’s conduct. In short, no “imminent public or private injury” was
identified. Moreover, there were reasonable, legal alternatives to the charged conduct.
Instead of giving the firearm to his son, appellant’s father could have pawned the firearm
himself or at least arranged for a person who was a non-felon to conduct the transaction.
Because there was no basis in the evidence for giving a jury instruction on the “choice of
evils” defense, the trial court did not err in refusing Mr. Prodell’s proffered instruction.
Affirmed.
VAUGHT and BAKER, JJ., agree.
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