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State v. Dudney11/12/2002
g to provide jury instructions requested by him. Specifically, Dudney contends that the county court failed to instruct the jury on the issue of choice of evils. Whether jury instructions given by a trial court are correct is a question of law. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Id.
To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
In his brief, Dudney cites us to page 69 of the transcript for his proposed instruction. We have been unable to locate this page or copies of any proposed jury instructions in the transcript, the supplemental transcript, or the second supplemental transcript in this case. Dudney has not provided a proper record of his tendered instruction as required by Neb. Ct. R. of Prac. 4A(2) (rev. 2000). However, we do note the existence of dialog in the bill of exceptions between the county court and counsel indicating that an instruction on choice of evils was proposed by Dudney's counsel and refused by the court.
Despite Dudney's failure to include his tendered instruction, we conclude that a choice of evils instruction was not supported by the evidence in the record. A trial court is not obligated to instruct the jury on matters which are not supported by evidence in the record. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). Justification defenses are premised upon Neb. Rev. Stat. § 28-1406 et seq. (Reissue 1995). State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999). Justification, otherwise known as the choice of evils, is an affirmative defense. Id. Where the justification or choice of evils defense is properly before the finder of fact, the defendant has the initial burden of going forward with evidence of the defense. Id. Such evidence must consist of facts showing that he or she (1) acted to avoid a greater harm; (2) reasonably believed that the particular action was necessary to avoid a specific and immediately imminent harm; and (3) reasonably believed that the selected action was the least harmful alternative to avoid the harm, either actual or reasonably believed by the defendant to be certain to occur. Id.
As justification for his DUI, Dudney asserts that he was attempting to avoid a greater harm of escalated fight and additional physical violence by leaving the residence. However, there is nothing in the record to suggest that Dudney could not have walked, rather than driven, away from his residence following his altercation with Monday, or even called someone for help. Dudney admitted on cross-examination that Monday did not follow him when he left the premises. Further, even if Dudney had some justification for driving away from the residence while intoxicated, there is nothing in the record to suggest that he was justified in continuing to drive while intoxicated after leaving the residence. Dudney first drove to Monday's mother's home and then to his father's house. After leaving his father's house, Dudney was heading out of Kimball, possibly going to a co-worker's residence, when stopped by Jensen. Dudney made the choice to continue driving when there was no longer any "evil" to avoid. Accordingly, a choice of evils instruction was not warranted by the evidence and the trial court did not err in declining to instruct the jury on this def
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