FILED JANUARY 9, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34903-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JUSTIN L. McDERMOTT, ) ) Appellant. )
PENNELL, J. — Justin McDermott appeals his conviction for unlawful possession
of a firearm, arguing the trial court improperly denied his request for a necessity defense
jury instruction. Because the facts proffered by Mr. McDermott support the requested
instruction, we reverse Mr. McDermott’s conviction and remand this matter for retrial.
FACTS
In responding to a domestic disturbance call, Spokane police officers learned
Mr. McDermott, a convicted felon, had displayed a shotgun during an incident at his No. 34903-9-III State v. McDermott
home. The gun was recovered during a residential search warrant. Mr. McDermott was
subsequently charged with unlawful possession of a firearm in the second degree.
As explained at trial, Mr. McDermott lived at his mother’s house with his sister
and his sister’s two young children. Mr. McDermott’s mother had not been living at the
home for several months. Mr. McDermott’s younger brother had a room in the house, but
was away at college.
On the day of the domestic disturbance call, Mr. McDermott’s mother came to the
home with two men unknown to Mr. McDermott and his sister. One of the men
commented they were there “to keep an eye on these MF’ers.” Verbatim Report of
Proceedings (Sept. 21, 2016) at 111. When Mr. McDermott’s sister asked one of the men
not to smoke inside the home, due to the presence of children, he complied. However, the
other man suddenly became extremely aggressive and started yelling and cursing. The
man told them, “you don’t know who I am,” and “[y]ou don’t know what I’m packing.”
Id. at 77, 112. He said he was in a gang, showed what was believed to be a gang sign,
and said he would not hesitate to kill them all. Mr. McDermott’s sister testified at trial
that the man pointed his finger at her like a gun and suggested that he may have weapons
on him. She also testified that she asked the two men several times to leave the home, but
they did not comply.
2 No. 34903-9-III State v. McDermott
Mr. McDermott testified that the man threatening his sister had fidgeted around his
waistband area and lifted his shirt indicating he might have a weapon. Both Mr.
McDermott and his sister testified that despite not seeing the man display a weapon, they
felt extremely threatened for themselves and for the children.
When Mr. McDermott’s sister announced she was calling the police, the man again
threatened to kill them and charged toward her. She retreated and led her children to a
back room when the man continued to lunge and charge toward her. When Mr.
McDermott’s sister went to retrieve her cell phone from her purse and call the police, she
saw Mr. McDermott approaching the men while holding a shotgun and instructing them
to leave. Then the two men left, Mr. McDermott closed and locked the door, and put the
shotgun in his younger brother’s room. Law enforcement was never able to identify or
locate the two men.
Mr. McDermott’s younger brother testified he purchased the shotgun about three
years ago and kept it in his room. Mr. McDermott testified that he had retrieved the
shotgun from his brother’s room in order to intimidate the two men into leaving.
During trial, Mr. McDermott requested jury instructions on the defenses of:
(1) defense of self and others, and (2) necessity. The trial court declined to give both
instructions, stating that it could not find from the evidence that Mr. McDermott was in
3 No. 34903-9-III State v. McDermott
reasonable fear of death or serious bodily injury since the two men did not display any
firearms. The court also stated the defense of self-defense was unavailable since the
offense here is one of strict liability.
The jury found Mr. McDermott guilty, and the court sentenced him to an
exceptional downward sentence of four days with credit for four days served based on his
offender score of zero. Mr. McDermott appeals and is found indigent for such purpose.
ANALYSIS
Necessity defense jury instruction
A defendant is entitled to present jury instructions regarding his or her theory of
the case, so long as there is some evidentiary support. State v. Fisher, 185 Wn.2d 836,
848-49, 374 P.3d 1185 (2016). When a trial court denies a defense instruction on the
basis of lack of sufficient evidence, our review is de novo. Id. at 849.
The necessity defense applies in the context of an unlawful firearm possession
charge. State v. Jeffrey, 77 Wn. App. 222, 226, 889 P.2d 956 (1995). To establish the
affirmative defense of necessity, a defendant must prove, by a preponderance of the
evidence, that: (1) he was under unlawful and present threat of death or serious bodily
injury, (2) he did not recklessly place himself in a situation where he would be forced to
engage in unlawful conduct, (3) he had no reasonable alternative, and (4) there was a
4 No. 34903-9-III State v. McDermott
direct causal relationship between the unlawful action and the avoidance of the threatened
harm. Id. at 224 (citing United States v. Lemon, 824 F.2d 763 (9th Cir. 1987)). In
evaluating the sufficiency of this proof, we view the evidence in the light most favorable
to the defense. Fisher, 185 Wn.2d at 849.
Taken in the light most favorable to Mr. McDermott, the facts easily support
elements one, two, and four of the necessity defense. The evidence showed Mr.
McDermott, his sister and her young children were subjected to unforeseen threats of
death and violence issued by an unknown man in their home. These circumstances satisfy
the first two elements. In addition, Mr. McDermott’s brief possession of the firearm was
related to his effort to scare off the unknown man and avoid a greater perceived harm.
This satisfies the fourth element.
The State’s arguments focus on element three—the lack of a reasonable
alternative. According to the State, insufficient evidence supported Mr. McDermott’s
belief that the unknown man was armed. Thus, Mr. McDermott need not have armed
himself in order to mount an adequate response to the man’s threats. The State also
claims that even if Mr. McDermott had sufficient reason to believe the man in his house
was armed, he had reasonable alternatives such as calling the police or leaving the
premises.
5 No. 34903-9-III State v. McDermott
The State’s position is unpersuasive. It is reasonable to infer that an adult subject
is armed when he identifies himself as a gang member, issues death threats, lunges at a
targeted victim, and makes furtive movements around his waistband. Direct observation
of a firearm is unnecessary. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 111-12,
98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Lomax, 24 Wn. App. 541, 544, 603 P.2d
1267 (1979); United States v. Goddard,
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FILED JANUARY 9, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34903-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JUSTIN L. McDERMOTT, ) ) Appellant. )
PENNELL, J. — Justin McDermott appeals his conviction for unlawful possession
of a firearm, arguing the trial court improperly denied his request for a necessity defense
jury instruction. Because the facts proffered by Mr. McDermott support the requested
instruction, we reverse Mr. McDermott’s conviction and remand this matter for retrial.
FACTS
In responding to a domestic disturbance call, Spokane police officers learned
Mr. McDermott, a convicted felon, had displayed a shotgun during an incident at his No. 34903-9-III State v. McDermott
home. The gun was recovered during a residential search warrant. Mr. McDermott was
subsequently charged with unlawful possession of a firearm in the second degree.
As explained at trial, Mr. McDermott lived at his mother’s house with his sister
and his sister’s two young children. Mr. McDermott’s mother had not been living at the
home for several months. Mr. McDermott’s younger brother had a room in the house, but
was away at college.
On the day of the domestic disturbance call, Mr. McDermott’s mother came to the
home with two men unknown to Mr. McDermott and his sister. One of the men
commented they were there “to keep an eye on these MF’ers.” Verbatim Report of
Proceedings (Sept. 21, 2016) at 111. When Mr. McDermott’s sister asked one of the men
not to smoke inside the home, due to the presence of children, he complied. However, the
other man suddenly became extremely aggressive and started yelling and cursing. The
man told them, “you don’t know who I am,” and “[y]ou don’t know what I’m packing.”
Id. at 77, 112. He said he was in a gang, showed what was believed to be a gang sign,
and said he would not hesitate to kill them all. Mr. McDermott’s sister testified at trial
that the man pointed his finger at her like a gun and suggested that he may have weapons
on him. She also testified that she asked the two men several times to leave the home, but
they did not comply.
2 No. 34903-9-III State v. McDermott
Mr. McDermott testified that the man threatening his sister had fidgeted around his
waistband area and lifted his shirt indicating he might have a weapon. Both Mr.
McDermott and his sister testified that despite not seeing the man display a weapon, they
felt extremely threatened for themselves and for the children.
When Mr. McDermott’s sister announced she was calling the police, the man again
threatened to kill them and charged toward her. She retreated and led her children to a
back room when the man continued to lunge and charge toward her. When Mr.
McDermott’s sister went to retrieve her cell phone from her purse and call the police, she
saw Mr. McDermott approaching the men while holding a shotgun and instructing them
to leave. Then the two men left, Mr. McDermott closed and locked the door, and put the
shotgun in his younger brother’s room. Law enforcement was never able to identify or
locate the two men.
Mr. McDermott’s younger brother testified he purchased the shotgun about three
years ago and kept it in his room. Mr. McDermott testified that he had retrieved the
shotgun from his brother’s room in order to intimidate the two men into leaving.
During trial, Mr. McDermott requested jury instructions on the defenses of:
(1) defense of self and others, and (2) necessity. The trial court declined to give both
instructions, stating that it could not find from the evidence that Mr. McDermott was in
3 No. 34903-9-III State v. McDermott
reasonable fear of death or serious bodily injury since the two men did not display any
firearms. The court also stated the defense of self-defense was unavailable since the
offense here is one of strict liability.
The jury found Mr. McDermott guilty, and the court sentenced him to an
exceptional downward sentence of four days with credit for four days served based on his
offender score of zero. Mr. McDermott appeals and is found indigent for such purpose.
ANALYSIS
Necessity defense jury instruction
A defendant is entitled to present jury instructions regarding his or her theory of
the case, so long as there is some evidentiary support. State v. Fisher, 185 Wn.2d 836,
848-49, 374 P.3d 1185 (2016). When a trial court denies a defense instruction on the
basis of lack of sufficient evidence, our review is de novo. Id. at 849.
The necessity defense applies in the context of an unlawful firearm possession
charge. State v. Jeffrey, 77 Wn. App. 222, 226, 889 P.2d 956 (1995). To establish the
affirmative defense of necessity, a defendant must prove, by a preponderance of the
evidence, that: (1) he was under unlawful and present threat of death or serious bodily
injury, (2) he did not recklessly place himself in a situation where he would be forced to
engage in unlawful conduct, (3) he had no reasonable alternative, and (4) there was a
4 No. 34903-9-III State v. McDermott
direct causal relationship between the unlawful action and the avoidance of the threatened
harm. Id. at 224 (citing United States v. Lemon, 824 F.2d 763 (9th Cir. 1987)). In
evaluating the sufficiency of this proof, we view the evidence in the light most favorable
to the defense. Fisher, 185 Wn.2d at 849.
Taken in the light most favorable to Mr. McDermott, the facts easily support
elements one, two, and four of the necessity defense. The evidence showed Mr.
McDermott, his sister and her young children were subjected to unforeseen threats of
death and violence issued by an unknown man in their home. These circumstances satisfy
the first two elements. In addition, Mr. McDermott’s brief possession of the firearm was
related to his effort to scare off the unknown man and avoid a greater perceived harm.
This satisfies the fourth element.
The State’s arguments focus on element three—the lack of a reasonable
alternative. According to the State, insufficient evidence supported Mr. McDermott’s
belief that the unknown man was armed. Thus, Mr. McDermott need not have armed
himself in order to mount an adequate response to the man’s threats. The State also
claims that even if Mr. McDermott had sufficient reason to believe the man in his house
was armed, he had reasonable alternatives such as calling the police or leaving the
premises.
5 No. 34903-9-III State v. McDermott
The State’s position is unpersuasive. It is reasonable to infer that an adult subject
is armed when he identifies himself as a gang member, issues death threats, lunges at a
targeted victim, and makes furtive movements around his waistband. Direct observation
of a firearm is unnecessary. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 111-12,
98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Lomax, 24 Wn. App. 541, 544, 603 P.2d
1267 (1979); United States v. Goddard, 491 F.3d 457, 462 (D.C. Cir. 2007). In addition,
a reasonable juror could find there was no time to wait for police assistance or to evacuate
the household. Because Mr. McDermott was faced with a combative man who appeared
ready to fire off a gun at any moment, a jury could believe Mr. McDermott’s only
reasonable option was to arm himself with a gun and attempt to scare off the unknown
man through a display of lethal force.
We recognize a jury could have disbelieved the testimony presented by Mr.
McDermott and his sister. The jury could have disagreed with the perceived level of
threat. Or they could have disbelieved the story about the two unknown men altogether.
But those possibilities are not relevant to our analysis. Because the jury could have
believed Mr. McDermott and his family were in imminent danger of being shot and that
the only reasonable means of protection was for Mr. McDermott to briefly arm himself
with a gun, a necessity instruction was warranted.
6 No. 34903-9-III State v. McDermott
Sufficiency of the evidence
Mr. McDermott argues he is entitled to dismissal instead of retrial because the
State failed to produce sufficient evidence to convict him of the crime charged. Our
standard for reviewing a sufficiency challenge is directly opposite to the one set forth
above. Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the State, it permits any rational trier of fact to find the essential elements of
the crime beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470
(2010). A claim of insufficiency admits the truth of the State’s evidence and all
reasonable inferences drawn therefrom. Id. Circumstantial evidence and direct evidence
are equally reliable. Id. We defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas,
150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Mr. McDermott argues his handling of the shotgun was fleeting and therefore
insufficient to constitute possession. We disagree. Even under the facts argued by the
defense, Mr. McDermott’s contact with the shotgun was more than momentary. He
purposefully sought out the shotgun and then used it to scare off the two men in his home.
While Mr. McDermott may not have owned the shotgun, his use of it on the day in
question was sufficient to constitute possession.
7 No. 34903-9-111 State v. McDermott
Because the State presented sufficient evidence of possession, our reversal of Mr.
McDermott's conviction is without prejudice to retrial.
CONCLUSION
Mr. McDermott's judgment and sentence is reversed. This matter is remanded for
further proceedings, consistent with the terms of this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J. WE CONCUR:
j