Opinion
No. 57287-3-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 00-1-07398-1, Ronald Kessler, J., entered October 3, 2005.
Counsel for Appellant(s), Maureen Marie Cyr Washington Appellate Project 1511 3rd Ave Ste 701 Seattle, WA, 98101-3635.
Info-only Schonians Jr. (Appearing Pro Se) 11635 44th Ave S Tukwila, WA, 98178.
Counsel for Respondent(s), Lee Davis Yates King County Prosecutor's Office 516 3rd Ave Ste W554 Seattle, WA, 98104-2362 View the Opinion in PDF Format.
Affirmed by unpublished per curiam opinion.
After a trial to the court, sitting without a jury, Terry R. Schonians, Jr. was convicted of unlawful possession of a firearm in the first degree. The trial court ruled that Schonians did not establish the affirmative defense of necessity because he failed to meet his burden of proof by a preponderance of the evidence. On appeal, Schonians contends that the trial court erred by failing to place the burden on the State to disprove Schonians' necessity defense beyond a reasonable doubt. Finding no error, we affirm.
FACTS
In July 2000, Schonians attended a party at a house in south Seattle. Several firearms were located on a picnic table in front of the house. During the party, a man fired several gunshots into the air in the general direction of Schonians. In response, Schonians took a nine millimeter handgun from the picnic table and fired one round into the air. Schonians' statement to police asserted that he fired the gun to protect himself, and then tossed the gun to the ground as soon as he heard police cars approaching.
The trial court ruled that the State had proved beyond a reasonable doubt that Schonians was guilty of unlawful possession of a firearm in the first degree because Schonians, who had previously been convicted of the serious offense of burglary in the first degree, had knowingly possessed a firearm. The trial court also ruled that Schonians failed to establish the affirmative defense of necessity by a preponderance of the evidence.
RCW 9.41.040(1)(a), unlawful possession of a firearm in the first degree, provides that "[a] person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted . . . of any serious offense as defined in this chapter."
Schonians appeals.
DISCUSSION
I. The Defense of Necessity
Necessity is not a legislatively-created defense in Washington. Rather, as articulated in State v. White, No. 24505-5-III, slip op. at 3 (Wash.Ct.App. Feb. 8, 2007):
"Necessity" is a common law defense with limited application. See State v. Jeffrey, 77 Wn. App. 222, 224-25, 889 P.2d 956 (1995); State v. Diana, 24 Wn. App. 908, 913-14, 604 P.2d 1312 (1979); 11 Washington Pattern Jury Instructions: Criminal 18.02, at 63 (2d ed. pocket part 1998) (WPIC). It is available "when circumstances cause the [defendant] to take unlawful action in order to avoid a greater injury." Jeffrey, 77 Wn. App. at 224; WPIC 18.02. The defendant must not have caused the threatened harm, and there must be no reasonable legal alternative to breaking the law. Jeffrey, 77 Wn. App. at 225; WPIC 18.02. The defendant must prove the defense by a preponderance of the evidence. Jeffrey, 77 Wn. App. at 225; WPIC 18.02.
The affirmative defense of necessity is available to defend against a charge of unlawful possession of a firearm in the first degree. State v. Stockton, 91 Wn. App. 35, 44, 955 P.2d 805 (1998). To prevail on a necessity defense, a defendant charged with unlawful possession of a firearm must demonstrate by a preponderance of the evidence that:
(1) he was under unlawful and present threat of death or serious injury, (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, (3) he had no reasonable alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Jeffrey, 77 Wn. App. at 225.
On appeal, Schonians contends that his necessity defense was equivalent to a claim of self-defense, and that the trial court violated his constitutional right to due process of law by failing to require the State to disprove necessity beyond a reasonable doubt. Specifically, Schonians argues that the necessity defense satisfies the test articulated by State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984), and State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983), for determining whether the State bears the burden of disproving an asserted defense beyond a reasonable doubt.
Acosta and McCullum held that self-defense negates the unlawful "intent" and "knowledge" elements of the crimes of first degree murder and second degree assault because a person who acts in self-defense acts "lawfully." As a result, the State must disprove self-defense beyond a reasonable doubt. If the burden of proving self-defense were on the defendant, the defendant would have to prove the absence of the applicable mental state of the crime charged, such as the absence of unlawful "knowledge" or "intent." Acosta, 101 Wn.2d at 616; McCullum, 98 Wn.2d at 496. Because the due process clause requires the State to prove every element of a charged offense beyond a reasonable doubt, imposing such a burden on a defendant is unconstitutional. Patterson v. New York, 432 U.S. 197, 206-07, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).
Acosta and McCullum held that the State must disprove an asserted defense when (1) the statute reflects a legislative intent to treat the absence of the defense as an element of the crime, or (2) proof of the defense negates an element of the crime. If either inquiry is met, the State bears the burden of proving the absence of the defense beyond a reasonable doubt. Acosta, 101 Wn.2d at 616; McCullum, 98 Wn.2d at 490.
II. There Is No Legislative Intent to Treat the Absence of Necessity as an Element of the Crime
Schonians argues that the first inquiry under Acosta and McCullum is satisfied because the legislature's silence regarding the necessity defense indicates that the legislature did not intend for the defendant to bear the burden of persuasion. In support of his argument, Schonians compares the legislature's silence with respect to the necessity defense with its articulation of the burden of persuasion for several other affirmative defenses described in the criminal code.
However, contrary to Schonians' assertions, the first inquiry of the test articulated in Acosta and McCullum is not satisfied. The legislature has manifested no intent to treat the absence of necessity as an element of the crime charged. Necessity is not a legislatively-created defense but is, rather, a common law defense. Diana, 24 Wn. App. at 914. Washington case law has clearly held that the burden of persuasion is on the defendant to prove necessity by a preponderance of the evidence. See White, slip op. at 3; Jeffrey, 77 Wn. App. at 225; Diana, 24 Wn. App. at 916. As a result, the legislature's silence with respect to the necessity defense does not indicate a legislative intent that the State must disprove necessity beyond a reasonable doubt but, rather, indicates acquiescence in the decisions of the judiciary on this question. See State v. Chavez, 134 Wn. App. 657, 667-68, 142 P.3d 1110 (2006) (holding that the legislature acquiesced to the courts' common law definition of assault, both by not changing the definition and by enacting RCW 9A.04.060, which provides that "the common law relating to the commission of crime and the punishment thereof . . . shall supplement all penal statutes of this state.").
III. Proof of Necessity Does Not Negate an Element of the Crime Because a Crime Committed out of Necessity Is an Unlawful Act
Schonians also argues that the second inquiry under Acosta and McCullum is satisfied because proof of the necessity defense would negate the criminal knowledge element of the crime of unlawful possession of a firearm in the first degree. Schonians asserts that because "unlawfulness" is a feature of the knowledge requirement in the criminal code, and a crime committed out of necessity is considered lawful, a successful necessity defense would negate the criminal knowledge requirement of the offense. Therefore, Schonians claims, when the trial court required him to bear the burden of persuasion on the necessity defense, it required him to prove the absence of criminal knowledge in violation of due process.
State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000), held that unlawful possession of a firearm in the first degree is not a strict liability crime. The State must prove that the defendant "knowingly" possessed the firearm. This mens rea requirement refers to a defendant's "knowing" possession of a firearm, and not to the defendant's knowledge that such possession is against the law. Anderson, 141 Wn.2d at 365-66.
Washington's criminal code provides that "[a] person knows or acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense." RCW 9A.08.010(1)(b)(i).
Schonians' contention is unavailing. Proof of necessity does not negate the knowledge element of the crime of unlawful possession of a firearm. Pursuant to RCW 9.41.040(1)(a), an individual's knowing possession of a firearm becomes unlawful simply because the individual has previously been convicted of a serious offense. Moreover, Acosta and McCullum held that self-defense negates the element of "unlawfulness" in the statutory definitions of "knowledge" and "intent" because self-defense is statutorily defined as a "lawful" act. Acosta, 101 Wn.2d at 616; McCullum, 98 Wn.2d at 495. An act committed in self-defense is, by definition, a lawful act. In contrast, a crime committed out of necessity is still considered an unlawful act.
A defendant who establishes the necessity defense is relieved of culpability for the crime committed only because social policy dictates that result. The necessity defense relieves a defendant of legal liability only "when the physical forces of nature or the pressure of circumstances [have caused] the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law." Diana, 24 Wn. App. at 913-14 (emphasis added). A crime committed out of necessity is not deemed a lawful act merely because culpability and punishment did not result from its commission. Therefore, proving necessity does not negate an element of the crime charged.
Because the necessity defense fails to satisfy either inquiry of the test articulated by Acosta and McCullum, Schonians' contention that the trial court erred by failing to place the burden of disproving Schonians' necessity defense on the State beyond a reasonable doubt fails. The trial court properly placed the burden of proving the affirmative defense of necessity, by a preponderance of the evidence, on Schonians. White, slip op. at 3; Stockton, 91 Wn. App. at 41; Jeffrey, 77 Wn. App. at 225.
Affirmed.