State of Washington v. Justin L. McDermott, 34903-9

Police responded to a domestic-disturbance call at the home where McDermott lived with his sister and her two young children; two men had arrived with McDermott’s mother and one became threatening.
The threatening man identified himself as a gang member, made death threats, lunged toward the sister, made furtive movements around his waistband, and implicitly suggested he might be armed.
McDermott retrieved a shotgun kept in his brother’s room, displayed it to the men to scare them off, then returned the gun; the men left and were never identified.
McDermott, a convicted felon, was charged with unlawful possession of a firearm in the second degree after officers executed a search warrant and recovered the shotgun.
At trial McDermott requested jury instructions on self-defense and necessity; the court refused both and the jury convicted him. McDermott appealed seeking reversal based on the court’s refusal to give the necessity instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a necessity instruction was warranted	State: insufficent evidence that an actual weapon was present or that McDermott had no reasonable alternative	McDermott: threats, furtive waistband movement, lunging, gang claim made him reasonably believe lethal force was imminent and no time/alternative existed	Reversed: evidence, viewed favorably to defense, supported necessity elements including no reasonable alternative; instruction should have been given
Whether self-defense instruction was available	State: offense is strict liability; self-defense inapplicable	McDermott: acted to protect sister and children from imminent harm	Trial court denied self-defense; appellate opinion focuses on necessity and reverses on that ground (self-defense was rejected below)
Sufficiency of the evidence to convict possession	McDermott: his contact with the gun was fleeting and insufficient for possession	State: purposeful retrieval and use to scare men established possession	Court: evidence was sufficient to support possession; reversal is without prejudice to retrial

State v. Fisher, 185 Wn.2d 836 (2016) (defendant entitled to instructions supported by some evidentiary basis; standard of review)
State v. Jeffrey, 77 Wn. App. 222 (1995) (necessity defense elements applied to firearms possession)
United States v. Lemon, 824 F.2d 763 (9th Cir. 1987) (articulating federal standard for necessity defense elements)
Pennsylvania v. Mimms, 434 U.S. 106 (1977) (observing that direct observation of a weapon is not always required to infer someone is armed)
State v. Lomax, 24 Wn. App. 541 (1979) (recognizing circumstances supporting inference of being armed)
United States v. Goddard, 491 F.3d 457 (D.C. Cir. 2007) (support for inference of weapon from conduct)
State v. Kintz, 169 Wn.2d 537 (2010) (standard for sufficiency review in favor of the State)
State v. Thomas, 150 Wn.2d 821 (2004) (deference to jury on credibility and conflicting testimony)