IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JUSTIN L. McDERMOTT,

Appellant.

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No. 34903-9-III

UNPUBLISHED OPINION

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

FILED

JANUARY 9, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34903-9-III

State v. McDermott

2

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.
No. 34903-9-III

State v. McDermott

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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 
No. 34903-9-III

State v. McDermott

4

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 
No. 34903-9-III

State v. McDermott

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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.
No. 34903-9-III

State v. McDermott

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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.
No. 34903-9-III

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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.
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 

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