Washington Residential Burglary Conviction Upheld Despite Necessity Defense

Necessity may be available as a defense in a Washington criminal case when “physical forces of nature or the pressure of circumstances” cause a defendant to do something illegal to avoid a harm that is greater than the harm resulting from the unlawful act.  A defendant recently challenged her conviction for residential burglary, arguing the jury had wrongly rejected her common law necessity defense.

According to the appeals court’s unpublished opinion, the defendant ran out of gas in an unfamiliar area. She walked to a museum.  The defendant claimed she slipped in snow and injured her back.  She claimed she called out, but no one responded and the museum was closed for the winter. She did not have a phone with her.

Witnesses testified about the bad weather that night.  The defendant claimed it was “super windy” and “freezing.”  There was evidence of six to eight inches of snow on the museum property.  The defendant claimed she was lying in the snow for hours.  She ultimately went to the doublewide manufactured home where the museum caretaker lived.

The caretaker was away for the weekend.  When no one answered when she called out, the defendant broke a window and entered the home.  She showered, put on a wetsuit she found in the home, and ate.  She went through drawers.  She claimed she was looking for a phone.  She found some keys and and found the museum’s work truck stored in a locked shop.  Although she acknowledged she was warm and felt safe at that point, she took the truck, planning to go back to get her car.  On the way there, she drove into a ditch.  She walked to her car to check on it.  When she got back to the truck, a state trooper was there.

The defendant told the trooper she borrowed the truck to get gas.  The truck needed to be pulled out of the snow by a tow truck, but the trooper offered to drive the defendant back to her car.  There was a gas can in the truck, so the defendant put gas in her car and went back to the caretaker’s home.  She parked in the shop and brought some of her things inside.

When the caretaker got home on Monday, he noticed vehicle tracks across the museum’s lawn and an unfamiliar vehicle in the shop instead of the truck.  He found the defendant in his home.  He called the police.  The caretaker discovered the defendant had gone through his things, eaten his food and left dishes in the sink, left broken glass on the floor, and brought her sleeping bag and guitar inside.  She had also started a fire and burned documents and papers she found in his home.

The defendant was given her Miranda rights and admitted breaking in, taking the truck, and getting it stuck.  The state charged her with residential burglary and taking a motor vehicle without permission in the second degree.

The defendant asserted a common law necessity defense. The jury found her guilty on both counts, but she only appealed the residential burglary conviction.

The defendant argued she had proved a necessity defense.  A defendant claiming necessity must prove four elements by the preponderance of the evidence: they reasonably believed committing the crime was necessary to avoid or minimize harm, the threatened harm was greater than the harm resulting from the crime; the defendant did not bring about the threatened harm; and there was not a reasonable legal alternative.

In its closing, the state argued the necessity defense could be rejected because the defendant brought the threatened harm upon herself when she left her car and went to the museum. The state also argued that the defendant could not reasonably believe burglary was necessary and that she could have waved down a driver on the highway.  She had come onto the museum property from the highway and the caretaker testified it was “[w]ay less than a quarter mile” from his place.  The state further argued the threatened harm did not outweigh harm she caused by invading the caretaker’s home, especially after the first night.

The appeals court determined that a trier of fact could rationally accept any of the state’s arguments, considering the evidence in the light most favorable to the state.  The appeals court affirmed the conviction.

Necessity is not a common defense, but there are circumstances where it may apply.  Although the jury did not accept the defense in this case, slightly different facts may have led to a different result.  If you have been charged with a crime, a knowledgeable Washington criminal defense attorney can advise you on potential defenses that may apply in your case.  Contact Blair & Kim, PLLC, at (206) 622-6562.


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