                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         March 15, 2016


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 47253-8-II

                               Respondent,

         v.

    AARON MAURICE MYLAN,                                      UNPUBLISHED OPINION

                               Appellant.

        WORSWICK, P.J. — Aaron Mylan appeals his conviction for one count of first degree

unlawful possession of a firearm, arguing that he was denied his right to effective assistance of

counsel because his trial counsel failed to request a necessity defense instruction. We agree and

reverse Mylan’s conviction for first degree unlawful possession of a firearm, and remand for a

new trial on that charge.1

                                             FACTS

A.      The Altercation on “A” Road

        Mylan was in Forks to spend the day with his friend Rachelle Cabe, who was an admitted

heroin user. When Cabe became sick from withdrawal, Mylan agreed to meet with her heroin




1
 Mylan also filed a pro se statement of additional grounds contending that the unlawful
possession of a firearm statute, RCW 9.41.040, as applied to his circumstances, offends the
United States Constitution and Mylan’s right to life. Because we reverse and remand on grounds
of ineffective assistance of counsel, we do not undertake a constitutional analysis of RCW
9.41.040 as applied to Mylan.
No. 47253-8-II



dealer, Diamond Mueller, on her behalf. Both men agree that Mylan and Mueller met at a gas

station in Forks; however, the remainder of their accounts differ drastically.

         According to Mylan, he identified himself as Cabe’s friend and told Mueller that he

wanted to talk. Mueller said that he had to go somewhere, and told Mylan to get in Mueller’s

truck. Mylan, who had never met Mueller before, complied. The two men drove a short

distance along “A” Road, a stretch of road where locals meet with friends, shoot guns, or do

drugs.

         Mylan requested that Mueller stop selling drugs to Cabe, because he was concerned for

her well-being, at which point Mueller stopped the car, pulled out a gun, put it to Mylan’s head,

and began yelling at him. Mylan then attempted to grab the gun, and a struggle ensued. While

the two men battled for possession of the gun, it discharged, missing both men. Mylan managed

to eject the magazine, which Mueller began using as a weapon with which to hit him. Mylan

was able to take control of the gun and strike Mueller in the head three or four times with the

side of the gun, after which a bloodied Mueller rolled backward out of the open driver’s side

door and onto the ground.

         Mylan then decided to leave the scene in Mueller’s truck because he feared for his life.

He attempted to turn the truck around on the roadway, but got it stuck in a ditch. As he was

trying to flee he felt the gun, which had fallen to the ground, bump against his foot. Mylan got

out of the truck, taking the gun with him because he feared Mueller would regain possession of it

and shoot him. Mylan saw Mueller at the driver’s side window of a passing motorist who had

stopped. Mylan attempted to get the motorist’s attention, then walked ten feet and threw the gun




                                                  2
No. 47253-8-II



into the woods to prevent Mueller from getting it. Mylan hid in the bushes and called Cabe, who

picked him up shortly thereafter.

       Mueller’s version of events differs drastically from Mylan’s. Mueller testified that

Mylan did not disclose who he was or that he was Cabe’s friend. Instead, Mylan asked Mueller

for a ride up “A” Road to meet some friends, which Mueller agreed to. After turning off “A”

Road, Mueller claims Mylan pulled out a gun, put it to Mueller’s head, and demanded that he

pull the truck over because Mylan was going to take it. After Mylan demanded all of Mueller’s

property, Mueller grabbed for the gun and a struggle ensued, causing the gun to discharge.

Mylan then hit Mueller two or three times in the head and face with the butt of the gun, causing

Mueller to lose consciousness and forget the remainder of the altercation.

       The passing motorist, David Steinbaugh, recalled that a bloodied and frantic Mueller

staggered to Steinbaugh’s car and pleaded for help. According to Steinbaugh, Mueller told him

that a guy asked for a ride up “A” Road, then just started “jacking” him. Verbatim Report of

Proceedings (VRP) (Jan. 26, 2015) at 48. Steinbaugh testified that Mueller’s truck did a “K

turn,” then stopped about two feet from his truck. VRP (Jan. 26, 2015) at 49. A man resembling

Mylan got out and walked past his vehicle with what looked like a pistol in his hand, but the man

did not say anything before disappearing. Steinbaugh declined Mueller’s request to let him into

his truck, drove away, and called 911.




                                                3
No. 47253-8-II



B.       Jury Trial and Verdict

         The State charged Mylan with one count of first degree robbery,2 two counts of second

degree assault,3 one count of first degree unlawful possession of a firearm,4 and one count of

theft of a motor vehicle.5 Clerks Papers (CP) at 88-91.

         At the jury trial, witnesses testified to the facts given above. The trial court instructed the

jury on first degree unlawful possession of a firearm:

         To convict the defendant . . . each of the following elements of the crime must be
         proved beyond a reasonable doubt:

         (1) That on or about the 24th day of August, 2014, the defendant knowingly had a
         firearm in his possession or control;

         (2) That the defendant had previously been convicted of Residential Burglary, a
         serious offense; and

         (3) That the possession or control of the firearm occurred in the State of
         Washington.

CP at 72. Defense counsel submitted self-defense instructions, which applied only to the two

assault charges. Defense counsel did not propose a necessity defense instruction for the unlawful

possession of a firearm charge, and during closing argument, defense counsel appeared to

concede that the State had proved the charge:

         [DEFENSE COUNSEL]: I’ve got to tell you an unlawful possession of a firearms
         [sic] problem. He did momentarily and fleetingly possess a firearm. It is not that


2
    RCW 9A.56.200(1)(a).
3
    RCW 9A.36.021(1)(a), (c).
4
    RCW 9.41.040(1)(a).
5
    RCW 9A.56.065.


                                                    4
No. 47253-8-II



       hard to understand why somebody would get rid of a firearm under these
       circumstances, but he did momentarily possess a firearm. It sounds like he
       possessed it as short as possible a time and then he got rid of it and only then
       because he was fleeing so I’m not going to give you a lot of fire and brimstone on
       that one. I would say it was a fleeting and momentary possession.
       [STATE]: Your Honor, that’s not one of the [i]nstructions we have.
       [DEFENSE COUNSEL]: It doesn’t have to be an instruction. I can argue the facts.
       [THE COURT]: Don’t argue it as a law.
       [DEFENSE COUNSEL]: I’m not arguing it as a law. I’m saying if the law is it
       was fleeting and momentary, there’s no instruction on that. I’m not arguing
       instruction, I’m saying it was short.
       [THE COURT]: I’ll make the rulings, okay? Go ahead.

VRP (Jan. 29, 2015) at 179. At that point, defense counsel moved on. This was the only time

during closing argument defense counsel addressed the unlawful possession of a firearm charge.

       After less than a day of deliberation, the jury acquitted Mylan of all charges except first

degree unlawful possession of a firearm. Mylan appeals.

                                            ANALYSIS

                              INEFFECTIVE ASSISTANCE OF COUNSEL

       Mylan argues that defense counsel’s failure to request a necessity defense instruction

deprived him of the effective assistance of counsel. The State argues that Mylan was not entitled

to a necessity instruction, and that counsel had a legitimate trial strategy for not requesting one.

We agree with Mylan.

A.     Legal Principles

       Effective assistance of counsel is guaranteed by both U.S. Const. amend. VI and Wash.

Const. art. I, § 22. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Washington

has adopted the Strickland test to determine whether a criminal defendant received

constitutionally sufficient representation. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816



                                                  5
No. 47253-8-II



(1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984)). Under the Strickland test, the defendant must show that counsel’s performance was

deficient and that the deficient performance was prejudicial. State v. Cienfuegos, 144 Wn.2d

222, 226-27, 25 P.3d 1011 (2001).

       We measure counsel’s performance by an objective standard of reasonableness.

Strickland, 466 U.S. at 688. To prevail on an ineffective assistance claim, a defendant must

overcome “a strong presumption that counsel’s performance was reasonable.” State v. Kyllo,

166 Wn.2d 856, 862, 215 P.3d 177 (2009). Legitimate trial strategy or tactics do not constitute

deficient performance. Hendrickson, 129 Wn.2d at 77-78.

       To satisfy Strickland’s prejudice prong, the defendant bears the burden of establishing

that “there is a reasonable probability that, but for counsel’s deficient performance, the outcome

of the proceedings would have been different.” Kyllo, 166 Wn.2d at 862; Cienfuegos, 144 Wn.2d

at 227. Where the ineffective assistance of counsel is alleged to be caused by the failure of trial

counsel to request a jury instruction, the court must also find that the defendant was entitled to

the instruction. State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). The remedy for a

trial conducted with the ineffective assistance of counsel is for the cause to be remanded for a

new trial. State v. Ermert, 94 Wn.2d 839, 851, 621 P.2d 121 (1980).

B.     Counsel’s Performance Was Deficient

       Mylan argues he was denied his due process right to effective assistance of counsel

because his trial counsel failed to request a necessity instruction as a defense to first degree

unlawful possession of a firearm. We agree.




                                                  6
No. 47253-8-II



       1. Necessity Defense

       Mylan must first show that he was entitled to a necessity instruction. Johnston, 143 Wn.

App. at 21. We hold that he was.

       Mylan has the burden to show that the facts in evidence support the instruction.

Cienfuegos, 144 Wn.2d at 227. In conducting this analysis, we interpret the evidence in the light

most favorable to the defendant. State v. Buzzell, 148 Wn. App. 592, 602, 200 P.3d 287 (2009)

(citing State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000)).

       Washington has expressly adopted the federal test set forth in United States v. Lemon,

824 F.2d 763 (9th Cir. 1987), to determine whether a defendant is entitled to a necessity defense.

State v. Jeffrey, 77 Wn. App. 222, 226, 889 P.2d 956 (1995). Under Lemon, a defendant who

asserts a necessity defense must establish 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 criminal conduct, (3) he had

no reasonable legal 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 224 (citing

Lemon, 824 F.2d at 763).

       Mueller and Mylan gave wildly varying accounts of how the altercation on “A” Road

began; nonetheless, we view the facts in the light most favorable to Mylan. Thus, we consider

whether Mylan’s account of the events establishes the four elements articulated in Lemon.




                                                 7
No. 47253-8-II



       a. Present Threat of Death or Serious Bodily Injury

       Mylan testified that after he asked Mueller to stop selling drugs to Cabe, Mueller pulled

out a gun and held it to Mylan’s head. Mueller was irate and yelling at him. A violent and

bloody struggle then took place inside Mueller’s truck during which a gun discharged. After

Mueller fell out of the truck, Mylan feared for his life and attempted to drive away from the

scene. After getting the truck stuck in a ditch, Mylan believed the only way to secure his safety

was to take the gun from inside the vehicle and throw it in the woods where Mueller, who may

still have been in possession of the gun’s magazine, could not retrieve it. Viewing the evidence

in the light most favorable to Mylan, we conclude that sufficient evidence existed that Mylan

was under an unlawful and present threat of death or serious bodily injury.

       b. Lack of Recklessness

       Mylan approached Mueller at the gas station for the express purpose of asking Mueller to

stop selling drugs to Cabe. After Mylan told Mueller he wanted to speak with him, Mueller told

Mylan he needed to go somewhere and asked Mylan to get into his truck. Mylan testified that he

did not have any concern for his safety at that point because he had “extensive experience . . .

with heroin” and had been around drug dealers before, that Forks was a small town, and that

Mueller said he would bring him back afterward. VRP (Jan. 29, 2015) at 34. Viewing the facts

in the light most favorable to Mylan, the evidence shows that Mylan did not recklessly place

himself in a situation where he would be forced to engage in criminal conduct.




                                                 8
No. 47253-8-II



        c. No Reasonable Legal Alternative

        In order to show that a defendant had no reasonable legal alternative, he must show that

“‘he had actually tried the alternative or had no time to try it, or that a history of futile attempts

revealed the illusionary benefits of the alternative.’” State v Parker, 127 Wn. App. 352, 355, 110

P.3d 1152 (2005) (internal quotation marks omitted) (quoting United States v. Harper, 802 F.2d

115, 118 (5th Cir.1986)). Mylan testified that the point at which he first reached for the gun,

Mueller had already pointed it at his head and threatened his life, and was still pointing the gun

at his midsection. When Mueller looked away, Mylan grabbed the gun and the struggle ensued.

Mylan feared that Mueller would shoot him if Mueller got the gun back. As Mylan was trying to

flee, he regained possession of the gun, exited the vehicle, walked ten feet past Steinbaugh’s

truck, and threw the gun in the woods.

        Prior to reaching for the gun, Mylan’s legal alternatives were largely limited to jumping

from a moving vehicle or calling 911 while a gun was pointed directly at him. The State asserts

that after getting the truck stuck in the ditch, it would have been reasonable for Mylan to call the

police, leave the gun in the locked truck and take the keys, or immediately throw the gun into the

woods, rather than walk ten feet past Steinbaugh’s truck to do so.

        Mylan’s account of the incident on “A” Road, and his testimony that he was reacting to a

suddenly violent situation in a fearful, disoriented and panicked state, supports the conclusion

that he had no time to try the State’s suggested course of action. Therefore, he did not have any

reasonable legal alternative to momentarily possessing the gun in order to defend himself inside

the truck, then secure his own safety by disposing of the gun in the woods.




                                                   9
No. 47253-8-II



       d. Direct Causal Relationship

       Mylan testified Mueller verbally and physically threatened him with the gun. He also

testified that he reached for the gun so that he would not get shot, and that he retained possession

of the gun and threw it into the woods so that Mueller would not get it back and shoot him.

These actions bore a direct causal relationship between his possessing the gun and his attempt to

avoid the threatened harm by Mueller.

       e. Mylan Entitled to Instruction

       The evidence, taken in the light most favorable to Mylan, supports each element of the

Lemon test by a preponderance of the evidence. Mylan was under an unlawful present threat of

death or serious bodily injury, he did not recklessly place himself in that situation, he had no

reasonable legal alternative to his actions, and threat of harm from Mueller was the direct cause

for his momentary possession and disposal of the gun. Therefore, we hold that Mylan was

entitled to a necessity instruction based on the evidence.

       2. Trial Strategy

       “Deficient performance is not shown by matters that go to trial strategy or tactics.”

Hendrickson, 129 Wn.2d at 77-78. Therefore, defense counsel’s failure to request a necessity

instruction is not deficient performance if the decision to do so was a matter of trial strategy.

The State argues that defense counsel’s choice to argue self-defense rather than necessity was a

legitimate trial strategy. We disagree.

       The State argues that arguing self-defense was a strategic choice to seek acquittal of the

assault and robbery charges at the expense of risking the lesser conviction of unlawful possession




                                                 10
No. 47253-8-II



of a firearm. But, Mylan’s counsel was not required to choose between arguing self-defense and

the defense of necessity. The State does not point to any legal conflict between these defenses,

nor are we aware of any. Therefore, we conclude that defense counsel was not prohibited from

requesting a necessity defense instruction to defend Mylan against the unlawful possession of a

firearm charge by virtue of seeking a theory of self-defense for the assault charges.

        Once the State’s argument falls away, no trial strategy explains defense counsel’s failure

to request a necessity instruction on the unlawful possession of a firearm charge. Mylan’s trial

counsel failed to defend that charge at all.

        Defense counsel’s theory of self-defense on the assault charges did nothing to defend

Mylan against the charge of unlawful possession of a firearm. There is nothing that prohibited

defense counsel from bringing a necessity instruction while seeking a theory of self-defense on

other charges. We hold that defense counsel’s failure to request a necessity instruction was not a

legitimate trial strategy.

C.      Counsel’s Deficient Performance Prejudiced Mylan

        Under the second prong of the Strickland test, Mylan must show that counsel’s deficient

performance prejudiced Mylan’s defense. Cienfuegos, 144 Wn.2d at 227. To establish

prejudice, Mylan must show that there is a reasonable probability that the result of the

proceeding would have been different if counsel had not rendered deficient performance. State

v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (citing Thomas, 109 Wn.2d at 225-

26). We hold that Mylan was prejudiced by counsel’s deficient performance.




                                                11
No. 47253-8-II



       To convict Mylan of first degree unlawful possession of a firearm, the jury instructions

required the jury to find (1) Mylan knowingly possessed a firearm on August 24, 2014, (2) he

had previously been convicted of residential burglary, and (3) he possessed the firearm while in

Washington. CP at 72. Mylan’s own testimony clearly established each of these elements.

Mylan’s only hope of acquittal on this charge would be an affirmative defense.

       However, nothing in the jury instructions allowed the jury to weigh the mitigating

circumstance that Mylan’s possession of a firearm may have been necessary in order to defend

himself against the unlawful threat of death or serious injury. The jury was, therefore, left to

enter deliberations with a clear instruction, an admission from the defendant that met all of the

instruction’s elements, and no convincing attempt from counsel to dissuade the jury from a

conviction. Without the necessity defense to which he was entitled, the jury would have had to

abandon its duty and ignore the evidence in order to find Mylan not guilty.

       Perhaps most importantly, after weighing the wildly varying accounts of the altercation,

the jury weighed the credibility of the parties and ultimately acquitted Mylan of the four charges

where Mylan asserted an affirmative defense. Had the jury had the opportunity to decide on a

necessity defense, it would have weighed the same evidence it used to acquit Mylan of the other

four charges.

       Based on the evidence in the record, there is a reasonable probability that the result of

Mylan’s conviction would have been different if defense counsel had not rendered deficient

performance by failing to request a jury instruction of necessity. The evidence supports that




                                                 12
No. 47253-8-II



Mylan was denied his due process right to effective counsel because he received deficient

representation that prejudiced the outcome of the trial.

                                         CONCLUSION

       We hold that defense counsel’s failure to request a necessity instruction to defend against

the charge of first degree unlawful possession of a firearm deprived Mylan of the effective

assistance of counsel. Accordingly, we reverse and remand for a new trial on that charge.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                   Worswick, P.J.
 We concur:



 Lee, J.




 Melnick, J.




                                                 13
