State of Alaska v. Keivon Duane Wright

In the Court of Appeals of the State of Alaska
State of Alaska,
Petitioner,
v.
Keivon Duane Wright,
Respondent.
Court of Appeals No. A-14088
Order
Petition for Review
Date of Order: December 5, 2022
Trial Court Case No. 3AN-22-01823CR
Before: Allard, Chief Judge, and Harbison and Terrell, Judges
Keivon Duane Wright is charged with third-degree weapons misconduct
(felon in possession of a concealable firearm).1 As part of the pretrial proceedings,
Wright’s attorney filed notice that Wright may rely on the defenses of necessity, duress,
and/or self-defense at trial. In response, the State filed pleadings in which it argued that
self-defense was only available as a defense to criminal charges involving a defendant’s
use of force, and therefore was not available as a defense to a possessory offense such
as third-degree weapons misconduct. The superior court rejected this argument in a
written order. The State then filed this petition for review, seeking discretionary review
of the trial court’s order. For the reasons explained in this order, we GRANT the petition
and REMAND this case to the superior court for further proceedings.
The limited nature of this order
In its petition, the State seeks a ruling that self-defense is only available
as a defense to criminal charges that involve a defendant’s use of force. Given the
1 Wright is also charged with fourth-degree weapons misconduct and reckless
endangerment related to his use of the gun. These charges are not at issue in this petition.

State v. Wright – p. 2
File No. A-14088
December 5, 2022
expedited nature of this petition for review, we are unwilling to make such a broad
pronouncement. Instead, this order is limited to addressing whether self-defense is
available as a defense to a felon-in-possession charge under the circumstances alleged
here.
Our analysis
We have reviewed the parties’ briefing, the relevant legislative history,
and the relevant case law from other jurisdictions. We have found the case law from
other jurisdictions helpful because the Alaska appellate courts have not previously ruled
on this issue.2 We have found particularly persuasive a 2007 decision from the Hawai`i
Court of Appeals, State v. Padilla, 164 P.3d 765 (Haw. App. 2007).
As the Hawai`i court notes, “most jurisdictions recognize a justification
defense where the defendant’s otherwise unlawful possession of a firearm is
immediately necessary for self-defense or the defense of others.”3 However, courts
have not been uniform in the terminology they have used for this defense, and courts
have used the terms duress, necessity, self-defense, and justification interchangeably.4
Notably, regardless of the rubric under which the defense is permitted, the essence of
2 See McGee v. State, 95 P.3d 945, 946-47 (Alaska App. 2004) (declining to reach the
question of whether self-defense is a defense to a criminal mischief charge) rev’d on other
grounds, 162 P.3d 1251 (Alaska 2007).
3 State v. Padilla, 164 P.3d 765, 771 (Haw. App. 2007); see generally Sara L.
Johnson, Annotation, Fact that Weapon was Acquired for Self-Defense or to Prevent its
Use Against Defendant as Defense in Prosecution for Violation of State Statute Prohibiting
Persons Under Indictment for, or Convicted of, Crime from Acquiring, Having, Carrying,
or Using Firearms or Weapons, 39 A.L.R. 4th 967 (originally published in 1985; updated
weekly).
4 Padilla, 164 P.3d at 772.

State v. Wright – p. 3
File No. A-14088
December 5, 2022
the defense often remains the same and includes elements that are similar to a necessity
defense.5 For example, under Alabama and Louisiana law,
when a felon is in imminent peril of great bodily harm, or
reasonably believes himself or others to be in such danger,
he may take possession of a weapon for a period no longer
than is necessary or apparently necessary to use it in self-
defense, or in defense of others. In such situation
justification is a defense to the charge of felon in possession
of a firearm.[6]
Likewise, California courts recognize a “self-defense” defense to felon-in-possession
under circumstances when a felon:
is in imminent peril of great bodily harm or reasonably
believes himself or others to be in such danger, and without
preconceived design on his part a firearm is made available
to him, his temporary possession of that weapon for a period
no longer than that in which the necessity or apparent
necessity to use it in self-defense continues, does not violate
[California’s felon-in-possession statute]. As in all cases in
which deadly force is used or threatened in self-defense,
however, the use of the firearm must be reasonable under the
circumstances and may be resorted to only if no other
alternative means of avoiding the danger are available.[7]
5 McGhee v. Commonwealth, 248 S.E.2d 808, 810 (Va. 1978) (“The law of self-
defense is the law of necessity . . . .”); see also Commonwealth v. Lindsey, 489 N.E.2d 666,
667 n.2, 668 (Mass. 1986) (viewing necessity as a more “apt characterization” than self-
defense and noting that the justification in other jurisdictions “includes, expressly or
impliedly, the requirement that the threat to the defendant must be immediate, substantial,
and unavoidable and that it arise in circumstances in which action in self-defense would
have been warranted (i.e., the defendant had a reasonable apprehension of death or serious
bodily injury”)).
6 Diggs v. State, 168 So.3d 156, 162 (Ala. App. 2014) (citations omitted); State v.
Blache, 480 So.2d 304, 308 (La. 1985); see also State v. Jackson, 452 So.2d 776, 779 (La.
App. 1984) (finding that “necessity” when raised as a defense to the illegal possession of
a firearm entails proof that the threat of force by another is imminent and apparent, and
that the person threatened has no reasonable alternative but to possess the firearm).
7 People v. King, 582 P.2d 1000, 1007 (Cal. 1978).

State v. Wright – p. 4
File No. A-14088
December 5, 2022
The similarity between a “self-defense” and necessity justification defense
in this context has led the federal courts to conclude that “[i]t is immaterial whether an
affirmative defense to [the federal felon-in-possession statute] is termed ‘justification,’
‘necessity,’ ‘duress,’ or ‘self-defense’”8 — a point with which we are inclined to agree
except for one reason: Under Alaska law, the statutory defenses of necessity and duress
are “affirmative defenses,” which require the defendant to bear the burden of proof by
a preponderance of the evidence.9 In contrast, self-defense is a “defense,” which the
State bears the burden of disproving beyond a reasonable doubt once the defendant has
produced “some evidence” on each of its elements.10 In other words, what is really at
stake in this case is not the parameters of the defense — which are likely to remain the
same regardless of whether the defense is called “self-defense” or “necessity” — but
instead the question of who bears the burden of proving (or disproving) the defense.11
To answer this question, we turn to the statutory language of each defense
under Alaska law. Alaska Statute 11.81.330, the self-defense statute, provides in
pertinent part that
8 United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir. 2003); see United States v.
Leahy, 473 F.3d 401, 406 (1st Cir. 2007) (“[E]ase in administration favors treating [the
common law defenses of duress, necessity, and self-defense], in a federal felon-in-
possession case, under a single, unitary rubric: justification.”); see also Humphrey v.
Commonwealth, 553 S.E.2d 546, 552 n.4 (Va. App. 2001) (framing the defense as a
necessity defense but noting that “[c]ourts and commentators disagree over whether the
appropriate label for the defense is self-defense, necessity or duress”).
9 AS 11.81.320; AS 11.81.440(a); AS 11.81.900(b)(2).
10 AS 11.81.900(b)(19); AS 11.81.330; AS 11.81.335.
11 Courts are split on this issue. The federal courts put the burden on the defendant to
prove the justification defense. See, e.g., Beasley, 346 F.3d at 935-36; U.S. v. Deleveaux,
205 F.3d 1292, 1295-96 (11th Cir. 2000). However, there are some state courts that clearly
put the burden on the State to disprove the defense once it has been properly raised. See,
e.g., People v. Dupree, 788 N.W.2d 399, 408 (Mich. 2010). In many of the cases we
reviewed, it was not immediately clear who bore the burden.

State v. Wright – p. 5
File No. A-14088
December 5, 2022
A person is justified in using nondeadly force upon another
when and to the extent the person reasonably believes it is
necessary for self-defense against what the person
reasonably believes to be the use of unlawful force by the
other person, unless [certain statutory exceptions apply].
Alaska Statute 11.81.320(a), the necessity statute, provides that
Conduct which would otherwise be an offense is justified by
reason of necessity to the extent permitted by common law
when
(1) neither this title nor any other statute defining the
offense provides exemptions or defenses dealing with the
justification of necessity in the specific situation involved;
and
(2) a legislative intent to exclude the justification of
necessity does not otherwise plainly appear.
The State argues that the plain language of the self-defense statute means that self-
defense can be used to justify only a defendant’s “use of force” and, by extension,
therefore applies only to criminal charges like assault or murder where “use of force”
is an element that must be proven by the State. In response, Wright argues that self-
defense also applies to possessory crimes such as felon-in-possession because “[i]f one
is justified in using deadly force with a firearm, practical common-sense interpretation
necessarily implies that incidental possession of the firearm is also justified.” According
to Wright, “[t]he legislature would not intend to write a self-defense statute that
permitted use, but not possession, of a firearm.”
But the problem with Wright’s argument is that a defendant’s use of force
with regard to a firearm will rarely, if ever, be completely coterminous with a
defendant’s possession of that firearm. As the Hawai`i court explained in Padilla,
The terms of [Hawai`i’s self-defense statutes] are not easily
applied to Padilla’s situation. First, the [self-defense
statutes] are directed at justifying acts involving the use of
force, not the act of possession. Second, once the use of force
has ended, those defenses cease to apply.

State v. Wright – p. 6
File No. A-14088
December 5, 2022
The [self-defense statutes] would only justify Padilla’s
possession of the gun that was simultaneous with his use of
force. . . . Unlike the [self-defense statutes], the choice of
evils defense set forth in [Hawai`i’s necessity statute] is not
limited to justifying the use of force but applies to “conduct,”
a term that encompasses both the use of force and the act of
possession.[12]
For these reasons, the Hawai`i court concluded that the choice of evils/necessity defense
provides a “more comprehensive defense and a better fit for Padilla’s justification
theory than the defenses of use of force in self-protection and for the protection of others
set forth in [Hawai`i’s self-defense statutes.]”13 Other courts have come to a similar
conclusion.14
There is also another reason to adopt the Hawai`i court’s reasoning and to
hold that “self-defense” in the context of defending against a felon-in-possession charge
is best addressed through Alaska’s necessity defense for which the defendant bears the
burden. As already explained, Alaska law differentiates between “defenses” and
“affirmative defenses” by placing the burden of disproving a “defense” on the State
while placing the burden of proving an “affirmative defense” on the defendant.15 This
12 State v. Padilla, 164 P.3d 765, 773 (Haw. App. 2007).
13 Id.
14 See, e.g., Stanfield v. State, 269 So.3d 1188, 1191-92 (Miss. 2019) (affirming giving
of necessity instruction rather than self-defense instruction and holding that, unlike self-
defense, the defendant bears the burden of proving the justification defense in the context
of felon-in-possession); State v. Swindell, 879 S.E.2d 173, 175-76 (N.C. 2022) (holding
that affirmative defense of justification applies to felon-in-possession charge but because
affirmative defense does not negate any elements of the offense charged, the defendant has
the burden to prove justification defense); Johnson v. State, 650 S.W.2d 414, 416 (Tex.
Crim. App. 1983) (holding that “the defense of necessity is sufficient to protect the interest
of the accused” and affirming trial court’s refusal to give self-defense instruction because
defendant’s felon-in-possession did not involve the “use of force”) overruled on other
grounds by Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002).
15 See AS 11.81.900(b)(2); AS 11.81.900(b)(19).

State v. Wright – p. 7
File No. A-14088
December 5, 2022
distinction is rooted in the traditional distinction between “defenses” (like self-defense
or voluntariness) that dispute an explicit or implicit element of the offense and
“affirmative defenses” (like necessity or duress) that are “based on additional facts and
circumstances distinct from the underlying offense” that “can excuse the charged
conduct, but does not disprove any of the . . . elements of the offense.” 16 The
justification defense at issue here fits best under the rubric of an affirmative defense.
Accordingly, we conclude that a felon’s possession of a concealable
firearm can be excused under those rare circumstances where it is necessary for a felon
to take temporary possession of a firearm because the felon reasonably believes that
their life (or the life of a another) is in imminent peril, but that this “self-defense”
justification defense must be expressed as a necessity defense under Alaska law, and
thus the defendant bears the burden of proof by a preponderance of the evidence.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Ryan Montgomery-Sythe,
Chief Deputy Clerk
cc: Court of Appeals Judges
Judge Walker
Trial Court Clerk – Anchorage
16 Beasley, 346 F.3d at 934; see also Swindell, 879 S.E.2d at 175 (holding that the
defendant has the burden to prove a justification defense in a felon-in-possession case
because it is an affirmative defense that does not negate any elements of the offense
charged).

State v. Wright – p. 8
File No. A-14088
December 5, 2022
Distribution:
Email:
Sheridan, Patrick Stanley
DiTullio, Matthew, Public Defender