from the Superior Court in Pima County No. CR20121435001 The
Honorable Howard Fell, Judge Pro Tempore
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Elizabeth B. N. Garcia, Assistant Attorney
General, Phoenix Counsel for Appellee
Feinman, Pima County Public Defender By Michael J. Miller,
Assistant Public Defender, Tucson Counsel for Appellant
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge
Jesus Pina-Barajas appeals his conviction and sentence for
unlawful possession of a deadly weapon by a prohibited
possessor, arguing the court should not have precluded his
defense of necessity. For the reasons that follow, we affirm.
and Procedural History
We view the evidence in the light most favorable to the party
requesting a jury instruction. State v. Almeida, 238
Ariz. 77, ¶ 9 (App. 2015). In April 2012, an
officer with the Tucson Police Department was investigating
an incident involving Pina-Barajas when he looked into the
cab of Pina-Barajas's truck and saw the handle of a gun.
The officer obtained a search warrant and found three
handguns, a pistol magazine, and ammunition. After first
denying that he owned the items, Pina-Barajas later admitted
to owning the guns, to having been convicted of a felony, and
that "he wasn't supposed to have guns."
At trial, Pina-Barajas sought to admit additional statements
he had made to detectives explaining he had obtained the guns
after a certain man threatened him and shot at him
approximately two weeks earlier. Pina-Barajas also sought to
admit the statements pursuant to the rule of completeness.
See Ariz. R. Evid. 106. The court precluded the
statements on both grounds, and the jury found Pina-Barajas
guilty of possession of a deadly weapon by a prohibited
possessor. The court sentenced him to an enhanced, minimum
term of three years. Pina-Barajas appealed; we have
jurisdiction. A.R.S. §§ 13-4031, 13-4033(A)(1).
Pina-Barajas contends the trial court erred by precluding his
necessity defense. Specifically, he argues he was entitled to
introduce certain statements he made to detectives
establishing that defense and to have the jury instructed
accordingly. We review a trial court's evidentiary
rulings for an abuse of discretion. State v. Fish,
222 Ariz. 109, ¶ 8 (App. 2009). Although we normally
review denial of a jury instruction for an abuse of
discretion, "we independently assess whether the
evidence supported a justification instruction, because that
is a question of law and involves no discretionary factual
determination." Almeida, 238 Ariz. 77,
The trial court may preclude a defense when the defendant
fails to "demonstrate he can produce some evidence in
support [thereof]." State v. Medina, No. 2
CA-CR 2017-0035, ¶ 12, 2018 WL 1403818 (Ariz.Ct.App.
Mar. 20, 2018). To warrant an instruction a defendant need
only produce "slightest evidence." Id. To
establish necessity, a defendant must show that he "was
compelled to engage in the proscribed conduct and . . . had
no reasonable alternative to avoid imminent . . . injury
greater than the injury that might reasonably result from the
person's own conduct." A.R.S. § 13-417(A). An
imminent injury is one that is immediate, "about to
occur, " or "impending." State v.
Dominguez, 236 Ariz. 226, ¶¶ 4-6 (App. 2014),
quoting The American Heritage Dictionary 879 (5th
ed. 2011). A threat of imminent injury is necessarily
distinct from one of "eventual harm, " which
"would functionally erase the imminence element from our
statute's definition of the necessity defense."
Medina, 2018 WL 1403818 ¶ 9. In
Medina, this court determined a threat occurring
almost "a month" before the defendant was found in
possession of a weapon was too remote in time to establish
"slightest evidence" of a threat of imminent
injury. Id. ¶¶ 11-12.
Further, in addressing other justification defenses, Arizona
courts have determined that justification based on imminent
or immediate threats dissipates rapidly or is confined within
a particular transaction. See generally A.R.S.
§§ 13-404 to 13-421. In In re Roy L., this
court concluded that a juvenile carrying a firearm was
properly precluded from arguing self-defense because, on the
day he was arrested, he had not seen the rival gang member
who had threatened him. 197 Ariz. 441, ¶ 22 (App. 2000).
In State v. Almeida, we stated that a justification
instruction for crime prevention is not warranted once a
crime has been "fully completed, leaving nothing to
prevent." 238 Ariz. 77, ¶ 14. But we
determined the defendant was entitled to a crime-prevention
instruction because "[t]he evidence supported an ongoing
episode of road rage . . . rather than a discrete aggravated
assault." Id. ¶ 15.
In addition to imminence, the necessity defense requires that
the defendant have had no reasonable alternative. §
13-417(A). Thus, the risk of injury must be both imminent and
the person at risk must have no reasonable alternative to
avoid that injury short of violating the law. We read these
two core requirements of a necessity defense together.
See State v. Gaynor-Fonte,211 Ariz. 516, ¶ 13
(App. 2005) (we interpret individual provisions in context of
entire statute). Specifically, a threat of injury must be
sufficiently imminent that reasonable persons would have
lacked the time to pursue reasonable lawful alternatives.
Ordinarily, as time elapses, other reasonable, legal courses
of action become increasingly ...