Humphrey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia

WILLIAM MICHAEL HUMPHREY
OPINION BY
v. Record No. 1982-00-2 JUDGE LARRY G. ELDER
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NEW KENT COUNTY
Thomas B. Hoover, Judge

Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.

William Michael Humphrey (appellant) appeals from his jury

trial conviction for possessing a firearm after having been

convicted of a felony in violation of Code § 18.2-308.2. On

appeal, he contends the trial court erroneously concluded that

he could not assert necessity or self-defense as a defense to

the charge and, therefore, erroneously rejected a proffered jury

instruction on self-defense. We hold that the common law

defense of necessity remains available, upon an appropriate

factual predicate, as a defense to a charge of possessing a

firearm after having been convicted of a felony under Code

§ 18.2-308.2. Here, the evidence, viewed in the light most

favorable to appellant, entitled him to such an instruction.
Therefore, we reverse his conviction and remand for additional

proceedings consistent with this opinion. 1

I.

BACKGROUND

In reviewing the trial court's refusal to grant a proffered

jury instruction, we view the evidence in the light most

favorable to appellant. See, e.g., Boone v. Commonwealth, 14

Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). So viewed, the

evidence showed that appellant, a convicted felon, had actual

possession of a shotgun long enough to fire two shots.

On the evening of December 29, 1999, appellant was at his

house trailer with Mark King. The trailer was located "in the

woods" of New Kent County on property owned by appellant's

father. A few minutes after King arrived, sometime after dark,

Phillip Skipper and his brother, Franky Skipper, drove up to

appellant's trailer and appeared as if they had been drinking.

The four then "[sat] around . . . drinking" and "having a good

time." Appellant had consumed six beers during the course of

the evening from about 6:00 p.m. forward. Within an hour or so,

1
The trial court implied that appellant was guilty of the
charged offense "even if we took away the evidence [of what]
occurred on [December 29, 1999]," because circumstantial
evidence established that appellant "took [the gun] . . . and
put it in the shed" several days earlier. For purposes of
retrial, we note that the indictment charged appellant with
possession on December 29, 1999, not some other date, and that
the conviction order was for the December 29, 1999 offense. The
evidence recited by the trial court, therefore, would not
support appellant's conviction on the current indictment.

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appellant's girlfriend arrived at the trailer, and appellant

asked the others to leave. King prepared to go, but the

Skippers resisted appellant's request. Appellant then

complained to Phillip Skipper that he had told Phillip not to

bring Franky to appellant's trailer any more because Franky had

stolen appellant's Coleman lamp. When the Skipper brothers

"started giving [appellant] a hard time," appellant asked them

to leave his property and told them they were trespassing.

"[N]o fists or [violence]" were involved and no weapons were

displayed, but the discussion involved "heated" words and

"cussing." Franky Skipper "threatened [appellant]," telling

him, "I will get you, you son of a bitch, or something like

that," and "I'll . . . fix your ass." King then drove away, and

the Skippers followed behind him in their white pickup truck

bearing the logo, "James River Heating & Air Conditioning," in

blue lettering, with Phillip Skipper at the wheel.

Fifteen to twenty minutes later, as appellant was turning

off the light in the trailer's kitchen, appellant and his

girlfriend heard gunshots. Appellant called the police to

report a shooting in progress. He then opened the front door

and saw flashes of gunfire coming from the bottom of the

driveway in the direction of his home. The gunfire was coming

from the passenger side of the same white pickup truck that the

Skippers had been driving earlier. The shooter was leaning

across the hood of the truck from the passenger side, but

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appellant could not see the shooter or the driver well enough to

identify either of them.

The truck eased closer and the shooting continued.

Appellant testified that "[he] was in fear for [his] life and

[his] girlfriend's life, too." He told her to go to the

bedroom, which was toward the back of the trailer, because he

"[did not] want her to get hit" by gunfire. Appellant then ran

twenty-five to thirty yards, directly through the line of fire,

to a nearby shed owned by his father. From the shed, appellant

retrieved a shotgun. Appellant's father had left the shotgun on

appellant's front porch several days earlier, and appellant had

moved the shotgun to the shed at his father's request.

Appellant ran back to the front porch and fired two shots into

the air "just to try to scare them away . . . just till the

police got there." The occupants of the truck may have fired an

additional shot or two but left almost immediately. Appellant

then tossed the shotgun on top of his trailer, re-entered the

house, and called the police a second time.

Officer Christopher Spare arrived fourteen minutes after

appellant first called the police to report gunshots. When

Officer Spare first arrived, appellant was not forthcoming about

the shotgun he had retrieved, but he eventually told Spare he

was a convicted felon and that the firearm was atop his trailer.

Appellant and Spare inspected the trailer for evidence of

gunshot damage but were unable to find any bullet holes that

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night. A few days later, appellant observed a bullet hole in

the front side of the trailer, near the spot in the kitchen

where appellant was standing when the shooting first began.

Appellant was indicted and tried for possessing or

transporting a firearm, on or about December 29, 1999, after

having been convicted of a violent felony. At trial, appellant

admitted that he was a convicted felon and that he knew he was

not allowed to possess a firearm. He testified that he feared

for his life and wanted to protect himself and his girlfriend

and that he "had no other choice at the time," because the

Skippers had threatened him and he had already called the

police. He said "[A] trailer is not the perfect place to be

hiding when you're being shot at," and he testified he thought

the Skippers could "[b]ust right through [the trailer] door" if

he did not take steps to stop them. Appellant's girlfriend

agreed that she and appellant "[were not] very well protected

inside the trailer." When appellant was asked why he did not

retreat to the back of the trailer or into the woods when the

shooting began, appellant said, "I'm not going to be found . . .

dead in the woods, me and my girlfriend. I had to do what I had

to do."

Appellant "put forward a defense of duress and necessity"

and proffered the following jury instruction:

If you believe that [appellant] was
without fault in provoking the altercation
and if you further believe that [appellant]

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 reasonably feared, under the circumstances
as they appeared to him, that he was in
danger of being killed or that he was in
danger of great bodily harm, then his
actions were in self-defense and you shall
find [appellant] not guilty.

The trial court refused the instruction, giving multiple

reasons for doing so. First, it ruled, as a matter of law, that

appellant "[did] not have the right to use a firearm in

self-defense" because he was a convicted felon. In so ruling,

it adopted the reasoning asserted by the Commonwealth's

attorney--that the statute prohibiting possession of a firearm

by a convicted felon contained exceptions but did not include an

exception for self-defense or necessity, which constituted an

implicit rejection of such an exception. Second, it ruled that

the evidence failed to establish sufficient danger, stating,

Well, if it's safe enough for his girlfriend
to go to the rear bedroom of the trailer to
get as far away from the line of fire -- he
instructs her to do that[,] [h]e could have
done the same in regards to the self-defense
instruction. He didn't tell her . . . let's
stay out in the woods to get out of the
house.

Third, the trial court adopted the Commonwealth's argument that

"even if we took away the evidence [of what] occurred on

[December 29, 1999,] [appellant] still knowingly possessed the

gun having been convicted of a felony" because circumstantial

evidence established that "he took [the gun] . . . and put it in

the shed" several days earlier.

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 II.

ANALYSIS

A.

AVAILABILITY OF NECESSITY DEFENSE TO CHARGE OF
POSSESSION OF A FIREARM BY A CONVICTED FELON

Appellant contends the common law defense of necessity

remained available as a defense to a charge of possessing a

firearm after having been convicted of a felony pursuant to Code

§ 18.2-308.2, despite that code section's inclusion of specific

exceptions for members of the armed services, law enforcement

officers and those pardoned by the Governor. We agree and hold

that the legislature's inclusion of exceptions for certain

professions and for convicted felons who have been pardoned does

not indicate an intention to abrogate the common law defense of

necessity.

"The law of self-defense is the law of necessity." McGhee

v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).

The [common law] defense of necessity
traditionally addresses the dilemma created
when physical forces beyond the actor's
control render "illegal conduct the lesser
of two evils." . . . The essential elements
of this defense include: (1) a reasonable
belief that the action was necessary to
avoid an imminent threatened harm; (2) a
lack of other adequate means to avoid the
threatened harm; and (3) a direct causal
relationship that may be reasonably
anticipated between the action taken and the
avoidance of the harm.

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Buckley v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d

827, 827-28 (1988) (quoting United States v. Bailey, 444 U.S.

394, 410, 100 S. Ct. 624, 634, 62 L. Ed. 2d 575 (1980)).

"[T]he legislature may abrogate the common law rule by choosing

to resolve the conflicting public policy matters by the

enactment of law." Long v. Commonwealth, 23 Va. App. 537, 543,

478 S.E.2d 324, 327 (1996). Thus, "[t]he defense of necessity

is available only in situations wherein the legislature has not

itself, in its criminal statute, made a determination of values.

If it has done so, its decision governs.'" Id. (quoting 1 Wayne

R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 5.4(a), at 629 (1986)). However,

[t]he common law will not be considered as
altered or changed by statute unless the
legislative intent is plainly manifested. A
statutory change in the common law is
limited to that which is expressly stated or
necessarily implied because the presumption
is that no change was intended. When an
enactment does not encompass the entire
subject covered by the common law, it
abrogates the common-law rule only to the
extent that its terms are directly and
irreconcilably opposed to the rule.

Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302

(1988) (citations omitted) (emphasis added).

We applied these principles in Long, 23 Va. App. 537, 478

S.E.2d 324, and Murphy v. Commonwealth, 31 Va. App. 70, 521

S.E.2d 301 (1999). In Long, we held that the legislature

intended to abrogate the common law defense of necessity in

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cases involving the operation of a motor vehicle by a habitual

offender, a violation of Code § 46.2-357. 23 Va. App. at

543-44, 478 S.E.2d at 326-27. In enacting that code section,

the legislature "chose to relegate the factual circumstances

which would give rise to the common law defense of necessity to

the punishment phase of the habitual offender proceedings." Id.

at 544, 478 S.E.2d at 327. We held that "[t]his decision was,

in effect, a determination . . . that there could be no

guilt-nullifying justification for an habitual offender, twice

convicted of driving after having been adjudicated an habitual

offender, to drive" and that "the legislature intended to

abrogate the common law defense of necessity." Id.

In Murphy, by contrast, we held the legislature effected a

more limited abrogation of the common law defense of necessity.

31 Va. App. at 75, 521 S.E.2d at 303. Murphy involved

Virginia's statutes criminalizing the possession of marijuana

but excepting marijuana possessed pursuant to a valid

prescription for the treatment of cancer or glaucoma. Id. at

74, 521 S.E.2d at 302 (citing Code § 18.2-251.1). Murphy

asserted a necessity defense, claiming he possessed and used the

marijuana found in his possession to alleviate debilitating

migraine headaches. Id. at 73, 521 S.E.2d at 302. We held as

follows:

[T]he legislative history of the statute
manifests that the General Assembly has
significantly limited the availability of

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 the defense of necessity for individuals who
use marijuana for medicinal purposes. In
restricting the legitimate medicinal use of
marijuana to cases involving cancer or
glaucoma, the legislature evinced its intent
to circumscribe the value judgment an
individual can make with respect to its use
for treating other conditions. To that
extent, the common law defense of necessity
is abrogated and unavailing in [Murphy's]
case.

Id. at 75, 521 S.E.2d at 303 (citations omitted) (emphasis

added). Because the legislature's enactment covered only

medicinal uses, it "[did] not encompass the entire subject

covered by the common law," and thus "it abrogate[d] the

common-law rule only to the extent that its terms [were]

directly and irreconcilably opposed to the rule," Boyd, 236 Va.

at 349, 374 S.E.2d at 302, i.e., only as to a claim of necessity

for possession of marijuana for medicinal reasons.

Code § 18.2-308.2, the statute at issue in appellant's

case, provides in relevant part as follows:

A. It shall be unlawful for . . . any
person who has been convicted of a felony
. . . to knowingly and intentionally possess
or transport any firearm . . . .
B. The prohibitions of subsection A shall
not apply to (i) any person who possesses a
firearm or other weapon while carrying out
his duties as a member of the armed forces
of the United States or of the National
Guard of Virginia or of any other state,
(ii) any law-enforcement officer in the
performance of his duties, or (iii) any
person who has been pardoned or whose

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 political disabilities have been removed
. . . .2

Id. (footnote added).

Code § 18.2-308.2, unlike Code §§ 18.2-251.1 and 46.2-357,

provides what amounts to an exemption for limited categories of

people based on profession or status rather than necessity and,

therefore, does not abrogate the common-law necessity defense.

Thus, we conclude the trial court erred in holding the defense

of necessity or self-defense may never be asserted to a charge

of possession of a firearm by a convicted felon. See United

States v. Panter, 688 F.2d 268, 271-72 & n.4 (5th Cir. 1982)

(holding necessity defense available to charge of violating 18

U.S.C. § 1202(a)(1), federal statute which prohibits convicted

felons from possessing weapons but excepts prisoners entrusted

with firearms by a competent authority and ex-felons who have

been pardoned). 3

2
Code § 18.2-308.2 was amended effective July 1, 2001. It
now prevents a convicted felon from "knowingly and intentionally
possess[ing] or transport[ing] any (a) firearm or (b) stun
weapon or taser . . . except in such person's residence or the
curtilege thereof . . . ." 2001 Va. Acts, chs. 811, 854
(emphasis added).
3
A majority of other states having considered the issue
follow this approach. See 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 (1985 & Supp. 2001); see
also In re Taylor, 636 So. 2d 1246, 1247 (Ala. 1993); Marrero v.
State, 516 So. 2d 1052, 1054-56 (Fla. Dist. Ct. App. 1987);
People v. Govan, 523 N.E.2d 581, 585-86 (Ill. Ct. App. 1988);

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 "[The legislature] in enacting criminal
statutes legislates against a background of
Anglo-Saxon common law . . . ." Part of
this common law is the doctrine of
self-defense. . . . [S]tatutes rarely
enumerate the defenses to the crimes they
describe. . . . We do not believe that [the
legislature] intended to make [convicted
felons] hapless targets for assassins. The
right to defend oneself from deadly attack
is fundamental. [The legislature] did not
contemplate that [Code § 18.2-308.2] would
divest convicted felons of that right.

Id. at 271 (quoting Bailey, 444 U.S. at 415 n.11, 100 S. Ct. at

637 n.11).

B.

ENTITLEMENT TO PROFFERED INSTRUCTION
UNDER THE FACTS OF THIS CASE

We hold next that the evidence, viewed in the light most

favorable to appellant, entitled appellant to have the jury

instructed on necessity.

In reviewing the trial court's refusal to grant a proffered

jury instruction, we view the evidence in the light most

favorable to appellant. See, e.g., Boone v. Commonwealth, 14

Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). "A defendant is

entitled to have the jury instructed . . . on those theories of

State v. Blache, 480 So. 2d 304, 308 (La. 1985); Commonwealth v.
McCambridge, 690 N.E.2d 470, 474 (Mass. App. Ct. 1998); State v.
Crawford, 521 A.2d 1193, 1197-1201 (Md. Ct. App. 1985); State v.
Castrillo, 819 P.2d 1324, 1328-31 (N.M. 1991); Conaty v. Solem,
422 N.W.2d 102, 104 (S.D. 1988); State v. Jeffrey, 889 P.2d 956,
958 (Wash. Ct. App. 1995); State v. Coleman, 556 N.W.2d 701,
705-06 (Wis. 1996). But see State v. Harrington, 461 N.W.2d
752, 754 (Neb. 1990).

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the case" that are supported by "more than a scintilla" of

evidence. Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d

267, 280 (1986).

"A person who reasonably apprehends [imminent] bodily harm

by another is privileged to exercise reasonable force to repel

the assault." Diffendal v. Commonwealth, 8 Va. App. 417, 421,

382 S.E.2d 24, 25 (1989). As set out above, the essential

elements of the necessity defense, which allows a convicted

felon to possess a firearm for self-defense, 4 include "(1) a

reasonable belief that the action was necessary to avoid an

imminent threatened harm; (2) a lack of other adequate means to

avoid the threatened harm; and (3) a direct causal relationship

that may be reasonably anticipated between the action taken and

the avoidance of the harm." Buckley, 7 Va. App. at 33, 371

S.E.2d at 827-28.

"[W]hether the danger is reasonably apparent is always to

be determined from the viewpoint of the defendant at the time he

4
Courts and commentators disagree over whether the
appropriate label for the defense is self-defense, necessity or
duress. See Panter, 688 F.2d at 272 n.7 (discussing
self-defense and necessity and holding that accused was entitled
to instruction under either); Castrillo, 819 P.2d at 1328 & n.2
(comparing justification defenses of duress and necessity to
self-defense). The justification defenses of duress and
necessity are similar in that both require that "the perceived
harm must be imminent." Castrillo, 819 P.2d at 1328 n.2.
Self-defense is similar to duress and necessity in that it
"provides a justification for an otherwise criminal act;
strictly speaking, however, it is not a defense to possession,
although it may justify the possession." Id.

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acted." McGhee, 219 Va. at 562, 248 S.E.2d at 810. "It is not

essential to the right of self-defense that the danger should in

fact exist." Id. However, "the test is not [merely] whether

the accused thought or believed at the time of the killing that

he was in imminent danger of great bodily harm. . . . He [both]

must have believed and must have had reasonable ground to

believe, at the time, that he was in such danger." Perkins v.

Commonwealth, 186 Va. 867, 877, 44 S.E.2d 426, 430 (1947). 5

Implicit in the application of such a defense to the crime

of possessing a firearm after having been convicted of a felony

is that the felon may possess the weapon only so long as is

necessary to protect himself from the imminent threat. See,

e.g., Panter, 688 F.2d at 272. Necessity provides no defense to

a charge of possession of a firearm by a convicted felon if the

felon takes possession of the firearm before the threat becomes

imminent or retains possession longer than required after the

danger has passed. See, e.g., id.; see also Marrero v. State,

516 So. 2d 1052, 1055-56 (Fla. Dist. Ct. App. 1987) (holding

whether accused retained possession longer than necessary was

question of fact).

5
Some jurisdictions require proof that an imminent threat
actually exists. See, e.g., United States v. Gant, 691 F.2d
1159, 1162 (5th Cir. 1982). Others have adopted the test we
apply here, permitting assertion of the defense where the
accused reasonably believes he faces an imminent threat. See
Coleman, 556 N.W.2d at 706 & n.13.

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 The evidence here, viewed in the light most favorable to

appellant, supported a necessity instruction because it

established that appellant was without fault in provoking the

altercation, that he reasonably feared he was in imminent danger

of being killed or seriously injured at the time he took

possession of the weapon on December 29, 1999, 6 that he lacked

other adequate means to avoid the threatened harm, and that he

6
We have held that, under appropriate circumstances,
constructive possession of a firearm may support a conviction
for possession of a firearm by a convicted felon. See Blake v.
Commonwealth, 15 Va. App. 706, 707-09, 427 S.E.2d 219, 220-21
(1993) (holding accused constructively possessed firearm which
was in actual possession of his companion while accused and
companion acted jointly to commit robbery). Here, however,
neither the Commonwealth nor the trial court took the position
that appellant constructively possessed the firearm earlier on
December 29, 1999, before he took actual possession of it,
presumably because the evidence indicated the firearm was
located in a storage shed which was owned and used by
appellant's father and located on property owned by appellant's
father. The trial court gave the model jury instruction for the
charged offense, which includes as an element that "the
defendant knowingly and intentionally possessed or transported a
firearm." 1 Virginia Model Jury Instructions--Criminal G18.620
(1998 repl. ed. & 1999 Supp.). The trial court did not instruct
the jury on the theory of constructive possession. Compare id.
with id. 22.330 (1998 repl. ed. & 2000 Supp.) (defining
"possession" of a controlled substance as "actual physical
possession," in which "the substance is found on the person," or
"constructive possession," in which "the person has dominion or
control over the substance"). These instructions "constitute
the law of the case, and they do not incorporate the theory of
[constructive possession]. Accordingly, we . . . make our
decision guided by the principles enunciated in the instructions
independent of that theory." Hoar v. Great Easter Resort Mgt.,
Inc., 256 Va. 374, 389, 506 S.E.2d 777, 787 (1998) (holding in
civil case that instruction of jury on assumption of the risk
without "incorporat[ion of] the theory of inherent risks"
prevented appellate court from considering whether theory of
"inherent risks" required judgment for defendant as a matter of
law).

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disposed of the weapon immediately after the danger had passed.

Appellant's instruction as proffered was not an accurate

statement of the law because it did not require proof that the

danger was imminent or that appellant lacked other adequate

means to avoid the threatened harm. However, because necessity

was appellant's "sole defense" to the charged crime and

appellant gave testimony supporting that defense, the trial

court had an affirmative duty to give a corrected instruction to

the jury. See Bryant v. Commonwealth, 216 Va. 390, 392-93, 219

S.E.2d 669, 671 (1975); see also Atkins v. Commonwealth, 257 Va.

160, 178, 510 S.E.2d 445, 456 (1999) (reaffirming Bryant's

principle that court has duty to correct erroneous jury

instruction and give it in proper form "when the principle of

law is materially vital to [the] defendant in a criminal case").

The Commonwealth contends that appellant's "admitted

misconduct prior to the alleged shooting disentitled him to the

justifiable self-defense instruction that he submitted."

However, the Commonwealth does not identify the misconduct on

which it purports to rely. Viewing the evidence in the light

most favorable to appellant, as we must in considering the jury

instruction issue, the record contains no evidence that

appellant engaged in any misconduct which would deprive him of

the right to have the jury instructed on necessity.

As the Commonwealth acknowledges, misconduct sufficient to

disentitle an accused to a justifiable self-defense instruction

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must be misconduct which caused the need to defend oneself.

McGhee, 219 Va. at 562, 248 S.E.2d at 810. Therefore, as we

held in the previous section, the fact that appellant's

unrelated misconduct caused him to become a convicted felon does

not deprive him of the right to claim his actions were justified

by necessity. Further, as the Commonwealth acknowledges, "[t]he

fact that a man has been drinking does not ipso facto deprive

him of the right of self-defense, even though the necessity for

the exercise of the right might not have arisen had neither he

nor his aggressor been drinking." Hawkins v. Commonwealth, 160

Va. 935, 941, 169 S.E. 558, 560 (1933); see Gilbert v.

Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546-47

(1998) (holding that accused was not at fault in inviting

aggressors to his house for drinks).

Rather, the evidence, viewed in the light most favorable to

appellant, establishes that the Skipper brothers arrived at

appellant's trailer already intoxicated and that appellant, Mark

King, and the Skipper brothers "[sat] around . . . drinking" and

"having a good time." When appellant's girlfriend arrived at

the trailer, appellant asked his guests to leave, but the

Skipper brothers resisted. Although appellant mentioned his

belief that Franky Skipper previously had stolen a lamp from

appellant, reminded Phillip Skipper that he had told Phillip not

to bring Franky to appellant's trailer again, and told the men

they were trespassing, "[n]o fists or [violence]" were involved

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and no weapons were displayed. Appellant's statements to the

Skippers did not constitute misconduct sufficient to deprive

appellant of the right to claim self-defense.

The evidence, viewed in the light most favorable to

appellant, also established that appellant reasonably feared he

was in imminent danger of being killed or seriously injured when

shots were fired at his trailer a short time later. Franky

Skipper, before departing appellant's trailer as a passenger in

a white "James River Heating & Air Conditioning" pickup truck

driven by his brother, had threatened appellant, telling

appellant, "I will get you, you son of a bitch," and "I'll . . .

fix your ass." No more than twenty minutes later, the same

pickup truck returned and drove up appellant's driveway as the

passenger leaned across the hood and fired shots at appellant's

trailer. Appellant believed the shooter was Franky Skipper and

testified that "[he] was in fear for [his] life and [his]

girlfriend's life, too." He called 911 and then retrieved his

father's shotgun from his father's nearby shed, even though he

had to run through the line of fire to do so, because he feared

that if he did not arm himself before the police could respond

to his rural location, the Skippers would break down the trailer

door or pursue him and his girlfriend into the woods. Appellant

testified that he feared for his and his girlfriend's lives and

that he "had no other choice at the time." Finally, appellant

testified he threw the shotgun onto the roof of his trailer

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immediately after he had succeeded in chasing his assailants

away.

The evidence, viewed in the light most favorable to

appellant, supported a necessity instruction because it

established that appellant's possession of the shotgun on

December 29, 1999 was for the purpose of justifiable

self-defense and lasted only as long as necessary for appellant

to defend himself and his girlfriend. Thus, the trial court's

failure to give a proper instruction was reversible error.

III.

For these reasons, we reverse appellant's conviction and

remand to the trial court for additional proceedings consistent

with this opinion if the Commonwealth be so advised.

Reversed and remanded.

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