¶37
(concurring) — I agree that landowners have a right to defend their property against marauding game. See State v. Burk, 114 Wash. 370, 195 P. 16 (1921); see also Cook v. State, 192 Wash. 602, 74 P.2d 199 (1937). I write separately because defense of property is like any other affirmative defense that does not negate an element of the crime. The burden is properly on the property owner to demonstrate that the killing of an animal was necessary.
Chambers, J.¶38 I cannot join the majority’s mistaken assumption that defense of property from wild animals is like the defense of self-defense against murder. “The State bears the burden of proving beyond a reasonable doubt the absence of *41a defense if the absence of such defense is an ingredient of the offense and there is some evidence of the defense.” State v. McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983) (emphasis added) (citing Patterson v. New York, 432 U.S. 197, 214-15, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977)). Defenses like self-defense negate an element of the crime: intent. McCullum, 98 Wn.2d at 495. The necessity defense does not negate any element of unlawful hunting or waste of wildlife. See RCW 77.15.410, .170. The reasonable necessity instruction given to the jury was insufficient as given, but it did not improperly shift the burden.
¶39 In my view, in order to be a correct statement of the law and to allow the parties to argue their respective theories of the case, the jury should have been instructed that animals may be killed if necessary to protect property. Jerrie Vander Houwen proposed two instructions that would have accomplished that. See Clerk’s Papers (CP) at 181 (“One who kills elk in defense of his or her property is not guilty of violating the law if such killing was reasonably necessary for such purpose.”9); see also CP at 236 (“One who kills elk in defense of his or her property is not guilty of violating the law if such killing was reasonably necessary for the defense of his or her property.”) The trial court rejected both of these instructions and instead gave only the “necessity” instruction based upon 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.02 (2d ed. supp. 2008) (WPIC):
Necessity is a defense to a charge of unlawful big game hunting in the second degree and/or waste of wildlife in the first degree if
(1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; and
(2) the harm sought to be avoided was greater than the harm resulting from a violation of the law;
(3) the threatened harm was not brought about by the defendant; and
*42(4) no reasonable legal alternative existed.
This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.
CP at 223.
¶40 This instruction correctly states the law. But it does not completely state the law. Without being given one of Vander Houwen’s requested instructions, the jury was never instructed that the law recognized that wild animals could be killed if necessary to protect property. The “necessity” instruction was simply without sufficient context. In conjunction with either of Vander Houwen’s requested instructions, the WPIC “necessity” instruction would have been not only appropriate but probably necessary to define and help the jury evaluate both “reasonable” and “necessary” in the context of a defense to a crime.
¶41 A property owner’s right to protect his or her property from wild animals is not absolute and must be evaluated in context of other laws that apply to such animals and the reasonable legal alternative available to the property owner. The instructions as given did not allow Vander Houwen to adequately present his case. Therefore, I concur in result. It was error not to give one of Vander Houwen’s requested instructions that it was a defense to kill wild elk for the reasonably necessary protection of his property.
Madsen and Fairhurst, JJ., concur with Chambers, J.
The instruction was written upon to add “the protection of his or her property.” That does not change my analysis.