dissenting.
Lacey escaped from prison. He was apprehended in Alaska approximately a year after his escape. Lacey defended on the ground that it was necessary for him to escape from prison because he was about to be transferred to an Arizona prison and had received credible threats that he would be killed as soon as he entered that prison.
A defendant who argues the defense of necessity to justify an escape from prison understandably bears a heavy burden to justify his actions. He must establish that he had no reasonable alternative but to escape. Part of his burden is to establish that he was unable to obtain adequate protection within the institution. Furthermore, a defendant "must present some evidence justifying his continued absence from custody as well as his initial departure." 1
In my view, Lacey presented some evidence that could justify a jury's finding that Lacey established his necessity defense. In his offer of proof, Lacey represented that the Department of Corrections was going to transfer him from a facility in Alaska to a facility in Arizona. Lacey administratively fought the transfer but lost. Then, someone within the prison told him that he would be killed the moment he entered the Arizona prison. (Lacey's attorney represented that she currently was looking for the person who had threatened Lacey.) The day following the threat, Lacey was told that he was going to be transferred. He thought that the person who threatened him had inside information because he had threatened him the day before Lacey was going to be transferred. Lacey was aware that another person had been beaten into a coma at the Arizona facility. He was sure that the threat was ceredi-ble, and he was afraid for his life. He explained that he felt that it would be futile to seek help from Department of Corrections officials because he was sure that they would assume that he was merely trying to avoid the transfer. He concluded that his only possible course of action was to escape.
Lacey explained his prolonged absence from the institution. He explained that he was sure that if he turned himself in, he would be transferred to Arizona and killed. He explained that he believed that his only chanee was to hire a lawyer before he turned himself in. He claimed that his intention was always to turn himself in but only after he had obtained a lawyer who could protect his rights. He claimed that, at the time he was arrested, he had saved $600 towards the expense of hiring a lawyer. It was always his intent to turn himself in when he had a chance to deal with the threat against his life.
In my view, Lacey's offer of proof meets all of the Wells criteria. He had an explanation for each prong of the defense. Of course, Lacey's defense to his escape charge was weak. But, in my view, he had the right to present this defense to a jury. Lacey was entitled to a jury trial. I see no reason to deprive him of his right to a jury trial merely because he had a weak defense. I would therefore reverse Lacey's conviction and remand to allow him to present his case to a jury.
. Wells v. State, 687 P.2d 346, 350-51 (Alaska App.1984).