## Facts

- Kenneth A. Ward entered a Kinder Morgan pipeline facility in Burlington, Washington, after cutting a padlock.
- Ward manually closed a pipeline valve, temporarily stopping the flow of Canadian tar-sands oil to regional refineries, and placed sunflowers on the valve.
- Ward was arrested and charged with second-degree burglary, criminal sabotage, and second-degree criminal trespass; he admitted the conduct but asserted a common-law necessity defense.
- Before the first trial, the court granted the State’s motion in limine excluding all necessity-related testimony and evidence; the first jury hung.
- The State recharged Ward with second-degree burglary and criminal sabotage; Ward again sought to introduce necessity evidence, including expert climate testimony and evidence of the harms of tar-sands oil and alleged governmental inaction.
- The trial court again excluded all necessity evidence; the second jury convicted Ward of second-degree burglary.
- Ward appealed, arguing the categorical exclusion of necessity evidence violated his Sixth Amendment right to present a defense.

## Issues

1. Whether excluding all testimony and evidence supporting Ward’s common-law necessity defense to second-degree burglary violated his Sixth Amendment right to present a defense.

## Decision

- The court reversed Ward’s second-degree burglary conviction and remanded for a new trial.
- Washington recognizes a common-law necessity defense, and it is not categorically unavailable merely because the defendant’s conduct was protest-motivated.
- A defendant may present an affirmative defense upon a showing of “some evidence” supporting each element; the pretrial threshold is relevance sufficient for a rational juror to find the elements, not a merits determination.
- The trial court erred by treating disputed necessity elements (especially the absence of reasonable legal alternatives) as conclusively resolved at the admissibility stage and declaring the defense evidence irrelevant.
- The wholesale exclusion prevented Ward from presenting his only defense, and the exclusion was constitutionally disproportionate because it eliminated an entire defense theory supported by a nonfrivolous proffer.

## Legal Principles

- Washington common-law necessity requires some evidence that: (1) the defendant reasonably believed the crime was necessary to avoid or minimize harm; (2) the avoided harm outweighed the harm of breaking the law; (3) the threatened harm was not caused by the defendant; and (4) no reasonable legal alternative existed.
- A defendant is entitled to present evidence supporting an affirmative defense when the proffer meets a threshold relevance showing for each element; credibility and weight are for the jury.
- The Sixth Amendment right to present a defense is violated when a court applies evidentiary rulings in an arbitrary or disproportionate way that excludes relevant, material defense evidence, including by categorically barring an entire defense theory based on premature merits evaluation.
- Necessity evidence may still be subject to ordinary evidentiary limits, but not excluded wholesale where the defendant’s proffer could support a rational finding on the defense elements.

## Conclusion

The appellate court held that the trial court’s categorical pretrial exclusion of all necessity-defense evidence improperly converted admissibility into a merits determination and violated Ward’s Sixth Amendment right to present a defense, requiring reversal and a new trial.


State v. Ward, 438 P.3d 588 (Wash. Ct. App. 2019)