(See People v. Ryan (1987), 117 Ill.2d 28.) Nevertheless, an inmate charged with the offense may assert necessity as an affirmative defense to the charge. See People v. Govan (1988), 169 Ill. App.3d 329; People v. Tackett (1988), 169 Ill. App.3d 397. Generally, "[t]he quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt as to defendant's guilt or innocence."
(Internal quotation marks omitted.) Id. at 45, 178 Ill.Dec. 769, 605 N.E.2d 563 (quoting People v. Tackett, 169 Ill.App.3d 397, 402, 119 Ill.Dec. 891, 523 N.E.2d 647 (1988) ). Although, the presence of every factor is not required for the establishment of a necessity defense, “[a] specific and immediate threat, however, constitutes the very nature of a necessity defense; thus, proof of that factor is a threshold requirement for its establishment.” Id. Accordingly, the “[f]ailure to prove the existence of a specific and immediate threat obviates the need to conduct an inquiry into the second and third factors.
Once some evidence in support of the defense has been presented, the State has the burden to disprove the defense beyond a reasonable doubt. People v. Tackett (1988), 169 Ill. App.3d 397, 402, 523 N.E.2d 647, 650. • 3 In People v. Unger (1977), 66 Ill.2d 333, 362 N.E.2d 319, the Illinois Supreme Court discussed factors which are relevant in assessing a claim of necessity to charges of escape from prison.
(See People v. Unger (1977), 66 Ill.2d 333, 362 N.E.2d 319 ( Unger).) In order to properly raise a defense of necessity, defendant must present "some evidence" to support his claim ( Unger, 66 Ill.2d 333, 362 N.E.2d 319; People v. Tackett (1988), 169 Ill. App.3d 397, 402, 523 N.E.2d 647). Once presented, the State has the burden to prove the nonexistence of necessity beyond a reasonable doubt. People v. Tackett, 169 Ill. App.3d at 402.
However, in People v. Hurd (190 Ill. App.3d at 803), the court recognized but declined to follow the reasoning of the Roby court, stating, "[w]e agree that Hobbs precludes an extended term, especially as in the case at bar, where defendant's prior theft is also a misdemeanor without enhancement." In determining which position to take on this issue, we are guided by People v. Tackett (4th Dist. 1988), 169 Ill. App.3d 397, 523 N.E.2d 647, appeal denied (1988), 122 Ill.2d 590, wherein defendant was convicted of unlawful use of weapons by a felon stemming from his possession of a shank while an inmate at a penal institution. The defendant cited Hobbs and contended that the use of prior convictions as an aggravating factor constituted double enhancement because the prior convictions were an element of the offense of unlawful use of a weapon by a felon.
We note that considering the evidence as a whole, it is arguable whether the defendant was even entitled to assert the defense in the first place. See People v. Govan, 169 Ill. App. 3d 329, 338-39 (1988); People v. Tackett, 169 Ill. App. 3d 397, 402-03 (1988). We further note that had the defendant's offense been charged as a count of unlawful possession of a weapon by a felon in a Department of Corrections facility (720 ILCS 5/24-1.
Defense counsel is not required to ask the jury to find a defendant not guilty during closing argument. ( People v. Tackett (1988), 169 Ill. App.3d 397, 403-04, 523 N.E.2d 647, 651-52.) As we stated above, a review of a lawyer's competency will not extend to the exercise of his trial tactics.
Defendant first argues the court erred in refusing his jury instruction on the defense of necessity because he presented "some evidence" supporting his theory of defense. People v. Tackett (1988), 169 Ill. App.3d 397, 402, 523 N.E.2d 647, 650. • 1 In People v. Govan (1988), 169 Ill. App.3d 329, 337, 523 N.E.2d 581, 586, this court determined that necessity might be appropriate under certain circumstances as a defense to a charge of unlawful possession of a weapon by a person in the custody of the Department of Corrections, but for policy reasons its availability was limited.