This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Jean Marie Dockendorf,



Filed January 16, 2001


Peterson, Judge


Clay County District Court

File No. K4991291


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Janelle R. Steger, Moorhead City Prosecutor, P.O. Box 817, Moorhead, MN  56561 (for respondent)


Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a judgment of conviction of gross-misdemeanor driving under the influence of alcohol (DWI), appellant argues that the trial court abused its discretion by excluding evidence offered to support a necessity defense.  We affirm.


            A Moorhead police officer stopped appellant Jean Dockendorf’s car as she pulled into her driveway, after he saw Dockendorf make a wide turn, stop halfway into an intersection, nearly hit the curb, and make another wide turn.  The officer observed indicia of intoxication and asked Dockendorf to take a field sobriety test, which she failed.  Dockendorf agreed to take a breath test, and, although she became uncooperative, the officer obtained one reading showing an alcohol concentration of .24.

            At trial, Dockendorf presented a necessity defense, arguing that she drove her car only to escape a threatened assault by a neighbor.  Dockendorf testified that she had gone visiting in the afternoon, only to run into the neighbor, who was quite drunk and argumentative.  Dockendorf testified that the neighbor became angry with her and broke a glass over the back of her head.  Dockendorf tried to run for help, but the neighbor grabbed her and punched her until she lost consciousness.

            Dockendorf testified that she could not remember how she got home.  That evening, however, she drove to the neighbor’s house, which was two blocks away, along with her daughter, because, as she testified, she had no recollection of the neighbor assaulting her.  In the house, the neighbor became threatening again, and Dockendorf and her daughter fled to their car.  Dockendorf testified that she feared that the neighbor would act on her threat.  She testified that she drove because she was afraid that the neighbor would easily catch her if she fled on foot.

Two days after the incident, Dockendorf reported the neighbor’s assault to police and obtained an order for protection (OFP).  The officer who took Dockendorf’s report testified that Dockendorf was “quite upset.”  A social worker who met with Dockendorf several months after the incident testified that Dockendorf was suffering from post-traumatic stress disorder from the assault.  The trial court denied Dockendorf’s request to present testimony from Jeanette Wetch, a social worker who had assisted Dockendorf when she reported the assault and obtained the OFP.


            Dockendorf argues that the trial court abused its discretion by excluding testimony from Wetch.  This court largely defers to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  A criminal defendant has a constitutional right to present a complete defense, but this right is limited by the rules of evidence.  See Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 2146 (1986) (acknowledging reluctance to impose constitutional limits “on ordinary evidentiary rulings” and noting power of states to exclude evidence through application of evidentiary rules).  The rules of evidence allow the trial court to exclude evidence that is irrelevant or cumulative to other evidence received.  Minn. R. Evid. 401, 403.

            Dockendorf did not discuss the neighbor’s assault with Wetch until two days after it occurred.  Wetch’s testimony could have proved the emotional aftereffects of the incident but not whether Dockendorf drove out of an overwhelming sense of peril on the night of the assault.  See State v. Hage, 595 N.W.2d 200, 207 (Minn. 1999) (discussing elements of necessity defense).  The trial court has discretion to exclude evidence based on remoteness.  See Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (noting trial court’s discretion to exclude evidence for remoteness or other reasons).  The probative value of evidence may diminish with its remoteness in time from the act or occurrence in question.  See State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978) (holding that probative value of evidence of prior relationship between defendant and victim diminishes with remoteness from the act).

            Wetch’s proposed testimony was also cumulative to other defense testimony.  Dockendorf presented ample testimony, her own as well as that of her daughter and the owner of the house where the neighbor assaulted her, regarding the nature and severity of the assault and threats.  She also presented the testimony of a police officer concerning her emotional state two days later and of a social worker concerning the continuing effects of the incident.  Wetch’s proposed testimony was cumulative to this evidence, and excluding it was not a clear abuse of the trial court’s discretion.