This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





John Peter Koob, IV,



Filed July 2, 2002

Foley, Judge


Nobles County District Court

File No. T901663



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


Gordon L. Moore, III, Von Holtum, Malters, Shepherd, P.O. Box 517, Worthington, MN  56187-0517 (for respondent)


William J. Wetering, Hedeen, Hughes & Wetering, 1206 Oxford Street, P.O. Box 9, Worthington, MN  56187-0009 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Parker, Judge,* and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant John Koob argues that the district court erred by ruling in limine to disallow a requested instruction on the defense of necessity.  Appellant, who was convicted of DWI after a Worthington police officer spotted him seated in his car in a deserted parking lot at 1:30 a.m., sought to raise the defense of necessity.  He claimed that because of an altercation at a party in a town where he was a stranger he was forced to take refuge in his car, where he ran the heater because of the cold weather.  Because appellant failed to sustain his burden of producing enough evidence to support a prima facie showing of necessity, we affirm.


            The district court has considerable discretion in determining whether to give a requested jury instruction.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).  We review a district court’s refusal to give a requested instruction under an abuse of discretion standard.  Id.  A defendant is entitled to an instruction on a theory of the case if there is evidence to support that theory.  State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).

            A defendant has a constitutional right to “a fair opportunity to present a defense.”   Crane v. Kentucky, 476 U.S. 683, 687, 106 S. Ct. 2142, 2145 (1986).  States retain the power to exclude evidence under evidentiary rules that “serve the interests of fairness and reliability.”  Id. at 690, 106 S. Ct. at 2146.   

A necessity defense defeats a criminal charge if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.


State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1991) (quotation omitted), review denied (Minn. Jan. 30, 1992).  A defendant must also show:

(1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm.


Id. (citation omitted).  Generally, the harm one seeks to avoid must be immediate and physical.  State v. Johnson, 289 Minn. 196, 201, 183 N.W.2d 541, 544 (1971).  The defense is not available where the danger or emergency can be avoided by taking advance precautions.  Id.  If the circumstances of the necessity do not directly negate an element of the crime, but rather excuse one’s conduct, the defendant must prove the defense of necessity by a preponderance of the evidence.  State v. Hage, 595 N.W.2d 200, 206 (Minn. 1999). 

            The district court ruled in limine on appellant’s request for an instruction on the necessity defense, based on stipulated facts.  According to those facts, appellant claimed necessity because (1) he feared the aggressive or assaultive behavior of other guests at a party; (2) he was a stranger in Worthington and had no place to go; (3) he left his coat at the party because he feared the other guests; (4) the weather was dangerously cold; and (5) he had no intention of driving, but only wanted to warm up.[1]

            While necessity may be difficult to measure, Minnesota law sets a high standard for this defense.  Not only must the harm to be avoided be imminent, but there must also be no legal alternative to breaking the law.  Rein, 477 N.W.2d at 717.   Thus, the supreme court found no prima facie showing of necessity where a DWI defendant was driving a passenger with chest pains to the emergency room.  State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995).  Further, a jury was not persuaded where a DWI defendant was fleeing physical abuse.  State v. Hage, 595 N.W.2d 200, 206 (Minn. 1999). 

            Here, the record shows that appellant had access to a cell phone, giving him a legal alternative.   Because appellant’s claim does not directly negate an element of the charge, he bears the burden of proving the necessity defense by a preponderance of the evidence.  Based on the stipulated facts, appellant has not met this burden, and we conclude that the district court did not abuse its discretion by refusing to instruct the jury on the necessity defense.


* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant stated at oral arguments that no other facts would have been developed at trial beyond those stipulated to by the parties.