This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








State of Minnesota,





Troy Eugene Milligan,



Filed April 22, 2003


Kalitowski, Judge


Ramsey County District Court

File Nos. K5014362, K798415, KX013689


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)


            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction of fifth-degree controlled substance crime, appellant argues that he was denied his right to present a meaningful defense when the district court prevented his counsel from raising a necessity defense for the first time during closing argument.  We affirm.


            This court reviews evidentiary rulings under an abuse of discretion standard.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Closing arguments by attorneys are not evidence, but we also review a district court’s rulings regarding the scope of arguments for abuse of discretion.  See State v. Davidson, 351 N.W.2d 8, 13 (Minn. 1984). 

            Criminal defendants have a constitutional right to present a meaningful defense.  U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 7.  If a defendant chooses to present a necessity defense, the burden rests on him to raise enough evidence at trial to make the defense an issue in the case.  State v. Charlton, 338 N.W.2d 26, 30-31 (Minn. 1983).  Once the defendant has produced this evidence, the burden shifts to the prosecution to disprove the defense beyond a reasonable doubt.  State v. Brodie, 529 N.W.2d 395, 399 (Minn. App. 1995), rev’d on other grounds, 532 N.W.2d 557 (Minn. 1995). 

            Here, appellant gave neither the prosecution nor the court any advance notice that he intended to pursue a necessity defense.  And appellant presented no evidence in support of the necessity theory.  The only evidence that appellant points to as supporting the necessity theory was testimony presented in passing by a prosecution witness on direct examination.  This witness stated that when arrested appellant stated he was in possession of the methamphetamine because he had picked it up to prevent a small child from picking it up and eating it.  Appellant’s counsel did not develop this evidence on cross-examination, and did not request an instruction regarding necessity or the burdens of proof associated with that defense.  See Brodie, 529 N.W.2d at 399 (holding defendant met burden of production by introducing sufficient evidence to suggest that his actions were justified by necessity; and trial court erred by refusing to give an instruction on burdens of proof). 

            We conclude that appellant did not meet his burden of production with respect to the necessity defense.  Because the evidence was insufficient to make the defense theory an issue of the case, the district court did not abuse its discretion in refusing to allow defense counsel to develop and argue this defense in closing argument. 



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