This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Robert Lee Morarie,



Filed August 23, 2005


Toussaint, Chief Judge


Ramsey County District Court

File No. K1-03-3908


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;


Susan Gaertner, Ramsey County Attorney, Colleen A. Timmer, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and 


Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant) 


            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Robert Lee Morarie challenges his conviction of ineligible person in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2002), arguing that the district court erred when it refused to instruct the jury that the state bears the burden of proving that his conduct was not justified under the doctrine of necessity and that there is insufficient evidence showing that his conduct was not justified under the circumstances.  We affirm.



Morarie argues the district court erred in denying his requested instruction on the defense of necessity.  District courts are given “considerable latitude” in selecting the language of jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “[T]he [district] court’s charge to the jury must be read as a whole, and if, when so read, it correctly states the law in language that can be understood by the jury, there is no reversible error.  In making this evaluation, [appellate courts] are to assume that the jurors were intelligent and practical people.”  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). 

Jury instructions that fail to place the burden on the state, when the state bears the burden, are reversible error and not subject to a harmless error analysis.  State v. Peterson, 673 N.W.2d 482, 487 (Minn. 2004).  But in all other cases, when the district court’s instructions are erroneous, a defendant is not entitled to new trial unless a “more accurate instruction would have changed the outcome in [the] case.”  State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002).

Morarie argues the district court’s instructions are erroneous because it did not inform the jury that the state had the burden to disprove his asserted defense.  Due process requires that the state prove the existence of every element of the crime charged beyond a reasonable doubt.  State v. Auchampach, 504 N.W.2d 808, 816 (Minn. 1995).  Consistent with due process, however, the state may “impose upon a criminal defendant the burden of proving by a preponderance of the evidence that [his] conduct should be excused by some mitigating circumstances or issue.”  State v. Hage, 595 N.W.2d 200, 205 (Minn. 1999).

In Hage, the appellant challenged her conviction of being in physical control of a motor vehicle while under the influence of alcohol arguing, among other things, that the district court’s jury instruction on the defense of necessity was improper.  Id. at 204.  The appellant argued that she should not be required to bear the burden of proof for a justification defense.  Id. at 204.   But in a case where a general intent, or knowledge, crime was charged as opposed to a specific intent/purpose crime, the burden of persuasion is properly allocated to the defendant.  Id. at 206.

The supreme court in Hage recognized that one of its previous decisions

may have conveyed the message that the nature of the defense, instead of the elements of the crime charged, determines the proper allocation of the burden of persuasion.  [But] the proper allocation of the burden of persuasion . . . [is determined] by focusing on the elements of the crime charged, not on the nature of the defense proffered.”



The elements of the crime of ineligible person in possession of a firearm are: (1) the defendant knowingly possessed a firearm; (2) the defendant is ineligible to possess a firearm; (3) the defendant’s act to took place at the place and on the date alleged.  10A Minnesota Practice, CRIMJIG 32.17 (Supp. 2005).  The intent element of Morarie’s crime is knowledge and under Hage, we concludethat Morarie had the burden to prove by a preponderance of the evidence that his conduct was justified by necessity.

Here, in the final charge to the jury, the district court instructed the jury that “[t]he defendant in this case is asserting the defense of necessity.  The defendant is not guilty of the crime where his actions are necessary because of an emergency situation where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.”  The court did not instruct the jury who had the burden of proving, or disproving, the defense.  After beginning deliberations, a juror asked specifically who had the responsibility of proving the defense of necessity, and the district court stated, “The state has the burden of proof beyond a reasonable doubt as to each and every element charged.  You may consider the proof of the defense of necessity as it relates to whether or not the state has proved each and every element beyond a reasonable doubt.”  Although the district court’s instruction may have been erroneous in that the court did not place the burden on Morarie, the court’s instruction was more beneficial to Morarie than he was entitled to receive and, therefore, any error is harmless.  See Ihle, 640 N.W.2d at 917.


Morarie also argues that the state failed to prove beyond a reasonable doubt that his actions were not justified.  Because the state did not bear the burden of proof on Morarie’s asserted defense, we construe the issue raised to be whether Morarie proved the affirmative defense of necessity by a preponderance of the evidence.  See State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003) (construing defendant’s sufficiency of evidence challenge regarding affirmative defense of mistake of age as such), review denied (Minn. Nov. 18, 2003). 

In considering a claim of insufficient evidence, this court is mindful that “[i]t is the province of the fact-finder to determine the weight and credibility to be afforded the testimony of each witness. . . .  As the sole judge of credibility, a fact-finder is free to accept part and reject part of a witness’s testimony.”  Id. at 38.  Our review is limited to a thorough review of the record to determine whether the evidence, viewed in a light most favorable to verdict, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).    

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), review denied (Minn. Jan. 30, 1992).  The defense of necessity “exists only if (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.     

Here, Morarie testified that he possessed the firearm because three men attempted to rob him after one of them pulled out a firearm, and he believed the safest course was to gain control of the firearm.  He testified that, in the ensuing struggle, the firearm discharged, and he was able to gain control of it.  He also testified that the would-be assailants ran away after the gun discharged and that he ran in the opposite direction carrying the firearm.  He further testified that it was not until he noticed a police officer that he “tossed” the firearm because it was not his and he “thought that . . . [he] was out of danger and [he is] ineligible to have a gun.” 

            Even if we assume the jury accepted all of Morarie’s testimony, the jury was still not required to find that Morarie’s possession of the firearm was necessary.  When Morarie initially gained control of the firearm he may have faced imminent danger and his initial possession may have been necessary.  But his continued possession of the firearm after the necessity had evaporated is sufficient to defeat his claim of necessity and provide a sufficient basis for the jury’s verdict that Morarie’s possession of the firearm should not be excused. 


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