This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Alexander Mark Martinelli,


Filed April 24, 2007


Stoneburner, Judge


Nicollet County District Court

File No. 52CR0573


Lori Swanson, Attorney General, Noah Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael K. Riley, Sr., Nicollet County Attorney, 326 South Minnesota Avenue, Box 360, St. Peter, MN 56082-0360 (for respondent)


John M. Stuart, Minnesota Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Wright, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his conviction of escape from custody under Minn. Stat. § 609.485 (2004), arguing that the statute violates his right to equal protection and that the district court erred by refusing to allow him to rely on a necessity defense at trial.  We affirm.



In 1998, appellant Alexander Mark Martinelli was civilly committed to the Minnesota Sex Offender Program (MSOP) at the state security hospital in St. Peter as a sexually dangerous person (SDP).  In March 2005, Martinelli escaped from the state security hospital.  He was apprehended approximately 12 hours later in Omaha, Nebraska and was charged with escape from custody in violation of Minn. Stat. § 609.485, subd. 2(5) (2004).  Martinelli fought extradition from Nebraska, but he was eventually returned to Minnesota.

Martinelli moved to dismiss the complaint for lack of probable cause and asserted that the escape statute violated his right to equal protection.  The court denied Martinelli’s motion to dismiss.  The district court also denied Martinelli’s request to rely on a necessity defense at trial.  Martinelli made an offer of proof on the necessity defense and submitted the case to the district court for trial under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Martinelli guilty of escape from custody and sentenced him to one year and a day.  This appeal followed.



I.          Constitutional challenge to Minn. Stat. § 609.485

            Martinelli asserts that Minn. Stat. § 609.485 (2004), violates equal-protection guarantees, because the statute allows a committed person who has been found “not guilty by reason of mental illness or mental deficiency” to avoid a felony charge of escape if such a person voluntarily returns to the facility within 30 days after the escape, but the statute contains no similar provision allowing a person committed as a SDP or sexual psychopathic personality (SPP) to avoid a charge of escape.  Id.subds. 2(4), 3a.  Martinelli refers to those who are permitted to avoid prosecution for escape under the statute as MID, which generally refers to persons committed as mentally ill and dangerous.  But not all MID patients are included in the class of persons who can avoid prosecution for escape, only those found not guilty of a crime by reason of mental illness or deficiency.  Id.

            The constitutionality of a statute is a question of law, which this court reviews de novo.  State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997).  Statutes are presumed to be constitutional, and courts declare a statute unconstitutional “with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  “The party challenging the constitutionality of a Minnesota statute bears the burden of establishing beyond a reasonable doubt that the statute violates a constitutional provision.”  Granville v. Minneapolis Sch. Dist., 716 N.W.2d 387, 391 (Minn. App. 2006), review granted (Minn. Sept. 19, 2006).  When possible, a reviewing court must interpret a statute to uphold its constitutionality.  Fedziuk v. Commr of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).  A person lacks standing to challenge a statute “on the ground that it might conceivably be applied unconstitutionally to others in situations not before the court.”  State v. Fingal, 666 N.W.2d 420, 425 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). 

            Because Martinelli did not voluntarily return to the treatment facility within 30 days after his escape or present any evidence that he intended to return within 30 days after his escape, we question his standing to challenge the statute.  But because neither the parties nor the district court addressed standing, in the interest of justice, we will address the merits of Martinelli’s claim.

            The equal-protection clauses of the United States and Minnesota constitutions require that all similarly situated persons be treated alike.  Granville, 716 N.W.2d at 391-92.  An equal-protection argument fails if a defendant cannot show that he is being treated differently from similarly situated individuals.  Id.

            Martinelli argues that MID and SPP/SDP patients are similarly situated because: (1) they all suffer from a mental disorder; (2) they are committed to the same facilities and receive the same treatment; (3) they are all indefinitely committed; and (4) some provisions in the civil-commitment statute apply equally to MID and SPP/SDP patients.[1]        We disagree and conclude that MID and SPP/SDP patients are not similarly situated for purposes of different treatment after escape because (1) the commitment criteria for the relevant MID patients are not the same as the commitment criteria for SPP/SDP patients; (2) MID patients do not receive the same treatment as SPP/SDP patients; and (3) both the commitment statute, Minn. Stat. § 253B, and the escape statute, Minn. Stat. § 609.485, specifically provide for dissimilar treatment, evincing a legislative intent that the classes are not considered similarly situated for all purposes.

            Commitment criteria

            There is a mental-illness component to commitment as an SPP/SDP.  See Hince v. O’Keefe, 632 N.W.2d 577, 583-84 (Minn. 2001) (rejecting the argument that persons committed as SPP/SDP are not mentally ill).  But those committed as SPP/SDP are additionally found to have committed a course of harmful sexual conduct, to lack control over sexual impulses, and to be at high risk to sexually reoffend.  Minn. Stat. § 253B.02, subds. 18b, 18c (2004).  These criteria do not apply to MID commitments.  Id., subd. 17. 


            The treatment program for SPP/SDP patients is not the same as for MID patients.  MSOP, the program to which Martinelli was committed, was established specifically to “provide care and treatment in secure treatment facilities to persons committed by the courts as [SPP] or [SDP], or persons admitted there with the consent of the commissioner of human services.”  Minn. Stat. § 246B.02 (2004).  MSOP is not a treatment program for MID patients. 

Legislative intent

Minn. Stat. chapter 253B, does not prohibit or preclude dissimilar treatment for MID and SPP/SDP patients when it is specifically provided for in the statute.  See Minn. Stat. § 253B.185, subd. 1 (stating that provisions pertaining to MID patients “apply with like force and effect” to SPP/SDP patients “[e]xcept as otherwise provided in this section”).  Nor does it purport to prohibit the dissimilar treatment specifically provided for in Minn. Stat. § 609.485.  Martinelli’s argument that the legislature has established a history of treating the classes similarly is incomplete.  The legislature has mandated similar treatment in some situations, but has specifically provided for dissimilar treatment in other situations, including escape from a secure facility. 

Because we conclude that persons committed as SPP/SDP and persons committed as MID are not similarly situated for purposes of Minn. Stat. § 609.485, Martinelli’s equal-protection argument fails, and we need not decide whether dissimilar treatment is justified.  But even if we were to conclude that persons committed as SPP/SDP and persons committed as MID are similarly situated, we would find that the disparate treatment in Minn. Stat. § 609.485 is justified. 

The parties dispute whether the rational-basis or strict-scrutiny test applies to the dissimilar treatment in this case.  A classification that does not involve fundamental rights or target a suspect class is accorded a strong presumption of validity and does not violate the Equal Protection Clause if there is a rational relationship between the disparate treatment and some legitimate governmental purpose.  Heller v. Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 2642 (1993).  The parties agree that Minn. Stat. § 609.485, does not target a suspect class, but Martinelli argues that the statute impinges on his fundamental right to liberty, triggering the more rigorous strict-scrutiny test.  But Martinelli is a civilly committed person who was already in custody.  See Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (stating that because sex offender had been civilly committed to state custody, “his liberty interests are considerably less than those held by members of free society”).  Plainly, the fundamental right to liberty does not give rise to a fundamental right to escape from lawful confinement; therefore, we conclude that the rational-basis test would apply in this case if Martinelli had been able to establish that the classes were similarly situated.

            Under Minnesota’s rational-basis test,[2] distinctions which separate similarly situated persons must not be arbitrary or fanciful, but must be natural and reasonable and germane to a lawful objective.  State v. Knox, 311 Minn. 314, 322, 250 N.W.2d 147, 153 (1976) (applying the rational-basis test to an earlier version of the escape statute challenged by a person who was dually committed to the Minnesota Security Hospital and the Department of Corrections).[3] 

            Persons committed as SPP/SDP have engaged in a course of harmful sexual conduct (SDP), have an inability or an utter lack of power to control sexual impulses (SPP), and as a result, pose a high risk of sexually reoffending.  By contrast, the MID patients who are afforded the opportunity to avoid a criminal penalty for escape have been found not guilty of a criminal charge by reason of mental illness.  We conclude that the government has a legitimate purpose in treating SPP/SDP patients who escape from a secure treatment facility differently than it treats MID patients who escape.

II.        Necessity defense

            Martinelli also argues that the district court erred by denying his request to present a necessity defense to the charge of escape from custody.  “Minnesota courts have acknowledged and applied the common law defense of necessity.”  State v. Hanson, 468 N.W.2d 77, 78 (Minn. App. 1991), review denied (Minn. June 3, 1991).  “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).  “In addition, the defense 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. 

            A defendant has the burden of establishing a prima facie showing of justification by necessity, provided he is not required to disprove an element of the crime charged.  State v. Hage, 595 N.W.2d 200, 205 (Minn. 1999).  The necessity defense applies only in emergency situations when peril is immediate and the defendant is left with no alternative but to violate the law.  Weierke v. Comm’r of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998).  It “requires both a well-grounded fear of immediate death or serious injury and no opportunity to avoid the threatened harm other than the commission of the act, in this case, escape from custody.”  U.S. v. J.L.K.,880F.2d 993, 995 (8th Cir. 1989) (stating that escaped prisoner’s failure to make use of available administrative remedies refuted his defense theory that he faced an actual and immediate threat to life or safety, leaving no choice but to escape).

            In this case, the district court concluded that none of the elements of the necessity defense was present.  We agree.  Despite Martinelli’s argument that he “had no alternative to escape in order to end the overwhelming conditions of his confinement, which amounted essentially to imprisonment under the guise of the receipt of treatment,” Martinelli has failed to demonstrate that his escape prevented a harm that would have significantly exceeded the harm resulting from his escape, that he exhausted all legal alternatives available to him to address his complaints, or that there was any emergency or imminent harm to him at the time of his escape.  The district court did not err in determining that Martinelli failed to establish a prima facie case of necessity for his escape.


[1] Specifically, Minn. Stat. § 253B.185, subd. 1 (2004), provides that “[e]xcept as otherwise provided in this section,” the provisions pertaining to MIDs “apply with like force and effect” to SDPs and SPPs.  And Minn. Stat. § 253B.02, subd. 17 (2004), provides that the characteristics defining MID also apply to persons committed as SPP or SDP. 

[2] The rational-basis standard under the equal protection clause of the Minnesota Constitution is stricter than under the Equal Protection Clause of the United States Constitution.  State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991).

[3] The classification must also be “genuine or relevant to the purpose of the law,” and the statute’s purpose must be “one that the state can legitimately attempt to achieve.”  State v. Russell, 477 N.W.2d 886, 888 (Minn. 1991).