This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

State of Minnesota,


David Daniel Chwialkowski,

Minnesota Court of Appeals #CX-95-1483
Beltrami County District Court #K8-92-1223

May 7, 1996

Hubert H. Humphrey, III, Minnesota Attorney General, Carol J. Bennett, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101. Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street, P.O. Box 1653, Bemidji, MN 56601. (for respondent)

Bradford S. Delapena, Assistant Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

Considered and decided by Lansing, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

David Chwialkowski challenges his conviction of depriving another of parental or custodial rights, arguing the district court committed reversible error by refusing to instruct the jury on his affirmative defense that he reasonably believed his actions were necessary to prevent substantial emotional harm to his minor child. The district court acted within its discretion in ruling that the evidence was insufficient to warrant the jury instruction. We affirm.


A defendant is entitled to an instruction on his theory of the case if there is evidence to support that theory. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977), cert. denied 435 U.S. 996 (1978). The district court has the discretion to deny an instruction, including an affirmative defense, if the evidence is insufficient to support it. State v. McCuiston, 514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994). The district court's failure to give proper jury instructions constitutes reversible error only if the error was so prejudicial that it might have changed the jury's verdict. See Stenvik v. Constant, 502 N.W.2d 416, 421 (Minn. App. 1993), review denied (Minn. Aug. 24, 1993).

Chwialkowski was convicted of violating Minn. Stat. § 609.26, subd. 1 (3) (1992), which provides that whoever intentionally

takes, obtains, or fails to return a minor child from or to the parent in violation of a court order, where the action manifests an intent substantially to deprive that parent of rights to visitation or custody [may be charged with a felony].

At trial, Chwialkowski admitted taking his daughter to Mexico and that this action deprived the child's mother of her parental or custodial rights. But he denied criminal culpability for this action by asserting an affirmative defense that he reasonably believed taking his daughter was necessary to protect her from substantial emotional harm. Minn. Stat. § 609.26, subd. 2 (1) (1992). He requested that CRIMJIG 15.07, which sets out the statutory defense, or its equivalent be included in the district court's final instructions to the jury. The district court refused to give the requested instruction because it determined that Chwialkowski failed to make a prima facie showing that the defense was applicable to the case.

Chwialkowski had the burden of producing sufficient evidence of his affirmative defense to warrant a jury instruction on that theory. See State v. Niska, 514 N.W.2d 260, 264 (Minn. 1994) (defendant bears burden of production to avail himself of affirmative defense in Minn. Stat. § 609.26, subd. 2); see also State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (appellant has burden of producing sufficient evidence of self-defense to warrant jury instruction on that theory). Chwialkowski had the burden of producing evidence of a reasonable belief that taking his daughter was necessary to protect her from substantial harm. The only evidence that Chwialkowski presented at trial was his own testimony and that of his sister. He testified that the child's mother and grandmother threatened to make false allegations that he sexually abused his daughter. Therefore, he testified that he reasonably believed taking his daughter to Mexico was necessary to prevent the substantial emotional harm that would result from severing the child's close ties entirely with her father and having to live with the stigma that her father was an alleged child molester. His sister testified that the child was very happy and had a very close relationship with Chwialkowski.

The district court did not err when it determined that there was insufficient evidence from which a reasonable juror could conclude that Chwialkowski reasonably believed his action was necessary to protect his daughter from substantial emotional harm. Thus, we conclude the district court did not abuse its discretion in refusing to instruct the jury on Chwialkowski's theory of the case because he failed to make a prima facie showing that his defense was applicable.



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