This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-98-222

State of Minnesota,
Respondent,

vs.

Cynthia Renee Hage,
Appellant.

Filed October 6, 1998
Affirmed
Short, Judge

Clay County District Court
File No. T1973334

John M. Stuart, Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Todd Webb, Clay County Attorney, Scott G. Collins, Assistant County Attorney, Clay County Courthouse, 807 Eleventh Street, N., P.O. Box 280, Moorhead, MN 56561 (for respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted Cynthia Renee Hage of being under the influence of alcohol while in physical control of a motor vehicle, having an alcohol concentration over .10 while in physical control of a motor vehicle, and having an alcohol concentration over .10 within two hours of being in physical control of a motor vehicle in violation of Minn. Stat. 169.121, subds. 1(a), (d), and (e) (1996). On appeal from the judgment of conviction, Hage argues the trial court erroneously instructed the jury on the state's burden of proof. We affirm.

D E C I S I O N

A trial court is allowed considerable latitude in determining the propriety of a specific jury instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). In reviewing the sufficiency of instructions, we view them as a whole. Id. A defendant who fails to object to jury instructions at trial waives any right to raise the issue on appeal, unless the alleged error concerns a fundamental law or controlling principle. Minn. R. Crim. P. 26.03, subd. 18(3); State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). Defendants are entitled to an instruction on their theory of the case only if the facts and relevant law warrant it. State v. Daniels, 361 N.W.2d 819, 831-32 (Minn. 1985); State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).

Hage argues the trial court erroneously instructed the jury on a fundamental principle of law, the burden of proof. See Auchampach, 540 N.W.2d at 816 (concluding defendant's due process rights are violated if burden of disproving existence of any element of crime is impermissibly shifted to defendant). We agree a jury instruction on burden of proof concerns a fundamental principle of law and may be raised on appeal regardless of whether an objection was made at trial. See Malaski, 330 N.W.2d at 451 (holding jury instructions concerning fundamental principles of law may be raised on appeal regardless of whether an objection was made at trial); State v. Williams, 324 N.W.2d 154, 160 (Minn. 1982) (holding jury instruction on burden of proof concerns fundamental principle of law). However, we do not agree the challenged jury instruction shifted the burden of proof.

The affirmative defense of necessity is available

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.

State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1991) (citing United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982)), review denied (Minn. Jan. 30, 1992). By raising the defense, Hage bore the burden of proving that defense by a preponderance of the evidence. See State v. Brechon, 352 N.W.2d 745, 749 (Minn. 1984) (concluding an affirmative defense requires defendant to go forward with evidence raising defense and shoulder persuasion burden of establishing defense by preponderance of evidence). The trial court instructed the jury, among other things, about the presumption of innocence, the prosecution's burden of proof beyond a reasonable doubt, and the affirmative defense of necessity due to an emergency situation. Viewing the jury instructions in their entirety, the jury instructions did not improperly shift the burden of proof to Hage. Under these circumstances, we conclude the trial court properly instructed the jury.

Affirmed.