State v. Hage

• Citation: 595 N.W.2d 200
• Decision Date: 03 June 1999
• Docket Number: No. C1-98-222,C1-98-222
• Parties: STATE of Minnesota, Respondent, v. Cynthia Renee HAGE, petitioner, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 200

595 N.W.2d 200

STATE of Minnesota, Respondent, v. Cynthia Renee HAGE, petitioner, Appellant.

No. C1-98-222.

Supreme Court of Minnesota.

June 3, 1999.

Syllabus by the Court

Requiring a defendant to bear the burden of persuasion for the defense of necessity is consistent with due process when doing so does not require the defendant to disprove or negate an element of the crime charged.

A defendant who is charged with being in physical control of a motor vehicle while under the influence of alcohol and John M. Stuart, Minnesota State Public Defender, Scott G. Swanson, Assistant State Public Defender, Minneapolis, for appellant.

who proffers the defense of necessity must prove that defense by a preponderance of the evidence.

Michael A. Hatch, State Attorney General, St. Paul, Lisa Nelson Borgen, Clay County Attorney, Scott G. Collins, Assistant County Attorney, Moorhead, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAUL H. ANDERSON, Justice.

On the evening of May 26, 1997, appellant Cynthia Renee Hage was arrested for being in physical control of a motor vehicle while under the influence of alcohol in violation of Minn.Stat. § 169.121, subd. 1(a) (1998). She also was charged with two other related offenses. Hage was arrested while sitting in the driver's seat of her car, which was parked on a public road with the keys in the ignition. Hage admits to being under the influence of alcohol, but asserts that she was not guilty of the offenses charged because her actions were justified by necessity. She asserts that she was sitting in her car because it was necessary for her to seek refuge there after she fled the trailer home in which she lived with her abusive boyfriend. She further asserts that the car was parked on the public road because the driveway leading to the trailer home was inaccessible as a result of a flood.

At trial, the district court, without objection, instructed the jury on the defense of necessity, which instruction provided that Hage bore the burden of persuasion for her proffered defense. The jury found Hage guilty on all three charged offenses. On appeal to the Minnesota Court of Appeals, Hage argued for the first time that the district court had improperly instructed the jury that she bore the burden of persuasion. She asserted that the instruction was erroneous because the state should have been required to shoulder the burden of persuading the jury beyond a reasonable doubt that necessity did not justify her behavior. The court of appeals affirmed, concluding that the jury had been properly instructed. We affirm.

Appellant Cynthia Renee Hage lived with her boyfriend, Bernie Kopperud, in Kopperud's trailer home in rural Clay County, north of the city of Moorhead, Minnesota. The Red River runs behind the trailer home and, in the spring of 1997, record-level flooding affected the area such that, for 31 days, the properties belonging to Kopperud and some of his neighbors were isolated from the surrounding area by the flood waters. A gravel driveway leads from Kopperud's trailer home to County Road 93. There is some dispute about whether the driveway was passable on May 26 and thus whether on that day Hage's car had been parked on the driveway and then driven to County Road 93 or whether instead Hage's car had been parked, unmoved, on County Road 93 prior to the time of her arrest.

On May 26, Hage and Kopperud were both drinking alcohol inside the trailer home. Sometime that afternoon, the couple began to argue. During this argument, Kopperud slammed Hage's hand onto a table with force sufficient to bend her ring and draw blood. Hage testified that in the past Kopperud had been physically abusive toward her. Because she was frightened, Hage then left the trailer home to escape Kopperud until he calmed down. Upon leaving the trailer home, Hage went to her car and sat in the driver's seat.

At some point after Hage left the trailer home, Kopperud called the police and informed them that Hage was drunk and sitting in her car. Clay County Sheriff's Deputy Kathleen Cline was dispatched to the scene to investigate. Hage and Kopperud were not strangers to Cline because Cline had been dispatched to the trailer home on at least one prior occasion. According to Cline, she had responded to a domestic disturbance call at the trailer home earlier that month and had found Hage in an outbuilding waiting for Kopperud's anger to subside. However, at trial, Hage denied that this incident had occurred.

When Cline arrived at the scene on May 26, Hage's car was parked on County Road 93. Cline observed as Hage, who was outside the car at that point, directed a dog into the back seat, then got into the car and sat in the driver's seat. Cline approached the car and asked Hage how she was. While making this inquiry, Cline noticed that Hage's car keys were in the ignition, but that the ignition was not turned on. She also noticed that Hage's breath smelled of alcohol, her eyes were bloodshot, and her speech was slurred.

In her police report and her trial testimony, Cline stated that Hage told her she had driven the car to County Road 93 to get away from Kopperud because he had threatened to kill her. Hage maintains that she never told Cline she had driven the car and testified that the car had been parked on County Road 93 all day. At trial, one of Hage's neighbors testified that he had observed Hage's car parked on the road at different points throughout the day. He further testified that Hage's car could not have been parked on the gravel driveway because, as a result of the flooding, the driveway was not yet passable.

Suspecting that Hage was under the influence of alcohol, Cline asked Hage to perform four field sobriety tests. Hage failed all four tests, so Cline placed her under arrest and transported her to the Clay County Jail in Moorhead. Once at the jail, Hage signed an implied consent form and submitted to a breathalyzer test, which revealed that she had a .16 blood alcohol content. Following the breathalyzer test, Hage was cited for three criminal offenses: (1) being in physical control of a motor vehicle while under the influence of alcohol in violation of Minn.Stat. § 169.121, subd. 1(a); (2) having an alcohol concentration of over .10 while in physical control of a motor vehicle in violation of Minn.Stat. § 169.121, subd. 1(d); and (3) having an alcohol concentration of over .10 within two hours of being in physical control of a motor vehicle in violation of Minn.Stat. § 169.121, subd. 1(e).

Before her trial began, Hage requested that the district court instruct the jury on "self-defense/retreat." Outside the hearing of the jury, the court stated that it would instead give an instruction on the defense of necessity if the evidence Hage presented at trial was sufficient to support that defense. The court concluded that, given the circumstances, necessity was a more appropriate defense than self-defense/retreat. The court then read a proposed instruction on necessity to both attorneys. Included in this instruction was a statement that Hage would bear the "burden of proving" necessity by a preponderance of the evidence. The court noted that Minnesota has no standard jury instruction for the defense of necessity, but that Minnesota caselaw suggests that the defense is available "in emergency situations where the peril is instant, overwhelming and leaves no alternative." Neither party objected to any part of the court's proposed instruction.

At the close of trial, the district court gave the following instruction to the jury:

Now, defendant is not guilty of any crime if defendant's actions were necessary because of an emergency situation. This defense applies only in emergency situations where the peril is instant, overwhelming and leaves no alternative but the conduct in question. The defendant has the burden of proving this defense by the greater weight of the evidence. This means that the defendant must prove that it is more likely true than not true that defendant acted out of necessity because of an emergency situation.

This instruction was the same one the court had read to the attorneys before trial began. Again, neither party objected to any part of this instruction.

The jury found Hage guilty of all three charges. Hage then moved the district court for judgment of acquittal, arguing that the jury failed "to adequately consider [her] emergency circumstances at the time of the alleged offense." Specifically, Hage requested "that the court bring sanity to bear on the notion that a woman victimized by a physically abusive man must go to an outdoor toilet for refuge and cannot seek that refuge in her [car] where the doors lock and the victim has mobility to further escape if necessary." The court declined to overrule the jury's verdict, noting that several other options were available to Hage besides seeking refuge from Kopperud in the driver's seat of the car.

Hage appealed to the court of appeals, arguing for the first time that the district court erroneously instructed the jury on the proper allocation of the burden of persuasion for the defense of necessity. The court of appeals affirmed, concluding that the district court properly instructed the jury that Hage "bore the burden of proving [her proffered defense] by a preponderance of the evidence." On appeal to this court, Hage again argues that the district court's jury instructions improperly placed the burden of persuasion on her.

I.

We first note that Hage did not object to the jury instructions at trial, but raised the issue for the first time on appeal. Normally, we will not review for error an issue that was not objected to at trial. See State v. Patterson, 587 N.W.2d 45, 52 (Minn.1998). However, we have the discretion to consider an unobjected-to issue on appeal if the issue represents plain error affecting substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998...