In Re the Marriage of: J. Gerald Levey, petitioner, Appellant, vs. Rita S. Levey, Respondent.

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-97-2233

State of Minnesota,
Respondent,

vs.

Greg Allen Johnson,
Appellant.

Filed August 18, 1998
Affirmed
Schumacher, Judge

Aitkin County District Court
File No. K596478

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

John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)

Howard I. Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Greg Allen Johnson was convicted of gross misdemeanor driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (1996). Because we conclude the trial court did not abuse its discretion in denying a continuance, and did not prejudicially restrict Johnson's necessity defense, and because the evidence is sufficient to disprove that defense, we affirm.

FACTS

The complaint charged Johnson with driving after cancellation on August 4, 1996, in Aitkin County, after Johnson's drivers license had been cancelled as inimical to public safety in March 1995. The complaint alleged that Aitkin County Deputy Scott Turner was on his way to Johnson's house to serve an arrest warrant for a previous driving after cancellation offense when he saw Johnson driving on the township road about 75 yards from Johnson's house. Johnson's fiancée, Lou Ann Paulson, the registered owner of the car, was sitting in the front passenger seat. When Deputy Turner followed them into their driveway, Paulson admitted that Johnson had been driving.

Both Johnson and Paulson testified that Paulson had been driving the vehicle when their 4-year-old son began screaming in the back seat, apparently painfully caught in his car seat's latching device. When Johnson was unable to free the boy, Paulson pulled over and tried herself. After Paulson left the driver's seat, the couple's daughter ran onto the road. Although Johnson was able to retrieve her, he heard a car coming and thought that because the road was so narrow and there was a curve ahead, he should take the wheel and drive the car the short distance to their driveway. The approaching car turned out to be the squad car of Deputy Turner.

The trial court granted Johnson's request for an instruction on the defense of necessity but the jury found him guilty of driving after cancellation.

D E C I S I O N

1. Johnson argues that the trial court abused its discretion in denying his personal request for a continuance to obtain substitute counsel. Whether to grant a continuance rests within the sound discretion of the trial court. State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). In determining whether the court was within its sound discretion in denying a continuance, the reviewing court "looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial." Id. at 359.

Johnson's attorney represented him in two separate criminal cases, scheduled for trial on successive days, apparently because a special prosecutor had been appointed to prosecute the charges against Johnson and Paulson, who was scheduled to be tried the following day. Given this complex scheduling arrangement, of which Johnson must have been aware, his request for a continuance ten days before trial in this case was not timely. Moreover, there is no evidence that Johnson's defense, a straightforward one completely dependent on the testimony of himself and his fiancée, admitting all elements of the offense but claiming necessity, required further preparation. Johnson has not identified any other evidence that could have been presented, and defense counsel succeeded in getting an instruction on the defense of necessity. Johnson, therefore, has failed to show any prejudice from the denial of a continuance.

2. Johnson argues that the trial court violated his right to present a complete defense by preventing his attorney from mentioning the necessity defense in his opening statement. The record, however, establishes that defense counsel readily agreed not to refer to necessity in his opening statement because the trial court had yet to rule on whether a necessity instruction would be given. Thus, the trial court never made a ruling that defense counsel was barred from mentioning the necessity defense. Defense counsel in his opening statement summarized what Johnson and Paulson would say on the stand. The general rule against arguing the law in opening statement would have prevented defense counsel from going much further in any event. See State v. DelCastillo, 411 N.W.2d 602, 604-05 (Minn. App. 1987) (holding prosecutor's opening statement including remarks about what defense would say about reasonable doubt standard was argumentative and improper).

3. Johnson argues that the evidence is insufficient to establish beyond a reasonable doubt that he did not act out of necessity when he drove despite the cancellation of his license. In reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved contrary evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). This court is limited to determining whether, based on the facts in the record and any legitimate inferences to be drawn from them, a jury could reasonably find the defendant guilty. Id.

A defense of necessity excuses a criminal act if the defendant acted to prevent a harm that "would have significantly exceeded" the harm caused by his breaking the law. State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992). Although Johnson cites a sequence of events involving his children, his claim of necessity rests on his perception of danger from an oncoming vehicle. That perception assumed another driver either unaware of the hazards of the narrow road (which should have been obvious), or driving in reckless disregard of them. The approach of an oncoming vehicle, however, is an ordinary incident of driving, and Johnson himself testified that passing other cars on that road always required caution. The supreme court has held that a defendant who testified he had to take the wheel because the driver was having a heart attack did not make out a prima facie case of necessity. State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995); see also State v. Brodie, 529 N.W.2d 395, 399 (Minn. App. 1995) (setting forth facts underlying supreme court's decision), rev'd, 532 N.W.2d 557 (Minn. 1995). The evidence here amply supports the jury's determination that there was no necessity justifying Johnson in driving after cancellation of his license.

Affirmed.