City of Fargo, Plaintiff and Appellee v. Jared James Nikle, Defendant and Appellant
No. 20180292
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 3/13/19
2019 ND 79
McEvers, Justice
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan L. Bailey, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
William
William Kirschner, Fargo, ND, for defendant and appellant.
City of Fargo v. Nikle
No. 20180292
McEvers, Justice.
[¶1] Jared Nikle appeals from a criminal judgment after the district court found him guilty of actual physical control while under the influence in violation of
I
[¶2] In January 2018, Nikle was charged with actual physical control in violation of
A. No person shall drive, or be in actual physical control of, any vehicle upon any street, highway, public or private parking lot, or other public or private property in this city if said person is under the influence of intoxicating liquor or controlled substances. Being under the influence of intoxicating liquor or controlled substances shall be as defined by
chapter 39-08 of the North Dakota Century Code including any amendments hereafter adopted. All other relevant and applicable statutes of the state of North Dakota relating to driving under the influence of intoxicating liquor or controlled substances are also incorporated herein by reference and made a part hereof.
[¶3] Before the scheduled jury trial, Nikle requested the district court include a jury instruction on the affirmative defense of necessity. After receiving a brief submitted by the City opposing the instruction and hearing Nikle‘s argument at the pretrial conference, the court denied the request to include the necessity instruction, finding it was not “currently supported by North Dakota law.” The court also looked into the possibility of an instruction on the excuse defense and found that instruction inapplicable as well. See
[¶4] The stipulated facts indicated that on December 30, 2017, Nikle was in Fargo celebrating a friend‘s birthday and after consuming alcohol he returned to his car to charge his cell phone. He started his car to enable the cell phone charger to work, turned on the heat, and waited for his phone to charge so he could call his daughter for a ride. While waiting for his phone to charge, he fell asleep. Law enforcement officers found Nikle‘s car parked with the engine running, headlights on, and Nikle asleep in the driver‘s seat. The officers awoke Nikle by knocking on the window. Nikle admitted he had consumed alcohol; he appeared confused, had slurred speech, and smelled of alcohol. The officers had Nikle perform field sobriety tests which he failed. Nikle was transported to the jail where an Intoxilyzer test was administered, indicating a result above the legal limit.
[¶5] The district court found Nikle guilty of the charge of driving under the influence,
II
[¶6] Nikle argues the district court erred by denying his request to include a jury instruction on the affirmative defense of necessity.
We view the evidence in the light most favorable to the defendant to determine whether there is sufficient evidence to support a jury instruction. A trial court errs if it refuses to instruct the jury on an issue that has been adequately raised. A court, however, may refuse to give an instruction that is irrelevant or inapplicable.
2010 ND 134, ¶ 12, 785 N.W.2d 204 (citing State v. Ness, 2009 ND 182, ¶ 13, 774 N.W.2d 254); see also State v. Kleppe, 2011 ND 141, ¶ 12, 800 N.W.2d 311. In jurisdictions where necessity is recognized, necessity is an affirmative defense. State v. Miller, 812 S.E.2d 692, 694 (N.C. Ct. App. 2018); Axelberg v. Comm‘r of Pub. Safety, 831 N.W.2d 682, 684 (Minn. Ct. App. 2013). An affirmative defense jury instruction will only be given if there is evidence to support it, and the proponent bears the burden of proving the affirmative defense by a preponderance of the evidence. State v. Holte, 2001 ND 133, ¶ 13, 631 N.W.2d 595 (citing State v. Michlitsch, 438 N.W.2d 175, 178 (N.D. 1989));
III
[¶7] Nikle was charged with actual physical control while under the influence of intoxicating liquor under
[¶8] The defense of necessity is not codified in North Dakota. Nikle acknowledges that North Dakota has never expressly recognized the necessity defense, but argues that our prior caselaw has not expressly rejected it. See State v. Sahr, 470 N.W.2d 185, 191 (N.D. 1991) (concluding it was not necessary to determine the precise scope of the necessity defense available in this state when the defendants’ conduct “may not be justified under any reasonable formulation of the necessity defense“); State v. Manning, 2006 ND 125, ¶ 10, 716 N.W.2d 466 (considering
[¶9] Nikle‘s requested jury instructions stated:
Mr. Nikle contends that he acted out of necessity. Necessity legally excuses the crime charged.
Mr. Nikle must prove necessity by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the things Mr. Nikle seeks to prove are more probably true than not true. This is a lesser burden of proof than the government‘s burden to prove beyond a reasonable doubt each element of Driving Under the Influence of Alcohol[.]
Mr. Nikle acted out of necessity only if at the time of the crime charged:
- He was faced with a choice of evils and chose the lesser evil;
- He acted to prevent imminent harm;
- He reasonably anticipated his conduct would prevent such harm; [and]
- [T]here were no other legal alternatives to violating the law.
If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.
Here, the district court denied the requested instruction by stating the necessity defense was not supported by North Dakota law. We need not decide whether the common law necessity defense should apply under North Dakota law because even if it did, the facts here do not support the defense.
[¶10] For the district court to even consider applying the proposed instruction, Nikle had the burden to present evidence on each element of the affirmative defense he sought to include. Element four of the proposed necessity instruction required the defendant show there were no other legal alternatives to violating the law. Because Nikle waived a trial by jury, the only facts available are those stipulated by both parties and the Intoxilyzer test record and checklist. According to the stipulated facts, Nikle was attending his friend‘s birthday party. The only person he knew at the party was his friend. Nikle left the party at 8 p.m. and “went to his car to charge his cell phone, as he only had a car charger and the phone was dead.” After starting the car to enable the phone charger to work, he fell asleep. It is unclear from the record whether Nikle made any effort to seek lawful alternatives or if not, why none were available to him. There is no evidence Nikle was prevented from returning to the party, borrowing another attendee‘s phone to call for a ride, asking an attendee for a ride, or asking to stay at the home where the party was hosted.
[¶11] In State v. Nelson, 36 P.3d 405 (Mont. 2001), the defendant became intoxicated at a bar and was found sitting in his car asleep with the door ajar, the engine running, and music blaring. After he was awakened by law enforcement officers, he refused to undergo field sobriety tests and later declined to give blood or breath samples. Id. at 406. At trial, he requested a jury instruction on the defense of necessity, arguing he was waiting for someone to pick him up at the bar but that
[¶12] Like the defendants in Nelson and Kendall, Nikle has not shown there were no legal alternatives.
[¶13] Therefore, we conclude the district court did not abuse its discretion by denying Nikle‘s request for a jury instruction on the affirmative defense of necessity.
IV
[¶14] We affirm the district court‘s judgment.
[¶15] Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Daniel J. Crothers
Gerald W. VandeWalle, C.J.