People v. McNeese

892 P.2d 304, 19 Brief Times Rptr. 421, 1995 Colo. LEXIS 45, 1995 WL 117070

• Court: Supreme Court of Colorado
• Decided: March 13, 1995
• Docket: 93SC450
• Status: Published

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari to review People v. McNeese, 865 P.2d 881 (Colo.App.1993). We reverse and return this case to the court of appeals for remand to the district court to make findings of fact and conclusions of law consistent with this opinion or to conduct a further or new hearing.

The defendant, Robert Earl McNeese, was charged with first-degree murder,¹ attempted first-degree murder,² and first-degree assault.³ After a preliminary hearing, the county court bound the defendant over for trial on two counts of second-degree murder.⁴ The defendant was also bound over for trial on the attempted first-degree murder and first-degree assault charges arising out of the stabbing of Vivian Daniels. Defendant pleaded not guilty and filed a motion to dismiss in the district court, alleging that he was immune from prosecution under the “make-my-day” statute, section 18-1-704.5, 8B C.R.S. (1986).⁵ Section 18-1-704.5 provides:

Use of deadly physical force against an intruder.

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the oecupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

(Emphasis added.)

Following a pretrial hearing, the trial judge granted the defendant’s motion to dismiss the second-degree murder charge for the stabbing death of John Daniels. The defendant’s motion to dismiss the charges of second-degree murder of Wessels and attempted first-degree murder and first-degree assault of Vivian Daniels was denied.

I

Vivian Daniels testified that she was not getting along with John Daniels, her common-law husband, and was looking for a place to stay.⁶ She contacted the defendant and asked whether she could stay in his apartment and sleep on his couch. The apartment contained a small bedroom, a bathroom, and a combined living room and kitchen. Vivian Daniels moved into the defendant’s apartment after agreeing to pay rent and on the condition that John Daniels was not to enter or come into the apartment under any circumstances. The defendant is an African-American, and the testimony established that John Daniels had a reputation for not liking African-Americans and was prone to violence, especially after he had been drinking. Vivian Daniels told the defendant that John Daniels had killed another man.⁷ John Daniels knew that the defendant did not want him in the apartment.

Vivian Daniels agreed to pay the defendant $50 a month for rent and to contribute funds for her share of the food. The defendant gave her a key shortly after she moved in, and she kept her clothes, television, art work, bedding, fan, and cat in the apartment. John Daniels never entered the apartment and would wave from across the street or knock on the window when he wanted to see his wife.

On November 15, 1991, approximately three months after moving into the apartment, Vivian Daniels and the defendant spent the day drinking at various bars. When they returned to the apartment, the defendant made sexual advances and Vivian Daniels decided to move. The defendant agreed that she should move out. She left the defendant’s apartment at 11:30 p.m. on a cold, snowy night without a coat or any of her belongings. She went to John Daniels’ apartment, which was about six blocks away.

Keith Tollefson, who shared the apartment with John Daniels, let her in, and she slept on a couch until John Daniels returned. John Daniels and David Wessels had both been drinking heavily at a number of bars and, when they returned to the apartment, they were told of the sexual advances made by the defendant. They decided to get Vivian Daniels’ clothes and possessions from the defendant’s apartment. John Daniels told Vivian Daniels there would be no violence. However, a defense witness testified he overheard John Daniels say to Wessels, in the presence of Vivian Daniels just before they left to go to the defendant’s apartment, “let’s go kill that fuckin’ nigger.” Vivian Daniels denied that John Daniels made such a statement to David Wessels. John Daniels had a blood alcohol level of .349, and Wessels had a blood alcohol level of .188. Vivian Daniels admitted that she was drunk. At approximately 2:30 a.m., John Daniels, Vivian Daniels, and Wessels entered the defendant’s apartment using Vivian Daniels’ key.

The defendant was in his bedroom asleep. When John Daniels went to get his wife’s clothes out of the closet located immediately outside of the bedroom, he opened the defendant’s door and talked to the defendant from the doorway. After Vivian Daniels asked her husband to help her collect her belongings, he returned to the living room and the defendant followed. Vivian Daniels went to the defendant’s bedroom to get her pillow, and, when she returned to the living room, John Daniels was on the couch with his arm around the defendant’s throat applying a chokehold and threatening to kill the defendant if he harmed Vivian Daniels.

The altercation ended after approximately two or three minutes. Vivian Daniels testified that neither the defendant nor John Daniels was hurt, and they were not arguing.

Vivian Daniels was gathering her possessions when she saw Wessels lying on the floor by the front door and John Daniels on the floor near the kitchen. The defendant confronted Vivian Daniels and stabbed her in the head. She ran from the apartment and called the police.⁸ Vivian Daniels could not recall anything else. She testified that she did not see, hear, or know what occurred when John Daniels and David Wessels were stabbed to death.⁹

II

The trial judge centered his analysis on the oral lease agreement between the defendant and Vivian Daniels, and concluded that, since Vivian Daniels was entitled to a three-day notice of eviction, she was authorized to return to the apartment on November 16, 1991. The trial judge also held that she had the right to invite David Wessels into the apartment. However, allowing John Daniels to enter the apartment violated the oral lease agreement between Vivian Daniels and the defendant and made John Daniels’ entry into the apartment unlawful.

The trial judge held John Daniels inflicted a third-degree assault on the defendant, and that the assault satisfied the requirement that John Daniels had committed or intended to commit a crime on the premises. See § 18-1-704.5(2) & (3). Also, because the physical contact may not have been over, the trial court held that the defendant was justified in fearing that John Daniels might use further physical force against him. The trial court found that the defendant established immunity from prosecution because he met the requirements of the “make-my-day” statute.

The prosecution appealed the trial judge’s order of dismissal pursuant to section 16-12-102, 8A C.R.S. (1994 Supp.). The court of appeals affirmed the trial judge and concluded that the terms “unlawful” and “uninvited” in section 18-1-704.5 were used interchangeably by the General Assembly. People v. McNeese, 865 P.2d at 884.¹⁰ Judge Tursi, writing for a divided court, concluded that John Daniels’ entry was both uninvited and unlawful because Vivian Daniels’ oral lease with the defendant denied her authority to invite John Daniels into the defendant’s apartment. The court of appeals held that the trial judge did not err in finding that John Daniels inflicted a third-degree assault on the defendant or in finding that the defendant reasonably believed John Daniels might use further physical force against him. Id.

Judge Taubman, in his dissent, asserted the statutory terms “unlawful” and “uninvited” were not interchangeable, and that section 18-1-704.5 required a finding that the entry was both unlawful and uninvited. McNeese, 865 P.2d at 886 (Taubman, J., dissenting). Judge Taubman concluded that John Daniels’ entry was unlawful because it violated the terms of Vivian Daniels’ tenancy, but was not uninvited since Vivian Daniels “clearly invited the decedent into the apartment, albeit that she was not authorized to make such an invitation.” Id. Judge Taub-man would have vacated the order of dismissal and would have reinstated the murder charge against the defendant for the stabbing death of John Daniels.

The findings of fact and conclusions of law of the trial judge were based on an erroneous interpretation of the elements that must be proven to obtain immunity under section 18-1-704.5. Accordingly, the findings and conclusions were erroneous as a matter of law and are not binding on this court. People v. Dover, 790 P.2d 884 (Colo.1990).

The court of appeals also erred in its analysis of the “make-my-day” statute. The General Assembly did not intend that the occupant of a dwelling be granted immunity from prosecution for the appearance of an unlawful entry by an intruder. Guenther, 740 P.2d at 979. The fact that John Daniels’ entry may have been uninvited because the entry violated an oral agreement, does not establish that the entry was a knowing violation of the criminal law.¹¹ John Daniels’ entry does not satisfy the unlawful entry element in the “make-my-day” statute.

Section 18-1-704.5 contains two separate elements. In order to be granted immunity the defendant must first prove by a preponderance of the evidence that there was an unlawful entry. The second statutory requirement involves a determination of whether the occupant had a reasonable belief that the intruder intended to commit or committed a crime in the dwelling. When the legislature enacted 18-1-704.5 as part of the criminal code it did not define all of the terms used in the statute. We are guided by other provisions in the criminal code in determining the definition of unlawful entry and the elements that must be proven by a preponderance of the evidence.

Ill

Section 18-1-704.5 is part of the criminal code (Title 18). Article 1 of the criminal code includes “Provisions Applicable to Offenses Generally.” The article contains part 7, la-belled “Justification and Exemptions from Criminal Responsibility.” Part 7 includes statutes justifying the use of physical force against a person, use of physical force in defense of premises, and use of physical force in defense of property. See § 18-1-704, 8B C.R.S. (1986); § 18-1-705, 8B C.R.S. (1986); § 18-1-706, 8B C.R.S. (1986). The “make-my-day” statute lies in the criminal code along side these statutes. Section 18 — 1— 704.5 is similar to self-defense and extends the justifications and exemptions formulated in part 7. The “make-my-day” statute justifies “deadly physical force,” not just “physical force.” See § 18-1-704.5, 8B C.R.S. (1986). However, the statute is not a license to commit homicide. The occupant of a dwelling is granted immunity from criminal prosecution for homicide, so safeguards must be imposed. Because the statute readily grants immunity for the taking of a life, the “knowingly” mens rea is required to carry out the principles of self-defense.

' -The specific provisions of the “make-my-daf” statute permit an occupant of a dwelling to use physical force, including deadly physical force, against an intruder. Immunity from criminal prosecution is granted for acts and conduct that would be criminal but for the statute. Immunity may be determined by the court in a Crim.P. 12 motion to dismiss or as an affirmative defense at the time of trial. People v. Guenther, 740 P.2d 971, 981 (Colo.1987).¹² When section 18-1-704.5(3) is invoked prior to trial, the burden is on the defendant to establish by a preponderance of evidence, that:

(1) another person made an unlawful entry into the defendant’s dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling.

Guenther, 740 P.2d at 981.

A prerequisite for immunity under the “make-my-day” statute is an unlawful entry into the dwelling. Id.; People v. Drennon, 860 P.2d 589, 591 (Colo.App.1993); see also People v. Malczewski, 744 P.2d 62, 63 (Colo.1987) (finding no evidence to support the district court’s conclusion that a police officer’s entry into apartment was unlawful). The explicit terms of the statute provide the occupant of a dwelling with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling, but not against a person who remains unlawfully in the dwelling. Drennon, 860 P.2d at 591.

The Guenther reasonable belief standard relates only to the defendant’s state of mind once the intruder is inside the dwelling:

There is nothing in section 18-1-704.5 suggesting that the General Assembly intended to broaden the conditions for statutory immunity to include a home occupant’s right to use any degree of physical force against another person solely on the basis of an appearance, rather than the actuality, of an unlawful entry into the dwelling by that other person. The legislature adopted a “reasonable belief” or “appearance” standard in section 18-1-704.5 only with respect to those other statutory criteria for immunity relating to the intruder’s conduct inside the dwelling. Under these circumstances, we are satisfied that the failure to include a similar “reasonable belief’ or “appearance” standard with respect to the unlawful entry element of immunity was the result of deliberate legislative choice.

Guenther, 740 P.2d at 979 (footnotes omitted).

IV

A

Our primary purpose in construing a statute is to ascertain and give effect to the intent of the General Assembly. State Eng’r v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo.1993). To discern the intent of the General Assembly, we first look to the plain language of the statute. Lakewood v. Mavromatis, 817 P.2d 90, 96 (Colo.1991). When statutory language is ambiguous, we may consider the circumstances under which the statute was enacted, the legislative history, and the consequences of a particular construction in determining the General Assembly’s intent. Castle Meadows, 856 P.2d at 504.

In the House and Senate debates on the original “make-my-day” bill, the sponsors bill referred to the bill as a “homeowner’s protection bill.” See, e.g., Hearing on H.B. 1S61 Before the House Judiciary Committee, 55th Gen. Assembly, First Reg.Sess. (Hearing Tape 85-13, Mar. 7, 1985, at 66:15:29:30); Debate on H.B. 1361 Before the Senate, 55th Gen. Assembly, First Reg.Sess. (Hearing Tape 85-21, Apr. 16, 1985, at 106:10:11:38). In describing the function of the bill, the House and Senate sponsors repeatedly alluded to the bill’s protection of homeowners from “intruders” and people who “break[] and enter[ ]” into homes “illegally.” See Hearing on H.B. 1361 Before the House Judiciary Committee, 55th Gen. Assembly, First Reg.Sess. (Hearing Tape 85-13, Mar. 7, 1985, at 66:15:38:48); Debate on H.B. 1361 Before the House, 55th Gen. Assembly, First Reg. Sess. (Hearing Tape 85-16, Mar. 19, 1985, at 78:11:06:09); Debate on H.B. 1361 Before the Senate, 55th Gen. Assembly, First Reg.Sess. (Hearing Tape 85-21, Apr. 16, 1985, at 106:10:21:15 & 106:10:43:31 & 106:10:53:51).

The sponsors pointed out the bill’s potential for deterring criminals from breaking into homes. Debate on H.B. 1361 Before the House, 55th Gen. Assembly, First Reg. Sess. (Hearing Tape 85-16, Mar. 19, 1985, at 78:11:33:20); Debate on H.B. 1361 Before the Senate, 55th Gen. Assembly, First Reg.Sess. (Hearing Tape 85-21, Apr. 16, 1985, at 106:10:30:35). The typical scenario discussed in the debates and hearings involved an illegal entry into a home by a stranger in the middle of the night. The legislative history indicates that the General Assembly intended the “make-my-day” statute to apply in situations where an intruder illegally enters a dwelling. The hearings and debates also demonstrate that the bill was meant to deter criminals from breaking into a home to commit a crime. The legislative history supports the conclusion that an unlawful entry means a knowing, criminal entry into a dwelling.

B

The General Assembly is vested with constitutional authority not only to define criminal conduct and to establish the legal components of criminal liability but also to delineate statutory defenses and bars to criminal prosecution. Guenther, 740 P.2d at 977. In Guenther we said “[s]ubsection (2) of the statute states that an occupant of a dwelling is justified in using physical force ‘against another person when that other person has made an unlawful entry into the dwelling’ (emphasis added) and when the additional statutory requirements are met.” Id. at 979 (quoting § 18-1-704.5(2), 8B C.R.S. (1986)). The plain language of the statute, as we said in Guenther, requires proof of an actual unlawful entry and not merely a reasonable belief that the entry was unlawful. Guenther, 740 P.2d at 979. The statute does not require that the entry be both unlawful and uninvited, or that the entry be either unlawful or uninvited. The defendant must establish an unlawful entry to satisfy the threshold statutory requirement.

The most vexing question under the “make-my-day” statute is the proper definition of “unlawful entry.” For purposes of section 18-1-704.5, the “unlawful entry” element requires an entry in knowing violation of the criminal law. The statutory language justifies an occupant’s use of physical force against another person when the other person is knowingly engaging in criminal conduct. The statute provides that the occupant of the dwelling must reasonably believe that a crime has been, is being, or will be committed in addition to the threshold requirement of proof of an unlawful entry. By providing both objective¹³ and subjective elements, the structure of section 18-1-704.5 contemplates that an unlawful entry means a knowing, criminal entry.

We recognize that the statute does not expressly describe a culpable mental state of “knowingly.” However, if “no culpable mental state is expressly stated in a statute ... a culpable mental state may nevertheless be required ... with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state.” § 18-1-508, 8B C.R.S. (1986). Under the “make-my-day” statute, an “unlawful entry” requires a “culpable mental state.” Without a culpable mental state for the “unlawful entry” requirement, an occupant of a dwelling would be immune from criminal prosecution for the homicide of any unanticipated or unexpected “intruder.” The statute was not intended to encourage arbitrary, casual killings.

Legislative silence on the element of intent in a criminal statute is generally not construed as an indication that no mental state is required. People v. Moore, 674 P.2d 354, 358 (Colo.1984); People v. Bridges, 620 P.2d 1, 3 (Colo.1980). In both Moore and Bridges, we implied a mental state of “knowingly” to criminal statutes that did not describe a culpable mental state. See Moore, 674 P.2d at 358; Bridges, 620 P.2d at 3. Implying the mental state “knowingly” to the “make-my-day” statute squares with the objective nature of the “unlawful entry” element as established by the General Assembly. See Guenther, 740 P.2d at 979.

The statute was enacted to immunize the occupant of a dwelling from prosecution for using physical force against another person who has committed, is committing, or intends to commit criminal acts in the dwelling. Immunity from criminal prosecution provides protection to the occupant of a dwelling who uses force against an intruder who has knowingly and unlawfully entered the dwelling to commit a crime. The immunity was not intended to justify use of physical force against persons who enter a dwelling accidently or in good faith.

Requiring a knowing, criminal entry reconciles two competing interests. First, the General Assembly recognized that an occupant of a dwelling should be able to use force against an intruder who knowingly and unlawfully enters the dwelling. Second, the General Assembly did not want to encourage the use of physical force in response to otherwise benign situations. The knowing, criminal entry requirement affords the occupant of a dwelling sufficient protection from criminal prosecution, while discouraging random violence.

The elements of first and second degree burglary¹⁴ established by the General Assembly may satisfy the “unlawful entry” requirement. See § 18^4-202(1), 8B C.R.S. (1986) (“A person commits first degree burglary if he [or she] knowingly enters or remains unlawfully in a building or occupied structure with the intent to commit therein a crime....”); § 18-4-203(1), 8B C.R.S. (1986) (“A person commits second degree burglary, if he [or she] knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.”). First and second degree trespass ¹⁵ might also meet the “unlawful entry” requirement. See § 18-4-502, 8B C.R.S. (1994 Supp.) (“A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another_”); § 18-4-503(1), 8B C.R.S. (1995 Supp.); Bollier v. People, 635 P.2d 543, 546 (Colo.1981) (construing section 18-4-503 “as having an implied mental state of ‘knowingly’ ”). Where the elements of the crimes differ, the “make-my-day” statute does not extend to persons who unlawfully remain on property. The intruder’s mental state must reflect an entry in knowing violation of the criminal code. Unlawfully remaining on property does not include a sufficient mens rea to satisfy the unlawful entry requirement of section 18-1-704.5. People v. Drennon, 860 P.2d 589, 591 (Colo.App.1993).

Every “unlawful entry” is necessarily uninvited. The General Assembly’s reference to “uninvited entry” in section 18-1-704.5(2), 8B C.R.S. (1986), is therefore consistent with, and refers back to, the term “unlawful entry” used in the same subsection.¹⁶

Under the “make-my-day” statute, a person may be uninvited, but still may be lawfully on the premises. In People v. Malczewski, 744 P.2d 62 (Colo.1987), a police officer sought to enter the defendant’s apartment to take the defendant’s child into temporary custody, but the defendant would not allow him to enter. After the officer entered the apartment, over the defendant’s objections, the defendant struck the officer numerous times. The officer suffered injuries on his head and throat, and the defendant was charged with second-degree assault for the beating of the officer.

In Malczewski, the defendant sought immunity from prosecution under the “make-my-day” statute. The trial judge concluded that the police officer’s entry was uninvited and therefore unlawful and granted the defendant immunity from prosecution and dismissed the charges against the defendant. Id. at 64.

We held that because the officer acted within his statutory authority by entering the apartment to take the child into temporary custody, there was “no evidence supporting the district court’s determination that the officer’s entry into the apartment was unlawful.” Id. at 66 (footnote omitted); see § 18-1-704.5 (twice referring to the commission of a crime in addition to the initial entry); William Wilbanks, The Make My Day Law: Colorado’s Experiment in Home Protection 276 (1989) (concluding that all occurrences of “uninvited entry” should be changed to “unlawful entry” in the make-my-day statute).¹⁷

V

In addition to an unlawful entry, the “make-my-day” statute requires that the occupant have a reasonable belief that the intruder has committed, or intends to commit, a crime in the dwelling. § 18-1-704.5; Guenther, 740 P.2d at 981. Analysis of the subjective belief requirement is only undertaken after the threshold unlawful entry requirement has been satisfied.

The prosecution contends that the defendant failed to establish by a preponderance of the evidence that he had a reasonable belief that John Daniels committed or intended to commit a crime against a person or property in the dwelling in addition to an unlawful entry. We agree.

The court of appeals held that there is nothing in the record to suggest that the district court erred in finding that John Daniels inflicted a third-degree assault on the defendant, and that the defendant reasonably believed that John Daniels might use further physical force against him.¹⁸ In affirming the district court, the court of appeals failed to articulate the appropriate standard of review for determining whether the second requirement of the “make-my-day” statute was satisfied.

To be immune from prosecution under the “make-my-day” statute, a defendant must establish by a preponderance of the evidence that he “had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry....” Guenther, 740 P.2d at 981. The inquiry for the second requirement focuses on the reasonable belief of the occupant. It does not center on the actual conduct of the intruder.¹⁹ The defendant failed to prove by a preponderance of the evidence that he had a reasonable belief that John Daniels committed or intended to commit a crime in the apartment. Vivian Daniels’ testimony regarding the confrontation between John Daniels and the defendant in the apartment was insufficient to establish the second requirement of section 18-1-704.5.

First, the district court must determine whether John Daniels knowingly made an unlawful entry when he entered the defendant’s apartment. Second, if the district court finds that John Daniels knowingly made an unlawful entry, the district court must then determine whether the defendant had a reasonable belief that John Daniels committed or intended to commit a crime in the defendant’s apartment.

Accordingly, we return this case to the court of appeals with directions to remand to the district court to make findings of facts and conclusions of law consistent with this opinion or for a further or new hearing on the defendant’s motion to dismiss.²⁰

ROVIRA, C.J., concurs in the result and dissents to part IV. SCOTT, J., dissents.

1 . § 18-3-102(l)(a), 8B C.R.S. (1986).

2 . § 18-2-101(1), 8B C.R.S. (1986).

3 . § 18-3-202(l)(a), 8B C.R.S. (1986).

4 . § 18-3-103(l)(a), 8B C.R.S. (1986).

5 . The defendant’s motion to dismiss sought immunity from prosecution on the second-degree murder charges for the killing of both John Daniels and David Wessels, and the attempted first-degree murder and first-degree assault charges arising out of the stabbing of Vivian Daniels. On certiorari, the sole issue is whether the defendant established by a preponderance of the evidence that he was entitled to immunity from prosecution under the "make-my-day” statute for the death of John Daniels.

A defendant may assert the "make-my-day” defense by motion and may raise the defense at trial as an affirmative defense.

In such an instance, the burden of proof generally applicable to affirmative defenses would apply to the defense created by section 18-1-704.5(2). The defendant would be required to present some credible evidence supporting the applicability of section 18 — 1— 704.5(2); and, if such evidence is presented, the prosecution would then bear the burden of proving beyond a reasonable doubt the guilt of the defendant as to the issue raised by the affirmative defense as well as all other elements of the crime charged. § 18-1-407, 8B C.R.S. (1986).

People v. Guenther, 740 P.2d 971, 981 (Colo.1987).

6 . Vivian Daniels was the only perceiving witness and offered the only direct testimony as to what occurred in the apartment that led to the filing of charges against the defendant. The defendant did not testify. Eight witnesses were called by the defendant to testify to John Daniels’ reputation for fighting and for violence and to statements made by John and Vivian Daniels.

7 . At the Denver District Court hearing, Dan Wyckoff, a detective with the City and County of Denver, testified that John Daniels was charged with second-degree murder for the death of Steven Frets on March 7, 1990. Vivian Daniels was present when John Daniels, while intoxicated, shot Frets. John Daniels claimed that the shooting had been an accident and that Steven Frets had been his best friend. John Daniels plea bargained the second-degree murder charge down to reckless homicide, and was placed on probation.

8 . John Daniels, Wessels, and Vivian Daniels had been in the apartment for approximately twenty minutes before Vivian Daniels was stabbed. Approximately five to ten minutes elapsed from the time of the altercation between the defendant and John Daniels, and the time that Vivian Daniels was stabbed.

9 . The defendant told the investigating police officers and a paramedic that he suffered an injury to his neck when John Daniels applied the choke hold.

10 . The court of appeals stated:

Had the General Assembly intended to distinguish between an unlawful entry and an uninvited entry, it would have done so. Instead, § 18-1-704 grants immunity to an occupant who uses deadly force against a person who has made “an unlawful entry” into the occupant's dwelling. The statute then by the use of the definite article "the” refers back to the unlawful entry as “the uninvited entry.”

Here, giving effect to the plain and ordinary meaning of the statutory words and phrases, we conclude that the legislative intent was to use "unlawful entry” and "uninvited entry” interchangeably.

McNeese, 865 P.2d at 884.

11 . Generally, a person who has permission to enter an apartment from one who is a tenant of the apartment does not enter the apartment unlawfully or commit a criminal trespass. See People v. Home, 619 P.2d 53, 58 (Colo.1980) (stating that the crux of criminal trespass is whether defendants had permission, or believed they had permission, to enter the apartment where they were apprehended); People In re D.G.P., 194 Colo. 238, 241, 570 P.2d 1293, 1295 (1977) (stating that there is no unlawful entry or trespass by a defendant who had a key and the implied permission of one whom he believed was a tenant).

12 . The legislative purpose for permitting determination of the "make-my-day” defense prior to trial was to prevent the occupant of a dwelling from incurring the expense of trial when the statutory requirements for immunity have been met.

13 . Before assuming its present form, the "make-my-day” statute required that an occupant have "a reasonable belief that the intruder's entry was unlawful and forcible...." Dr. William Wil-banks, The Make My Day Law 326 (1990). However, the language of the enacted law protects an occupant "using deadly force only when he is correct that the entry was unlawful and uninvited — a reasonable belief is not good enough.” Id. The objective language of the "unlawful entry” requirement permits "second-guessing” the reasonableness of an occupant's actions. Id. at 328. By failing to attach a reasonable belief standard to the "unlawful entry” element, the General Assembly may have eliminated its intent to remove the need for reflection by an occupant prior to taking protective action. See id. at 26; see also id. at 328 ("It thus appears that the failure to attach the reasonable belief standard to the nature of the entry was an [sic] mistake by the Legislature that should be corrected.”).

14 . Two commentators noted how contemporary criminal codes articulate the common law element of "a breaking" in burglary.

In the modem American criminal codes, only seldom is there a requirement of a breaking. This is not to suggest, however, that elimination of this requirement has left the "entry” element unadorned, so that any type of entry will suffice. Rather, at least some of what was encompassed within the common law "breaking” element is reflected by other terms describing what kind of entry is necessary. The most common statutory term is "unlawfully.”

Wayne R. LaFave & Austin V. Scott, Jr., Substantive Criminal Law § 8.13(a) (1986 & 1995 Supp.) (footnotes omitted). The historical context of the term “unlawful entiy” requires a criminal law inquiry. Here, any breach of the oral lease agreement exists in the realm of civil law and does not satisfy the requirement of a criminal unlawful entry.

15 . We recognize that first degree criminal trespass requires a knowing, unlawful entry of "a dwelling,” while second degree criminal trespass calls for a knowing, unlawful entry upon "premises.” See § 18-4-502, 8B C.R.S. (1994 Supp.); § 18-4-503(1), 8B C.R.S. (1994 Supp.). However, our definition of "unlawful entry” turns on a distinction between mental states. It does not rely on the difference between “dwelling” and “premises."

16 . In requiring “an unlawful entry," the statute employs an indefinite article, which is generally used where the reference has not been previously made known to the reader. Thereafter, the statute refers to “the uninvited entry” using a definite article, which refers to something that can be identified, either contextually or within the general knowledge shared by the speaker and reader. See Randolph Quirk et ah, A Comprehensive Grammar of the English language §§ 5.27, 5.36 (1985). Grammatically, "the uninvited entry” refers the reader to the identified subject of "an unlawful entry.”

17 . The trial judge also concluded that because Vivian Daniels did not have the authority to invite John Daniels to the defendant’s apartment, his entry was unlawful. The trial judge stated:

It appears to me clear, however, that Mr. John Daniels, even if he was granted access into the apartment by Ms. Daniels, through the implementation or use of the key, that this was done so in an unlawful manner since the lease, or the understanding between the defendant and Ms. Daniels, also known as Ms. Ford, included the explicit agreement, or condition that Mr. John Daniels was not allowed in this apartment under any circumstances.

18 . On the issue of John Daniels’ use of further physical force against defendant, the trial judge concluded:

The next element would be that the defendant believes that the intruder might use physical force no matter how slight against him, and I don't necessarily agree that the interaction, the physical interaction between the defendant and the victim, John Daniels, who was inflicting this upon him, was over and I looked at the context of the situation here, again including the contrast and the size of the victim vs. the defendant, were, of course, the victim being the larger person, the strange hours in the morning when this business is being accomplished, the intoxication of the victim, Mr. John Daniels, the propensity he had for not necessarily being simply a person who disliked African Americans, but a person who seemed to be inclined to intimidate and harass others, and the fact he had already taken this step earlier in the evening, would lead me to conclude that any person in the situation of the defendant would easily expect, and could look forward to fear and would be justified in having the fear that the intruder in this case, Mr. Daniels, might use some further physical force against him, the defendant.

19 .Proving the commission of a crime would create a strong presumption that the occupant had a reasonable belief that a crime had been, was being, or would be committed. However, Vivian Daniels' testimony was insufficient to establish that John Daniels committed a third-degree assault on the defendant.

Vivian Daniels testified that John Daniels went to McNeese's bedroom door, opened it, and talked to McNeese from the doorway. John Daniels then came back to the living room, followed shortly thereafter by McNeese. Vivian Daniels, the only perceiving witness who testified, then went into the bedroom to get her pillow. Upon returning to the living room, she saw John Daniels and McNeese wrestling on the couch.

There is no evidence from which it could be determined who started the physical affray. Under these circumstances, the district court's finding that John Daniels assaulted McNeese is based simply on speculation and is not supported by a preponderance of the evidence. Evidence of John Daniels' propensity for violence and his "prior comments in going to this location," particularly when considered in the context of John Daniels' nonviolent behavior when he first went to McNeese's bedroom door and then walked away, and in absence of any testimony from McNeese, the only living perceiving witness, cannot support a finding by a preponderance of the evidence that John Daniels started the fight by assaulting McNeese.

20 . The new test adopted in this opinion requires remand for further proceedings.