State v. Dyer

2001 ME 62, 769 A.2d 873, 2001 Me. LEXIS 63
CourtSupreme Judicial Court of Maine
DecidedApril 20, 2001
StatusPublished
Cited by12 cases

This text of 2001 ME 62 (State v. Dyer) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dyer, 2001 ME 62, 769 A.2d 873, 2001 Me. LEXIS 63 (Me. 2001).

Opinions

DANA, J.

[¶ 1] Ryan Dyer appeals from a judgment entered on a jury verdict in the Superior Court (Aroostook County, Warren, J.) finding him guilty of assault (Class D), 17-A M.R.S.A. § 207 (1983). Dyer contends that the court erred in refusing to instruct the jury on the use of force in defense of premises, 17-A M.R.S.A. § 104(1) (1983). We agree, vacate the judgment, and remand for a new trial.

BACKGROUND

[¶ 2] The facts viewed in the light most favorable to Dyer may be summarized as follows: On April 2, 1999, Jamie Tweedie, Daniel Patterson, and Dyer, after socializing together, returned to Tweedie’s apartment in Mars Hill around 11 p.m. They met Fred Dixon outside of the apartment, and Dixon followed them to the apartment. Tweedie and Dixon were talking in either the kitchen or the living room, and Dyer and Patterson were watching television. Dyer went out to the kitchen to cook some food and before it was finished, Tweedie went to bed. Dyer testified that before Tweedie retired, Tweedie asked Dyer and Patterson, but not Dixon, if they would “take care of my place for me.” Dyer testified that he understood the instruction as referring to Dixon and meaning that they should not “let anything get broken or anybody steal anything or anything like that.” Patterson offered a slightly different account, and testified that Tweedie “came into the living room, said he was going to go to bed and, um, asked us if we could watch the apartment and just make sure everything was all right.” Patterson concluded that “I was given permission by the owner of the apartment to and a responsibility to look after the apartment.”

[¶ 3] After Tweedie went to bed, Dixon became increasingly loud and belligerent. While watching television, Dyer and Patterson heard Dixon making prank telephone calls saying he was Tweedie. Patterson testified that he went into the kitchen and asked Dixon to leave. Dixon got quite irate and started swearing and hollering. He raised his fist at Patterson [875]*875and drew it back. Patterson pushed and hit Dixon. Dyer entered the room, grabbed Dixon by the hair, pulled him across the room, and threw him out of the apartment. Dyer was indicted for aggravated assault (Class B), 17-A M.R.S.A. § 208(1)(A) (1988). A judgment was entered on a jury verdict finding Dyer guilty of assault (Class D), 17-A M.R.S.A. § 207.1 Dyer appeals.

DISCUSSION

[¶ 4] Dyer contends that the court erred in refusing to give a jury instruction on the use of force in defense of premises, 17-A M.R.S.A. § 104(1). “Whether a jury should be instructed on a particular defense in a criminal case almost always depends on whether the evidence presented at trial generates the defense.” State v. Christen, 1997 ME 213, ¶ 4, 704 A.2d 335, 337 (quoting State v. Moore, 577 A.2d 348, 350 (Me.1990)). “A defense is ‘in issue’ ... if the evidence is sufficient to make the existence of all facts constituting the defense a reasonable hypothesis for the fact finder to entertain.’ ” Id. (citation and quotations omitted); see also 17-A M.R.S.A § 101(1) (Supp.2000).2 “The court must view the evidence in the light most favorable to the defendant.” Christen, 1997 ME 213, ¶4, 704 A.2d at 337.

[¶ 5] Justification for the use of force in defense of premises is defined in 17-A M.R.S.A § 104(1) as follows:

A person in possession or control of premises or a person who is licensed or privileged to be thereon is justified in using nondeadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises.

The court refused to give the instruction after having found that while Tweedie, the rightful person with a possessory interest in the premises, was present, his request to Dyer and Patterson to take care of the premises did not place them in possession or control or authorize them to convey a lawful order for Dixon to leave the apartment.

I. Possession or Control of Premises or Licensed to be Thereon

[¶ 6] The first element of the defense at issue is whether Dyer was a “person in possession or control of premises or a person who is licensed or privileged to be thereon.” 17-A M.R.S.A. § 104(1). At trial, the court and Dyer focused solely on whether Dyer was in possession or control of the premises. Dyer contends that he and Patterson were, at the very least, licensed to be on the premises. A “licensee” in the context of tort law is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Restatement (Second) of Torts § 330 (1965). Used in this sense, Tweedie, by inviting Dyer, Patterson, and Dixon to enter his apartment, gave all three men a [876]*876license to be on the premises. Thus, the court erred in focusing solely on possession and control of the premises and ignoring the alternative that the person be “licensed or privileged to be thereon.” 17-A M.R.S.A. § 104(1); see also Handyman Equip. Rental Co., Inc. v. City of Portland, 1999 ME 20, ¶ 9, 724 A.2d 605, 607 (stating that “words must be given meaning and are not to be treated as meaningless and superfluous”).

II. Criminal Trespass

[¶ 7] The second element at issue is whether Dyer “reasonably believe[d]” he was “terminating] the commission of a criminal trespass” by Dixon. 17-A M.R.S.A. § 104(1). A person in the position of Dixon commits a criminal trespass if, “knowing that that person is not licensed or privileged to do so, ... Remains in any place in defiance of a lawful order to leave that was personally communicated to that person by the owner or another authorized person.” 17-A M.R.S.A. § 402(1)(D) (Supp.2000).

[¶ 8] Having been invited to enter a private residence, Dixon could become a trespasser by failing to leave after being given a lawful order to leave by the owner or other authorized person, and the “mere demand of the owner constitutes a lawful order for the purposes of the criminal trespass statute.” State v. Tauvar, 461 A.2d 1065, 1067 (Me.1983). Unlike a person who is invited to a public place, no reason for requesting removal is required. See id. Although the parties do not disagree that Tweedie, as the owner,3 did not personally communicate any order to Dixon to leave, the evidence viewed in the light most favorable to Dyer indicates that Patterson requested that Dixon leave the apartment. See State v. Michaud, 1998 ME 251, ¶ 17, 724 A.2d 1222, 1230 (finding that “[f]or the limited purpose of determining whether [a] defense [is] ‘in issue,’ ” courts should suspend disbelief and assume that the story that supports the defendant’s position is true).

[¶ 9] Dyer correctly contends that an order to leave may be communicated by an “authorized person.” 17-A M.R.S.A. § 402(1)(D); Holland v. Sebunya, 2000 ME 160, ¶¶ 21-22, 759 A.2d 205, 213 (finding on criminal trespass complaint that the president of the Portland branch of the NAACP was authorized and justified in ordering the defendant removed from a public meeting); State v. Armen, 537 A.2d 1143

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Cite This Page — Counsel Stack

Bluebook (online)
2001 ME 62, 769 A.2d 873, 2001 Me. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dyer-me-2001.