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State v. Ryan Dyer
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 62
Docket:	Aro-00-348	
Submitted
on Briefs:	January 18, 2001
Decided:	April 20, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
Dissent:		WATHEN, C.J., and CLIFFORD, J.

STATE OF MAINE

v.

RYAN DYER

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 and
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) (1983).  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 license 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 "terminat[ing] 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, . . . [r]emains 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, 1145-46 (Me. 1988)
(finding in criminal trespass action that office manager of congresswoman's
district office was justified in asking constituent to leave); State v. Gordon,
437 A.2d 855, 857 (Me. 1981).  In Gordon, the trespasser challenged the
police officer's status as an "authorized person" to order him to leave a
restaurant.  Gordon, 437 A.2d at 857.  We found that the night manager had
"express authority to ask rowdy customers to leave."  Id.  The night
manager, within the defendant's hearing, delegated her authority to the
police officers, requesting the police officers to ask the defendant to leave. 
Id. at 856-57.  This authority was delegable to the police officer because the
evidence did not demonstrate that the owner had somehow limited the
night manager's "express authority."  Id. at 857.
	[¶10]  Dyer contends that, viewed in the light most favorable to him,
the evidence demonstrates that Tweedie "expressly authorized" him and
Patterson to take care of his apartment.  "Express authority is 'that authority
which is directly granted to or conferred upon the agent . . . in express
terms by the principal . . . .'" Libby v. Concord Gen. Mut. Ins. Co., 452 A.2d
979, 981 (Me. 1982) (quoting Stevens v. Frost, 140 Me. 1, 7, 32 A.2d 164,
167 (1943)).  Express authority "depends on a manifestation of consent by
the principal, and goes to the perceptions of the agent not the third party." 
Id. at 982 (emphasis added); see also Restatement (Second) of Agency § 33
(1958) ("An agent is authorized to do, and to do only, what it is reasonable
for him to infer that the principal desires him to do in the light of the
principal's manifestations and the facts as he knows or should know them at
the time he acts.").  We find that Tweedie's statement to "take care of my
place for me" is sufficient for the jury to entertain a "reasonable hypothesis"
that Dyer could believe that he and Patterson were granted express authority
to order Dixon to leave the premises.
	[¶11]  In addition, for Dyer to reasonably "believe[] it necessary to . . .
terminate . . . a criminal trespass," 17-A M.R.S.A. § 104(1), Dyer must
reasonably believe that Dixon knew that he, Dixon, was "not licensed or
privileged to . . . [r]emain[]" in the apartment.  17-A M.R.S.A. § 402(1)(D). 
This requirement can be met by establishing that Dixon was present when
Tweedie authorized Dyer to take care of his apartment.  See, e.g., Gordon,
437 A.2d at 857 (stating "it was within the Defendant's hearing that the
manager delegated this authority to the police officer").  Though the
testimony is unclear as to where Tweedie made the request, viewed in the
light most favorable to Dyer, a jury could infer that Tweedie told Dyer to
"take care of my place for me" while he, Dixon and Dyer were in the
kitchen.  See Michaud, 1998 ME 251, ¶ 17, 724 A.2d at 1230.  Therefore,
the theory that Dyer reasonably believed that Dixon knew that he was no
longer licensed to remain when he was requested to leave is reasonable
because the jury could conclude that Dixon was within hearing when
Tweedie delegated this authority.
	[¶12]  This evidence, viewed in the light most favorable to Dyer, is
sufficient for a jury to entertain a "reasonable hypothesis" that Dyer and
Patterson were granted express authority within Dixon's hearing to convey a
lawful order to terminate a criminal trespass; that Dyer reasonably believed
that Dixon, after he was requested to leave and refused, was defying a lawful
order; and that Dyer was licensed to be on the premises and justified in
using nondeadly force to terminate the criminal trespass by Dixon.  See 17-A
M.R.S.A. §§ 104(1), 402(1)(D).  Because the defense of premises was
generated by the evidence, the court erred in refusing to instruct the jury as
to that defense.  See State v. Hernandez, 1998 ME 73, ¶ 7, 708 A.2d 1022,
1025 ("Failure to give a requested jury instruction on a statutory defense
generated by the evidence is error.").
	The entry is:

Judgment vacated.  Remanded to the Superior
Court for further proceedings consistent with
this opinion.

WATHEN, C.J., with whom CLIFFORD, J., joins, dissenting.

	[¶13]  I respectfully dissent.  I am unable to make the leap from
Tweedie's general statement to "take care of my place for me" to an express
grant of authority for Patterson or the defendant to order Dixon to leave the
premises or risk a criminal trespass for making prank telephone calls.  As a
licensee, Dixon could only know that his license to remain on the premises
was revoked if he heard Tweedie delegate that authority to the defendant. 
In the present case, the defendant's understanding of Tweedie's words is
not determinative, rather it is the authority perceived by Dixon from the
statement.  Dixon committed a criminal trespass, thereby triggering the
defendant's right to defend the premises, only if Dixon knew that he was
not licensed to remain.  See 17-A M.R.S.A. § 402(1)(D).  Tweedie's general
statement provides no basis for such knowledge.
	[¶14]  I would affirm the judgment of conviction.
                                                                                    
Attorneys for State:

Neale T. Adams, District Attorney
Carrie L. Linthicum, Asst. Dist. Atty.
27 Riverside Drive
Presque Isle, ME 04769-2730

Attorney for defendant:

Jefferson T. Ashby, Esq.
Hardings Law Offices
P O Box 427
Presque Isle, ME 04769-0427