State v. Lee

240 A.3d 73

STATE of Maine

v.Kevin D. LEE

Docket: Lin-20-69

Supreme Judicial Court of Maine.

Submitted On Briefs: September 29, 2020

Decided: October 29, 2020

James M. Mason, Esq., Handelman & Mason LLC, Brunswick, for appellant Kevin D. Lee

The State of Maine did not file a brief

Panel: MEAD, GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.

MEAD, J.

[¶1] Kevin D. Lee appeals from a judgment of conviction for assault (Class D), 17-A M.R.S. § 207(1)(A) (2020), and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2020), entered by the trial court (Lincoln County, Billings, J. ) following a jury trial. Lee contends that the court erred in its jury instructions concerning the justification of defense of property set out in 17-A M.R.S. § 105 (2020). We agree and vacate the judgment.

I. BACKGROUND

[¶2] The evidence admitted at trial, viewed in the light most favorable to the State, would allow the jury to find the following facts beyond a reasonable doubt. See State v. Bilodeau , 2020 ME 92, ¶ 2, 237 A.3d 156. On the morning of April 21, 2019, David Page was walking his three dogs on Main Street in Damariscotta. The dogs were startled when Kevin Lee approached from behind, kicking a tennis ball. Page had seen Lee kicking his ball around town before.

[¶3] Page moved to kick the ball away from the dogs and told Lee to "get ... out of here." As Page attempted to kick Lee's ball, Lee pushed Page backwards and Page fell, scraping his elbow. When Page acted like he was calling 9-1-1 on his phone, Lee said, "Well, you don't have a witness," and left. After Page got home and saw blood on his elbow and his torn shirt, he went to a nearby police station and reported the incident.

[¶4] Based on this interaction, the District Attorney for Lincoln County then charged Lee with assault, 17-A M.R.S. § 207(1)(A), and violation of condition of release, 15 M.R.S. § 1092(1)(A). A jury trial was held on August 6, 2019, but it resulted in a mistrial (Raimondi, J. ) when the jury could not reach a verdict. The State decided to proceed with a second trial, which the court (Billings, J. ) held on February 18, 2020. After the jury returned a verdict of guilty on the assault charge, the court, by previous agreement of the parties, considered the violation of condition of release count and found Lee guilty of that charge. The court entered judgment and sentenced Lee to a $300 fine for assault and an unconditional discharge for violating bail conditions.

[¶5] Lee timely appealed. For unexplained reasons, and despite its decision to twice prosecute this case, the State has not filed a brief, although it requested, and we allowed, additional time for it to do so.

II. DISCUSSION

[¶6] In his brief, Lee declares that "[t]he defense of property in this case was all," and his sole assertion on appeal is that the trial court's jury instruction concerning the statutory justification of defense of property, to which he did not object at trial, constituted obvious error. See 17-A M.R.S. § 105 ; State v. Plummer , 2020 ME 106, ¶ 14, ––– A.3d –––– ("Because [the defendant] did not object to the jury instructions given at trial, we review the instructions for obvious error."). The justification at issue provides, in relevant part, that "[a] person is justified in using a reasonable degree of nondeadly force upon another person when and to the extent that the person reasonably believes it necessary to prevent what is or reasonably appears to be an unlawful taking of the person's property, or criminal mischief, or to retake the person's property immediately following its taking." 17-A M.R.S. § 105.

[¶7] In State v. Villacci , also a case where the sole issue was the adequacy of jury instructions given on a statutory justification, we set out the relevant test and the respective burdens on the defendant and the State:

We review the jury instructions in their entirety to determine if the instructions failed to inform the jury correctly and fairly in all necessary respects of the governing law.

... A [statutory] justification places on the defendant a burden of production to generate an issue with sufficient evidence, and then imposes on the State the burden of persuasion to disprove the defense. Thus, when the defendant generates a justification, it is the State's burden to both disprove the justification beyond a reasonable doubt and prove each element of the crime charged beyond a reasonable doubt. If the State fails to disprove at least one of the elements of the justification beyond a reasonable doubt, the justification constitutes a complete defense, meaning that it negates the commission of the crime, even if the State otherwise proves all the elements of the crime charged. Thus, to convict a defendant when a justification has been generated, the State must disprove, beyond a reasonable doubt, at least one element of the justification and prove every element of the crime charged.

2018 ME 80, ¶¶ 9-10, 187 A.3d 576 (alterations, footnote, citations, and quotation marks omitted).

[¶8] Here, the trial court found that the justification had been generated by the evidence, and it gave oral and written instructions concerning the justification. The oral instruction informed the jury that

if you determine the State has proved the charge of assault beyond a reasonable doubt, you must next consider the issue of defense of property. A person in possession or control of an item of property is justified in using non-deadly force upon another person when and to the extent he reasonably believes it is necessary to prevent the other person from taking, or damaging, or destroying that property.

Because evidence generates an issue of whether the defendant was acting to prevent Mr. Page from taking his property, or damaging, or destroying his property, the State must prove beyond a reasonable doubt that, one, the defendant was not acting to prevent the taking or damage of his property and, two, the defendant's beliefs that led to his actions, when viewed in the light of the nature and purpose of the defendant's conduct and the circumstances known to the defendant, were a gross deviation from what a reasonable and prudent person would believe in the same situation.

[¶9] The instruction incorrectly overstated the State's burden, in that it required the State, in order to disprove the justification, to prove that (1) Lee did not have a subjective belief that his use of force was necessary, and (2) if he did entertain such a belief, it was objectively unreasonable. The court's written instructions correctly stated that the State was required to prove one "or" the other, not both. See Alexander, Maine Jury Instruction Manual § 6-60-A at 6-127 (2018-2019 ed. 2018). The oral and written instructions concerning the defense of property justification were otherwise functionally the same.

[¶10] Setting aside that error, which was potentially prejudicial to the State but not to Lee, we follow our holding in Villacci , where we concluded that a jury instruction amounted to obvious error when

[a]lthough the court accurately provided the elements of the justification[ ], it offered no indication of what a justification is and did not explain that the State had any burden to disprove at least one element of the justification[ ] beyond a

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