State of Maine v. Kevin D. Lee

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 126
Docket: Lin-20-69
Submitted
On Briefs: September 29, 2020
Decided: October 29, 2020
Panel: MEAD, GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.
STATE OF MAINE
v.
KEVIN D. LEE
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, --- A.3d ---. On the morning of
April 21, 2019, David Page was walking his three dogs on Main Street in
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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.
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[¶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:
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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.
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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 reasonable doubt; that
the jury could find [the defendant] guilty only if it found that the
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State had met its burden to both disprove the justification[] and
prove the elements of the crime; or that the State’s failure to
disprove the justification[] obligated the jury to find [the
defendant] not guilty, even if the State otherwise met its burden of
establishing each element of . . . assault beyond a reasonable doubt.
2018 ME 80, ¶¶ 17, 20, 187 A.3d 576.
[¶11] As in Villacci, the court here did not indicate what a justification
is—referring to “the issue” of defense of property—and did not tell the jury that
if the State failed to disprove the justification beyond a reasonable doubt, it
must find Lee not guilty. See id. ¶ 17. “In short, the jury was . . . left to wonder
what legal [e]ffect, if any, the justification[] had in the matter.” 1 Id. That error
“was enhanced by the jurors’ ongoing use of written instructions that
memorialized the error[].” State v. Baker, 2015 ME 39, ¶ 22, 114 A.3d 214.
[¶12] Furthermore, “the instructions improperly suggested to the jury
that it could find [Lee] guilty based only on the State’s proof beyond a
reasonable doubt of the elements of the crime,” Villacci, 2018 ME 80, ¶ 19,
187 A.3d 576, because early in its charge, without any mention of the
justification, the court told the jury:
I am now going to define for you the elements of the charge
and explain what the State must prove beyond a reasonable doubt
in order for the defendant to be found guilty of the charge. . . .
1 In contrast, at Lee’s first trial the court instructed the jury that “[i]f you find that the State has
failed to prove any element of the crime of assault, or that the assault was unjustified beyond a
reasonable doubt, then you must find the defendant not guilty.”
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For the defendant to be found guilty of assault, the State must
prove beyond a reasonable doubt that . . . [he] did intentionally,
knowingly or recklessly cause bodily injury or offensive physical
contact to David Page and the conduct was committed against
David Page.
Thus, although the court later linked the “charge of assault” with “the issue of
defense of property,” the instruction suffered from the same “structural flaw[]”
that we identified in Baker, namely that “the roadmap of the jury’s analytical
path described in the court’s charge authorized the jury to find the defendant
guilty without any consideration of [the statutory justification].” 2015 ME 39,
¶¶ 13-15, 114 A.3d 214; see Villacci, 2018 ME 80, ¶ 13, 187 A.3d 576 (citing
Baker).
[¶13] Applying Villacci, we conclude that the errors present here—the
Baker structural flaw, coupled with the court’s failure to explain what a
justification is and to “inform the jury that it had to acquit [Lee] if it found that
the State did not disprove the justification[],” Villacci, 2018 ME 80, ¶ 19,
187 A.3d 576—“were highly prejudicial and tended to produce a manifest
injustice, particularly given that [Lee’s] defense was focused in large part on the
application of the statutory justification[],” id. ¶ 20. Accordingly, the
instructions constitute obvious error and the judgment of conviction on both
charges must be vacated and the matter remanded for a new trial. See id. ¶ 20.
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The entry is:
Judgment vacated. Remanded for a new trial.
James M. Mason, Esq., Handelman & Mason LLC, Brunswick, for appellant Kevin
D. Lee
The State of Maine did not file a brief
Lincoln County Unified Criminal Docket docket number CR-2019-191
FOR CLERK REFERENCE ONLY