State of Maine v. Harry D. Every

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 39Docket: Oxf-22-260
Submitted
On Briefs: April 19, 2023
Decided: July 20, 2023
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE and DOUGLAS, JJ.
STATE OF MAINE
v.
HARRY D. EVERY
CONNORS, J.
[¶1] Harry D. Every appeals from a judgment of conviction for burglary
(Class A), 17-A M.R.S. § 401(1)(B)(1) (2018), entered by the trial court
(Oxford County, Lipez, J.) after a jury trial.1 The issue presented relates to the
1 Every was also convicted of the following other crimes, which convictions he does not appeal:
domestic violence criminal threatening with a dangerous weapon (Class C), 17-A M.R.S.
§ 209-A(1)(A) (2018); domestic violence terrorizing with a dangerous weapon (Class C), 17-A M.R.S.
§ 210-B(1)(A) (2018); domestic violence reckless conduct with a dangerous weapon (Class C),
17-A M.R.S. § 211-A(1)(A) (2018); and obstructing report of crime or injury (Class D), 17-A M.R.S.
§ 758(1)(A) (2018). We cite to the 2018 versions of the statutes, the ones in effect at the time of
Every’s criminal conduct, because 17-A M.R.S. §§ 209-A(1)(A), 210-B(1)(A) and 211-A(1)(A) were
recently amended, though the amendments are not relevant to this appeal. See P.L. 2021, ch. 647,
§§ B-22, B-25, B-29 (effective Jan. 1, 2023) (codified at 17-A M.R.S. §§ 209-A(1)(A), 210-B(1)(A),
211-A(1)(A) (2023)). Additionally, according to the indictment, the charges related to domestic
violence were elevated from Class D to Class C under 17-A M.R.S. § 1252(4) (2018) because Every
used a dangerous weapon. Section 1252, however, had been repealed and replaced nearly eight
months before the State charged Every. See P.L. 2019, ch. 113, §§ A-1 to -2 (emergency, effective
May 16, 2019) (codified at 17-A M.R.S. § 1604(5)(A) (2023)). This error does not affect Every’s
convictions. See M.R.U. Crim. P. 3(a) (“Error in the citation of a statute or its omission shall not be
grounds for the dismissal of the complaint or for reversal of a conviction if the error or omission was
not prejudicially misleading.”).
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circumstances in which an ex-domestic partner can be “not licensed or
privileged” to be on the premises where he previously lived with his former
partner. We affirm the judgment.
I. BACKGROUND
[¶2] Because Every’s appeal is limited to challenging his burglary
conviction, we recite only the facts relevant to that crime. “Viewing the
evidence admitted at trial in the light most favorable to the State, the jury could
rationally have found the following facts beyond a reasonable doubt.” State v.
Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387.
[¶3] Every and the victim were in a romantic relationship from 2003 to
2019. They never married and are the parents of one daughter. In 2019, the
three were living in a house that the victim rented in western Maine. Although
there was no written lease, the victim signed a paper identifying the house’s
occupants, which included herself, Every, their daughter, and their pets. She
was legally and financially responsible for the home.
[¶4] On Friday, December 6, 2019, the victim ended her relationship with
Every. The victim informed Every that she would spend the weekend at her
parents’ residence and that he needed to move out by that Sunday. He complied
by taking all his clothes and moving into his other child’s home in Dixfield.
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[¶5] Throughout December, Every messaged and called the victim
incessantly. One night Every called the victim roughly fifty times, and she began
to fear that he would do “something” to himself or to her. Every still had
housekeys that he refused to return despite the victim asking him to do so, and
at times he would come and go from the house when he pleased despite not
having permission from the victim. The victim started barricading the doors
with furniture at night in case he tried to enter.
[¶6] On January 3, 2020, while at work, the victim received a message
from Every asking permission to go to the house to visit their dog. She agreed
on the condition that he leave before she returned home at roughly 6:00 p.m.
She granted him this permission because their daughter was home sick and
Every could check on her. Every spent the day there and left around 5:30 p.m.
[¶7] The victim came home and spent the night with the daughter. She
went to bed around 12:45 a.m. after checking to make sure that the front door
was locked and secured with furniture. At some point that evening,
unbeknownst to the victim, Every entered the house through the basement. He
knew that the victim did not want him there and that he was supposed to leave
the house by 6:00 p.m. Every had been drinking heavily and had a handgun
with him. Around 1:15 a.m., Every went upstairs and terrorized the victim with
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the handgun, resulting in the other convictions not at issue here. The victim
and the daughter both called 9-1-1 and left the house through a window. The
police arrived, coaxed Every out of the house, and arrested him.
[¶8] Every was indicted for various offenses, including burglary,
17-A M.R.S. § 401(1)(B)(1). After the State rested in his jury trial, held in July
2022, Every moved to acquit, asserting that the State had failed to prove that
he was not licensed or privileged to be in the house because he was legally
present on the premises as a tenant. See M.R.U. Crim. P. 29(a). The court denied
the motion and the jury ultimately found him guilty. Before sentencing, Every
again moved for a judgment of acquittal, see M.R.U. Crim. P. 29(b), making the
same argument, and the court again denied his motion. The court reasoned that
the licensed or privileged element focuses on actual or constructive possession
of the premises, and that the jury could have found that Every had moved out;
needed permission to visit; left the house before the victim returned that day;
and, given that he entered the house surreptitiously through the basement
during the night, knew he was not permitted to enter.2 Every timely appealed.
2 Every was sentenced to fifteen years’ imprisonment with all but six years suspended and four
years of probation on the burglary charge, five years’ imprisonment on each of the three charges
related to domestic violence, and 364 days’ imprisonment on the charge of obstructing report of
crime or injury, with all sentences to be served concurrently.
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II. DISCUSSION
[¶9] The burglary statute provides that a person is guilty of burglary if
“[t]he person enters or surreptitiously remains in a structure knowing that that
person is not licensed or privileged to do so, with the intent to commit a crime
therein.” 17-A M.R.S. § 401(1)(A). Every contends that the State failed to prove
that he knew that he was “not licensed or privileged” to be in the house that
night because he claims he had a legal right to be there.3
[¶10] As the trial court reasoned and contrary to Every’s contentions,
“licensed or privileged” within the meaning of the statute refers to a defendant’s
possessory or occupancy rights, not legal rights or interests, and whether a
defendant knew that he lacked the right to possess or occupy a structure is a
question for the fact finder to answer based on the totality of the circumstances.
See State v. Haines, 621 A.2d 858, 859 (Me. 1993) (noting that “burglary is an
offense against the security of habitation or occupancy, rather than against
ownership or property” (alteration and quotation marks omitted)); State v.
McMillan, 973 A.2d 287, 291-92 (N.H. 2009) (explaining that burglary is
3 Every also argues that the State failed to prove that he went into the house with the intent to
commit a crime therein. This argument is unpersuasive. The jury was instructed that the crime Every
intended to commit therein could be one of the other crimes with which he was charged. The jury
found Every guilty of three domestic violence charges, so there is a reasonable inference that the jury
found that he entered the house with the intent to commit at least one of the domestic violence
crimes, satisfying that element of burglary. See 17-A M.R.S. §§ 209-A, 210-B, 211-A.
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focused on the safety of the occupant and holding “that the fact finder must look
beyond legal title and evaluate the totality of the circumstances in determining
whether a defendant had license or privilege to enter”); see also State v.
Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004) (“Surely a spouse who stays in the
marital residence after the other spouse has moved out should be able to enjoy
the security and sanctity of his or her home without the necessity of obtaining
a restraining order.”); 15 M.R.S. § 752 (2023) (“In an offense in any way relating
to real or personal estate, it is sufficient and not a variance if it is proved at trial
that, when the offense was committed, the actual or constructive possession of
[the property] was in the person . . . alleged in the indictment to be the owner
thereof.”).
[¶11] There is sufficient evidence in the record from which the jury could
find that Every knew that he lacked the right to possess or occupy the house the
night of the offense. See State v. Thomas, 2022 ME 27, ¶ 30, 274 A.3d 356. The
jury heard testimony from the victim that she told Every that he needed to
move out nearly a month earlier and that he complied. Every conceded at trial
that he knew that the victim did not want him there when she was there, he
sought her permission to be there the day of the offense, and his permission
expired at 6:00 p.m. The jury could have reasonably found that one generally
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does not ask for permission to be in a structure they believe they have a right
to possess or occupy. This is supported by the surreptitious manner in which
he entered the house, in the middle of the night, through the basement. The
jury rationally could have found that Every knew that he was not licensed or
privileged to be in the house at the time of the offense.
The entry is:
Judgment affirmed.
James P. Howaniec, Esq., Lewiston, for appellant Harry D. Every
Neil E. McLean Jr., District Attorney, and Alexandra W. Winter, Asst. Dist. Atty.,
Prosecutorial District III, Lewiston, for appellee State of Maine
Oxford County Unified Criminal Docket docket number CR-2020-30009
FOR CLERK REFERENCE ONLY