*1
¶ 20,
termination;
that
admit- ment action.” Id.
grounds for
Watt
case,
thus,
Hughes
that
hit
Watt asserts
assaulting Hughes;
ted to
acting
investigation,
properly
frightened
because she was
and was
after its
UniFirst
self-defense,
and that
claim
Hughes.
UniFirst’s
fired both Watt
contrary merely pretextual.
Al-
the
pri-
a
To demonstrate
argues that
the record
though UniFirst
under
improper
ma facie case of
retaliation
act in
demonstrates that Watt did not
self-
MHRA, plaintiff
a
“must show that she
defense,
Hughes
Watt struck
reason
statutorily
activity;
engaged
protected
disputed
a
issue of material fact. “Even
deci
employer
employment
her
made
party’s
ap-
one
version of the facts
her;
adversely
affected
and that
sion
pears
persuasive
more credible and
pro
a causal link
there was
between
court,
summary judgment
inappropri-
activity
employ
tected
and the adverse
if genuine
dispute
ate
factual
exists that
¶61, 20,
Doyle,
ment action.”
is material to the outcome.” Arrow Fas-
(quotation
facie claim. argues retaliation physical Hughes Watt’s assault of legitimate,
constitutes a non-diseriminato-
ry reason for her termination. Because hitting
Watt admitted to
Hughes with
bar,
metal
UniFirst contends that her con
tected and the adverse *2 Toothaker,
Jeffrey Esq., C. Toothaker & Ellsworth, Chong, for Darrell Thurston. Povich, Attorney, Michael E. District Kellett, Mary Atty., N. Asst. Dist. Prose- VII, Ellsworth, cutorial District for the State of Maine. SAUFLEY, C.J.,
Panel: CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, GORMAN, JJ. CLIFFORD, LEVY, Majority: MEAD, SILVER, GORMAN, JJ. SAUFLEY, C.J., Dissent: ALEXANDER, J.
GORMAN, J. Darrell J. appeals from Superior entered Court (Hancock Marden, J.) County, upon jury (Class finding guilty verdict him of assault 1252(4-A) C), 207(1)(A), §§ 17-A M.R.S. (Class (2008); D), and criminal mischief 806(1)(A) (2008); 17-A M.R.S. and not of crime or (Class 758(1)(A) D), injury agree Because we with Thurston push gener- driveway, proceeded at trial where that the evidence punch her in the back of ground a self-defense instruction ated the head. Harmon testified give, court declined and because *3 harmless, grabbed it phone, threw Thurston’s and he is not we vacate as- error Harmon’s children wit- and left. Two of sault conviction. in the kitchen part nessed of the events I. BACKGROUND driveway and and corroborated testimony. and Suzanne Darrell Thurston story. Thurston told a different [¶4] romantically for Harmon were involved grab He that Harmon went to testified child years about five and have one to- off phone knife after he took her cellular gether. evening On the it on floor top the counter and smashed 27, 2007, liv- Harmon and Thurston were and after he threw the meatballs ing together in Sullivan with their child put He testified that she the knife trash. Thur- and Harmon’s two older children. moment, for a but then reached for work, down and al- ston arrived home after that, again. Thurston testified in an effort though Harmon told Thurston that he Harmon, a hold of her stop “grabbed to he was not welcome because he had been said, you know, enough’s enough.” drinking, she unlocked the door and al- Thurston admitted that he left the house him to enter when he arrived. lowed point, at that but then climbed back in into the kitchen where Thurston went through get phone window to his making Harmon was meatballs. The driveway Harmon into the when followed couple argue, started to and Thurston she would not hand it over. Thurston pot threw the of meatballs in the trash. ground testified that Harmon fell to the point, At Thurston’s driveway, point at which he retrieved versions of the events conflict. According his and left. to Thur- Harmon testified that Thurston ston, he once when touched threw her onto the kitchen floor and grabbed he in the kitchen to shoulders punched kicked and her head. She testi- stop getting her from the knife. her, assaulting fied that after Thurston evidence, After the close of telephone smashed her cellular requested ston on self-de- grabbed a knife from the kitchen. Har- fense, arguing jury might that the view the mon responded testified that she also assault to have occurred when he grabbing a but that she and Thur- Harmon’s shoulders as she reached for the put ston both the knives down when her knife. The court denied re- Thurston’s daughter ordered them to do so. Harmon quest. jury, After the court instructed the testified that Thurston left at point request Thurston renewed his for an addi- door, locked the but Thurston tional instruction. The court denied returned forgot realized it, stating, phone. his Harmon testified that when it, give she refused to let on I [Rjelying Thurston inside the evidence as viewed any testimony him phone appear his because she needed it to call there did not to be damaged provide Thurston kicked and a basis which I feel a entering rely finding front door and screen before could it was Harmon, through According to take the window. defendant protect through she and the children left the front action he did order himself, others. property, protect door and Thurston chased them into the issue of Thurston evidence is sufficient raise the found mischief, but not to 17-A M.R.S. and criminal 108(1) (2008),2 of crime or give the court must self- guilty of See injury. The court sentenced defense instruction. State Department in the months 512. We eighteen and a fíne on the assault have held that a court’s failure to do so Corrections $800 mischief on the criminal and six months “deprives the defendant of a fair trial and concurrently. Thur- served be Id. (quotation amounts to obvious error.” timely appeal. omitted). filed a ston marks
II. DISCUSSION
In
involving
cases
evidence
[¶ 10]
describing
potentially
several moments of
Thurston contends that suffi
conduct,
trial
courts must look to the
evidence
at
cient
was
complaint
He
or indictment to determine if it
the issue of self-defense.
generate
complaint
specifies
particular
that because the
does
which
event
induced
contends
charges.
led to the assault
at
specify
not
what actions
the
See id.
793 A.2d
accept his
charge,1
jury
the
was free to
have held that
if the complaint
We
or
testimony that he touched Harmon
identify
particular
indictment does not
the
stop
grabbing
her from
leading
charge,
once in an effort
event
the court can
knife, and, therefore, a
in
a
self-defense
jury
not refuse to instruct
on self-
struction was warranted.
if
generates
defense
one of the events
a
instruction.
Id.
self-defense
argues
The State
that a self-de-
generated simply
instruction
not
fense
was
In
we vacated the defen-
description
because Thurston offered a
of dant’s assault conviction because the trial
physical
separate
conduct
and distinct
judge rejected
request
the defendant’s
by
from that offered
the State. The State
though
self-defense instruction even
that in order to be entitled to a
contends
specific
indictment did not indicate the
instruction, Thurston needed
self-defense
charge,
event that
induced the
and the
evidence of self-defense with
present
jury heard two different
from
stories
to the conduct described
respect
alleged
defendant and his
victim. See id.
State’s witnesses.
¶¶ 3-4,
[¶ 12] living together daughter them with jury ation. The convicted Thurston of as- other Harmon’s two children for more acquitted sault and criminal mischief but than a month at the time of these events. him the on of that, They agreed although also injury. crime or support These verdicts had told Thurston not to return home that conclusion the court could not evening because he had been drinking, she certainty know which event or allowed him to enter home when he in events—the ones the kitchen and drive- arrived. way as described Harmon or the one involving the knife as described In order to determine that provided the basis for the jury’s ston— right Harmon had the to use a knife to charge. verdict on the assault Be- Thurston, that, therefore, eject Thur- possible cause it that the convicted grabbing ston’s actions in Harmon when Thurston of grabbing assault for Harmon’s she went for the knife could not have been shoulders after she reached for the right a lawful exercise of his to defend given should been have “the himself, the trial court would have had to authority” means and the to decide wheth- determine that Thurston was neither li er to accept reject justification his privileged censed nor to be at the home. self-defense. See id. determining When whether a self-defense generated, dissent asserts that Thur- instruction has been both we
ston was not entitled to a in- and the trial court must consider the rec struction because he committing ord most favorable Thur- Glassman, trespass criminal when he entered and re- ston. 2001 772 against mained in the home light, Harmon’s A.2d at 866. In that this record wishes. The dissent reasons that Thur- supports more than a determination that justified ston’s unlawful acts Harmon’s Thurston with Harmon at lived the time of non-deadly was, therefore, use of force—the grabbing of these events and both li the knife—to prevent privileged or terminate the censed and to enter the home trespass pursuant to 17-A telling M.R.S. remain there. Harmon’s
9H telling eject from her attempt “come home” or even invader him not to gen- not home. No self-defense instruction is once he was there does get him to out person protecting erated when a herself change his status. and cannot and, on present- and her home the record asserts The dissent also here, legal right ed Thurston had no to be smashing of Har- taking Thurston’s home. both crim- cellular constituted mon’s Although Thurston had been that, therefore, mischief and theft and inal staying period with Harmon for some be- threatened use of force was law- events, record, these fore even when ful to 17-A M.R.S. 105 favor, support viewed will not states, “A Section any “right” determination that he had nondeadly using degree a reasonable home him be Harmon’s once she told reasonably is or prevent what permitted not welcome. Harmon had taking to be an unlawful appears spend Thurston to on night past occa- mischief, or criminal person’s property, sions, but that does not diminish her au- person’s property to retake the immediate- thority enter, him to order not to to order M.R.S. ly following taking.” its 17-A arrived, him to leave and to use added). Here, neither (emphasis attempt eject force to him from her presented any evidence that Harmon party home if he against enters home to retrieve her cellular attempting wishes. she reached for the knife. phone when testimony Harmon testified that she Thurston’s own estab- *6 (1) one, grabbed home; had that: Harmon knife because Thurston lishes her (2) alleged grabbed and Harmon Thurston called her in advance to Thurston tell (8) home; that he coming knife because he had thrown the meatballs her to her Additionally, told garbage. into the because Thurston not to come to her (4) home; disregarding threatened of force occurred objec- use (5) tions, home; destroyed took came to after Thurston Thurston her him— phone, acting prevent despite Harmon was not to entered her statement to you according testimony either criminal mischief or a theft. to his told not —“I you I to come here.... don’t like when entry The is: (6) drunk”; you’re Thurston remained vacated; Judgment on charge the assault home, and Harmon asked him to judgment of conviction on criminal mis- (7) leave; Thurston and Harmon then be- chief affirmed. (8) gan arguing; during argument prepar- Thurston threw food Harmon was ALEXANDER, J., with whom ing garbage into the and took and smashed C.J., SAUFLEY, joins, dissenting. (9) phone; her cell Harmon asked Thur- respectfully I 17] dissent. [¶ and, ston to leave when he did not—and is to according pulled Thurston —“she A self-defense 18] [¶ (10) knife”; Thurston then justify resistance to an available shoulders, the touch that is “unlawful” use of force. 17-A M.R.S. self-defense, act of purported to re- 108(1) (2008). law, § Under Maine a vic- anticipated her threat strain tim may of a home invasion and assault knife. lawfully use force to resist the home inva- Code, protect sion and herself from further as- 21] Criminal [¶ 104(1) saults, (2008), may lawfully unequivocally and she use force to states that a 912 (1) here, prevent if to: posses another such as the victim
person,
home,
taking
person’s proper-
using non-
the unlawful
sion of her
(2)
ty,
phone;
as the theft of the cell
she believes
neces
such
deadly force when
mischief,
criminal
such as the de-
sary
prevent
or terminate a
criminal
prevent
(3)
phone;
A defendant who has refused
cell
retake
trespass.
struction of the
may
eject
be
immediately
to leave a residence
follow-
person’s property
demand
Thus,
residence and is not
ed
force from the
Harmon’s use of
ing
taking.
its
jus
entitled to a self-defense instruction
justified response
taking
force was
tify
resisting
that lawful use of
phone
of her cell
theft
destruction
—a
Benson,
115,
Me.
force. See State v.
155
mischief.
(1959);
266,
268
see also the
if
take the evidence
Even
we
the 1975 en
supporting
drafter’s comment
Thurston,
testi-
favorably
most
his own
of section
17-A M.R.S.A.
actment
that Harmon’s use of
mony establishes
p.
104 at
her
against
him after he invaded
point,
On this
the case before us
[¶
home and robbed her of her cell
Bard,
distinguishable
from State
use,
use,
Her
or threatened
lawful.
the evi-
mon told him to leave arrived she
immediately upon at appearance (3)
home; prior displaying repeatedly
Harmon had told Thurston to *7 her home.
leave On the facts testified to Thur- John L. et al. JORGENSEN ston, Harmon’s lawful use force de- fend herself and her home from his home DEPARTMENT OF generate invasion did not a self-defense TRANSPORTATION. instruction in favor of her attacker because gen- there was no unlawful use of force to Supreme Judicial Court of Maine. erate to section Argued: Jan. 108(1). April Decided: Furthermore, Harmon’s defense premises justification
of her is not the Har- rendering lawful whatever force evidence, including
mon used. The testimony, prior
ston’s establishes that Harmon,
use destroyed
took her cell it. The Code, (2008),
Criminal person may
states that a use-force