MAINE	SUPREME	JUDICIAL	COURT R eporter	of	Decisions Decision: 2018 ME 21 Docket: Han

- 17

- 273 Submitted

On	Briefs: November	29,	2017 Decided: February 6 ,	2018 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. BETTY	L.	FRENCH

HJELM ,	J. [¶1] Betty	L.	French appeals from	a	judgment convicting	her of hindering apprehension (Class	 D) , 17

- A	 M.R.S.	 §	 753(1

- B)(A)(3)	 (201 7 ) ,	 obstructing government administration (Class	D) , 17

- A	M.R.S.	§	751(1)	(201 7 ) ,	and	refusing to	submit	to	arrest (Class	D) , 17

- A	M.R.S.	§	751

- B(1)(B)	(201 7 ) , entered by	the

court (Hancock	County, R.	Murray , J. ) after a	jury trial.		French	argues	that	the

court ’s instructions	to	t he	jury	on	the	justi fication	of	defense	of	premises, see 17

- A	M.R.S.	§	104	(2017) , were	incorrect. Because a	citizen	is	not	justified	in using	 nondeadly	 force	 against	 a	 law	 enforcement	 officer	 for	 the	 purpose	 of defending	one’s	premises, see 17

- A M.R.S.	§ 108(1

- A)	(2017) , French was	not entitled	to that	instruction , and we affirm the	judgment

.2 I.		BACKGROUND [¶ 2 ] The	 evidence,	 v iewed	 in	 the	 light	 most	 favorable	 to	 the	 State, entitled	the	jury	to	find the	following	facts	beyond	a	reasonable	doubt

. See State v.	Lajoie ,	2017	ME	8,	¶	2,	154	A.3d	132

. [¶ 3 ] On	March	18,	2016,	Maine	State	Trooper	Jacob	Ferland	arrived	at
French’s	 residence in	 Verona to	 execute	 a search	 warrant as	 part	 of	 an investigation	into thefts in which French’s	s tep son was a	suspect

. During the search of	the	residence ,	Ferland	found personal	property	bearing the	step son’s

name .		 Ferland	informed French	and	her	husband that	if the	step son did	not turn	himself	in,	Ferland would apply	for an	arrest	warrant. Later, Ferland did
that and	ob tained	an	arrest warrant for the	step son . [¶ 4 ] Just	more	than	a	week	later,	o n	March	27,	2016,	Ferland,	in	uniform and	driving	a	marked	police	vehicle, returned	to	French’s	residence

. On	arrival , Ferland knocked	 on	 the	 door , thereby	 pushing	 the	 door	 open	 completely, announced	 his	 presence , and	 stepped	 into	 the	 kitchen. Ferland informed
French	and	her	husband that	he	now	had	 the arrest warrant for the step son . After French’s	husband went	upstairs	to get the	step son , French told Ferland to leave the	 house .	 	 Ferland stepped	 outside the residence to	 call an	 assistant d istrict at torney , but when	he	tried	to	reenter the	house the	door	was	locked.3 Ferland announced that he	would	break	down	the door if	he	were	not	permitted

to	enter

. [¶ 5 ] Shortly	thereafter, the	step son exited	the	house	and was	taken	into custody	by	another	officer .		Ferland then informed French that he was	arrest ing her for	hindering	apprehension,	but	as	he	walked	towards	her, Fr ench backed into	the	house	and	put	her	hands	in	her sweatshirt pocket. Ferland followed her	into	 the	house, pulled French’s hands out , and	attempted	 to place	her	in handcuff s . French pull ed away	from	Ferland , retreating	into the	kitchen where
the	 two became	 engaged in	 a	 physical	 struggle that	 lasted	 roughly eight
minutes , with occasional	 intervention	 by French’s	 husband	 and	 daughter in support	of French , until	Ferland ultimately was able to handcuff French

. 1 [¶ 6 ] French, her	husband ,	and her daughter were	charged	with	various offenses	 as	 a	 result	 of	 the	 incident. For	 her	 part, French was	 charged	 with hindering	apprehension,	obstructing	government	administration,	and refusing
to	submit	to arrest. She plead ed not	guilty	to	each	charge,	and	i n March	2017,
the	court	held	a	one

- day	jury	trial	encompassing	all	charges	against	each	o f	the three	defendants.

1 Using	a	cell	phone,	a nother	family member	recorded	much	of	the struggle	between	Ferland	and French

. At	trial,	t he	recording was	admitted	in	evidence	and played	for	the	jury.4 [¶ 7 ] Without	objection	from	any	party,	in	its	instructions	that	pertain ed to	the	charges	against French ,	the	court	instructed	the	jury	on	th e justifications
of	 self

- defense	and defense	 of	a	 third person , and	defense	 of	premises. 2 The jury 3 found French guilty	of	all	three	charges. 4 T he	court later sentenced her to
concurrent jail	 terms of	 three days	 for	 refusing	 to	 submit	 to	 arrest	 and forty

- eight	 hours on each	 charge	 of hindering	 apprehension	 and	 obstructing government	 administration. French timely	 appeal ed

. See 15	 M.R.S.	 §	 2115 (201 7 ) ; M.R.	App. P.	2(a), (b)(2)(A)	(Tower	2016). 5
II.		DISCUSSION [¶ 8 ] French argues that	 the court’s instructions to	 the	 jury	 on	 the justification	of	defense	of	premises	were	deficient	because	the	court	failed	to inform	 the	juror s of	 the legal	standards prescribing when	a	law	enforcement officer may	 lawfully enter	 a	 residence	 without	 the	 occupant’s	 permis sion. French	 goes	 on	 to	 argue	 that	 omission	 of	 this	 legal	 principle	 from	 the

2 Neither	party	requested	the	court	to differentiate	among	the	charges	when	it	instructed	the	jury on	the	justifi cations.

3 Several	jurors	were	excused	during	the	course	of	the	trial,	and	ultimately ,	with	the	consent	of the	parties, see M.R. U.	Crim.	P.	23(b), the	jury comprised eleven	members.

4 The	jury	also	found	French’s	husband	and	daughter guilty of all charges filed	against them.

5 The	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply	because	this	appeal	was	 filed prior	to	September	1,	2017. See M.R.	App.	P.	1	(restyled	Rules).5 instructions	 prevented	 the	jury	 from	being	able	 to	 find	 that	 Ferland	illegally
entered	the	residence	and	that , consequently , French was	justified	in	her	use	of nondeadly force	ag ainst	him	for	the	purpose	of	defending her premises. 6 We need	 not engage	 in a	 substantive	 examination	 of	 French’s	 challenge	 to	 the
court’s	instructions	re garding	the	defense	of	premises because	French	was	not entitled	 to	 that	 instruction	 in	 the	 first	 plac e. See Lajoie ,	 2017	 ME	 8,	 ¶	 14, 154 A.3d	 132 ( stating	 that	 jury	 instructions	 are	 reviewed	 for,	 among	 other things,	 whether	 instructions	 correctly	 describe	 the	 governing	 law	 in	 all necessary	respects). [¶ 9 ] As	a	general	matter, a	person who is	licensed or	privileged	to	be	on a	 particular	 premises is	 justified	 in	 using a	 reasonable	 degree	 of nondeadly
force against	another	in	order to	defend	the premises to	the	extent	the	person reasonably	 believes	 that such force	 is	 necessary	 to	 prevent	 or	 terminate a

cr iminal	trespass. See 17

- A	M.R.S.	§	104 (1) ; see , e.g. , State	v.	Cannell ,	2007	ME 30,	¶¶	5, 10,	916	A.2d	231 ; State	v.	Neild ,	2006	ME	91,	¶¶	10

- 14,	903	A.2d	339 ; State	v.	Dyer ,	2001 ME	62,	¶¶ 5

- 12,	769	A.2d	873

.

6 French	makes	a related argument	that , based	on	the	record	evidence,	the	court	erred	by	denying her	motion	for	judgment	of	acquittal, see M.R. U. Crim.	P.	29, because she	was justified	in	using force against	Ferland	to	defend	the	premises .		This	argument	fails	for	the	reasons	explained	in	the	t ext.6 [¶1 0 ] When nondeadly	 force	 is directed against	 someone	 whom	 the actor	 knows	 or	 should	 know	 is	 a	 law	 enforcement	 officer, however, the availability

— and	 the	 extent

— of	 any	 justification	 for	 the	 use	 of	 force is significantly	more	circumscribed ,	as	established	in 17

- A	M.R.S. § 108(1

- A)

. See
State v.	Dumond , 2000	ME	95,	¶	12,	751	A.2d	1014 (discussing	limitations	on	a citizen’s	right	to	use	nondeadly	force	aga inst	a	law	enforcement	officer) ; State

v. Austin ,	 381	 A.2d	 652,	 654	 (Me.	 1978) (“From	 examination	 of	 section	 108, together	with	sections	107	a nd 752,	it	becomes	clear	that	the	[L] egislature	did not	intend	section	108	 to	give	a	person	 the	right	 to	resist	a	law	enforcement officer’s	use	of	reasonable,	nondeadly	force	to	effect	an	arrest,	whether	legal	or illegal.”) ; see	also Butler	v.	Killoran , 1998 ME	147,	¶	11,	714	A.2d	129 (stating that	“a	statute	dealing	with	a	subject	specifically	prevails	over	another	statute dealing	 with	 the	 same	 subject	 generally”). Sec tion	 108(1

- A) applies here because	the	undisputed	evidence	establishes	that when Frenc h	used	nondeadly force	against Ferland as	he was	trying	to	arrest	her, French	knew	that Ferland
was	a	law	enforcement	officer:	the	two	had had contact	about	a	week	earlier when Ferland executed	a	search	warrant	at	French’s	residence while	she	was present ; on	 the	 date	 of	 the	 incident Ferland was	 in	 uniform	 and	 driving	 a7 marked	 cruiser ; and	 French	 testified	 that	 she	was	 not surprised	 that	 he	 had
returned

. [¶1 1 ] Section	108(1

- A) states	in	full , A person is not justified in	 using	 nondeadly	 force	 against another	person	who	that	person	knows	or	reasonably	should	know is	 a	 law	 enforcement	 officer	 attempting	 to	 effect	 an	 arrest	 or detention,	regardless	of	whether	the	arrest	or	detention	is	legal .		A person is justified in	usi ng	the	degree	of	nonde adly	force	the	person reasonably believes	is	necessary to	defend	the	person	or	a	[third] person	against	a	law	enforcement	officer who,	in	effecting	an	arrest or	detention,	uses	nondeadly	force	not	justified	under	section	107, subsecti on	1. ( E mphasis	added.) [¶1 2 ] In	other	words,	p ursuant	to	the	plain	language	of this	statute, the only circumstance where a	 citizen may	 be	 entitled	 to	 use	 nondeadly	 force against	a	law	enforcement	officer who	is	arresting	or	detaining	someone ,	or is attempting	to	do	so, is	for	the	purpose	of	defending	hersel f	or	a	third party

— and	 even	 in	 that	 situation, the citizen is	 justified	 in	 using nondeadly	 force against an officer only when	the	officer uses	excessive	force	or knows	that the arrest	 or	 detention	 is	 illegal , see 17

- A	 M.R.S.	 §	 107(1)	 (2017)

. S ee Dumond , 2000 ME	 95,	 ¶	 12,	 751	 A.2d 1014 ; Austin ,	 381	 A.2d at 65 4

- 5 5

. The	 plain language	of	s ection	108(1

- A) does	not authorize a	citizen’s use	of	nondeadly force	against	a	law	enforcement	officer who	is arresting	or	detaining	someone ,8 or	attempting	to	do	so, for	any	other	purpose

— including	defense	of	premises

. See State	v.	Christen ,	2009	ME	78,	¶	12,	976	A.2d	980 ( stating	that	we	review “questions	 of	 statutory	 interpretation de	 novo ” by first looking	 to the	 plain language	 of	 the	 statute). This	 reflects	 a	legislative	judgment	 that	 the	 use	 of nondeadly	 force	 against	 a	 law	 enforcement	 officer , who	 is	 arresting	 or detaining	someone	or	attemp ting	to	do	so, may	be	justified only	in	very	limited
circumstances

— where personal	safety	is	at	risk	and	not	where	other	interests, such	 as	 private	 property,	 are	 implicated. As	 we	 have	 stated, through	 its enactment	of	section	108(1

- A) “[t] he	[L]egislature has thus cast	the	advantage on	 the	 side	 of	law	 enforcement	 officers,	leaving	 the	 person	 arrested	in	most cases	 to	pursue	his	 rights,	not	 through	 violent	self

- help,	but	 through	prompt hearing	before	a	magistrate	with	prompt	consideration	 for	release	on	bail	or
pers onal	recognizance.” Austin ,	381	A.2d at 655 (footnote	omitted)

. [¶1 3 ] This	 means	 that	 pursuant	 to	 section	 108(1

- A), French	 was	 not
entitled	 to	 use nondeadly	 force	 against	 Ferland

— who	 was	 trying	 to	 arrest
her

— for	the	purpose	of defend ing her premises,	re gardless	of	the	lawfulness	of Ferland’s entry	into the	residence or his	resulting presence inside

. [¶1 4 ] Here, in	addition	 to	its	instructions	 on	defense	 of	premises, the

court instructed	the	jury	on	French’s	use	of	force	against Ferland for	purposes9 of	self

- defense	or defense	of	a	third person .		Pursuant	to	the	second	sentence	of
secti on	 108(1

- A),	 quoted	 above,	 self

- defense or	 defense	 of	 a	 third	 person

— where	generated by	the	evidence

— is	available	as	a	justification	for	the	use	of force	against a	law	e nforcement	officer.		The justification	of	defending a	person , however,	is	distinct	and	separate	from	the	justification	of	defending premises

. Compare 17

- A	 M.R.S.	 §	 108 (2017) , with 17

- A	 M.R.S. §	 104. B ecause the Criminal	 Code	 does	 not	 create	 a	 justificat ion that allowed French	 to use nondeadly	force against	Ferland in order	to	defend her premises ,	she	was	not
entitled	to any instruction on	that issue

. Therefore,	a ny error	in	the	substance
of	the	defense of	premises instruction cannot entitle	French	to	relief	on	appeal
because the	court instructed	the	jury	on	a	defense	to	which she was	not entitled

. The	entry	is: Judgment affirmed.

Robert Van Horn, Esq., Van Horn Law Office, Ellsworth, for appellant Betty L. French Toff Toffolon, Dep . Dist. Atty., Prosecutorial District VII, Ellsworth, for appellee State of Maine

Hancock County Unified Criminal Docket docket number CR

- 2016

- 352 F OR C LERK R EFERENCE O NLY