MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME	39

Docket: 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	 	Section	 1252,	 however,	 had	 been	 repealed	 and	 replaced	 nearly	eight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.”).
2

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.
3

[¶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	
4

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.
5

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.
6

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	
7

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