State v. McMillan

• Decision Date: 29 May 2009
• Docket Number: No. 2008–278.,2008–278.
• Citation: 158 N.H. 753,973 A.2d 287
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Ulysses McMILLAN.

158 N.H. 753

973 A.2d 287

The STATE of New Hampshire

v.Ulysses McMILLAN.

No. 2008–278.

Supreme Court of New Hampshire.

Argued: Feb. 12, 2009.

Opinion Issued: May 29, 2009.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

BRODERICK, C.J.

The defendant, Ulysses McMillan, appeals his convictions for burglary, see RSA 635:1 (2007), and first degree assault, see RSA 631:1 (2007), following a jury trial in Superior Court (Morrill, J.). We affirm.

The record supports the following facts. In March 2007, the defendant and Justine Mollomo co-signed a lease for an apartment. Sometime prior to August 2007, Mollomo asked the defendant to move out. She removed all of his clothing and personal belongings from the apartment, and he no longer had a key. However, the defendant continued to visit the apartment on a regular basis.

On August 3, 2007, the defendant entered the apartment by climbing up the fire escape and entering through the bathroom window. Aaron Davis, an acquaintance of Mollomo, was watching television in Mollomo's living room when he heard a loud noise, and subsequently saw the defendant coming out of the bathroom. There was a physical altercation between the men, and Davis was eventually able to remove the defendant from the apartment. Soon thereafter, Davis left the apartment, and Mollomo locked the door behind him. Within minutes of Davis' departure the defendant returned, kicked the door in, and assaulted Mollomo. Mollomo sustained serious injuries to her face and neck.

At trial, the State introduced into evidence the recordings of two emergency 911 calls made by Mollomo. Prior to trial, the court heard argument regarding their admissibility, and, over the defendant's objection, ruled in favor of the State. The trial court, however, agreed to give the jury the limiting instruction proposed by the defendant. For reasons unclear from the record, the limiting instruction was never given to the jury.

At the close of evidence, the defendant offered a proposed jury instruction on the elements of burglary. The trial court, however, gave its own instruction, to which the defendant objected. The defendant was subsequently convicted of both burglary and first degree assault. This appeal followed.

On appeal, the defendant first contends that the trial court erred by admitting the 911 tapes without providing a limiting instruction. This issue, however, was not preserved for appeal.

As a general rule, we will not consider grounds of objections not specified or called to the court's attention at the trial. This requirement, grounded in common sense and judicial economy, affords the trial court an opportunity to correct an error it may have made and is particularly appropriate where an error involves a jury instruction.

State v. Eldredge, 135 N.H. 562, 564, 607 A.2d 617 (1992) (quotation omitted). Here, the defendant did not bring to the trial court's attention its failure to provide the jury with the previously agreed upon limiting instruction at the time the tapes were introduced, or any time thereafter. Therefore, this issue has not been preserved for appeal, and we decline to address it.

The defendant next argues that the trial court's jury instruction on the elements of burglary was erroneous because: (1) it failed to give proper weight to the defendant's status as a leaseholder; and (2) it did not require the jury to determine whether the defendant knew he was not licensed or privileged to enter the premises. "The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. Johnson, 157 N.H. 404, 407, 951 A.2d 146 (2008) (brackets and quotation omitted). When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. Id. We determine whether the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case. Id. Whether or not a particular jury instruction is necessary, and the scope and wording of the instruction, is within the sound discretion of the trial court, and we review the trial court's decisions on these matters for an unsustainable exercise of discretion. Id.

RSA 635:1, I, provides that a person is guilty of burglary if he enters an occupied section of a building with purpose to commit a crime therein, unless the premises are at the time open to the public or "the actor is licensed or privileged to enter." The trial court's instruction on the "licensed or privileged" element stated:

Now, a person who is licensed or privileged—a person who is licensed or privileged to enter is not guilty of a burglary. A license or privilege does not have to be explicit. A person has permission to enter if he would naturally be expected to be in the premises in the normal course of his habits or duties. The permission to enter may be limited to a time when he would be reasonably expected to be on the premises. The permission may also be limited to part of the premises.

In deciding whether the Defendant was licensed or privileged, you may consider among other factors his legal title, his relationship with the other party, and the length of their separation, his current residence, the circumstances of his prior entries, the type and amount of his personal property within the apartment, and his method of entry. You should consider all the evidence in this case and decide whether the State has proven beyond a reasonable doubt that the Defendant did not have a license or privilege to enter the premises.

The defendant first argues that the trial court's instruction did not properly advise the jury as to the relevance of his leaseholder status on the issue of license or privilege to enter. He asserts that the trial court's instruction improperly focused the jury's consideration on whether he had permission to enter the apartment, rather than his legal right to do so as a leaseholder. The defendant further contends that "one who has a formal right to enter a place cannot be convicted of burglary for exercising that right."

To the extent the defendant raises an issue of statutory interpretation, our review is de novo. State v. Offen, 156 N.H. 435, 437, 938 A.2d 879 (2007). We are the final arbiter of the intent of the legislature as expressed in the words of a statute as a whole. State v. Simone, 151 N.H. 328, 330, 856 A.2d 17 (2004). Our task is to construe Criminal Code provisions according to the fair import of their terms and to promote justice. Id. In doing so, we look first to the plain language of the statute to determine legislative intent. Id.

RSA 635:1 does not define the phrase "licensed or privileged." However, we have previously interpreted the term "privileged" in this context to mean whether a person "may naturally be expected to be on the premises often and in the normal course of his duties or habits." State v. Thaxton, 120 N.H. 526, 528, 419 A.2d 392 (1980). Further, "a person who is privileged may still commit burglary if he enters at a time when he would not reasonably be expected to be present or if he goes into a room as to which his privilege does not extend." Id. at 529, 419 A.2d 392.

The defendant argues that, while this definition "may be proper" when a person claims privilege by virtue of permission to enter the premises, it does not extend to a person claiming to possess an independent "formal, legal license" to be there. The defendant thus contends that the trial court erred in its instruction because it allowed the jury to consider whether he would naturally be expected to be in the apartment without giving proper weight to his legal right to be there as a co-lessee. We disagree.

The defendant's argument rests upon the assumption that a leasehold is equivalent to a license to enter the premises under RSA 635:1, I. Under the defendant's interpretation, his interest in the apartment pursuant to the lease is dispositive on the issue of license or privilege, leaving no room to consider the underlying circumstances of his entry. Simply put, regardless of his actual possession of the premises or any other relevant fact, his status as a leaseholder would prevent a conviction for burglary. We do not believe the legislature intended this result.

It is generally accepted that burglary statutes are intended to protect the occupant or possessor of real property. People v. Glanda, 5 A.D.3d 945, 774 N.Y.S.2d 576, 581 (2004) ; Turner v. Com., 33 Va.App. 88, 531 S.E.2d 619, 621 (2000). At common law, "the crime of burglary was considered to be an offense against the security of habitation or occupancy. It was not designed to protect property or ownership, rather, the notion that people should be able to feel secure in their homes." State v. Hagedorn, 679 N.W.2d 666, 669 (Iowa 2004) (brackets and ellipsis omitted); see also Turner, 531 S.E.2d at 621. Indeed, many jurisdictions have determined that an ownership interest is not conclusive on the question of license or privilege to enter the property for purposes of burglary. See, e.g., Hagedorn, 679 N.W.2d at 670 (privilege to enter property is not determined solely by ownership interest); State v. Lilly, 87 Ohio St.3d 97, 717 N.E.2d 322, 327 (1999) ("Because the purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive."); Com. v. Majeed, 548 Pa. 48, 694 A.2d 336, 338 (1997) ("[L]egal ownership is not synonymous with license or privilege."); Turner, 531 S.E.2d at 622 (defendant husband's proprietary interest inferior to wife's possessory interest); People v. Scott, 195 Misc.2d...