State v. Morales, 20030107.

• Decision Date: 14 January 2004
• Docket Number: No. 20030107.,20030107.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Paul Genaro Maldonado MORALES, Defendant and Appellant.
• Court: North Dakota Supreme Court

673 N.W.2d 250

2004 ND 10

STATE of North Dakota, Plaintiff and Appellee, v. Paul Genaro Maldonado MORALES, Defendant and Appellant.

No. 20030107.

Supreme Court of North Dakota.

January 14, 2004.

Trent W. Mahler (argued) and Lori S. Mickelson (on brief), Assistant State's Attorneys, Fargo, ND, for plaintiff and appellee.

Monty G. Mertz, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Paul Gerano Maldonado Morales appeals from a judgment of conviction of felony criminal trespass and simple assault of a police officer. We affirm.

I.

[¶ 2] On the night of July 23, 2002, Morales was present at the apartment of Pixie Daugherty in Fargo, North Dakota, along with several other people. Initially, Morales was a guest of Daugherty. However, later in the evening, someone at the apartment called the police and asked them to remove Morales from the premises. Several Fargo police officers arrived at the scene and informed Morales he was no longer welcome and would have to vacate the premises. Police informed Morales if he returned to the apartment he would be trespassing and subject to arrest. At the trial, the officers who were present during the first encounter testified Morales appeared to understand the instruction and left the premises.

[¶ 3] Later on that evening, Morales returned to Daugherty's residence and entered through a window in Daugherty's bedroom while she slept. Upon discovering Morales had re-entered the premises, someone at the house called the Fargo police, asking for him to be removed. When officers arrived at the scene, Morales retreated into Daugherty's bedroom and shut the door. The officers approached the door and informed Morales he was under arrest. At that time, officers heard the sounds of personal property being destroyed in the bedroom. Officers further testified that when one of the officers opened the door, Morales threw several objects at him. Morales threw a portable fan, which crashed against the wall. One of the officers testified he was struck on the back of his neck with a mug thrown by Morales. After the officer was struck with the mug, the officer retreated into the living room. Another officer attempted to enter the bedroom, and Morales threw a telephone and a hammer at that officer.

[¶ 4] Additional officers arrived at the scene, and they were eventually able to subdue Morales with pepper spray. Morales resisted arrest, but was secured and removed from the apartment.

[¶ 5] On July 25, 2002, Morales was charged with simple assault of a police officer, criminal trespass, preventing arrest, criminal mischief, and two counts of simple assault. At a jury trial on March 25, 2003, Morales was found guilty of simple assault of a police officer, criminal trespass, and preventing arrest. Morales appealed.

II.

[¶ 6] Morales was convicted of a class C felony criminal trespass. Morales argues the district court erred when it failed to separately instruct the jury on the issue of whether Morales was licensed or privileged to be on the property. Morales argues he was licensed or privileged to be on the property because his name was on a lease and he was never lawfully evicted from the premises by the landlord in a legal action. At trial, Morales requested an instruction on license or privilege, but the district court refused.

[¶ 7] The applicable statute provides:

1. A person is guilty of a class C felony if, knowing that he is not licensed or privileged to do so, he enters or remains in a dwelling or in highly secured premises.

2. A person is guilty of a class A misdemeanor if, knowing that he is not licensed or privileged to do so, he:

a. Enters or remains in any building, occupied structure, or storage structure, or separately secured or occupied portion thereof; or

b. Enters or remains in any place so enclosed as manifestly to exclude intruders.

3. A person is guilty of a class B misdemeanor if, knowing that that person is not licensed or privileged to do so, that person enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters. A person who violates this subsection is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.

4. A person is guilty of a class B misdemeanor if that person remains upon the property of another after being requested to leave the property by a duly authorized person. A person who violates this subsection is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.

N.D.C.C. § 12.1-22-03.

[¶ 8] "A defendant is entitled to a jury instruction on a legal position if there is some evidence to support it." State v. Larson, 554 N.W.2d 655, 656 (N.D. 1996) (citing State v. Thiel, 411 N.W.2d 66, 67 (N.D.1987)). The district court is not required to instruct the jury in specific language requested by the defendant, even if it is a correct statement of the law. State v. Farzaneh, 468 N.W.2d 638, 643 (N.D.1991) (citing State v. Erban, 429 N.W.2d 408, 413 (N.D.1988); State v. White, 390 N.W.2d 43, 45 (N.D.1986); State v. Dilger, 338 N.W.2d 87 (N.D.1983)).

[¶ 9] The instruction given to the jury on the trespass charge read as follows:

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

(1) On or about the 24th day of July, 2002, in Cass County, North Dakota, the Defendant, Paul Genaro Maldonado Morales, willfully entered or remained in a certain dwelling; namely, the dwelling of Pixie L. Daugherty; and

(2) The Defendant did so, knowing that the Defendant was not licensed or privileged to do so.

[¶ 10] Section 12.1-22-03(1), N.D.C.C., provides a person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in a dwelling. "Privilege is the freedom or authority to act and to use property." State v. Ronne, 458 N.W.2d 294, 297 (N.D.1990) (citing State v. Mehralian, 301 N.W.2d 409 (N.D.1981); State v. Haugen, 458 N.W.2d 288 (N.D.1990)). In Ronne, this Court stated "privilege" in a burglary statute means a person is privileged if "he may naturally be expected to be on premises often and in the natural course of his duties or habits." Id. (citing State v. Kreth, 150 Vt. 406, 553 A.2d 554 (1988)). Morales argues he was licensed or privileged to enter the premises and remain there because his name was on a lease signed by himself and Daugherty, and he was never formally evicted. We find this argument unpersuasive.

[¶ 11] At trial two documents described as "leases" were offered as exhibits. The lease offered by Morales was dated April 26, 2001. The lease offered by Morales had signatures from himself and Daugherty; however, the lease was not signed by the landlord. The lease offered by the State was dated May 1, 2001. This document was signed by Daugherty and Daugherty's landlord. Morales argued the May 1, 2001, contract between Daugherty and the landlord was ineffective because it required a novation from all parties, and therefore, the April 26, 2001, lease was the only effective lease, giving Morales a license or privilege to be on the property.

[¶ 12] North Dakota law defines a novation as "the substitution of a new obligation for an existing one." N.D.C.C. § 9-13-08. Further, the code provides that a "[n]ovation is made by contract and is subject to all the rules concerning contracts in general." N.D.C.C. § 9-13-09. Under general contract law, the requirements for a novation are: a previous valid obligation, an agreement of all the parties to a new contract, and the extinguishment of the old obligation for a new, valid obligation. Black's Law Dictionary 1064 (6th ed.1991). The lease offered by Morales has signatures from Daugherty and Morales; however, it was never signed by the landlord. The document produced by Morales is not a binding rental contract and is therefore not capable of being the subject of a novation.

[¶ 13] There is other evidence demonstrating Morales knew he did not belong on the property. Daugherty testified she was asleep at the time Morales entered the apartment through a bedroom window and she never gave him any indication to think he was allowed to enter the premises after the police had been called earlier in the evening. At trial, Fargo police officers testified Morales did not claim he thought he was licensed or privileged to enter the home on either the first or second occasion they were called to the Daugherty residence to remove Morales. Daugherty testified Morales had not lived in the apartment for at least one year. Finally, when Morales entered the premises the second time, he entered surreptitiously through a window in Daugherty's bedroom. These actions indicate Morales knew he was not licensed or privileged to enter the property and remain there.

[¶ 14] Morales was not entitled to a jury instruction on the issue of license or privilege to enter the premises, because he had no evidence proving he was licensed or otherwise privileged to remain on the premises.

III.

[¶ 15] Morales argues the district court erred in refusing to instruct the jury on the lesser offense of criminal trespass under N.D.C.C. § 12.1-22-03(4), a misdemeanor offense, which does not require the element of knowing he was not licensed or privileged to be there.

[¶ 16] There is no constitutional right to a jury instruction on a lesser included offense. State v. Piper, 261 N.W.2d 650, 653 (N.D.1977) (citing Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). "A determination that an offense is a lesser included offense does not necessarily require that a lesser included offense instruction be given upon request."...