State v. Ronne, 890320

• Decision Date: 03 July 1990
• Docket Number: No. 890320,890320
• Citation: 458 N.W.2d 294
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michelle RONNE, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 294

458 N.W.2d 294

STATE of North Dakota, Plaintiff and Appellee, v. Michelle RONNE, Defendant and Appellant.

Crim. No. 890320.

Supreme Court of North Dakota.

July 3, 1990.

Melody R.J. Jensen, Asst. State's Atty., Fargo, for plaintiff and appellee. Submitted on brief.

DeLayne G. Nassif (argued), Fargo, for defendant and appellant.

ERICKSTAD, Chief Justice.

Michelle Ronne appeals from a judgment of conviction entered upon a jury verdict finding her guilty of criminal trespass in violation of Section 12.1-22-03(1), N.D.C.C. ¹ We affirm.

Ronne and Kevin Eggen had a three-year-old son, Lucas, from a previous relationship. At the time of the conduct which precipitated this criminal action, Kevin was involved in a relationship with Linda Porter. According to Ronne, she went to Porter's house in Mapleton, North Dakota, on June 4, 1989, at approximately 3:30 a.m. to get Lucas. Ronne testified that she and Kevin had made arrangements for Kevin to have visitation with Lucas until 5:00 p.m. on the previous day and that Kevin failed to return Lucas at the arranged time. Ronne testified that after learning that Kevin and Lucas were at Porter's house, she went there and entered the house after hearing Kevin yell, "come in." Ronne testified that, after entering the house, she became involved in a confrontation with Porter during which Porter cut Ronne on the leg with a knife. Ronne testified that Kevin then pushed her out the door.

According to the State, Ronne entered Porter's house without permission. Porter and Kevin testified that they were asleep in the house and did not hear Ronne knock on the door. They testified that they did not give Ronne permission to enter the house. Porter testified that she awoke to hear a voice calling "Kevin, Kevin, Kevin." Eggen testified that he awoke and recognized Ronne's voice. Porter and Kevin testified that Ronne then turned a light on in the bedroom and came at Porter. Porter and Kevin both testified that Kevin had to physically remove Ronne from the house but that she forced her way back in and he had to again physically remove her. Kevin testified that Ronne cut her leg when she fell against the corner of the garage while he was removing her from the house.

When Lieutenant Arland Rasmussen of the Cass County Sheriff's Department arrived at the scene, he took a statement from Ronne that she knocked on the front door but received no answer and then entered the house. On September 8, 1989, Ronne made another statement to Deputy Rod Kitzan that she knocked on the front door, heard no answer, and then entered the house. A jury found Ronne guilty of criminal trespass, and she has appealed.

Ronne argues that she was "excused from any penalty for entering the premises" because of her anxiety and worry for Lucas. She contends that the trial court erred in refusing to give the following requested jury instruction on excuse from North Dakota Pattern Jury Instruction Criminal No. 2070:

"A person's conduct is excused if she believes that the facts are such that her conduct is necessary and appropriate, even though her belief is mistaken."

A defendant is entitled to an instruction based on a legal defense if there is evidence presented at trial to support that defense. State v. Thiel, 411 N.W.2d 66 (N.D.1987). A defendant is entitled to have the jury instructed on all defenses for which there is any support in the evidence, whether the defenses are consistent or inconsistent. Id.

Section 12.1-05-08, N.D.C.C., provides the basis in our criminal code for claiming the defense of "excuse":

"Excuse. A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative defense according to which type of defense would be established had the facts been as the person believed them to be."

That section is part of ch. 12.1-05, N.D.C.C., which defines conduct that is justified or excused under our criminal code. Sections 12.1-05-02 through 12.1-05-07, N.D.C.C., describe the types of conduct that are justified and reflect society's determination that the actual existence of certain circumstances makes proper and legal what otherwise would be criminal conduct. State v. Leidholm, 334 N.W.2d 811 (N.D.1983). In contrast, excused conduct, as defined in Section 12.1-05-08, N.D.C.C., recognizes the criminality of conduct but excuses it because the actor reasonably but mistakenly believed that circumstances actually existed which would justify that conduct. Id.

Section 12.1-05-08, N.D.C.C., limits the excuse defense to a mistaken belief that the facts are such that an actor's conduct is necessary for any of the "purposes which would establish a justification or excuse" under ch. 12.1-05, N.D.C.C. In determining whether or not the actor's mistaken belief was reasonable, a subjective standard of reasonableness applies. State v. Leidholm, supra. Thus, a defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification in ch. 12.1-05, N.D.C.C., are present.

In this case, Ronne asserts that her anxiety over and worry for Lucas entitled her to an instruction on excuse premised upon defense of others, which is a justification under Section 12.1-05-04, N.D.C.C.:

"Defense of others. A person is justified in using force upon another person in order to defend anyone else if:

"1. The person defended would be justified in defending himself; and

"2. The person coming to the defense has not, by provocation or otherwise, forfeited the right of self-defense."

However, Ronne did not request an accompanying instruction on defense of others under Section 12.1-05-04, N.D.C.C., or on any other conduct which constitutes a justification under ch. 12.1-05, N.D.C.C. ² Additionally, there was no evidence presented at trial that Lucas was in any danger so that he would have been justified in defending himself, or that Ronne reasonably believed that Lucas would have been justified in defending himself. ³ Ronne's explanation for entering Porter's home does not constitute one of the "purposes which would establish a justification or excuse" under ch. 12.1-05, N.D.C.C., and she was therefore not entitled to the requested jury instruction.

Ronne also contends that she was "excused from any penalty for entering the premises" because Kevin invited her to come into the house when he yelled "come in." Her argument is essentially that the jury verdict was not supported by the evidence.

Our review of sufficiency of the evidence claims is well established. On appeal the defendant must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Frey, 441 N.W.2d 668 (N.D.1989). We do not substitute our judgment for that of the jury where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction. State v. Tininenko, 371 N.W.2d 762 (N.D.1985). It is the function of the jury to weigh the evidence and judge the credibility of witnesses. Id.

Section 12.1-22-03(1), N.D.C.C., provides that 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. Mehralian, 301 N.W.2d 409 (N.D.1981); cf. State v. Haugen, 458 N.W.2d 288 (N.D.1990) ["privilege" in burglary statute means that 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]; State v. Kreth, 150 Vt. 406, 553 A.2d 554 (1988) [in criminal trespass statute "licensed" refers to a consensual entry while "privileged" refers to a nonconsensual entry where the actor may naturally be expected to be on the premises often and in the normal course of his duties or habits]; Commonwealth of Pennsylvania v. Corbin, 300 Pa.Super. 218, 446 A.2d 308 (1982) ["licensed or privileged" phrase in a burglary statute means any person is privileged if he may naturally be expected to be on the premises often and in the natural course of his duties or habits].

In this case the evidence, viewed in a light most favorable to the verdict, reveals that Ronne was not licensed or privileged to enter Porter's house. Both Porter and Kevin testified that they were both asleep when Ronne entered the house and neither of them told Ronne to "come in." At trial both Deputy Kitzan and Lieutenant Rasmussen of the Cass County Sheriff's Department testified that, in a prior statement to each of them, Ronne did not indicate that someone had told her to "come in" the house. Both officers testified that Ronne's prior statements indicated that she heard no answer after she knocked, and that she then entered the house. Although Ronne testified at trial that Kevin told her to "come in," the jury heard all of the testimony and was able to observe the demeanor of each of the witnesses and to judge their credibility. The jury obviously did not accept Ronne's testimony. Viewed in the light most favorable to the verdict, the evidence was sufficient to support the jury verdict that Ronne entered Porter's house without license or privilege.

Ronne contends that the underscored portion of the following instruction was erroneous:

"This is a criminal action brought to this Court by the filing of an Information charging the Defendant, Michelle Ronne, with having committed the offense of criminal trespass within Cass County,...