Summary
The North Dakota Supreme Court reversed Richard Starke’s conviction for terrorizing and remanded for a new trial. The court held that the district court erred by refusing to instruct the jury on defense of premises under N.D.C.C. § 12.1-05-06, because an invited person may arguably become a trespasser by unlawfully remaining after being told to leave. The court concluded that the evidence, viewed in the light most favorable to Starke, was sufficient to warrant the instruction.
Topics
Practice areas
Questions Presented
- Whether the district court erred by refusing to instruct the jury on defense of premises under N.D.C.C. § 12.1-05-06.
- Whether the defense-of-premises issue was properly preserved for appeal.
- Whether the failure to give the instruction constituted obvious error if the issue was not preserved.
- Whether denial of post-conviction relief was proper based on alleged ineffective assistance of counsel concerning preservation of the issue.
Holdings
- Defense of premises is not limited to situations involving an unlawful entry; the statute also encompasses an unlawful remaining or other trespass on the premises after a person has been asked to leave.
- Starke was entitled to a defense-of-premises instruction because, when the evidence was viewed in the light most favorable to him, it raised a reasonable doubt whether his use of force was justified to terminate an alleged trespass.
- Threats or menacing conduct may constitute 'force' under North Dakota's justification statutes even when no physical contact occurs.
Key quotations
“Defense of premises is not limited to the unlawful entry form of trespass under N.D.C.C. § 12.1-05-06.” (¶ 15)
“Under these circumstances, the jury should have been given the opportunity to decide whether or not Starke’s use of force was justified in the defense of his premises.” (¶ 20)
Factual background
Richard Starke, a 79-year-old man living alone and in weak health, called two tow-truck operators to remove his pickup from snow outside his home. After disputing the towing charge, Starke told the operators to leave and allegedly pointed to a rifle and later a handgun, stating that each was loaded; the operators testified that he pointed the handgun at them. Starke and his caregiver testified that he merely placed the handgun on the table, although Starke admitted telling the operators it was loaded. The operators remained briefly after being told to leave to request identification for the check Starke had written.
Procedural history
Starke was charged with terrorizing after an incident involving two tow-truck operators in his home. A jury convicted him, and the district court sentenced him to three years in prison with one year suspended under the armed-offender sentencing provisions. Starke also sought post-conviction relief based on ineffective assistance of counsel concerning preservation of the jury-instruction issue. On appeal, the State conceded that the defense-of-premises issue had been properly preserved, eliminating the need to address obvious error or ineffective assistance.
Remand instructions
Reverse Starke's conviction for terrorizing and remand for a new trial at which the jury must be given an appropriate defense-of-premises instruction if the evidence remains sufficient to support it.