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State v. Corey Child
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 198
Docket:	Oxf-98-710
on Briefs:	November 30, 1999
Decided:	December 30, 1999




	[¶1]  Corey Child appeals from a judgment entered in the Superior
Court (Oxford County, Delahanty, J.) following a jury trial in which he was
found guilty of burglary (Class B) in violation of 17-A M.R.S.A. § 401 (1983 &
Supp. 1998){1} and aggravated assault (Class B) in violation of 17-A M.R.S.A.
§ 208 (1983).{2}  On appeal, Child challenges the sufficiency of the evidence
and contends that the trial court committed obvious error in its jury
instruction on the elements of burglary.  We affirm.
	[¶2]  The jury heard the following relevant testimony.  In early June
1998, Christopher Jack went to Adam Boutot's house and engaged in a
physical altercation with Boutot.  The subject of the altercation was a mutual
girlfriend, Tabitha Pylican.  Boutot and Pylican discussed the altercation with
Child and Clark Bonney.  Both Child and Bonney were upset by Jack's actions
and told Pylican that "they were going to pay [Jack] back for what he did to
Boutot."  Pylican warned Jack of this threat.
	[¶3]  On June 8, 1998, Child and Bonney went to Jack's residence. 
On seeing them outside, Jack retreated to his bedroom and had a friend,
Alan Wing, answer the door.  Wing opened the door slightly, braced his foot
against it, and stated that Jack was not home.  Child and Bonney pushed
open the door, causing Wing to fall back into a fish tank.  Wing ended up on
the floor, and testified that he was kicked several times.  Looking through
the crack at the bottom of his bedroom door, Jack saw boots kicking Wing
and confirmed Wing's testimony.  As a result of the altercation, Wing was
required to undergo surgery to repair numerous fractured bones in his face.
	[¶4]  Bonney testified that Child was the only person who kicked Wing. 
After the altercation, Child told an acquaintance, Corey Williams, "[l]ook at
my boots.  I kicked [Wing's] nose right off his face."  Williams then saw blood
on the toe of Child's right boot.  Child also later told Boutot that he had to
get rid of his boots and did so by burning them and throwing the remains
	[¶5]  When examining the sufficiency of the evidence, we review the
evidence "in the light most favorable to the State to determine whether a
trier of fact rationally could find beyond a reasonable doubt every element of
the offense charged." See State v. Chad B., 1998 ME 150, ¶ 11, 715 A.2d
144, 147-148 (quoting State v. Beaudet, 1997 ME 133, ¶ 4, 696 A.2d 436,
438).  The factfinder is entitled to "draw all reasonable inferences from the
evidence," State v. Michaud, 1998 ME 251, ¶ 11, 724 A.2d 1222, 1228
(quoting State v. Wells, 658 A.2d 654, 656 (Me. 1995)), and we will vacate a
guilty verdict only where "no trier of fact rationally could find proof of guilt
beyond a reasonable doubt."  State v. Durgan, 467 A.2d 165, 166 (Me. 1983)
(quoting State v. Flick, 425 A.2d 167, 169 (Me. 1981)).
	[¶6]  The testimony, read in the light most favorable to the
prosecution, shows that Child went to Jack's residence to pay Jack back for
causing harm to Boutot, forced his way into Jack's residence and proceeded
to physically attack Wing.  The attack caused Wing to suffer and undergo
surgery for numerous broken facial bones.  After the altercation, Child
discarded his boots to cover up his actions and even boasted to Williams
about kicking Wing.  Thus, it is clear that the foregoing testimony provided
the jury with sufficient evidence that Child committed both burglary and
aggravated assault.
	[¶7]  Child's second contention is that the trial court's instruction to
the jury on the elements of burglary constituted error.  Because Child made
no objection to this instruction at trial, we review the instruction for obvious
error pursuant to M.R. Crim. P. 52(b).{3}  See State v. Googins, 640 A.2d 1060,
1062 (Me. 1994).  To vacate a judgment on the basis of obvious error, we
must determine that "the offending instruction when reviewed with the
charge as a whole constituted highly prejudicial error tending to produce
manifest injustice."  Id. (quoting State v. Weidul, 628 A.2d 135, 137 (Me.
1993)) (emphasis added).
	[¶8]  We have broken down the burglary statute into four elements that
the prosecution must prove beyond a reasonable doubt:  "(1) entry (2) of a
structure (3) with the knowledge that the entry is not licensed and (4) with
the intent to commit a crime within the structure."  State v. Thibeault, 402
A.2d 445, 448 (Me. 1979).
	[¶9]  Child contends that the trial court erred in its instruction on the
fourth element of burglary, intent to commit a crime within the structure. 
The disputed sentence of the instruction reads, "the culpable mental state
for burglary must be intent in knowing that he was not licensed to commit a
crime, and knowing that he was not licensed to be there."  (Emphasis
added.)  This statement, when viewed in isolation, is erroneous.  It misstates
the law by permitting a jury to find intent simply by finding that Child knew
he was not licensed to commit a crime.  It ignores the importance of the
timing of the intent because one is never licensed to commit a crime.
	[¶10]  When reviewed with the instructions as a whole, however, the
disputed statement falls short of obvious error.  The trial court accurately set
out the fourth element of burglary on four separate occasions in its
instructions.  First, the court stated that "[a] person is guilty of burglary if he
enters a structure knowing that he is not licensed or privileged to do so
with the intent to commit a crime therein."  (Emphasis added.)  Second,
the trial court addressed the timing of the intent to commit a crime
element, stating:
In order to find each of the, or either of the defendants guilty of
the offense of burglary, you must be satisfied that the State has
proven the following facts to you beyond a reasonable doubt: 
That . . . at the time the defendant entered he had the intent,
that is the culpable mental state, to commit a crime therein.  
(Emphasis added.)  Third, the trial court restated the importance of the 

timing of the intent to commit a crime element:
So the State must prove to you that he entered a structure . . .
and at the time they entered they had the intent to commit a
crime.  Not that they formed the intent afterwards, but at the
time that they in fact did enter.  
(Emphasis added.)  Finally, the jury asked the trial court for a clarification
on the timing of the intent to commit a crime element of burglary and the
court responded, "[i]t is not burglary if a person enters without permission
but does not have the intent to commit the crime when he enters and a
crime occurs after entry."  (Emphasis added.)
	[¶11]  These four statements are significant in that they accurately
state the "intent to commit a crime" element of burglary.  More
importantly, three of these statements specifically address the significance
of the timing of that intent, negating any potential misunderstanding
created by the challenged statement.  For these reasons, the trial court
effectively negated its erroneous statement on intent.
	[¶12]  Reviewing the instructions as a whole, the trial court accurately
stated the elements of burglary several times.  As a result, the challenged
sentence, when considered with the instructions as a whole, does not
constitute obvious error producing manifest injustice.
	The entry is:

			Judgment affirmed.

Attorneys for State: Norman R. Croteau, Esq. Joseph M. O'Connor, Esq. P O Box 179 South Paris, ME 04281 Attorney for defendant: Ron E. Hoffman, Esq. 8 Franklin Street Rumford, ME 04276
FOOTNOTES******************************** {1} . The pertinent portions of Section 401 provide: 1. A person is guilty of burglary if he enters or surreptitiously remains in a structure, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein. 2. Burglary is classified as: . . . . B. A Class B crime if: . . . . (3) The violation was against a structure that is a dwelling place. 17-A M.R.S.A. § 401 (1983 & Supp. 1998). {2} . The pertinent portions of Section 208 provide: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or . . . . C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim. 2. Aggravated assault is a Class B crime. 17-A M.R.S.A. § 208 (1983). {3} . Rule 52(b) provides: (b) Obvious Error. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.