Docket:            Oxf-03-647

Argued:            April 13, 2004

Decided:           June 17, 2004

Panel:              SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

v.

MICHAEL PATTERSON

CLIFFORD, J.

         [¶1]  Michael Patterson appeals from a judgment of conviction for assault (Class D), 17-A M.R.S.A. § 207(1)(A) (Supp. 2003),[1] entered in the District Court (Rumford, McElwee, J.) after a nonjury trial.  Patterson contends that the District Court erred when it rejected his 17-A M.R.S.A. § 105 (1983) defense of property defense, which he asserts was applicable in the circumstances of this case.  The record is unclear and conflicting as to whether the court applied the section 105 defense and rejected it, or whether the court concluded that the defense could not be applied as a matter of law.  Because, on the evidence presented in this case, the application of the section 105 defense of property defense is not precluded as a matter of law, we vacate and remand for the court to clarify its determination as to the application of section 105.

I.  BACKGROUND

         [¶2]  This case concerns two incidents arising out of a domestic dispute between Patterson and his girlfriend.  At the time of the incidents, Patterson and his girlfriend had dated for about six years, and had resided together in the home where the assault occurred for about two years.  The title to the residence was in Patterson's name alone.  They had one child together, who was four years old and resided with the couple.  Patterson's girlfriend had a child from a previous relationship, who also lived with them.

         [¶3]  On June 30, 2003, Patterson noticed a stain on some light cream‑colored carpeting that he had purchased for the home a week before.  Patterson was upset about the stain and verbalized his anger while he attempted to clean it up.  Patterson's reaction to the stain upset the girlfriend, who then took a slice of pizza and began rubbing it into the carpet.  Patterson picked her up and carried her out the door and onto the pavement at the base of their steps.  He went back inside, leaving the door to the home unlocked.  At some point, the girlfriend followed Patterson back into the house and told the children to go to the car and wait for her.

         [¶4]  Patterson and his girlfriend resumed their argument after she reentered the home.  As the argument grew more heated, she threw objects and pushed over items, spilling the contents on the kitchen floor.  At some point, she made statements threatening suicide.  Patterson then grabbed her and brought her to the floor.  The girlfriend's daughter intervened by jumping on Patterson's back until he got off the girlfriend.  Then, the girlfriend and her daughters left the home.

         [¶5]  Concerned about the suicidal statements his girlfriend had made, and the fact that she was driving around with children in the car while unstable, Patterson called the police.  The police pulled the girlfriend over while she was driving.  She went to the hospital to speak to a crisis worker.

         [¶6]  On June 30, 2003, Patterson was charged with two counts of assault, pursuant to 17‑A M.R.S.A. § 207(1)(A).  At trial, Patterson contended that his actions with regard to both incidents were justified; the first incident pursuant to 17-A M.R.S.A. § 105, and the second incident pursuant to 17-A M.R.S.A. § 106(6) (1983).[2]

         [¶7]  The District Court made findings on the record concerning each of the two separate incidents, which the court considered separate assaults.  With respect to the second assault, the District Court found that the section 106 defense of the use of force to prevent a suicide applied, and acquitted Patterson of the second assault.  The court found:

[B]ased on [the girlfriend's] testimony as to how upset she was, the intentional acts she did in knocking property to the floor, perhaps stating things and stating - - she made statements that were consistent with a suggestion of suicide.  I find that Section 106 applies to the second aspect of this case, and I find no assault based on that . . . it's ironic that that was the most serious physical altercation between the parties in terms of degree of physical contact.  However, I don't find it to be the most significant incident.

As to the first incident, however, the District Court found that Patterson's assault was not justified pursuant to section 105:

[The] laws of our State leave something of a void for what has become the very common practice of adults living together as families without the benefit of marriage. . . . The unfortunate part of it is it ends up with people living with what amounts to separate ownership of property when, in a marital situation, that property is virtually deemed to be marital property under most circumstances.  And in this I find a long relationship and that you indeed acquired record title to a home, and that you exclusively purchased some carpet for that home. . . .  I do not find that a 105 defense applies here.  Notwithstanding [the girlfriend's] intentional goading of Mr. Patterson, I do not find her actions with regard to the pizza to rise to the level of criminal mischief for the purpose of a criminal statute. . . .  But the bottom line is you folks were living together and people who live together, they share furniture.  They share carpets.  They share bedding.  They share everything. . . .  And for you to make a distinction that night or in court here today that there's a legal defense under 105 for defense of destruction of property, I find that that does not apply in this particular case.  And there is no defense available for your conduct, in my opinion.

         [¶8]  The District Court went on to state:

[W]hat [the girlfriend] did with regard to the pizza [was] inappropriate.  It was intentional goading.  It was done in front of the kids, and the only possible result it could have had was to escalate a very unpleasant situation.  I understand that [the girlfriend] was acting under great stress that related to her father's illness, work, children.  Modern lives today are very, very stressful.  The bottom line,  Mr. Patterson, is that regardless of conduct