People v. McNeese

Justice SCOTT

dissenting:

The “make-my-day” statute was most certainly intended to immunize homeowners who exercise their constitutional right to bear arms in self-defense of person and home. In accordance with that statute, the use of physical force by a homeowner against an intruder who enters with the intent of causing bodily harm to the homeowner is justified. I believe the majority’s conclusion that an intruder who “unlawfully enters” in violation of our criminal code does not commit an “unlawful entry” under the “make-my-day” statute is untenable. Moreover, although its holding today does not disarm homeowners, the majority subjects those acting in self-defense of their person and home to the very liability that our General Assembly sought to avoid. Accordingly, I dissent.

In 1985, the Colorado General Assembly enacted and Governor Lamm signed into law “The Home Protection Bill.”1 In material part, that statute provides:

Use of deadly physical force against an intruder. (1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in *318addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how.slight, against any occupant.

§ 18-1-704.5, 8B C.R.S. (1986). Subsections (3) and (4), not set forth here, grant any occupant of a dwelling using physical force immunity from criminal and civil liability, respectively.

The majority, without justification, limits the grant of immunity otherwise available under our “make-my-day” statute. The majority does so not on the basis of inexorable constitutional or statutory command, but because it relies upon “the consequences of a particular construction in determining the General Assembly’s intent.” Maj. op. at 310.

The majority reaches its result, however, by avoiding the straightforward language of the “make-my-day” statute. This it does by first declaring the plain language ambiguous. Having done so, the majority then construes the term “unlawful entry” so as to exclude certain conduct which has long been described under our criminal code as “unlawfully enters.”

The provisions of the Home Protection Bill were crafted to protect homeowners. By avoiding the plain language of the statute and announcing the straightforward terms “ambiguous,” I believe the majority fails to give effect to the legislative intent. Moreover, the majority’s result does not recognize the homeowner’s right to “expect absolute safety” and does not take into account the sanctity of the home.2 Because the majority relies upon “the consequences” instead of the plain language of the statute and, in the process, the majority reduces the predictability necessary for the consistent and evenhanded interpretation of our criminal code, I cannot join in its opinion and I must dissent from its judgment.

In the final analysis, I object to what I believe amounts to judicial usurpation of legislative authority. Such an exertion of judicial power, I am obliged to suggest, exceeds the limits of our authority as described by our own precedent, and, as I read it, as acknowledged in the majority opinion. Accordingly and as set forth below, I respectfully dissent.

I

Justice Oliver Wendell Holmes once observed: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 486-87, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).

The majority’s disposition of this case demonstrates that hard facts, like great cases, make bad law. This is especially so when our long-established principles of statutory construction are abandoned and appellate review is driven by assumptions inconsistent with the trial court’s findings.

The facts set forth by the majority require elaboration. The majority relies upon the testimony of Vivian Daniels, when convenient, and considers that same testimony inconclusive when it would otherwise be inconvenient. The majority also disregards the testimony of key witnesses and ignores doeu-*319mentary evidence relied upon by the trial court.3 For example, Steve Underwood, one of John Daniels’ friends, testified that immediately before the incident, Vivian Daniels told John Daniels that MeNeese “tried to rape her.” Underwood testified that in response John Daniels stated, “well, let’s go kill [MeNeese],”4 at which point John Daniels, with encouragement from Wessels and in the company of Vivian Daniels and Wessels, left to visit MeNeese, at 2:30 a.m.

Although the majority finds on its reading of the record that “John Daniels told Vivian Daniels that there would be no violence,” maj. op. at 307, no such findings of fact were made by the trial court. Moreover, the majority concludes on its own reading of the testimony of Vivian Daniels and nothing more, that John Daniels’ sole purpose for the visit was to get Vivian Daniels’ clothes and possessions from McNeese’s apartment. Id. This conclusion the majority reaches despite Underwood’s testimony that John Daniels stated his intent to “go kill” MeNeese. The majority’s conclusion is also inconsistent with the testimony of all the witnesses that Daniels and Wessels, while legally intoxicated, walked to McNeese’s apartment after 2:00 а.m., “on a cold, snowy night.” See maj. op. at 306.

The majority next states that ‘Wivian Daniels testified that neither the defendant nor John Daniels was hurt.” Maj. op. at 7. The trial court, however, did find that “John Daniels ... knowingly or recklessly caused bodily injury to [MeNeese]” and committed a third degree assault.5

Having observed the demeanor of the witnesses and having reviewed all the evidence, the trial court did make sufficient findings to conclude that John Daniels, accompanied by Wessels and Ms. Daniels, entered McNeese’s home with the intent to inflict bodily injury upon MeNeese:

[T]aken together with the victim’s, John Daniels, prior comments in going to [McNeese’s home] and taking it in the context of Mr. Daniels appearing to act to some degree in defense of Ms. Vivian Daniels, plus to some degree his reputation for being rowdy and willing to fight, leads me to the conclusion that, in fact, Mr. Daniels did inflict a third degree assault upon the defendant, Mr. MeNeese.

(Emphasis added.) In essence, then, the trial court found that, consistent with his expressed intent or “prior comments,”6 John Daniels, in effect, committed a burglary and a second or third degree criminal trespass: he entered the dwelling with the intent of causing MeNeese bodily harm.7

*320II

It should now be beyond peradventure that by its passage of the “make-my-day” statute, the General Assembly adopted as the public policy of this state that every citizen of Colorado has “a right to expect absolute safety within [his or her] own home[].” § 18-1-704.5(1). In People v. Guenther, 740 P.2d 971 (Colo.1987), we did not suggest that the statute was ambiguous. Instead we concluded that under the Home Protection Bill the legislature, as it is empowered, created an immunity from civil and criminal liability for homeowners who use physical force in self-defense when confronted by intruders within their dwellings. Id.

When called upon to construe a statute, we are duty bound to ascertain and give effect to the intent of the General Assembly. Maj. op. at 310; Rowe v. People, 856 P.2d 486, 489 (Colo.1993); Guenther, 740 P.2d at 971. To determine that intent, “we first look to the plain language of the statute,” maj. op. at 310 (emphasis added), giving the statutory terms used by the General Assembly “their commonly accepted and understood meaning.” Guenther, 740 P.2d at 975 (citing Binkley v. People, 716 P.2d 1111, 1113-14 (Colo.1986); People v. District Court, 713 P.2d 918, 921 (Colo.1986); Engelbrecht v. Hartford Accident & Indemnity Co., 680 P.2d 231, 233 (Colo.1984)). As Chief Justice John Marshall admonished in 1820, long before Colorado courts set about interpreting legislative enactments, we begin with the following premise:

[T]he intention of the law-maker must govern in the construction of ... statutes_ [L]aws ... are not to be construed so strictly as to defeat the obvious intention of the legislature. [Courts must not] narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptance, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is not room for construction.

U.S. v. Wiltberger, 18 U.S. 76 (5 Wheat) 95-96 (1820) (emphasis added).

A

While I agree with the majority that by use of the phrase “the uninvited entry” the General Assembly meant the “unlawful entry,”8 I cannot agree with the majority’s conclusion regarding the meaning of “unlawful entry.” The majority holds that “the ‘unlawful entry’ element [of the “make-my-day” statute] requires an entry in knowing violation of the criminal law,” maj. op. at 311 (emphasis added), and thus concludes that John Daniels’ entry into the apartment was not an “unlawful entry.” I disagree. The plain language of the statute, the appropriate starting point, makes clear the General Assembly intended that the entry be one of general and not specific intent. I submit that the legislature intended “unlawful entry” to include any criminal entry, including that of an intruder who, although gaining access by the use of a key, enters with the intent of harming an occupant and assaults the homeowner. The majority’s reading into the statute a requirement of a “knowing” unlawful entry is at odds with the plain language of the statute. One can only assume that if the General Assembly had intended to limit “unlawful entry” to “knowing” violations of the criminal code, it would have so indicated. Relying upon the words employed, it would not be logical to assume that to commit an “unlawful entry” an intruder’s entry must be “knowing.” 9

When a statute does not define a crime in terms of a requisite specific intent, it may be *321assumed that the General Assembly intended the omission of specific intent and that the crime is one of general intent. People v. Schuett, 833 P.2d 44, 49 (Colo.1992). The distinction between general intent and specific intent is well recognized and of long standing in the field of criminal law. Armijo v. People, 157 Colo. 217, 219, 402 P.2d 79, 80 (1965). While general intent may be used to encompass all forms of the mental state requirement, including the general notion of mens rea, specific intent is usually used to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of a crime. Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 28 (1972). Where a statute defining a crime includes a specific intent as an ingredient of its criminality, such specific intent is essential and must be established with the same certainty as any other element of the crime. Armijo, 157 Colo. at 219, 402 P.2d at 80. Because specific intent crimes necessarily require a greater showing of proof and specificity than general intent crimes, the requirement of specific intent may not be implied or inferred where it is not otherwise required for a criminal offense.

I agree with the majority that legislative silence as to the element of intent is not generally construed to be an indication that no mental state is required. Maj. op. at 311. I disagree, however, with the specific element of intent assigned to the statute by the majority. If an element of intent is' to be inferred where a statute is otherwise silent, it should be general rather than specific. People v. Schuett, 833 P.2d 44, 49 (Colo.1992). We noted in Schuett that the General Assembly declared all offenses defined in the Colorado Criminal Code which have a culpability requirement of “knowingly” to be general intent crimes. Id. In this ease the majority has asserted that the culpability requirement of “knowingly” can be implied to exist as an element of the “make-my-day” statute. Maj. op. at 311. The majority’s use of the term “knowing,” however, is as a specific intent element rather than a general intent element. Hence, the majority has created a separate, specific intent element whereby immunity may not be granted to a homeowner unless the intruder possessed the specific conscious objective of unlawfully entering, contrary to our holding in Schuett and the intent of the General Assembly.10

Section 18-1-704.5(2), the statute we are to apply today, provides: “any occupant of a dwelling is justified in using any degree of physical force against another person when that other person has made an unlawful entry into the dwelling....” (Emphasis added.) The language of the statute, i.e., “when that other person has made an unlawful entry,” speaks only of the intruder’s conduct and not, as the majority presupposes, the intruder’s intent. The statutory text— which focuses on the conduct of the intruder and not the intruder’s intent — precludes an analysis based upon the mens rea of the intruder. And where a statute is silent as to a particular mens rea, general intent or willful conduct suffices. Schuett, 833 P.2d at 49.

By its conclusion that an unlawful entry means “a knowing, criminal entry into a dwelling,” maj. op. at 310 (emphasis added), the majority construes the term “unlawful entry” in a fashion inconsistent with prior uses and requiring a mens rea not previously associated with “unlawful entry.” According to the majority, not all criminal entries constitute an “unlawful entry” under the make-my-day law. For example, the majority’s holding excludes certain second degree and all third degree criminal trespasses from the meaning of “unlawful entry,” since some second degree and all third degree criminal trespasses do not have a “knowing” mens rea requirement. Such an exclusion is illogical in *322light of the fact that third degree trespass by definition requires an unlawful entry. When the “make-my-day” statute was enacted into law, our criminal code provided that a person commits the crime of third degree criminal trespass “if he unlawfully enters or remains in or upon premises.” § 18-4-504(1), 8B C.R.S. (1986) (emphasis added). Today, after minor amendment, in form only,11 third degree criminal trespass means one who unlawfully enters. Thus, any entry onto premises which constitutes third degree trespass must by definition also constitute an unlawful entry.

Unlike the majority, I find the language of the statute not ambiguous and thus find no “room for construction.” Furthermore, the legislative history confirms that the plain language fulfills the legislative intent.

B

The majority’s severe limitation on the meaning of “unlawful entry” finds no support in the plain language of the statute or in the legislative history. I agree with the majority that in the debates and hearings the legislature considered many hypothetical scenarios involving “an illegal entry into a home by a stranger in the middle of the night.” Maj. op. at 310. There is no evidence in the debates, however, that the General Assembly intended the statute to apply only to such situations. In fact, the legislative debates indicate that the General Assembly was also concerned that homeowners might be held accountable when they act in defense of their home and families where the entry was not criminal. This concern is evidenced by the many scenarios set forth in the debates involving the unexpected entry into the home by a visiting relative.12 Furthermore, by its subsequent deletion of an exception from immunity when force is applied against family and household members, the General Assembly evinced its intent to provide broad protection from liability to homeowners, even when acting in error.13 As stated during the debates, “every benefit of the doubt should be given to the homeowner.” Hearing on H.B. 1361 Before the House Judiciary Committee 55th Gen.Assembly, First Reg.Sess. (hearing tape, March 7, 1985, at 5:25 p.m.).

While I agree with the majority that “the statute was not intended to encourage arbitrary, casual killings,” maj. op. at 17, I believe it was not intended to encourage any killings. I also believe, however, as its original name — “The Home Protection Bill” — suggests, the statute was intended to protect homeowners.

During the legislative debates, it was asserted, without contention, that the Home Protection Bill was consistent with the constitutional right to keep and bear arms. See Hearing on H.B. 1361 Before the Senate Conference Committee 55th GemAssembly, First Reg.Sess. (hearing tape, May 22, 1985, at 8:07 a.m.) (adoption of the make-my-day law “follows the Colorado Constitutional right to use force in defense of one’s home”) (statement of Representative Don Mielke, a sponsor of the Home Protection Bill). We have frequently held that where the language of the constitution is plain and its meaning clear, that language must be enforced as written. See, e.g., Evans v. Romer, 882 P.2d 1335, 1352 (Colo.1994) (Scott, J. concurring) (citing Colorado Ass’n of Public Employees v. Lamm, 677 P.2d 1350, 1353 (Colo.1984)), cert. granted, — U.S. -, 115 S.Ct. 1092, 130 L.Ed.2d 1061 (1995). Article II, section 13 of the Colorado Constitution provides:

Section 13. Right to bear arms. The right of no person to keep and bear arms *323in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Only several months ago, a time too recent to be called history, we held that “[t]he right to bear arms is guaranteed under article II, section 13 of the Colorado Constitution.” Robertson v. City and County of Denver, 874 P.2d 325, 327 (Colo.1994). We noted that, unlike the more narrow constitutional provisions of other states that “merely ... guarantee the collective or ‘state’s right’ ... for maintenance of the militia,” the right created by our constitution was intended to allow citizens “to bear arms for purposes of self-defense and the defense of property.” Id. at 327-28 n. 6. Although we did not determine whether the right of individuals to bear arms in self-defense14 “is or is not a fundamental right,” id. at 341 (Vollack, J., concurring), we did conclude that “it is clear that this right is an important constitutional right.” Id. at 328. The “make-my-day” statute is consistent with and was adopted in furtherance of the exercise of that right.15

Noting the Home Protection Bill’s symmetry with article II, section 13 of our state constitution, the sponsors called on members of the General Assembly to limit both public and private efforts that might otherwise interfere with the exercise of the right to bear arms in self-defense. Hearing on H.B. 1361 Before the Senate Conference Committee 55th Gen.Assembly, First Reg.Sess. (hearing tape, May 22, 1985, at 8:07 a.m.). In the absence of permissible legislative action regulating an important constitutional right, we are not justified or empowered to deny to our citizens the reasonable exercise of that right. Moreover, as here, once the General Assembly has acted to further the exercise of an important constitutional right, we are not authorized to ignore the statutory command and prohibit the exercise of that right. Nor can we “disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property.” Robertson, 874 P.2d at 328 (quoting People v. Nakamura, 99 Colo. 262, 264, 62 P.2d 246, 247 (1936)).

C

Although not necessary, in my view, for resolution of this case nor to affirm the courts below, I believe the General Assembly did not intend that “unlawful entry” be limited solely to violations of our criminal code. Black’s Law Dictionary defines “unlawful” as “broad enough to include [criminality]” and “unlawful act” as “not confined to criminal acts.”

Unlawful. That which is contrary to, prohibited, or unauthorized by law.... The ... [t]erm is equivalent to “without excuse or justification.” State v. Noble, 90 N.M. 360, 563 P.2d 1153, 1157. While necessarily not implying the element of criminality, it is broad enough to include it....
Unlawful act. Act contrary to law, and presupposes that there must be an existing law. A violation of some prohibitory law and includes all willful, actionable violations of civil rights, and is not confined to criminal acts. State v. Hailey, 350 Mo. 300, 165 S.W.2d 422, 427.

Black’s Law Dictionary 1536 (6th ed. 1990). Black’s Law Dictionary also defines “unlawful entry” more broadly than the standard imposed by the majority as a “willful” rather than “knowing” act:

Unlawful entry. An entry upon lands effected peaceably and without force, but which is without color of title and is aeeom-*324plished by means of fraud or some other willful wrong.

Id. at 1537 (emphasis added).

Such a definition as I would adopt, including all conduct of wrongful entry chargeable as a crime, is familiar to our legislature. The General Assembly has frequently used the term “unlawful” to describe prohibited conduct that does not constitute a violation of our criminal code. For example, section 42-4-1001, 17 C.R.S. (1989 Supp.), dealing with speed regulations, uses the term “unlawful” outside of the criminal context. That statute indicates that “the conduct of a driver of a vehicle which would otherwise constitute a violation of this section is justifiable and not unlawful” under certain enumerated circumstances. § 42-4-1001(8)(a). By implication, absent those special circumstances, conduct in violation of the motor vehicle code is “unlawful.” Yet, that same conduct which is “unlawful” under our motor vehicle code is not a crime under our criminal code. Other examples of the General Assembly’s use of the term unlawful to describe conduct not constituting a crime are plentiful. See, e.g., § 10 — 4—708.6(l)(III)(b), 4A C.R.S. (1994) (“It shall be unlawful for any health care practitioner, provider of benefits, organization, or any other person to do any of the following... .”); § 42-3-106(2), 17 C.R.S. (1993 & 1994 Supp.) (“It is unlawful for any owner of any vehicle to permanently attach to such vehicle any mounted equipment....”).

On more than one occasion, this court has concluded in construing our statutes, that an unlawful act is not necessarily criminal. See, e.g., Jet Courier Service, Inc. v. Mulei, 771 P.2d 486, 502 (Colo.1989) (breach of duty of loyalty satisfies the unlawful act element of the civil conspiracy definition); McGlasson v. Barger, 163 Colo. 438, 442-43, 431 P.2d 778, 780 (1967) (civil conspiracy has been defined as two or more persons who seek to accomplish some lawful purpose by criminal or unlawful means). Furthermore, our courts have held that an entry made after license has been given is not necessarily lawful. See People v. Ridenour, 878 P.2d 23 (Colo.App.1994) (where defendant entered a theater office which a reasonable person would believe was closed to the public, entry was unlawful despite any limited license previously granted).

I fear that the majority’s limited interpretation of the statute’s plain language places in jeopardy many citizens the General Assembly intended to immunize, such as people protected by restraining orders. We have held that by breaching a restraining order, a defendant can be held in either civil or criminal contempt. See, e.g., C.R.C.P. 107; People v. Allen, 868 P.2d 379, 383 (Colo.1994) (even a legal act which constitutes disobedience of a court’s order may provide the basis for a finding of contempt); City of Colorado Springs v. Blanche, 761 P.2d 212, 215 (Colo.1988) (defendants found in civil contempt for violation of temporary restraining order).16 There can be little doubt that the General Assembly intended the “make-my-day” statute to reach situations involving other family or household members as intruders when, in response to legislative debate, an exclusion for family and household members was dropped from the legislation.17 Thus, the immunity was designed to include a situation where an abusive husband, who has been ordered by the court not to contact his wife, enters the home of his wife if such entry violates a restraining order. The husband’s *325entry, even into a home he owns in joint tenancy with his wife, with the use of his own key, might not have been in violation of our criminal code, yet still may have caused the wife to reasonably fear for her physical safety. If justified by the intruder’s actions after the unlawful but not criminal entry, the wife may apply force, even deadly force, to defend herself. Just as in that case where the wife’s use of force to protect herself in her husband’s home would be justified, so was McNeese’s use of force in the case at bar.

D

Finally, even under the majority’s definition, I find that John Daniels’ entry into McNeese’s home constituted an unlawful entry. I submit that when John Daniels entered MeNeese’s home he knowingly committed a criminal trespass.

Generally, in the absence of any restriction in the agreement between the landlord and the tenant, the tenant has the right to invite whomever he or she so desires upon the premises. See 49 Am.Jur.2d (Landlord and Tenant) § 235 at 251. One who comes upon the premises in violation of a restriction in the lease agreement, however, commits a criminal trespass. See id. at 251-52. Since John Daniels was aware of a restriction in the lease agreement between McNeese and Vivian Daniels, his entrance upon the premises was a knowing, criminal trespass.18

The majority presumes that the lease agreement is nullified because Vivian Daniels personally invited John Daniels onto the premises. Generally, consent to enter the premises given by the owner, occupant, or other authorized person has been recognized as a valid defense to an unlawful entry. Privilege to be within the premises is negated, however, by the formation of criminal intent, or the undertaking of criminal actions therein. See, e.g., Id. at 251; People v. Fisher, 83 Ill.App.3d 619, 39 Ill.Dec. 268, 404 N.E.2d 859 (1980) (since the defendants were given authority to enter the apartment for the purpose of a social visit only, the court declared that the criminal actions they planned were inconsistent with the limited authority, and served to vitiate the consent given for their entry).

In this case, John Daniels was not authorized to enter the premises because of the sublease agreement. Furthermore, Vivian Daniels’ authority to invite John Daniels onto the premises only allowed her to invite him on the premises for lawful purposes. Since John Daniels entered McNeese’s apartment for the unlawful purpose of physically harming McNeese, any permission he may have secured by Vivian Daniels would be negated. Therefore, his entry onto McNeese’s property in violation of the sublease agreement would constitute a criminal trespass and thus an unlawful entry.

In holding that the entry in this case was not unlawful, the majority undertakes a venture in judicial legislating, vitiating the intent of the General Assembly. By its holding, the majority suggests the only recognition that should be given to the “make-my-day” statute is unfulfilled because the immunity otherwise guaranteed homeowners is denied. In its place, as suggested by the majority, we are left to find a new affirmative defense, a result that rejects the clear public policy adopted by our General Assembly.

Ill

There are two misfortunes created by the majority’s holding today. The first is that the legislative intent is not fulfilled. The second, often less noticed, is the decision creates uncertainties and the loss of predictability in our law, a harm caused here because the majority has deferred to “the consequences of a particular construction,” rather than the plain language, for its result. Predictability is one of the benefits of consistently applying settled rules of statutory construction. It is an attribute especially important when interpreting our criminal code. Unanticipated deviations in any case not only result in a disservice to the parties before the court, but also create uncertainty and future *326difficulty among lower courts obliged to follow the precedent we create.

In like regard, citizens need to know under what circumstances they can use force in self-defense to protect their homes and, in general, what conduct subjects them to criminal prosecution. Based upon the majority’s determination as to what constitutes an “unlawful entry,” citizens are placed in peril whenever they are confronted by our criminal statutes which fail to specify the culpable mental state necessary to commit a crime. Because under its rationale a knowing or lesser intent can easily be read into or out of the statute, the majority’s judgment presages the destruction of predictability in our criminal code and the inherent due process issues raised thereby.

Here, if the legislature actually intended a “knowing” requirement, the statute is vague, since it does not provide sufficient guidance to that effect and no reasonable reader could anticipate such a requirement. I submit instead that the statute is not vague — any reasonable reader would assume that the General Assembly intended “unlawful entry” to encompass at a minimum all conduct by which one “unlawfully enters” the home of another in violation of the criminal code. Such a definition of “unlawful entry,” I believe, was intended by the General Assembly.

IV

The majority concludes that the evidence in the record was insufficient to establish that John Daniels committed a crime in the dwelling or was committing or intended to commit a crime against a person or property in addition to an unlawful entry. Maj. op. at 313-314 n. 19. The majority bases its conclusion on its view that the only testimony to establish what occurred in the apartment was presented by Vivian Daniels and her testimony was “insufficient to establish that John Daniels committed a third degree assault on the defendant.” Id.

The majority here is engaging in an exercise of choosing facts which will support its position. That is, the majority chooses to rely heavily on the testimony of Vivian Daniels when her testimony supports its position, see, e.g., maj. op. at 307, but then finds that her testimony was insufficient to establish that John Daniels committed a third degree assault on the defendant. Maj. op. at 313-314 n. 19. In so holding, the majority ignores the clear findings of the trial court based upon the judge’s determination of the credibility of Vivian Daniels. Nonetheless, unlike the majority, I do not believe the trial court’s findings are “based simply on speculation,” maj. op. at 313 n. 19, when it concluded that McNeese might reasonably believe John Daniels intended to commit a crime when the facts show: (a) Daniels entered at 2:30 a.m.; (b) Daniels confronted McNeese while McNeese was in bed; (c) Daniels knew he was prohibited from entering; and (d) Daniels assaulted McNeese and threatened bodily harm. I do believe, however, that an intruder’s momentary “nonviolent behavior,” id., should not trump other acts of violence.

The majority suggests that the findings of the trial court are not binding on this court.19 I disagree.

Where the findings of the trial court are supported by the record, those findings must be accepted on review unless they are clearly erroneous. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.1994). We are to accept the findings of the trial court when supported by the record for the very reason *327that a trial court is especially well positioned and better able than appellate courts to determine the credibility of witnesses. University of Cobrado v. Derdeyn, 863 P.2d 929, 938 (Colo.1993). We have consistently disapproved of the substitution of new factual findings by reviewing courts for those made by the trial court. Page v. Clark, 197 Colo. 306, 313, 592 P.2d 792, 796 (1979). Where the record clearly supports the findings of the trial court, it is inappropriate to allow a reading of a transcript, accepting all statements of a witness as true, to serve as a basis for rejecting credibility determinations implicit in the trial court’s factual determinations. People v. Dover, 790 P.2d 834, 835 (Colo.1990).

The trial court’s finding that John Daniels entered McNeese’s home with the intent to cause him harm and that he did, in fact, commit an assault against the defendant once in the home, was supported by the testimony of John Daniels’ wife, Vivian Daniels and other witnesses, including Steve Underwood, paramedic Steve Jones, and Detective Gordon. Evidence admitted without objection indicated that, upon being informed by Vivian Daniels that McNeese attempted to rape her, John Daniels immediately stated, “well, let’s go kill that fuckin’ nigger,”20 and went to McNeese’s apartment, after 2:00 a.m., to cause him harm. Ms. Daniels testified that after their unannounced entry in the apartment, she witnessed John Daniels applying a “chokehold” on the defendant. She then heard John Daniels say to the defendant, “if you ever hurt her I will kill you.” Based on the evidence, the trial court concluded that the victim, John Daniels, committed a third-degree assault upon the person of the defendant. As stated by the court of appeals:

[T]he decedent had inflicted a third degree assault upon the defendant by putting him in a headlock, which when considered in the context with decedent’s death threat against defendant, plus his reputation for being rowdy and combative, established a basis for a reasonable belief that he had committed, was committing, or would commit a crime in the apartment.

People v. McNeese, 865 P.2d 881, 883 (Colo.App.1993).

It must be noted that even if we ignore the specific findings of the trial judge that John Daniels committed a third degree assault upon McNeese, it does not negate the fact that the defendant had a reasonable belief that John Daniels committed or intended to commit a crime in the defendant’s home. In addition to Ms. Daniels’ testimony regarding the “chokehold,” there is uncontroverted evidence that the defendant knew that John Daniels was a dangerous man who could potentially focus his aggressions on the defendant. Ms. Daniels admitted that she had previously informed the defendant that John Daniels was violent when he drank and that he had previously killed a man while intoxicated. Despite the majority’s opposite conclusion, I believe it only reasonable for the defendant to expect that John Daniels, who was prohibited from entry, who suddenly appeared and confronted the defendant after 2:00 a.m. while McNeese was in bed, and who had applied a “chokehold” and verbally threatened bodily harm, might attempt to commit a crime against him.

The trial court made its factual determinations regarding the credibility of each witness with the benefit of having observed the demeanor of each witness. Undoubtedly the trial court weighed all testimonial and other evidence before reaching its conclusions. Perhaps it would have been more desirable for the trial court to have made specific factual findings and to have more clearly set forth both its findings of fact and conclusions. However, under the circumstances and without the benefit of our collective, deliberative analysis, I find the trial judge’s findings sufficient for us to determine John Daniels’ entry was unlawful and thus those findings should be upheld.

The record supports the findings of the court. Because it is an established policy of this court that the factual findings of trial courts must be accepted on review unless they are clearly erroneous, I believe we are *328bound by the trial court’s determinations of fact, regardless of whether we would resolve the factual dispute otherwise.

V

In holding that the entry in this case was not an “unlawful entry,” the majority undertakes a venture in judicial legislating, vitiating both the intent of the General Assembly and the immunity otherwise guaranteed homeowners who bear arms in self-defense. The record here will support a conclusion that John Daniels entered the defendant’s home intending to cause him harm and in violation of our criminal code. Immunity for a homeowner who applies force against a criminal entrant, the very circumstances here, was contemplated by our “make-my-day” statute. It is the means by which the General Assembly intended that the right of all citizens “to expect absolute safety within their own homes” is to be met.

Finally, I borrow from Chief Justice Otto Moore, dissenting in Fellhauer v. People, 167 Colo. 320, 351, 447 P.2d 986, 1001 (Colo.1968):

I view with deep concern the general trend of the opinion of the majority which, as I perceive it, will tend to create many uncertainties in areas where certainty and stability are most essential.... I am also deeply conscious of the fact that by the judgment of [the other members of this court] — whose earnestness, dedication and sincerity I do not question — my dissenting views are without merit. Nevertheless I have been required by conscience to set them forth for the single reason that although, admittedly, I may be wrong, I am not in doubt.

Accordingly, I would affirm the judgment of the court of appeals.

. The original bill was entitled “The Home Protection Bill.” The name "make-my-day” is a nickname which emerged for this bill during the course of its adoption. Since the majority uses that label in its opinion, I will do so as well; however, I will also refer to that statute as “the Home Protection Bill,” as its drafters intended.

. The Home Protection Bill recognizes the special significance of one's home or dwelling. § 18-1-704.5(1) provides: "[t]he General Assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.” The special nature of the home has long been recognized in our law. See, e.g., Colo. Const. Art. II, § 7 ("The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.”); Colo. Const. Art. II, § 13 ("The right of no person to keep and bear arms in defense of his home ... shall be called into question.”); Hoffman v. People, 780 P.2d 471, 475 (Colo.1989) (Residential dwellings have been "given protection as a place where the occupants have a reasonable and legitimate expectation of privacy" because they harbor the "intimate activity associated with the ‘sanctity of a person’s home and the privacies of life.’ ”) (citing Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)); Henderson v. People, 879 P.2d 383, 389 n. 5 (Colo.1994) (same).

. Vivian Daniels was not the only witness on which the trial court relied, although she was the only witness to the actual altercation between MeNeese and John Daniels. The trial court also relied upon the testimony of Armedia Gordon, a Denver police homicide unit sergeant who responded to the scene, Steve Jones, the treating paramedic who tended to MeNeese after the assault, and Steve Underwood.

. Underwood’s sworn testimony is consistent with his signed statement comprising part of a police report admitted into evidence.

. Based on its first-hand evaluation of the evidence, the trial court made the following findings of fact: "I do believe that the evidence here establishes a third degree assault ... and that ... John Daniels ... knowingly or recklessly caused, bodily injury to [MeNeese],... The bodily injury here ... means physical pain....”

. The majority appropriately quotes the “prior comments” or threats of John Daniels: "[Ljet's go kill that fuckin' nigger." However, the racial slur aside, a statement of intent to kill or harm another alone is sufficient evidence of John Daniels’ mental state upon entering McNeese's apartment.

. I find that the conduct of the intruder, as found by the trial court, is sufficient to meet the elements of second degree burglary and second and third degree criminal trespass. As a consequence, I conclude that the intruder, John Daniels committed an unlawful entry. In Colorado, in order to be found guilty of second or third degree criminal trespass, a person must "unlawfully enter[] ... upon [the] premises of another.” §§ 18-4-503 and 18-4-504, 8B C.R.S. (1994 Supp.). In order to be found guilty of second degree burglary, a person must "knowingly ... enter[], or remain[] unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.” § 18-4-203, 8B C.R.S. (1994 Supp.). Here, the trial court found that John Daniels entered into McNeese’s home with the intent to assault him or commit a crime therein. Thus, I would find that the trial court did make a determination, although not characterizing it as such, that John Daniels’ entrance into McNeese’s home constitut*320ed the crimes of burglary and second and third degree criminal trespass.

. The threshold issue in this case is whether the entry was "unlawful,” not whether it was "uninvited.” I submit that the legislature's use of the phrase “the uninvited entry” was simply a means to reference the "unlawful entry,” and thus "uninvited entry" need not be defined separately.

. The majority's interpretation of "unlawful entry" is also inconsistent with Wayne R. LaFave & Austin V. Scott, Jr., Substantive Criminal Law (1986 & 1995 Supp.), a source it cites for authority on this subject. Maj. op. at 18 n. 14. LaFave and Scott note the connection between "unlawfully” and "trespass,” for example, see LaFave and Scott § 8.13 at 466, a connection clearly at odds with the majority's interpretation.

. I agree with the Chief Justice in his opinion concurring in the result and dissenting in part ("concurring opinion") in which he states that the cases cited by the majority are not sufficient authority "to support [the majority's] conclusion that [we] are required to imply a culpable mental state.” Rovira, C.J., cone. op. at 317. I also agree that by reading into the statute a "knowing” requirement, the result is to deny homeowners "immunity from prosecution or an affirmative defense.” Id. The resulting greater liability for homeowners from possible criminal prosecution is at odds with People v. Moore, 674 P.2d 354 (Colo.1984), Bollier v. People, 635 P.2d 543 (Colo.1981), and People v. Bridges, 620 P.2d 1 (Colo.1980), which provide certain criminal defendants with greater protection from liability.

. As amended, § 18-4-504, 8B C.R.S. (1994 Supp.), now provides that "[a] person commits the crime of third degree criminal trespass if such person unlawfully enters or remains in or upon the premises of another.”

. For example, a typical hypothetical about which the legislators were concerned involved "Aunt Martha,” who had her own key and appeared unexpectedly in tire middle of the night. See, e.g., Hearing on H.B. 1361 Before the House Judiciary Committee 55th Gen. Assembly, First Reg. Sess. (hearing tape, March 7, 1985, at 5:25 P-m.).

.The original bill precluded the use of deadly force against anyone who was a member of the "family” or “household” of the person using the deadly force. The final version of the bill, however, referred only to "another person” and thus did not distinguish between family members and others.

. We characterized art. II, section 13 as the "right to bear arms in self-defense.” Robertson, 874 P.2d at 328 n. 7.

. While in Robertson we held that "the right to bear arms may be regulated by the state under its police power in a reasonable manner,” Robertson, 874 P.2d at 331, the prosecution makes no claim and certainly could not argue that the state has acted to limit or regulate the right to bear arms in self-defense. To the contrary, under the "make-my-day" statute, the state has not only elected not to limit that right but, in fact, has acted in furtherance of its exercise, as evidenced from the legislative debate regarding the “make-my-day” statute.

. Although as of the first of this year a violation of a court order is a crime, § 18-6-803.5, 8B C.R.S. (1994 Supp.), at the time the "make-my-day” statute was adopted, it was not.

. The original bill as proposed precluded the use of deadly force against anyone who was a member of the "family” or "household" of the person using the deadly force. The final version of the bill adopted into law, however, refers only to "another person” and thus does not distinguish between family members and others. See William Wilbanks, The Make My Day Law: Colorado's Experiment in Home Protection 40-41, 92 (1989). This significant change was presumably an effort to provide broader protection for the homeowner. During the legislative debates prior to this change, members of the General Assembly expressed concern as to homeowners who might, by mistake, apply force against a family or household member who had a key or otherwise entered the home in an unusual or unexpected manner. Such debates and the consequent change dropping the exclusion suggest strongly that the General Assembly intended to protect homeowners when the intruder did not violate our criminal code.

. Two different lease agreements are implicated in this case: one is the original lease between Robert McNeese and his landlord; the other is the sublease agreement between McNeese and Vivian Daniels. In this instance, we are referring to the sublease agreement.

. The majority states "[t]he findings of fact and conclusions of law of the trial judge were based on an erroneous interpretation of the elements that must be proven to obtain immunity under section 18-1-704.5. Accordingly, the findings and conclusions were erroneous as a matter of law and are not binding on this court.” Maj. op. at 308 (emphasis added) (citing People v. Dover, 790 P.2d 834 (Colo.1990)). The Dover case, however, does not stand for that proposition. In Dover, we held that the evidence was not sufficient to allow the emergency justification defense to a speeding charge to be considered by the trier of fact. Therefore, the trial court’s conclusions of law were not binding on the court. We did not, however, under Dover, grant to appellate courts license to disregard a trial court's findings of fact, only its combination of facts and improper legal standards. Here, because the findings alone are sufficient, we can apply the correct standard for an unlawful entry, electing either criminal code violation of third degree trespass, § 18-4-504(1), or second degree burglary, § 18-4-203.

. Although Vivian Daniels testified she did not hear John Daniels’ "prior comment,” Ms. Daniels did not deny the testimony of Steve Underwood that the statement was made immediately before Daniels left to pay his 2:30 a.m. visit on McNeese.