with whom SAUFLEY, C.J., joins, dissenting.
[¶ 17] I respectfully dissent.
[¶ 18] A self-defense instruction is available only to justify resistance to an “unlawful” use of force. 17-A M.R.S. § 108(1) (2008). Under Maine law, a victim of a home invasion and assault may lawfully use force to resist the home invasion and protect herself from further assaults, and she may lawfully use force to attempt to eject the invader from her home. No self-defense instruction is generated when a person is protecting herself and her home and, on the record presented here, Thurston had no legal right to be in Harmon’s home.
[¶ 19] Although Thurston had been staying with Harmon for some period before these events, the record, even when viewed in his favor, will not support a determination that he had any “right” to be in Harmon’s home once she told him he was not welcome. Harmon had permitted Thurston to spend the night on past occasions, but that does not diminish her authority to order him not to enter, to order him to leave when he arrived, and to use force to attempt to eject him from her home if he enters that home against her wishes.
[¶ 20] Thurston’s own testimony establishes that: (1) Harmon was in her home; (2) Thurston called her in advance to tell her that he was coming to her home; (8) she told Thurston not to come to her home; (4) disregarding Harmon’s objections, Thurston came to her home; (5) he entered despite her statement to him— according to his testimony — “I told you not to come here.... I don’t like you when you’re drunk”; (6) Thurston remained in the home, and Harmon again asked him to leave; (7) Thurston and Harmon then began arguing; (8) during the argument Thurston threw food Harmon was preparing into the garbage and took and smashed her cell phone; (9) Harmon asked Thur-ston to leave and, when he did not — and this is according to Thurston — “she pulled a knife”; and (10) Thurston then grabbed Harmon by the shoulders, the touch that is the purported act of self-defense, to restrain her anticipated threat with the knife.
[¶ 21] The Criminal Code, 17-A M.R.S. § 104(1) (2008), states unequivocally that a *912person, such as the victim here, in possession of her home, is justified in using non-deadly force when she believes it necessary to prevent or terminate a criminal trespass. A defendant who has refused a demand to leave a residence may be ejected by force from the residence and is not entitled to a self-defense instruction to justify an assault resisting that lawful use of force. See State v. Benson, 155 Me. 115, 119, 151 A.2d 266, 268 (1959); see also the drafter’s comment supporting the 1975 enactment of section 104, 17-A M.R.S.A. § 104 at p. 452 (2006).
[¶ 22] On this point, the case before us is distinguishable from State v. Bard, 2002 ME 49, 793 A.2d 509. In Bard, the evidence established that the defendant was invited to the victim’s home and entered the home with her permission. Id. ¶¶ 2-4, 793 A.2d at 511. By contrast, Thurston admitted that: (1) in the telephone call before he came to Harmon’s home, Harmon told him not to come to her home; (2) when he arrived she told him to leave immediately upon his appearance at her home; and (3) prior to displaying a knife, Harmon had repeatedly told Thurston to leave her home.
[¶ 23] On the facts testified to by Thur-ston, Harmon’s lawful use of force to defend herself and her home from his home invasion did not generate a self-defense instruction in favor of her attacker because there was no unlawful use of force to generate the instruction pursuant to section 108(1).
[¶ 24] Furthermore, Harmon’s defense of her premises is not the only justification for rendering lawful whatever force Harmon used. The evidence, including Thur-ston’s testimony, establishes that prior to use of any force by Harmon, Thurston took her cell phone and destroyed it. The Criminal Code, 17-A M.R.S. § 105 (2008), states that a person may use-force upon another person if necessary to: (1) prevent the unlawful taking of the person’s property, such as the theft of the cell phone; (2) prevent criminal mischief, such as the destruction of the cell phone; or (3) retake the person’s property immediately following its taking. Thus, Harmon’s use of force was a justified response to the taking and destruction of her cell phone — a theft and criminal mischief.
[¶ 25] Even if we take the evidence most favorably to Thurston, his own testimony establishes that Harmon’s use of force against him after he invaded her home and robbed her of her cell phone was lawful. Her use, or threatened use, of force did not create any entitlement to a self-defense instruction regarding unlawful use of force.
[¶ 26] I would affirm the judgment of conviction.