Michael Lunn claims this game card, photographed next to some blood, was used by the alleged victim to open the front door of his house. (Poulsbo Police Department)

Michael Lunn claims this game card, photographed next to some blood, was used by the alleged victim to open the front door of his house. (Poulsbo Police Department)

Assault, or lawful defense? Jury will decide

Homeowner and police differ in some details of what happened — and whether actions were justified

POULSBO — Michael Lunn said he was asleep on his living room couch at about 1 a.m. on Nov. 23, 2016 when he was awakened by the sound of someone entering his home through the front door.

Startled, Lunn jumped up and started swinging. The confrontation reportedly continued to the bottom of the steps outside the 4th Avenue house. The man who allegedly tried to enter the house yelled for help and got free, but not before sustaining a possible broken nose and a split lip.

Lunn and police differ on some details of what happened — and on whether Lunn’s actions were justified. Lunn is charged with fourth-degree assault; trial is scheduled for Aug. 16 in Poulsbo Municipal Court.

Lunn, 53 at the time, said he had let the alleged victim — a 28-year-old Silverdale man described by police as “transient” — live in the house to help him get on his feet. Lunn said he kicked him out after finding alleged drug paraphernalia in the man’s room and uninvited people in the house.

But the story begins a few months earlier when, according to police records, Poulsbo Police Officer Nick Hoke gave the 28-year-old man a ride to Lunn’s other house in Suquamish; the man needed a place to stay and reportedly told Hoke he knew Lunn, records state.

Lunn said he was awakened by a knock on the door after midnight. He thought the visit unusual, he said, because of the time of night and because Suquamish is outside Poulsbo police jurisdiction.

Lunn said the 28-year-old was an acquaintance and that he decided to give him a place to stay until the man got his life together, understanding that the man was trying to get a job. The next day, Lunn said, he told the man he could stay in a room in the 4th Avenue house and help keep an eye on Lunn’s mother, who has dementia, until he got a job.

Lunn told police he later evicted the 28-year-old — the timeline appears to be about a month later, in October — because the man was not making an effort to find a job, was not helping around the house, and had invited “unknown suspicious people” into the house without Lunn’s permission.

Lunn called police the morning of Nov. 20 to report a trespass; he had found a used energy drink can in the back bedroom, an unlocked rear window and the living room TV missing. He said he suspected the 28-year-old had entered the house while he was gone, and that neighbors had told him they saw “suspicious people coming and going” out of a rear window. Police filed a report.

Then, at 1:10 a.m. on a rainy Nov. 23, Poulsbo Police Sgt. Howard Leeming and Officer Gary Westerfield went to the scene in response to a 911 call of a man yelling for help near 4th Avenue and Burns Place. They found the 28-year-old sitting on a low concrete wall. His face and nose were bloody, and his clothing disheveled and muddy.

The man told police he hadn’t lived in the house for a couple of weeks but had returned that night to get some belongings. He said he banged on a couple of windows, then started to open the front door, according to Leeming’s report. He said Lunn immediately punched him in the face, knocking him down the stairs, then jumped on him, “striking him repeatedly in the face and head,” the police report states.

The 28-year-old denied entering the house; later that day, Lunn gave police a keyring-size GameStop Power Up Rewards membership card that he said he found on his property and that he believes was used to open the door.

In his report, Westerfield reported the furniture in Lunn’s house was orderly and “no blood was inside the house,” leading him to believe the 28-year-old never got inside the house. The 28-year-old’s cell phone, wet and muddy, was on the living room floor; the man said Lunn picked it up and took it inside the house. He also denied taking anything from the Lunn residence.

Lunn told police he was afraid — of the “crazy people” he said had visited his house without his permission, and for his mother who lives there.

A jury will decide whether Lunn’s actions were justified or if they constitute fourth-degree assault. If convicted, he could be sentenced to up to 364 days in jail and/or a $5,000 fine.

REASONABLE FORCE RULE

RCW 9A.16.020 states that the use of force upon another person is legal “in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession.” But the force must not be “more than is necessary.”

What does that mean? “It depends on the circumstances,” Poulsbo Police Chief Dan Schoonmaker said on June 2. “There is no black and white rule. Every case is different.”

Two recent cases bear that out.

In March, a Poulsbo-area resident shot a burglary suspect who tried to enter her home despite her repeated warnings to leave and that she had a gun. It was 2 a.m., she was alone, and the suspect continued to try and get into her home despite the warnings. She shot the suspect in the chest and hand; he survived. The resident was not charged with a crime.

In April, Bruce F. Fanning, of Belfair, shot and killed a man who was taking a shower in a building he owns. He told investigators the man was an intruder and that he told him to leave but the man responded in a way that Fanning thought he was intoxicated. Fanning didn’t call 911; instead, according to court documents, he left the building, returned with a .45-caliber handgun and shot the intruder through the shower curtain. He then called 911. Fanning is charged with first-degree murder; trial may begin Nov. 14 in Mason County Superior Court.

Before you use any force against a perceived threat, even in your home, consider these circumstances that a jury will consider, Schoonmaker said: The time of day. Your physical size relative to the person you consider a threat. Your recent history with that person. Comments that were exchanged. Whether the individual entered the home by force.

Schoonmaker used these examples of why violent force against an intruder may not be justified in the eyes of a jury. Someone with mental illness enters the wrong home — your home. A burglary suspect is a minor and unarmed.

“You have to be able to justify the force you are using,” Schoonmaker said. “Certainly it’s suspicious, certainly it’s scary, but sometimes the better route is to call us.”

Kitsap County Sheriff’s spokesman Deputy Scott Wilson added on July 31, “If the threat is diminishing — if the person is now in the process of retreating and does not present a threat, that’s when the reasonable force rule dictates, ‘Let it go and leave it up law enforcement.’ ”

Along that line, Schoonmaker said, “You have to be able to articulate — to a jury of your peers — the threat and the reason” for using the level of force you used. “Commonly, when we talk to people about home safety and home defense, we tell them there’s no ‘They crossed the line, so you have free rein.’ ”

DIFFERENT INTERPRETATIONS

Police believe the level of force Lunn used was not necessary. But there are some possible holes in the investigation.

One: When police responded to Lunn’s criminal trespass report before the alleged assault, officers didn’t dust for fingerprints or collect other possible evidence. But Schoonmaker said that’s not unusual. “If someone says, ‘My house was broken into,’ but there’s no sign of forced entry, fingerprints may not be taken,” he said. In this case, because the 28-year-old had lived in the residence, “his fingerprints would be all over the house” and any prints collected would not necessarily be “evidentiary in nature.”

Two: Westerfield, after interviewing Lunn the night of the alleged assault, told Leeming that Lunn admitted “that he’s having individuals like this come into the house while he’s not home,” that he’s “inviting all these other weird people in there,” and that “he kicks them out, he brings them in,” leading Westerfield and Leeming to determine the 28-year-old “has a legal right to go back in there.”

But according to police bodycam footage, Lunn told Westerfield that, with the assistance of a friend, he evicted the 28-year-old; Lunn didn’t say he brought the man or the others in after kicking them out. Lunn said of the eviction, “I opened the door and all these other crazy people are here, all these homeless people, and then the neighbors are telling me they’ve been sneaking out as I was coming in, in the morning.”

Lunn said, “And, so right there, I said … Never again. I don’t want to see you.” Lunn said he took the man’s house key, and that the man told him he didn’t make a copy.

Three: A police photograph documented blood on the ground; the GameStop membership card is lying next to it. But police didn’t pick up the card as possible evidence. Lunn took the card to the police department later that day, but Schoonmaker said in an earlier interview he didn’t know if it had been analyzed it to determine if the card belonged to the man or if it had been used to open the front door.

— Richard Walker is managing editor of Kitsap News Group. Contact him at rwalker@soundpublishing.com. Sophie Bonomi of Kitsap News Group contributed to this story.

Michael Lunn said he swung at the alleged victim after the man entered the house; police believe the swinging started outside. (Poulsbo Police Department)

Michael Lunn said he swung at the alleged victim after the man entered the house; police believe the swinging started outside. (Poulsbo Police Department)

Michael Lunn is interviewed by Poulsbo Police Officer Gary Westerfield after the alleged assault at Lunn’s home. Lunn said he swung at the alleged victim after the man entered Lunn’s house; police believe the swinging started outside. (Poulsbo Police Department)

Michael Lunn is interviewed by Poulsbo Police Officer Gary Westerfield after the alleged assault at Lunn’s home. Lunn said he swung at the alleged victim after the man entered Lunn’s house; police believe the swinging started outside. (Poulsbo Police Department)

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