MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	35

Docket: Pen-18-23

Argued: February	4,	2019

Decided: March	5,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

ROBERT	HANSLEY

GORMAN,	J.

[¶1]		Robert	Hansley	appeals	from	a	judgment	of	conviction	of	murder,	

17-A	 M.R.S.	 §	 201(1)(A)	 (2018),	 and	 of	 elevated	 aggravated	 assault	 with	 a	

firearm (Class	A),	17-A	M.R.S.	§	208-B(1)(A)	(2018),	entered	by	the	trial	court	

(Penobscot	 County,	 Anderson,	 J.)	 following	 a	 jury	 trial.	 	 Hansley	 argues	 that

there	is	insufficient	evidence	to	support	his	convictions	and	that	the	trial	court	

erred	 by	 (1) denying	 his	 requested jury	 instruction	 on	 eyewitness	

identification	and	otherwise	giving	an	inadequate	instruction	on	the	topic,	and	

(2) instructing	 the	 jury	 in	 a	 way	 that	 overemphasized the	 definition	 of	

accomplice	liability.1		We	affirm.

 1 Hansley	 also	 claims	 that	 the	 court	 erred	 by	 presenting	 the	 jury	 with	 an	 instruction	 on	

manslaughter.		Hansley	did	not	object	to	the	manslaughter	instruction	at	trial.	 See	State	v.	Dolloff,	

2012	ME	130,	¶	35,	58	A.3d	1032;	State	v.	Pabon,	2011	ME	100,	¶	18,	28	A.3d	1147.		Because	 the	

jury	convicted	him	of	murder,	the	manslaughter	instruction	played	no	part	in	its	deliberations.		We	
2

I.		FACTS	AND	PROCEDURE

[¶2]		“Viewed	in	 the	light	most	 favorable	 to	 the	jury’s	 verdict,	 the	jury	

rationally	 could	 have	 found	 the	 following	 facts,	 which	 are	 supported	 by	

competent	 evidence,	 beyond	 a	 reasonable	 doubt.”	 	 State	 v.	McBreairty,	 2016	

ME	61,	¶	2,	137	A.3d	1012.

[¶3]	 	At	 approximately	 3:30	 a.m. on	 November	 27,	 2015,	Hansley	 and	

Thomas	Ferguson	entered	an	apartment	in	Bangor.		Almost	immediately	after	

they	arrived,	one	or	both	of	them	shot	and	killed	Robert	Kennedy	and	gravely	

injured	 Barry	 Jenkins.	 	Kennedy	 suffered	 seven	 gunshot	 wounds;	 one	 bullet	

perforated	 his	 aorta,	 killing	 him.	 	 Jenkins	 suffered	 six	 gunshot	 wounds,	 but	

survived	after	being	rushed	to	the	hospital.		

[¶4]		On	December	30,	2015,	the	Penobscot	County	grand	jury	returned	

two indictments	 arising	 from	 these	 events.	 	 The	 first indictment charged

Hansley	with	one	count	of	murder,	17-A	M.R.S.	§ 201(1)(A),	and	one	count	of	

elevated	aggravated	assault (Class	A),	17-A	M.R.S.	§	208-B(1)(A). The	second	

 

do	not	find	error	in	the	court’s	manslaughter	instruction,	but	even	if	we	concluded	otherwise,	any

error	would be	harmless.	 See State	v.	Bowman,	588	A.2d	728,	732	(Me. 1991).
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indictment	 charged	 Ferguson	 with	 the	 same	 crimes.

2	 	 Hansley	 pleaded	 not	

guilty	to	both charges.		

[¶5]	 	 The	 court	 conducted	 a	 seven-day	 jury	 trial	 in	 November	 and	

December	of	2017.		Jenkins	was	among	the	witnesses	called	by	the	State.	 He	

testified	 that	 both	 Hansley	 and	 Ferguson	 had	 “pulled	 out”	 guns,	 that	 he	

“figured	 both	 of	 them	 [were]	 shooting,”	but	 that	 he	 did	 not	 know	 “who	 shot	

who,”	and	 that	he	did	not	see	Hansley	shoot	at	him.	 At	 the	conclusion	of	 the	

testimonial	 portion	 of	 the	 trial,	 Hansley	 asked	 that	 the	 jurors be	 given	 a	

specific	 instruction	 on	 eyewitness	 identification	 so that	 they	 could	

appropriately	 weigh	 and	 consider	 Jenkins’s	 testimony	 in	 light	 of the	

“extremely	high	stress	situation”	of	 the	shooting. Although	 the	court	did	not	

give	 the	jury	 the	precise	instruction	requested	by	Hansley,	it	did	instruct	 the	

jurors	 that,	 in	 reviewing	 the	 testimony	 of	 all	 witnesses, they	 should

consider—among	 other	 things—“whether	 the	 witness	 was	 under	 stress,	

including	 the stress	of	the	event	being	witnessed while	observing	 the	person	

or	persons	committing	a	crime . . . .”	

 2		Ferguson	also	was	indicted	 for	tampering	with	a	victim (Class	B),	17-A	M.R.S.	§	454(1-B)(A)

(2018),	 but	 this	 charge	was	dismissed	 by	 the	 State.	 	Ferguson	opted	 to	 have	 his	 case	 heard	 by	a	

judge	rather	than	a	jury.		In	June	of	2017,	the	court	(Anderson,	J.)	found	Ferguson	guilty	of	murder	

and	elevated	aggravated assault.		It	subsequently	sentenced	Ferguson	to	fifty	years in	prison	on	the	

murder	 count	 and	 twenty-five	 years in	 prison	 on	 the	 elevated	 aggravated	 assault	 count,	 to	 run	

concurrently	with	the	sentence	for	murder.		We	affirmed	Ferguson’s	convictions	in	January	of	2019.		

See	State	v.	Ferguson,	2019	ME	10,	--- A.3d	---.
4

[¶6]	 	Hansley	 also	 argued	 that	 the	 evidence	 presented	 at	 trial	 did	 not	

generate	 an	 instruction	 on	 accomplice	 liability.	 	 When	 the	 court	 correctly	

responded	 that	 such	 an	 instruction	 had been	 generated	 by	 the	 evidence	

presented,	Hansley	then	asked	for	some	additional	instructions	on	that	issue.		

Although	 the	court	denied	Hansley’s	 specifically-requested	instruction,	it	did

instruct	the	jurors	on	the	law	concerning accomplice	liability.		

[¶7]	 	 The	 jury	 found	 Hansley	 guilty	 of	 both	 murder	 and	 elevated	

aggravated	assault.		The	court	entered	a	judgment	on	the	verdict,	imposing	a	

forty-year	 term	 of	 imprisonment	 for	 the	 murder	 and	 a	 concurrent	 twentyfive-year	 term	 for	 the	elevated	aggravated	assault.		Hansley	 timely	appealed.		

See 15	M.R.S.	§	2115	(2018);	M.R.	App.	P.	2B(b)(1).

II.		DISCUSSION

A. Jury	Instructions

[¶8]	 	 In	 general,	 we review	 jury	 instructions in	 their entirety	 to	

determine	 whether	 they presented	 the	 relevant	 issues	 to	 the	 jury	 fairly,	

accurately,	 and	 adequately,	 and	we	“will	 vacate	 the	 court’s	 judgment	 only	 if	

the erroneous	 instruction	 resulted	 in	 prejudice.”	 	 Caruso	 v.	 Jackson	 Lab.,	

2014 ME	 101,	 ¶	 12,	 98	 A.3d	 221;	 see	 also	 Sony	 BMG	 Music	 Entm’t	 v.	

Tenenbaum,	 660	 F.3d	 487,	 503	 (1st	 Cir.	 2011).	 	 “Prejudice	 occurs	 when	 an	
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erroneous	instruction	on	a	particular	point	of	law	affects	the	jury’s	verdict,	or	

alternatively,	 when	 the	 instruction	 was	 so	 plainly	 wrong	 and	 the	 point	

involved	so	vital	that	the	verdict	must	have	been	based	upon	a	misconception	

of	 the	 law.”	 	 Caruso,	 2014	 ME	 101,	 ¶	 15,	 98	 A.3d	 221	 (citations	 omitted)	

(quotation	 marks	 omitted);	 see	 also Alexander,	 Maine	 Appellate	 Practice

§ 422(b)	 at	 355	 (5th	 ed.	 2018).	 	 The	 appellant	 has	 the	 burden	 of	

demonstrating	 that	 an	 erroneous	 instruction	 affected	 the	 jury’s	 verdict.		

Caruso,	2014	ME	101,	¶¶	15,	18,	98	A.3d	221.

[¶9]	 	 More	 specifically,	 where	 an	 appellant	 argues	 that	 a	 trial	 court	

erred	in	denying	his	 requested	jury	instruction,	we will	 vacate	 the	judgment	

only	if	 the	appellant	can	demonstrate	 that	 the	denied	instruction	 “(1)	 stated	

the	law	correctly;	(2)	was	generated	by	 the	evidence;	(3)	was	not	misleading	

or	confusing;	and	(4)	was	not	sufficiently	covered	in	the	instructions	the court	

gave.”		State	v.	Hanaman,	2012	ME	40,	¶	16,	38	A.3d	1278.

1. Eyewitness	Identification

[¶10]	 	The	 United	 States	 Supreme	 Court	 has	 endorsed	 the	 use	 of	 jury	

instructions	 that	discuss	 the	potential	 risks	 of	eyewitness	identification.		See

Perry	v.	New Hampshire,	565	U.S.	228,	246 (2012).		Recently,	we	revisited	this	

issue	and	determined	 that	 the	 following	instruction	was “consistent	with	 the	
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evolution	 of	 the	 law	 regarding	 eyewitness	 identification”	 and “a	 correct	

statement	of	the	law”:

You	 should	 carefully	 consider	 any	 testimony	 relating	 to	 eye	

witness	 identification.	 For	 instance,	 you	 should	 consider	 the	

following	 in	 determining	 the	 accuracy	 of	 any	 eye	 witness	

identification: whether	 the	 accuracy	 of	 an	 eye	 witness	

identification	 may	 be	 affected	 by	 the	 fact	 that	 the	 person	

identified	is	of	a	different	race,	which	may	make	it	more	difficult	

to	identify	an	individual,	whether	 the	accuracy	of	an	eye	witness	

identification	may	be	affected	by	 the	circumstances	under	which	

it	 was	 made,	 how	 much	 weight,	 if	 any,	 you	 should	 give	 to	 the	

amount	of	certainty	expressed	by	a	witness	given	 that	 there	may	

not	 be	 a	 correlation	 between	 the	 reliability	 of	 an	 eye	 witness	

identification	 and	 the	 amount	 of	 certainty	 expressed	 by	 the	

witness	 in	 making	 that	 identification.	 It’s	 up	 to	 you	 to	 consider	

those	 issues	 and	 evaluate	 whether	 those	 affect	 any	 eye	 witness	

identification.

State	v.	Mahmoud,	2016	ME	135,	¶¶	9,	15,	147	A.3d	833 (quotation	marks	

omitted).	

[¶11]	 	 We	 have	 not	 endorsed	 any	 other	 specific	 language	 for	

instructions on	 eyewitness	 identification. See State	 v.	 Ashley,	 666	 A.2d	 103,	

107	 (Me.	 1995)	 (“A	 trial	 court	 has	 wide	 discretion	 in	 formulating	 its	

instruction	 to	 the	 jury	 so	 long	 as	 it	 accurately	 and	 coherently	 reflects	 the	

applicable	law.”);	see	also Perry,	565	U.S.	at	246	n.7 (listing	several	state	and	

federal	instructions	on	eyewitness	identification). The	Maine	Jury	Instruction	

Manual offers	 two	 representative	 models	 for	 instructions	 on	 eyewitness	
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identification,	one	modeled	after	Instruction	2.22	of	the	Pattern	Criminal	Jury	

Instructions	 for	 the	 District	 Courts	 of	 the	 First	 Circuit and	 the	 other	 on	 the

instruction quoted	above	that	we approved in	Mahmoud,	2016	ME	135,	¶¶ 9,

15, 147	 A.3d	 833.	 	 See Alexander,	Maine	Jury	 Instruction	 Manual	 §	 6-22A	 at	

6-41 cmt. (2018-19 ed.).

[¶12]	 	In	 this	 case,	 the	 instruction	 provided	 by	 the	 trial	 court	 did	 not	

follow	 verbatim	 either	 of	 the	 representative	 instructions	 in	 the	 Maine	 Jury	

Instruction	Manual,	 but	 a	 verbatim	 recitation	is	 not	 needed.	 	 See Ashley,	 666	

A.2d	 at 107	 (“While	 representative	 jury	 instructions	 often	 are	 helpful,	 it	 is	

neither	 sufficient	 nor	 advisable	 to	 rely	 solely	 on	 such	 an	 instruction.”);

Alexander,	Maine	Jury	Instruction	Manual §	6-22A	at	6-42	cmt.	(“In	every	case	

when	giving	 [an	eyewitness	identification]	instruction	.	.	.	the	instruction	will	

have	to	be	adjusted	to	the	facts	and	circumstances	incident	to	the	eyewitness	

identification	for	the	case.”).		The	court’s	instruction	here	appropriately	listed	

several	 factors	 that	 the	jury	could consider	in	evaluating	 the	 reliability	 of	an

eyewitness identification;	 many	 of	 these	 factors	 mirrored	 those	 listed	 in	

Hansley’s	 proposed	 instruction	 and others mirrored	 those	 listed	 in	 the	

representative	 instructions.	 	 See Alexander,	 Maine	 Jury	 Instruction	 Manual	

§ 6-22A	 at	 6-41.	 	 When	 viewed	 in	 its	 entirety,	 the	 instruction	 fairly	 and	
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adequately	 apprised	 the	 jury	 of	 the	 relevant	 issues	 and	 governing	 law.	 	 See	

Perry,	 565	U.S.	 at	 233;	Caruso,	 2014	 ME	 101,	 ¶ 12,	 98	 A.3d	 221;	Ashley,	 666	

A.2d	at 107.

[¶13]		Furthermore,	the	trial	court	did	not	err	when	it	denied	Hansley’s	

requested	 jury	 instruction because,	 although	 it	 may have	 stated	 the	 law	

correctly,	 Hansley’s	 proposed	 instruction	 on eyewitness	 identification	

contained	 paragraphs	 explaining how	 memories	 are	 formed—information	

neither properly	in	 evidence nor	 generated	 by	 any	 evidence	 presented.	 	 See	

Hanaman,	2012	ME	40,	¶	16,	38	A.3d	1278.		Additionally,	Hansley’s	proposed	

instruction contained	 segments	 that would	 have	 amounted	 to	 the	 court	

commenting	 on	 the	 evidence:	 “Even	 if	 you	 are	 convinced	 that	 the	 witness	

believes	 his	 or	 her	 identification	 is	 correct,	 you	 still	 must	 consider	 the	

possibility	 that	 the	 witness	 made	 a	 mistake	 in	 the	 identification.”	 	Although	

defense	counsel	may	wish	 to	so	argue	in	closing statements,	a	court	may	not	

give	such	an	instruction,	as	it	could be	seen	as	a	comment	on	specific	evidence.		

See id.; State	v.	Just,	2007	ME	91,	¶ 15,	926	A.2d	1173	(“Comment	by	the	court	

on	 the	 evidence	 during	 instructions	 is	 neither	 required	 nor	 appropriate	 in	

most	 instances.	 .	 .	 .	 [S]uch	 instructions	 giving	 special	 focus	 to	 particular	

evidence	should	be	avoided.”	(citations	omitted)	(quotation	marks	omitted)).		
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[¶14]	 	 Finally,	 the	 trial	 court’s	 instruction	 more	 than	 sufficiently	

covered	 the	 substance	 of	 Hansley’s	 requested instruction	 on	 eyewitness	

identification.		See Hanaman,	2012	ME	40,	¶	16,	38	A.3d	1278.		This	is	not	a	

case	involving	an	eyewitness	who	identifies	a	stranger:	Jenkins	knew	Hansley	

and	 Ferguson	 before	 the	 shooting	 occurred,	 as	 did	 other	 eyewitnesses.		

Instead,	 this	case,	and	 Jenkins’s	 testimony	in	particular,	 revolved	around	 the	

issue	 of	 who	 shot	 Jenkins	 and	 Ferguson.	 	 Because	 of	 this,	 the	 court	 gave	 a	

more	than	adequate	instruction	on	eyewitness identification;	in	fact,	the	court	

was	 not	 required	 to	 give	 such	 an	 instruction.	 	 See	 Mahmoud,	 2016	 ME	 135,	

¶ 14,	 147	 A.3d	 833	 (“We	 do	 not,	 however,	 conclude	 that	 the	 use	 of	 an	

eyewitness	 identification	 instruction	 is	 required in	 every	 case	 involving	 an	

eyewitness	 identification.	 	 For	 example,	 the	 eyewitness	 identification	

instruction	would	not	ordinarily	be	generated	in	instances	when	the	identified	

person	 is	 already	 known	 to	 the	 witness.”).	 	 Overall,	 the	 trial	 court’s	

instructions	 to	 the	 jury	 were	 thorough,	 fair,	 and	 accurate.	 	 The	 trial	 court	

therefore did	not	err	in	denying	Hansley’s	proposed	jury	instruction.
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2. Accomplice	Liability

[¶15]	 	 Hansley	 also	 asserts that	 the	 trial	 court overemphasized	

accomplice	liability	in	its	instruction	to	the jury	and	that	this	had	the	effect	of	

misleading	the	jury.		

[¶16]	 	Pursuant	 to	Maine	law,	 “[a] person	is	 an	 accomplice	 of	 another	

person	in	 the	commission	 of	a	crime	if	 .	 .	 .	 [w]ith	 the	intent	 of	promoting	 or	

facilitating	the	commission	of	the	crime,	the	person	solicits	such	other	person	

to	 commit	 the	 crime,	 or	 aids	 or	 agrees	 to	 aid	 or	 attempts	 to	 aid	 such	 other	

person	in	planning	or	committing	the	crime.”		17-A	M.R.S.	§	57(3)(A)	(2018).		

“Any	 instruction	 on	 accomplice	 liability	 must	 avoid	 any	 suggestion	 that	 a	

conviction	 could	 be	 obtained	 by	 any	 lesser	 mental	 state	 [than	 intentional	

action].”	 Alexander,	Maine	Jury	Instruction	Manual §	6-31	at	6-63	cmt.	

[¶17]		Although	Hansley’s	argument	on	 this	issue	is	cursory	at	best,	he	

seems	 to	 be	 arguing	 that	 the	 court’s	 instruction	 suggested	 that	 a	 conviction	

under	 an	 accomplice	 theory	 could	 be	 obtained	by	 a	lesser	mental	 state.	 	We	

disagree.	 Contrary	 to	 Hansley’s	 implication,	 the	 court’s	 instruction	 did	 not	

confuse	 the	 jury	 nor	 did	 it	 allow	 a	 verdict	 based	 on	 any	 mental	 state	 other	

than	intentionality.		See Caruso,	2014	ME	101,	¶	12,	98	A.3d	221;	Alexander,	

Maine	Jury	Instruction	Manual §	6-31	at	6-63	cmt.		In	its	instruction	to	the	jury,	
11

the	court	explained,	on	more	than	one	occasion,	that	Hansley	must	have	acted	

“with	 the	intent	 of	 promoting	 or	 facilitating”	 the	 crime	in	 order	 to	 be	 guilty	

under	 an	 accomplice	 theory.	 	 The	 trial	 court	 therefore	 did	 not	 err	 in	 its	

instruction	on	 accomplice	liability. See	 Caruso,	 2014	ME	 101,	 ¶¶	 12,	 15,	 98	

A.3d	221.

B. Sufficiency	of	the	Evidence

[¶18]		Lastly,	Hansley	contends	 that	 there	was	insufficient	evidence	 to	

support	 his	 conviction	 for	 murder	 and	 elevated	 aggravated	 assault.		

Specifically,	 Hansley	 argues	 that	 the	 verdict	 was	 based	 largely	 on	 Jenkins’s	

testimony,	 which	 he	 argues	 was	 incredible	 and	 therefore	 not	 competent	 to	

support the	conviction.		

[¶19]		“When	reviewing	a	judgment	 for	sufficiency	of	 the	evidence,	we	

view	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State	 to	 determine	

whether	 the	 fact-finder	 could	 rationally	 have	 found	 each	 element	 of the	

offense	beyond	a	reasonable	doubt.		We	defer	to	all	credibility	determinations	

and	 reasonable	inferences	 drawn	 by	 the	 fact-finder,	 even	if	 those	inferences	

are	contradicted	by	parts	of	the	direct	evidence.”		State	v.	Cummings,	2017	ME	

143,	¶	12,	166	A.3d	996	(citation	omitted)	(quotation	marks	omitted).		
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[¶20]	 	 Relevant	 here,	 a	 person	 is	 guilty	 of	 murder	 if	 that	 person	

“[i]ntentionally	or	knowingly	causes	the	death	of	another	human	being.”		17-A	

M.R.S.	 § 201(1)(A).	 	 A person	 is	 guilty	 of	 elevated	 aggravated	 assault	 if	 that	

person	 “[i]ntentionally	 or	 knowingly	 causes	 serious	 bodily	injury	 to	 another	

person	with	the	use	of	a	dangerous	weapon.”		17-A	M.R.S.	§ 208-B(1)(A).	

[¶21]	 	 Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State,	

there	is	sufficient	evidence	from	which	the	jury	rationally	could	find,	based	on	

reasonable	 inferences	 drawn	 from	 direct	 and	 circumstantial	 evidence,	 that	

Hansley	was,	at	a	minimum,	an	accomplice	to	the	murder	of	Kennedy	and	the	

elevated	 aggravated	 assault	 of	 Jenkins.	 	 See	 Cummings,	 2017	 ME	 143,	 ¶	 12,	

166	 A.3d	 996.	 	 Among	 other	 evidence,	 eyewitnesses	 placed	 Hansley	 in	 the	

room	 where	 the	 crime	 took	 place,	 two	 informants	 testified	 that	 Hansley	

admitted	 to	 the	 crimes,	 Hansley	 and	 Ferguson	 had	 a	 history	 of	 engaging	 in	

incidents	of	violence	together,	and	forensic	tests	identified Hansley’s	DNA	on	

the	material	used	to	wrap	the	murder	weapon.		The	jurors	could	have	reached	

their	 verdict	 based	 on	 one	 of	 two	 permissible	 conclusions:	 that	 Hansley	

himself	committed	 the	murder	and	elevated	aggravated	assault,	or	 that,	with	

the	 requisite	mental	 state,	 he	 solicited,	 aided,	 agreed	 to	 aid,	 or	 attempted	 to	

aid	Ferguson	in	the	commission	of	these	crimes.
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[¶22]		Even	though	Jenkins’s	testimony	was	at	times	contradictory,	our	

review	 “does	 not	 intrude	 on	 the	 jury’s	 role	 to	 resolve	 conflicts	 in	 the	

testimony,	 to	 weigh	 the	 evidence,	 and	 to	 draw	 reasonable	 inferences	 from	

basic	 facts	 to	 ultimate	 facts.”	 	Musacchio	 v.	United	 States,	 136 S.	 Ct.	 709,	 715	

(2016)	(quotation	marks	omitted);	accord	Cummings,	2017	ME	143,	¶	12,	166	

A.3d	996.		The	record	at	trial,	when	taken	as	a	whole	and	viewed	in	the	light	

most	 favorable	 to	 the	State,	 supports	 the	jury’s	 finding	 that	Hansley	is	guilty	

beyond	 a	 reasonable	 doubt	 of	 both	 charges.	 	 See	 Cummings,	 2017	 ME	 143,	

¶ 12,	166	A.3d	996.

The	entry	is:

Judgment	affirmed.	

Tina	 Heather	 Nadeau,	 Esq. (orally),	 The	 Law Office	 of	 Tina	Heather	Nadeau,	

PLLC,	Portland,	for	appellant	Robert	Hansley

Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.

(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Penobscot	Unified	Criminal	Docket	docket	number	CR-2015-4403

FOR	CLERK	REFERENCE	ONLY