MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 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)	 (201 8 ) ,	 and	 of	 elevated	 aggravated	 assault	 with	 a firearm ( Class	A ) , 17

- A	M.R.S.	§	208

- B(1)(A)	(201 8 ) ,	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. We2 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	 appro ximately	 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	 gunsh ot	 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 g rand j ury	returned
two indictment s	 arising	 from	 these	 events. The	 first indictment charg ed 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). T he	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).3 indictment	 charged	 Ferguson	 with the	 same	 c rimes

. 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	 t rial,	 Hansley	 asked	 that	 the	 jur ors 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. A lthough	 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	witnesse d 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	Ja nuary	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.
A lthough	 the	court denied	Hansley’s	 specifically

- requested instruction,	it	did instruct	the	jurors	on	the	law	concerning accomplice	liability. [¶ 7 ] T he	 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	 twenty

five

- year	 term	 for	 the	elevated	aggravated	assault. Hansley	 timely	appealed.
See 15	M.R.S.	§	2115	(201 8 ); M.R.	App.	P.	2 B ( b )(1)

. II.		DISCUSSION
A. Jury	Instructions [¶ 8 ] In	 general, we review	 jury	 instruction s 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	 an5 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	vi tal	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	 h as	 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, w e 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 [¶1 0 ] 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,	2 46 (2012). Recently,	we	revisited	this issue	and	determined	 that	 the	 following	instruction was “ consistent	with	 the6 evolution	 of	 the	 law	 regarding	 eyewitness	 identification”	 and “a	 correct statement	of	the	law” : You	 should	 caref ully	 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	a ffected	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	 amou nt	 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
omitt ed)

. [¶1 1 ] We	 have	 not	 endorsed any	 other specific	 language	 for
i nstructions on eyewitness	 i dentification

. 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 eyewitness7 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.). [¶1 2 ] In	 this	 case,	 t he	 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	Ins truction	Manua l §	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 he re	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
repres entative	 instructions. See Alexander, Maine	 Jury	 Instruction	 Manual § 6

- 22A	 at	 6

- 4 1 .	 	 When	 viewed	 in	 its	 entirety,	 the	 instruction	 fairly	 and8 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

. [¶1 3 ] 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 c ould 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	mar ks	omitted)).9 [¶14] Finally,	 the	 trial	 court’s	 instruction more	 than sufficiently covered the	 substance	 of Hansley’s	 request ed 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	 sh ot	 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,	 co nclude	 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
per son	 is	 already	 known	 to	 the	 witness.”).	 	 Overall,	 the	 trial	 court’s instructions	 to	 the	 jury	 were	 thorough,	 fair,	 and	 accurate. T he	 trial	 court therefor e did	not	err	in	denying	Hansley’s	proposed	jury	instruction.10 2

. Accomplice	Liability [¶1 5 ] 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. [¶1 6 ] Pursuant	 t o	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)	(201 8 ). “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. [¶1 7 ] 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. C ontrary	 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	intentional ity

. See Caruso ,	2014	ME	101,	¶	12,	98	A.3d	221;	Alexan der, 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	 acc omplice	 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 [¶1 8 ] 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 theref ore not	 competent to support the	conviction. [¶1 9 ] “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).12 [¶ 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). [¶ 2 1 ] Viewing	 the	 evidence	 in	 the	 light	 most	 fav orable	 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 elevat ed	 aggravated	 assault	 of	 Jenkins. See	 Cummings ,	 2017	 ME	 143,	 ¶	 12, 166	 A.3d	 996. Among	 other	 evidence,	 e yewitnesses	 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.13 [¶ 2 2 ] 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	 bo th	 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 F OR C LERK R E FERENCE O NLY