MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	90

Docket: Aro-19-134

Argued: February	13,	2020

Decided: June	18,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY, HORTON,	and	CONNORS,	JJ.*

STATE	OF	MAINE

v.

MARCUS	ASANTE

HUMPHREY,	J.

[¶1]		In	this	opinion,	we	consider	whether	the	trial	court	erred	in	its	jury	

instructions	 regarding the	 self-defense justification	 that	 Marcus	 Asante	

asserted	in	defending	against	a	murder	charge	and	in	its	jury	instructions	on	

the	 elements	 of	 robbery. Asante	 appeals	 from	 judgments of	 conviction	 of	

intentional	or	knowing	murder,	17-A M.R.S.	§	201(1)(A)	(2020),	and	robbery	

(Class	A),	17-A M.R.S.	§	651(1)(D),	(E)	(2020),	entered	by	the	court	(Aroostook	

County,	Stewart,	J.)	after	a	jury	trial.		He	argues	that	the	court’s jury instructions	

allowed the	 state	 to	 obtain a	 conviction	 without	 proof	 of	 every	 element	 of	

 *		Although	not	available	at	oral	argument,	Justices Gorman,	Horton,	and	Connors participated	in	

the	development	of	this	opinion.		See M.R.	App.	P.	12(a)(2)	(“A	qualified	justice	may	participate	in	a	

decision	even	though	not	present	at	oral	argument.”).		Chief	Justice	Saufley	sat	at	oral	argument	and	

participated	in	the	initial	conference	but	resigned	before	this	opinion	was	certified.
2

robbery as	charged	pursuant	to 17-A	M.R.S.	§ 651(1)(E),	that	the	self-defense	

instruction	improperly	intruded	 on	 the	 province	 of	 the	jury	 to	 find	 the	 facts,

and that	the	court’s	use	of	that	instruction failed	to direct	the	jury	that	the	State	

was	required	to	disprove	self-defense	beyond	a	reasonable	doubt.

1		Because the	

instructions on	 the	 elements	 of	 robbery	misstated	 the	law,	 and	thereby	 also	

rendered a	 portion	 of the	 court’s	instructions on	 self-defense	 erroneous,	we	

vacate	the	judgments of	conviction for both murder	and	robbery.	

I.		BACKGROUND

[¶2]		The	following	facts	are	drawn	from	the	evidence	presented	at	trial,	

viewed	in	the	light	most	favorable	to	the	State.		See	State	v.	Sholes,	2020	ME	35,	

¶	 2,	 --- A.3d	 ---. In	 October	 2016,	 Marcus	 Asante traveled by	 car	 from	

Massachusetts	to	Maine	to	obtain $20,000	worth	of	marijuana from	the	victim.		

He	was accompanied on	that	trip	by	four other	people,	one	of	whom	was	the	

 1	 	 Asante	 also	 argues	 that	 the	 court	 erred	 in	 admitting	 certain	 testimony	 from	 a	 jailhouse	

informant	and	that	his	convictions	for	murder	and	robbery	violate	the	Double	Jeopardy	Clauses	of	

the	United	States	and	Maine	Constitutions.		We	conclude	that the	court	did	not	abuse	its	discretion	in	

determining	that	the	probative	value	of	the	informant’s	testimony	was	not	substantially	outweighed	

by	the	danger	of	unfair	prejudice,	see M.R.	Evid.	403;	State	v.	Pillsbury,	2017	ME	92,	¶	24,	161	A.3d	

690;	 that	 the	 court	 did	 not	 violate	 Asante’s	 Sixth	 Amendment	 right	 to	 counsel	 in	 admitting	 the	

informant’s	testimony	because	the	informant	was	not	a	state	agent,	cf.	United	States	v.	Danielson,	325	

F.3d	1054,	1060,	1073-74	(9th	Cir.	2003)	(remanding	for	an	evidentiary	hearing	regarding	whether	

the	 government	 used	 privileged	 information	 about	 the	 defendant’s	 trial	 strategy	 that	 it	 had	

deliberately	obtained	through	a	compensated	informant);	and	that	the	convictions	did	not	amount	to	

double	jeopardy	because	the	conviction	for	each	crime	required	proof	of	a	fact	that	the	other	did	not,	

see 17-A M.R.S.	§§ 201(1)(A),	651(1)(D),	(E)	(2020); State	v.	Martinelli,	2017	ME	217,	¶	9,	175	A.3d	

636.
3

victim’s	cousin.		The	group	ultimately	met	with	the	victim	at	a	gas	station	in	the	

town	of	Sherman,	where	the	victim’s	cousin,	Asante,	and	another	man	got	into

the	victim’s	car.		The	victim	drove	with	the	three	passengers	to	a	secluded	dirt	

road,	and	the	remaining	two	travelers	from	Massachusetts	followed	in	the	other	

car.		

[¶3]		After	the	victim stopped his	car,	he was	shot	nine	times,	causing	his	

death.		After	the	shooting,	either	the victim’s	cousin,	Asante,	or	the	other	man

took	 the	 marijuana,	 and	 all	 five	 individuals	 who	 had	 traveled	 from	

Massachusetts	 returned	there.	 	Asante	took	a	 share	 of	 the	marijuana,	which,	

along	with	the	gun	that	had	been	used	to	fire	the	bullets	found	in	the	victim’s	

body	and	car, was	later	found	in Asante’s apartment.		

[¶4]	 In	 November	 2016,	 Asante	 was	 charged	 by	 indictment	 with	

knowing	or	intentional	murder,	17-A	M.R.S.	§	201(1)(A), and	robbery	(Class	A),	

17-A	M.R.S.	§	651(1)(D),	(E).		Asante	pleaded	not	guilty.		

[¶5]	 	 The	 court	 held	 a	 six-day	 jury	 trial	 in	 November	 2018.	 	The	 trial	

testimony	included conflicting	versions	of	the	events	that	transpired	inside	the	

victim’s	car.		The	State	offered	evidence	that the	people	in	the	victim’s	car—the	

victim’s	 cousin,	 Asante,	 and	 their	 associate—intended	 to	 rob	 the	 victim.		

According	to	that	evidence,	the	victim’s	cousin,	seated	next	to	the	victim	in	the	
4

front	passenger	seat,	attempted	to	grab	a	bag	of	marijuana	from	the	victim.		The	

victim	pulled out	a	gun,	and Asante,	sitting	in	the	seat	directly	behind	the	victim,	

shot	the	victim	nine	times,	causing	his	death.		

[¶6]	 	Asante,	 in	 contrast,	 testified	 that	 there	 was	 no	 plan	 to	 commit	 a	

robbery;	 the	 victim’s	 cousin	 had	 arranged	 for	 Asante	 to	 purchase	 marijuana	

from	 the	 victim.	 	 According	 to	 Asante,	 when	 the	 victim	 failed	 to	 supply	 the	

quantity	and	quality	of	marijuana	that	he	had	promised,	Asante	called	the	deal	

off.		The	victim then locked	the	car	doors,	pulled	out	a	gun,	and	tried	to	shoot	

Asante	in	the	face.		The	victim’s	gun	did	not	fire,	and	the	man	in	the	back seat	

with	Asante	shot	the	victim	multiple	times.		

[¶7]	 	 After	 the	 parties	 offered	 their	 evidence,	 they agreed	 on	 the	 jury	

instructions	 for	 the	 court	 to	 deliver,	 including	 instructions	 on	 robbery	 and	

self-defense.		At	no	time	did	Asante object	to	these instructions.		

[¶8]	 	 The	 jury	 returned	 guilty	 verdicts	 on	 the	 murder	 and	 robbery	

charges,	and	 the	court	sentenced	Asante	 to	 thirty-five	years	in	prison	 for	 the	

murder	and	twenty	years	for	the	robbery,	to	run	concurrently.		The	court	also	

ordered	Asante	to	pay	$70	to	the	Victims’	Compensation	Fund	and	to	pay	the	
5

victim’s	family	restitution	of	$2,274.40.		Asante	timely	appealed.		See	15	M.R.S.	

§	2115	(2020);	M.R.	App. P. 2B(b)(1).2		

II.		DISCUSSION

[¶9]		Asante	argues	that the	court	erred	in	(1)	instructing	the	jury	that	he	

could	be	convicted of	robbery if	he was	armed	with	a	dangerous	weapon,	or	he	

knew	that	an	accomplice	was	so	armed,	at	the	time of	a	theft or	attempted	theft,	

and	(2) instructing	the	jury	that,	if	it	found	Asante	guilty	of	robbery,	then the	

State	had	disproved	that	Asante	had	acted	in	self-defense	with	respect	to	the	

murder	charge.		

[¶10]		Asante	concedes	that	he	raised	no	objection	to	the	instructions and	

that	our review	is	for	obvious	error.		An	error	is	obvious	if	there	is	“(1)	an	error,	

(2)	that	is	plain,	and	(3) that	affects	substantial	rights.		If	these	conditions	are	

met,	we	will	exercise	our	discretion	to	notice	an	unpreserved	error	only	if	we	

also	conclude	that	(4)	the	error	seriously	affects	the	fairness	and	integrity	or	

 2		On	February	13,	2020,	we	held	oral	argument	in	Asante’s	appeal.		Five days	later,	Asante	filed	a	

motion	to	supplement	the	briefing	and	indicated	in	his	motion	that	the	State	opposed	the	motion.		

Asante	 filed	 the	motion	because	 the	Court’s	questions	posed	at	 oral	argument	alerted	him	 to	 the	

additional	issue	 of	 the	 court	improperly	 using	 the	word	 “or”	instead	 of	 the	word	 “and”	 between	

required	 elements	 of	 robbery	 as	 charged	 pursuant	 to	 17-A	 M.R.S.	 §	 651(1)(E).	 	 He	 briefed	 his	

argument	on	that	issue	as	part	of	the	motion.		We	granted	the	motion,	accepted	the	motion	as	Asante’s	

supplemental	brief,	and afforded	the	State	the	opportunity	to	file	a	responsive	brief.		The	State	filed	

its	response,	and	we	now	consider	all	issues.		
6

public	reputation	of	judicial	proceedings.”		State	v.	Pabon,	2011	ME	100,	¶	29,	

28	A.3d	1147.		

[¶11]		“A	jury	instruction	is	erroneous	if	it	creates	the	possibility	of	jury	

confusion	and	a	verdict	based	on	impermissible	criteria.”		State	v.	Delano,	2015	

ME	18,	¶	13,	111	A.3d	648 (quotation	marks	omitted).

A. The	Instructions

[¶12]		Regarding	the	murder	charge,	the	court	instructed	the jury	on	the	

law	of	self-defense	and	concluded	with	the	following	instruction:

Finally,	 notwithstanding	 the	 instructions	 I	 have	 just	 given	

you	regarding	self-defense,	if	the	State	proves	beyond	a	reasonable	

doubt	 that	 Mr.	 Asante	 is	 guilty	 either	 personally	 or	 as	 an	

accomplice	 of	 the	 offense	 of	 robbery	 as	 alleged	 in	 Count	 2,	 the	

elements	of	which	I	will	instruct	you	on	shortly,	then	the	State	has	

successfully	met	its	burden	of	proving	beyond	a	reasonable	doubt	

that	deadly	 force	was	not	used	in	self-defense	and	 the	defense	is	

not	available.

Asante	raised	no	objection.		The	court	then	instructed	the	jury	on	the	elements	

of	 robbery.	 	 It	 instructed,	 again	 without	 any	 objection from	 Asante,	 that	 “a	

person	commits	 robbery	as	charged	in	 the	indictment	if	 the	person	commits	

theft	 and	 at	 the	 time	 of	 the	 person’s	 actions,	 the	 actor	 intentionally	 inflicts	

bodily	injury	on	another or	the	actor	is	armed	with	a dangerous	weapon	in	the	

course	 of	 a	 robbery	 or	 knows	 that	 an	 accomplice	 is	 so	 armed.”	 	 (Emphasis	

added.)		It	further	instructed the	jury,	
7

[I]f	 you	 conclude	 that	 the	 State	 has	 established	 beyond	 a	

reasonable	 doubt	 that,	 one,	 Marcus	 Asante	 or	 an	 accomplice

committed	theft	and,	two,	at	the	time	of	the	theft	Marcus	Asante	or	

an	accomplice	intentionally	inflicted	bodily	injury	on	[the	victim],	

or that	 Marcus	 Asante	 or	 an	 accomplice	 was	 armed	 with	 a	

dangerous	 weapon	 in	 the	 course	 of	 the	 robbery,	 or	that	 Marcus	

Asante	knew	that	an	accomplice	was	so	armed,	then	the	State	has	

proven	 beyond	 a	 reasonable	 doubt	 that	 the	 defendant,	 Marcus	

Asante,	is	guilty	of	the	crime	of	robbery	.	.	.	.

(Emphasis	added.)		

[¶13]		The	indictment	against	Asante	charged	him	with	Class	A	robbery	

as	follows:

On	 or	about	October	16,	2016,	in	 the	County	 of	Aroostook,	

State	 of	 Maine,	 MARCUS	 ASANTE .	 .	 . did	 commit	 or	 attempt	 to	

commit	theft	of	the	property	of	[the	victim]	and	at	the	time	of	his	

actions	MARCUS	ASANTE or	an	accomplice	to	his	knowledge,	was	

armed	 with	 a	 dangerous	 weapon,	 namely	 a	 handgun,	 and	

intentionally	 inflicted	 bodily	 injury	 on	 [the	 victim]	 during	 the	

commission	 of	 the	 robbery	against	 [the	 victim]	all	in	 violation	 of	

17-A	M.R.S.	§§	651(1)(D)	& (E) &	1252(5).3

 3		Title 17-A	M.R.S.	§	1252(5)	was	repealed	effective	May	16,	2019.		See	P.L.	2019,	ch.	113,	§	A-1

(effective	May	16,	2019).		At	the	time	of	the	indictment,	the	statute	provided,	in	relevant	part,

Notwithstanding	 any	 other	 provision	 of	 this	 code,	 except	 as	 provided	 in	 this	

subsection,	if	the	State	pleads	and	proves	that	a	Class	A,	B	or	C	crime	was	committed	

with	the	use	of	a	firearm	against	a	person,	the	minimum	sentence	of	imprisonment,	

which	may	not	be	suspended,	is	as	follows:	When	the	sentencing	class	for	the	crime	

is	Class	A,	the	minimum	term	of	imprisonment	is	4	years;	when	the	sentencing	class	

for	the	crime	is	Class	B,	the	minimum	term	of	imprisonment	is	2	years;	and	when	the	

sentencing	class	for	the	crime	is	Class	C,	the	minimum	term	of	imprisonment	is	one	

year.	.	.	.

17-A	M.R.S.	§	1252(5)	(2016),	repealed	by	P.L.	2019,	ch.	113,	§	A-1 (effective	May	16,	2019).		The	

sentencing	statute	that	is	now	in	effect	similarly	provides,
8

Accordingly,	we	examine	section	651(1)(D)	and	(E)	 to	determine	what	proof	

was	necessary	for	a	jury	to	convict	Asante	under	either	paragraph.

B. The	Elements	of	Robbery	as	Charged

[¶14]		A	person	is guilty	of	robbery	pursuant	to	17-A M.R.S.	§ 651(1)(D)

if	the	State	proves	that	(1)	“the	person	commit[ted] or	attempt[ed] to	commit	

theft,”	id. § 651(1),	and	(2)	“at	the	time	of	the	person’s	actions	.	.	.	[t]he	actor	

intentionally	inflict[ed] or	attempt[ed] to	inflict	bodily	injury	on	another,”	id.

§ 651(1)(D).		A	person	is	guilty	of	robbery pursuant	to	section	651(1)(E) if	the	

State	proves that “the	person	commit[ted]	or	attempt[ed]	to	commit	theft	and	

at	the	time	of	the	person’s	actions	.	.	.	[t]he	actor [was] armed	with	a	dangerous	

weapon	in	 the	 course	 of	 a	 robbery	 as	 defined	in	 paragraphs	A	 through D	 or	

kn[ew] that	 the	 accomplice	[was] so	 armed.”	 Here,	 Asante	was	 not	 charged	

with	committing	a	robbery	as	defined	in	paragraphs	A,	B,	or	C.		Thus,	to	prove	

that	 Asante	 committed	the robbery pursuant	to	 section	 651(1)(E) as	 it	 was	

 If	the	State	pleads	and	proves	that	a	Class	A,	B	or	C	crime	was	committed	with	the	use	

of	 a	 firearm	against	an	individual,	 the	minimum	 sentence	 of	imprisonment,	which	

may	not	be	suspended,	is	as	follows:		

A. In	the	case	of	a	Class	A	crime,	4	years;	

B.	 In	the	case	of	a	Class	B	crime,	2	years;	and	

C. In	the	case	of	a	Class	C	crime,	one	year.

17-A	M.R.S.	§	1604(3)	(2020).
9

charged	in	the	indictment,	the	State	had	to	prove	that (1)	Asante	committed	or	

attempted	 to	 commit	 a	 theft,	(2)	 at	 the	 time	 of	 the	 theft	 or	 attempted	 theft,

Asante	 or	 an	 accomplice intentionally	inflicted	or	 attempted to	inflict	 bodily	

injury	on	the	victim, and (3) at	the	time	of	the	theft	or	attempted	theft,	Asante	

was	 armed	 with	 a	 dangerous	 weapon	 or	 knew	 that	 his	 accomplice	 was	 so	

armed.		See	id. § 651(1)(D),	(E).

[¶15]	 	 Although	 the	 State	 argues	 that	 the	 Legislature	 could	 not	 have	

intended	to	require	the	State	to	prove	a	robbery	pursuant	to	section	651(1)(A),	

(B),	 (C),	 or	 (D)	 to	 obtain	 a	 conviction	 pursuant	 to	 section	 651(1)(E),	 that	 is	

precisely	what	section	651(1)(E),	by	its	plain	language,	requires:	“A	person	is	

guilty	of	robbery	if	the	person	commits	or	attempts	to	commit	theft	and	at	the	

time	of	the	person’s	actions.	.	.	[t]he	actor	is	armed	with	a	dangerous	weapon	in	

the	course	of	a	robbery	as	defined	in	paragraphs	A through	D or	knows	that	the	

accomplice	is	so	armed.”		(Emphasis	added.)

C. Propriety	of	the	Robbery	Instructions

[¶16]	 	 Asante	 is	 correct that	 the	 use	 of	 the	 word	 “or”	 in	 the	 jury	

instruction	makes	it	possible	 that	 the	jury	 found	him	guilty	of	robbery	based	

solely on	findings	that	he committed a	theft	and,	at	the	time	of	that	theft,	was

armed	with	a	dangerous	weapon	or	knew that	an	accomplice	was	so	armed.		A	
10

conviction	 on	 this	 basis	 would	 lack	 a	 finding	 of	 the	 required	 element	 that	

Asante	 or	his	accomplice intentionally inflicted	or	attempted	 to	inflict	bodily	

injury	 on	 the	 victim	 at	 the	 time	 of	 the	 theft.	 	 See	 id. §	 651(1)(D),	 (E).	 	 The	

instructions	 on	 the	elements	 of	 robbery,	 therefore,	made	it	possible	 that	 the	

jury	reached	“a	verdict	based	on	impermissible	criteria” by	finding	guilt	based	

on	instructed	elements	that	would	satisfy	neither	paragraph	D nor	paragraph E.		

Delano,	2015	ME	18,	¶	13,	111	A.3d	648	(quotation	marks	omitted).

D. Propriety	of	the	Self-Defense	Instruction	on	the	Murder	Charge

[¶17]		The error	in	the	robbery	instruction	also	affects the	judgment	of	

conviction	of	murder	because	the	court	instructed the	jury,	pursuant	to	State	v.	

Bradley,	521	A.2d	289,	290-91	(Me.	1987),	 that	“if	 the	State	proves	beyond	a	

reasonable	doubt	that	Mr. Asante	is	guilty	either	personally	or	as	an	accomplice	

of	the	offense	of	robbery	.	.	.	then	the	State	has	successfully	met	its	burden	of	

proving	 beyond	 a	 reasonable	 doubt	 that	 deadly	 force	 was	 not	 used	 in	

self-defense	and	the	defense	is	not	available.”		See also State	v.	Ouellette,	2012	

ME	11,	¶	17,	37	A.3d	921	(“It	is	the	State’s	burden	to	both	disprove	self-defense	

beyond	 a	 reasonable	 doubt	 and	 prove	 each	 element	 of	 the	 crime	 charged	

beyond	a	reasonable	doubt.		If	the	jury	finds	that	the	State	disproved	at	least	

one	element	of	self-defense,	the	jury	may	then	convict	the	defendant	if	it	also	
11

finds,	beyond	a	reasonable	doubt,	that	the	defendant	committed	each	element	

of	 the	crime.”		(citations	omitted)).		Without	a	proper	instruction	requiring	a	

finding	 that	bodily	injury	was	inflicted “at	 the	 time	 of” the	 theft, 17-A	M.R.S.	

§ 651(1),	there	is	a	possibility	that	the	jury	found	that	the	State	had	disproved	

that	Asante	acted	in	self-defense	by	proving	only	that	Asante	was armed	with a	

dangerous	weapon,	or	knew that his	accomplice	was so	armed,	at	the	time	of	

the	theft.		

[¶18]	 	 If	 the	 jury had received	 accurate instructions on	 robbery,	 the	

self-defense	 instruction	 would	 have	 been	 proper.	 	 Because	 the	 self-defense	

justification	“is	designed	to	afford	protection to	one	beset	by	an	aggressor	and	

confronted	 by	 necessity	 not	 of	 his	 own	making,”	Ouellette,	 2012	ME	 11,	 ¶	 9,	

37 A.3d	 921 (quotation	 marks	 omitted), “[a]	 person	 is	 not	 justified	 in	 using	

deadly	force	to	defend	himself	from	the	use	of	such	force	by	another	unless	the	

other’s	use	 of	 force	is	unlawful,”	Bradley,	521	A.2d	at	290	(emphasis	added).		

Here,	the	victim’s	use	of	force	was	lawful if	he	was	justifiably defending	himself	

against	 a	 robbery.	 	 See 17-A	 M.R.S.	 § 108(2)(A)(2)	 (2020).	 	 Specifically,	 the	

victim	 was	 “justified	 in	 using	 deadly	 force	 upon	 another	 person”	 if	 he	

“reasonably	 believe[d]	 it	 necessary	 and	 reasonably	 believe[d]	 such	 other	

person	[was]	.	.	.	[c]ommitting	or	about	to	commit	a	.	.	.	robbery”	against	him.		
12

Id.		“Deadly	force”	includes	“intentionally,	knowingly	or	recklessly	discharging	

a	firearm	in	the	direction	of	another	person.”		17-A	M.R.S.	§	2(8)	(2020).

[¶19]		 “Since	 section	 108(2)(A)(2)	makes	lawful	 the	 reasonable	use	 of	

deadly	 force	 against	 another	 person	 ‘committing	 or	 about	 to	 commit	 a	 .	 .	 .	

robbery,’	 self-defense	 is	 not	 available	 to	 a	 person	 committing	 or	 about	 to	

commit	 a	 robbery.”	 	 Bradley,	 521	 A.2d	 at	 291	 (quoting	 17-A	 M.R.S.	

§ 108(2)(A)(2)).		“When	committing	or	attempting	to	commit	a	particular	crime	

may	be	resisted	with	deadly	force,	the	self-defense	issue	is	negated	when	the	

jury	determines	that	such	a	crime	has	been	committed	by	the	person	seeking	

to	invoke	a	self-defense	justification.”		Alexander,	Maine	Jury	Instruction	Manual

§	6-55	at	6-107	(2019-2020	ed.	2019)	(citing	Bradley,	521	A.2d	289).

[¶20]		If	the	jury	had	received	proper	instructions,	the	jury	could	not	have	

convicted	 Asante of	 robbery	 pursuant	 to	 section	 651(1)(D)	 or	 (E)	 unless	 it

found	 that	he or	his	accomplice,	“at	 the	 time	of”	 the	 theft	or	attempted	 theft,	

intentionally	 inflicted	 bodily	 injury	 or	 attempted	 to	 inflict	 bodily	 injury.	 	Id.	

§ 651(1)(D);	see	17-A	M.R.S.	§ 57(3)(A)	(2020);4 see	also	State	v.	Solomon,	2015	

 4		“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.		A	person	is	an	accomplice	under	this	subsection	to	any	crime	the	commission	

of	which	was	a	reasonably	foreseeable	consequence	of	the	person’s	conduct.”		17-A	M.R.S.	§	57(3)(A)	

(2020).
13

ME	96,	¶	9,	120	A.3d	661	(“We	construe	the	statute	defining	an	offense	de	novo	

to	determine	what	elements	constitute	the	crime.		When	interpreting	a	statute	

de	novo,	we	first	examine	the	plain	meaning	of	the	statutory	language.”	(citation	

omitted)	(quotation	marks	omitted)).		Thus,	if	the	elements	of	robbery	had	been	

stated	accurately,	and	the	jury	had found Asante guilty	of	robbery	as	charged	in	

the	indictment	beyond	a	reasonable	doubt—meaning	that	the	State	had	proved	

that	Asante	or	an	accomplice	injured or	attempted to	injure	the	victim	at	 the	

time	of	the	theft—the	State	would	have,	as	the	court	instructed,	“met	its	burden	

of	 proving	 beyond	 a	 reasonable	 doubt	 that	 deadly	 force	 was	 not	 used	 in	

self-defense.”		See	Ouellette,	2012	ME	11,	¶	17,	37	A.3d	921;	Bradley,	521	A.2d	

at	290-91.

[¶21]	 	 Here,	 however,	 because	 the	 court	 provided	 instructions	 that	

permitted	the	jury	to	find	Asante	guilty	of	robbery	without	a	finding	that	he	or	

an	accomplice	inflicted	or	attempted	to	inflict	bodily	injury	on	the	victim	at	the	

time	 of	 the	 theft,	 the	 self-defense	 instruction	 was	 inaccurate.	 	 The	 court	

instructed	 the	 jury	 that	 if	 it	 found	 that	 Asante	 had	 committed	 robbery,	 that	

finding	 would	 disprove	 self-defense,	 but	 the	 court’s	 instructions	 on	 robbery	

permitted	 conviction	 in	 the	 absence	 of	 an	 element	 that	 was	 necessary	 to	

disprove	self-defense.
14

III.		CONCLUSION

[¶22]		The	instructions	on	the	elements	of	robbery	and	the	instructions	

on	self-defense	create	the	“possibility of	jury	confusion	and	a	verdict	based	on	

impermissible	criteria.”		Delano,	2015	ME	18,	¶	13,	111	A.3d	648 (quotation	

marks	omitted).		The	error	here	is	plain	and	affects	Asante’s	substantial	rights.		

See	Pabon,	2011	ME	100,	¶	29,	28	A.3d	1147.		Because	we further	conclude	that	

the	error	seriously	affects	the	fairness	and	integrity	of	the	proceedings	and	may	

have	affected	the	verdicts,	we	vacate	the	judgments of	conviction	of murder	and	

robbery.		See	id.;	see	also	State	v.	Cote,	462	A.2d	487,	490	(Me.	1983).

The	entry	is:

Judgments vacated.		Remanded	to	the	trial	court	

for	a	new	trial.

Rory	 A.	 McNamara,	 Esq. (orally),	 Drake	 Law,	 Berwick,	 for	 appellant	 Marcus	

Asante

Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Donald	W.	 Macomber,	 Asst.	 Atty.	 Gen.

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

Aroostook	County	Unified	Criminal	Docket	docket	number	CR-2016-30637

FOR	CLERK	REFERENCE	ONLY