MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 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	 judgment s of	 conviction	 of intentional	or	knowing	murder ,	17

- A M.R.S.	§	201(1)(A)	(20 20 ),	and robbery (Class	A),	17

- A M.R.S.	§	651(1)(D),	(E)	(20 20 ), 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,	Justice s Gorman ,	Horton,	and	Connors participated	in the	development	of	this	opinion. See M.R.	App.	P.	12(a )(2 )	(“A	quali fied	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 robber y 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
instruction s on	 the	 elements	 of	 robbery misstated	 the	la w,	 and thereby also rendered a	 portion	 of the	 court’s	instruction s on	 self

- defense	 erroneous,	we vacate	the	judgment s 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	 co urt	 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	i n 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	ev ident iary	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	c onviction	for	each	crime	required	proof	of	a	fact	that	the	other	did	not, s ee 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 .		T he	group	ultimately	met	with	the	victim	at a	gas	station	in the town	of Sherman, w here	the	victim’s	cousin, Asante, and an other	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 ] A fter	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 indictmen t	 with knowing	or	intention al	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

— i ntended	 to	 rob	 the	 victim. According	to	that	evidence,	the	victi m’s	cousin, seated	next	to	the	victim in	the4 front	passenger	seat,	attempted	to	grab	a	bag	of	marijuana	from	the	victim .		T he victim	pull ed 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	mari juana	that	he	had	promised,	Asante	called	the	deal off .		T he	victim then locked	the	car	doors,	pulled	out	a	gun,	and	tried	to	shoot Asante	in	the	face .		T he victim’s gun	did	not	fire,	and	the	man	in	the	back seat with	Asante	shot	the	victim	multiple	times. [¶ 7 ] A fter	 the	 parties	 offered	 their	 evidence,	 t he y agreed	 on	 the	 jury instructions	 for	 the	 court	 to	 deliver,	 including	 instructions	 on robbery	 and self

- defense. At	no	time did Asante object	to	th ese instruction s . [¶ 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	Victim s’	Compensation	Fund	and	to	pay	the5 victim’s	family	restitution	of	$2,274.40.		Asante	timely	appealed. See 15	M.R.S. §	2115	(20 20 );	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 dispro ved	that	Asante	had	acted	in	self

- defense	with	respect	to	the murder	charge. [¶1 0 ] Asante	concedes	that	he	raised	no	objection	to	the	instruction s 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 day s	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	improper ly	 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,	acc e pted	the	motion	as	Asante’s supp lemental	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	ju dicial	proceedings.” State	v. Pabon ,	2011	ME	100,	¶	29, 28	A.3d	1147. [¶1 1 ]		“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	6 48 (quotation	marks	omitted).
A. The	Instructions [¶1 2 ] 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	r egarding	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 s uccessfully	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,	 Marcu s Asante,	is	guilty	of	the	crime	of	robbery	.	.	.	. (Emphasis	added.) [¶1 3 ]		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 i n	 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	comm itted 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 fo r	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 [¶1 4 ] A person is guilty	of	robbery pursuant	to	17

- A M.R.S.	§ 651(1)(D)
if the	State	proves	that (1) “ t he	person	commit [ted] or	attempt [ed] to	commit theft,” id. § 651(1) ,	and (2) “ a t	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

a t	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	 paragraph s	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	infl i ct ed or	 attempt ed to	infl ict	 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). [¶1 5 ] 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) ,	b y	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 [¶1 6 ]	 	 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 committ ed a	theft	and,	at	the	time	of	that	theft, was armed	with	a	dangerous	weapon	or knew that	an	accomplice	was	so	armed .		A10 conviction	 on	 this	 basis	 would lack	 a	 finding	 of	 the	 required	 element	 that Asante	 or	his	accomp lice 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	imperm issible	criteria” by	finding	guilt	based on	instructed	elements that	would	sati s fy	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 [¶1 7 ]		Th e error	in	the	robbery	instruction	also	affect s 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	be yond	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.” S ee 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	also11 finds,	beyond	a	reasonable	doubt,	that	the	defendant	committed	each	element of	 the	crime.”		(citations	omitted)). Without	a	proper	instruction	requiring	a finding	 tha t	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

. [¶1 8 ]	 	 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)	 (20 20 ).	 	 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)	(20 20 ). [¶1 9 ]		 “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	ju stification.” Alexander, Maine	Jury	Instruction	Manual §	6

- 55	at	6

- 107	(2019

- 2020	ed.	2019)	( citing Bradley ,	521	A.2d	289). [¶ 20 ]		I f	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)	(20 20 ); 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	lan guage.”	(citation omitted)	(quotation	marks	omitted)). Thus,	i f	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 th at	Asante	or	an	accomplice injur ed or	attempt ed 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.” S ee Ouellett e , 2012	ME	11,	¶	17,	37	A.3d	921; Bradley ,	521	A.2d
at	290

- 91

. [¶ 2 1]	 	 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 wa s	 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	 a n	 element	 that	 was	 necessary	 to disprove	self

- defense

.14 III.		CONCLUSION [¶ 22 ]		T he	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	judgment s of	conviction of murder	and robbery. See	id. ; see	also	State	v.	Cote ,	462	A.2d	487,	490	(Me. 1983). The	entry	is: Judgment s 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

Ar oostook	County	Uni fie d	Criminal	Docket	do cket	number	CR

- 201 6

- 30637 F OR C LERK R EFERENCE O NLY