MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 24 Docket: Aro

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- 2 Argued : November	2,	2022 Decided: April	6 ,	2023 Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS ,	and	LAWRENCE , JJ.

STATE	OF	MAINE

v. MARCUS	ASANTE

MEAD ,	J. [ ¶1] Marcus	Asante	appeals	 from	a	judgment	of	conviction	of	murder,
17

- A	M.R.S.	§	201(1)(A)	(202 3 ) ,	and	robbery	(Class	A), 17

- A M.R.S.	§	651(1)(E) (202 3 ) ,	entered	by	 the trial court	 (Aroostook	County, Stewart,	J. ) following a jury	 trial

. Asante	 contends that the thirty

- five

- year sentence	 imposed	 for intentional	 or	 knowing	 murder	 violated	 his	 constitutional	 right	 to	 a punishment	proportioned	to	the	offense	and	that	the	court	erred	by	failing	to give	a	full	self

- defe nse	jury	instruction.		We	disagree	and	affirm	the	judgment and	the	sentence.2 I. FACTS [¶ 2 ] Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the jury	could	rationally	have	found	the	following	facts	beyond	a	reasonable	doubt.
See State	v.	Co leman ,	2019	ME	170,	¶	30,	221	A. 3 d	932. [¶ 3 ] In	 October	 2016, the	 victim’s cousin, Orion Ludwick , arranged a drug	deal	in	which	Asante was	to purchase	several	pounds	of	marijuana from the	 victim for	 $20,000

. However,	Asante	asked	 his	 friend	Darin	Goulding	 to
accompany Asante	and	Ludwick to	“be	the	muscle”	because	they	were	going	to “rob	somebody	for	some	weed.” Ludwick	offered	marijuana	to	his	co

- worker Tiffany	Manuel	and	Manuel’s	boyfriend,	Bartholomew	Biddl e,	in	exchange	for them	to	drive Ludwick, Asante ,	and	Goulding to	Maine	in Manuel’s	car

. [¶ 4 ] In	the	early	morning	hours	of	October	16,	2016,	the	group of	five

— Ludwick,	 Asante,	 Goulding,	Manuel,	 and	 Biddle

— left	Massachusetts	 and	met the	victim at	a	gas	station	in	Sherman. The	group	then	followed the	victim to an	abandoned	house	where Ludwick,	Asante,	and	Goulding	saw the	victim with a	firearm. The	group	left	after	seeing	the	firearm	but eventually decided	to	turn around

. The	group	again	met the	victim at	the	gas	station	in	Sherman,	where Ludwick,	 Asante,	 and	 Goulding	 got	 into the	 victim ’s	 vehicle.	 	 The	 four3 individuals	in the	victim ’s	car,	followed	by	Manuel	and	Biddle	in	Manuel’s	car, then	travel ed	to	a	rural	dirt	road. [¶ 5 ] Once	at	the	end	of	the	dirt	road, the	victim put	the	bag	of	marijuana on	the	center	console	for	the other three	to	inspect , and	a discussion	regarding
its quality	and	quantity	ensued.		Ludwick,	sitting	in	 the	 front	passenger seat, grab bed the	bag	and attempted to leave. The	victim ,	saying	nothing, locked	the doors	and	pulled	out	a	gun.		Asante,	sitting	in	the	backseat	directly	behind the
victim ,	pulled	out	a	gun	and	shot the	victim nine	times ,	killing	him .		Ludwick then	took the	marijuana	and ,	together	with	Asante	and	Goulding, went	back	to Manuel’s car	and	returned	to	Massachusetts. [¶ 6 ] M arijuana	taken	from the	victim was	later	recovered	from each	of the other five individuals. The firearm	 that	 killed the	 victim was	 recovered from Asante’s	 apartment,	 and he	 was found in	 possession	 of matching shell casings.		The cash that Asante allegedly	had	to	complete	the	deal	with the	victim

was never	recovered

. [¶ 7 ] On	November	 10,	 2016,	 Asante	 was	 charged	 by	indictment	 wit h murder, 17

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

- A	 M.R.S. § 651(1)(D) , (E) ,	of	the	same victim

. Asante	pleaded	not	guilty .		A fter	a	six

- day jury	trial ,	Asante was	convicted	of	both	charges. State	v. Asante ,	2020	ME	90,4 ¶ ¶ 5, 8, 236 A.3d	464.		Due	 to	an	error	in	 the	jury	instruction	related	 to	 the robbery	 charge, we vacated	 the	judgment	and	 remanded	 for	a	new	 trial. Id

. ¶ 22. [¶ 8 ] On	remand,	the	court	held	a	new	trial	and	the	jury	again	returned	a guilty	verdict	on	both	charges.		Th e	court	sentenced	Asante	to	thirty

- five	years for	the	murder	conviction	and	twenty	years	for	the	robbery	conviction,	to	be served	concurrently.		Asante	timely	appealed.
II. DISCUSSION [¶ 9 ] Asante asserts two	 errors .	 	 The	 first	 is	 that	 the	 court	 erred	 in sentencing him to	thirty

- five	years	for	murder	when his conduct	was	identical to	that	of	felony	murder , which	carries	a	maximum	penalty	of	thirty	years , and that	 this	 error	 is	 a	 violation	 of	 Asante’s	 constitutional	 r ight	 to receive a punishment	proportional	to his offense

. 1 The second	is	that	the	court	erred	by giving only	a	partial self

- defense	jury	instruction.
A. Punishment	Proportional	to	Offense [¶1 0 ] We	 note,	 as	 an	 initial	 matter,	 that	 this	 is	 an	 appeal from	 a conviction	and	is	not	a	review	of	a	sentence	pursuant	to	15	M.R.S.	§§	2151

- 2157 (2023)

. In	an	appeal	from	a	conviction,	a	challenge	to	the	sentence	“is	properly

1 Asante	does	not	appeal	the	twenty

- year	sentence	for	robbery.5 before	us	only	if	a	defendant	identifies	an	illegality, such	as	a	constitutional	or

sta tutory	 violation,	 that	 is	 apparent	 from	 the	 record [,] ” State	 v.	 Plante , 2018 ME 61,	 ¶	 6 , 184 A.3d 873 (footnote	 omitted) , and “we	 are	 limited	 to reviewing	only	the	legality,	and	not	the	propriety,	of	sentences	imposed	by	the trial	court [ , ] ” State	v.	Bennet t ,	2015	ME	46,	¶	1 4 ,	114 A.3d	994 (quotation	marks omitted). [¶1 1 ] Asante	 argues	 that	 the	 jury	 may	 have	 convicted	 him	 under	 an accomplice	 theory	 with	 robbery	 as	 the	 primary	 crime	 and	 murder	 as	 the secondary	crime,	conduct that	would	constitute felony	murder , which carries	a maximum	 penalty	 of	 thirty	 years.	 	 Arguing	 that	 the	 accomplice	 theory	 of murder	 and	 felony	murder	 are	identical	 and	 overlapping	 statutes,	 he	 claims that	 his	 punishment

— thirty

- five	 years

— for	 identical	 conduct as	 that punishabl e	 as felony	 murder violates the	 constitutional	 requirement	 that	 a punishment	be	proportionate	to	the	crime	committed

. See Me. Const.	art.	I,	§	9

. [¶1 2 ] “[ W ] e	 have	 established	 a	 two

- part	 test	 to	 determine	whether	 a sentence	 violates	 article I ,	 section	 9

. ” State	 v.	 Lopez , 2018	 ME	 59 ,	 ¶	 15,
184 A.3d 880. “ First, we	look	 to	see	whether	a	particular	sentence	is	greatly disproportionate	to	the	offense	for	which	it	is	imposed [,] ”	and “[ s ] econd, if	it	is not	greatly	disproportionate,	we	examine	whether	it	offends	prevailing	notions6 of	 decency.” Id

. (quotation	 marks	 omitted). “[ O ] nly	 the	 most	 extreme punishment	 decided	 upon	 by	 the	 Legislature	 as	 appropriate	 for	 an	 offense could	so	offend	or	shoc k	the	collective	conscience	of	the	people	of	Maine	as	to be	unconstitutionally	disproportionate,	or	cruel	and	unusual.” State	v.	Hoover , 2017	ME	158,	¶	26,	169	A.3d	904 (quotation	marks	omitted)

. [¶1 3 ] We “ must	begin	by	comparing	the	gravity	of	the	offen se	and	the severity	of	the	sentence.” Lopez ,	2018	ME	59,	¶	16,	184	A.3d	880	(quotation marks	omitted). “ We	have	previously	compared	a	defendant’s	offense	 to	his sentence	by	(1)	evaluating	where	 that	defendant’s	 term	of	imprisonment	 fell within	 the	 range of	 incarceration	 time	 authorized	 by	 the	 Legislature;	 and (2) considering	the	facts	of	a	case	in	conjunction	with	the	commonly	accepted goals	of	punishment.” Id .	(quotation	marks	and	citations	omitted). [¶1 4 ] A defendant ’s	 guilt “ as	 an	 accomplice	 to	 the	 crime	 of [ m ] urder committed	by	another	person

.	.	. may	resemble	guilt for the	offense of [ f ] elony murder

.	.	. particularly	because	in	each	instance the	guilt arises	from	a	common element [ of ] homicide	 committed	 by	 another	 person

. .	 .	 .” State	 v.	 Kimball , 424 A.2d	 684,	 692	 (Me.	 1981) (quotation	 marks	 omitted)

. “[ T ] here	 is nevertheless	a	critical	difference	between	accomplice	guilt

.	.	. and	guilt	of	the separate	and	distinct	offense	of	felony	murder [,]

.	.	. [ and	the ] critical	difference7 relates	to	the	nature	of	the	homicide committed

. ” Id

. (emphasis	and	quotation marks	 omitted). Felony	 murder	 involves	 a	 death	 that	 is	 a	 reasonably foreseeable	 consequence	 of, inter	 alia ,	 robbery. 17

- A	 M.R.S.	 §	 202 (202 3 )

. Murder	 req uires proof	 of intentionally or knowingly	 causing	 the	 death	 of another	human	being. 17

- A	M.R.S.	§	201	(1)(A). “A	person	is	an	accomplice

.	.	. 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) (202 3 )

. “Accomplice	and	principal	liability	are	alternate	means	for	the	commission	of	a single	crime.” State	v.	Ringuette ,	2022	ME	61,	¶	11, 288 A.3d 393 (quotation marks	omitted)

. [¶1 5 ] Asante argues that	 because he	 claimed self

- defense , there	is	 no longer	a	critical	difference	between	the two	offenses. He	further	asserts	that “jurors	were	permitted	to	return	a	guilty	verdict	on	the	murder	count	so	long as	they	found	that	there	was	a	robbery.” [¶1 6 ] A	claim	of	s elf

- defense	does	not	change	the substantive difference between the	crimes	of murder	and	felony	murder ,	and	the	resultant	sentence s authorized	for	those	offenses .		We	have	held	that	“[s]o	long	as	the	accomplice intended	to	promote	the	primary	crime,	and	the commission	of	the	secondary crime	was	a	 foreseeable	consequence	of	the	accomplice’s	participation	in	the8 primary	crime,	no	further	evidence	of	the	accomplice’s	subjective	state	of	mind as	to	the	secondary	crime is	required .” State	v.	Linscott ,	520	A.2d	1 067,	1070 (Me.	 1987)

. A	 claim	 of	 self

- defense	 by	 a	 defendant	 does	 not	 change	 the elements	of	the	crime	committed. As	such,	t here	is	no	fundamental	unfairness or	disproportionate	scheme	 for	sentencing	purposes	between	 felony	murder and	murder	premised	on a	theory	of	accomplice	liability

. [¶1 7 ] Contrary	 to	 Asante’s	 assertion,	 the	 court	 did	 not	 violate	 his constitutional	rights	to	a	sentence	proportion al to his offense	when	it	imposed

a thirty

- five

- year sentence. The	jury	found	Asante	guilty	of	murder,	not felony murder,	 and	 the	 punishment imposed	 for	 that	 crime is	 not	 unfair	 or disproportionate.
B. Self
- Defense Jury	Instruction [¶1 8 ] Asante	 argues	 the	 court	 erred	 in	 neglecting	 to	 give	 a complete self

- defense	instruction	pursuant	to	17

- A	M.R.S.	§ 108(2)(A)(2)	(202 3 ). Asante did	request	a	self

- defense	jury	instruction

— and	the	court	gave	one.		The	court instructed	the	jury	on	self

- defense	as	follows: Maine	law	provides	that,	[a]	person	is	justified	in	using	deadly	force upon	 another	 person	 when	 the person	 reasonably	 believes	 it necessary	and	reasonably	believes	that	such	other	person	is	about to	use	unlawful,	deadly	force	against	the	person	or	a	third	person.9 See 17

- A	M.R.S.	§	108(2)(A)(1).		On	appeal,	Asante	argues that the	remainder	of the	sectio n	108(2)(A)	self

- defense	instruction	should	have	been	included.		The allegedly	missing	instruction is	based	on	a	statute	that	provides : A	 person	 is	 justified	 in	 using	 deadly	 force	 upon	 another	 person [ w ] hen	the	person	reasonably	believes	it	necessary	and	r easonably believes	such	other	person	is

.	.	. [ c ] ommitting	or	about	to	commit a	.	.	.	robbery	.	.	.	against	the	person	or	a	[third]	person.
17

- A	M.R.S.	§	108(2)(A)(2). Asante	did	not object	to	the	instruction s given,	nor did he request	the	section	108(2)(A)(2)	instruction. Accordingly,	we review for obvious	 error. See State	 v.	 Carey ,	 2013	 ME	 83,	 ¶	 16,	 77	 A.3d	 471;
M.R. U. Crim. P. 52(b). [¶1 9 ] “We	have	characterized	 obvious	error	as	a	 seriously	prejudicial error	tending	to	pro duce	manifest	injustice.” State	v.	Pabon ,	2011	ME	100,	¶ 18, 28	A.3d	1147 (quotation	marks	omitted)

. 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	 public	 reputation	 of	 judicial	 proceedings.” Id

. ¶	 29. “A	 self

- defense instruction	is	generated	if	the	evidence,	viewed	in	a	light	most	favorable	to	the defendant	with	all	reasonable	inferences	res olved	in	the	defendant’s	favor,	is	of such	 nature	 and	 quality	 to	 render	 the	 existence	 of	 all	 facts	 constituting	 the10 defense	 a	 reasonable	 hypothesis	 for	 the	 fact	 finder	 to	 entertain.” State	 v. Delano ,	2015	ME	18,	¶	25 ,	111	A.3d	648 (quotation	marks	omitted )

. [¶ 20 ] To generate the	 self

- defense	instruction	 Asante	 now claims	 the trial	court	should	have	given ,	the	evidence	would	have	to have show n that the
victim was committing	or	about	to	commit	a	robbery	against	him , Ludwick ,	or Goulding that would	 justify	 A sante ’s us e	 of deadly	 force

. 2 However, even viewing	the	evidence	in the light	most	favorable	to	Asante,	the	evidence	does

no t warrant	the	giving	of	the	instruction	that	Asante	now	claims	was	necessary. [¶ 2 1] Asante testified	at	trial that the	arrangement	with the	victim was a	drug	buy	for	$20,000. The victim told Ludwick and	another	associate	that	he needed	the	money	and	insiste d	that the	deal	be	completed

— which	is	why	the group	turned	around	after	initially	leaving. Just	prior	to	the	shooting,	Ludwick attempted	to steal	the	marijuana	from the victim and flee

. 3 Immediately after Ludwick’s misappropriation	of	the	marijuana , the victi m locked	the	car	doors

2 It	is	worth	noting	 that	Asante did not claim that	he	shot the	victim in	self

- defense,	rather	he testified it	was	Goulding who shot the	victim

.

3 No	terms	had	been	agreed	upon	and	no	money had	been	tendered	at	the	time	Ludwick	took possession	of	the	marijuana	and	attempted	to	exit	the	vehicle.11 and	pulled	out	a	gun. The	victim never spoke or	otherwise	suggested	he	was going	to	rob	Asante	or	the	group	of	the	money

. 4 [¶ 22 ] Further, “ s elf

- defense	is	not	available	to	a	person	committing	or about	 to	commit	a	robbery.” State	v.	Bradley ,	521	A.2d	289,	29 1 (Me.	1987). Asante’s	conviction	on	the	charge	of	robbing the	victim forecloses	his	claim	of self

- defense. Based	on	the	evidence	before it,	the	jury	would	have	been	justified in	finding	that Asante planned	the event as	a	robbery	when	he	asked	Goulding
to participate and	told	him	of	the	robbery	plan. Ludwick,	Asante’s	accomplice, commenced	the	planned robbery when he grabbed	the	bag	of	ma rijuana	and attempted to	flee. [¶ 23 ] On	this	record,	viewing	the	evidence	in	the	light	most	favorable	to Asante,	the	court	did	not obviously	err in	failing	to	provide	the	jury	a	section 108(2)(A)(2)	self

- defense	instruction. The	entry	is: Judgment	affirmed.

4 The	trial	court	record	contains	no	evidence	that	anyone	was	ever	in	possession	of any	amount of cash and	no	cash	was	ever	recovered

.12
Nicole	Milam,	Esq.,	Richardson,	Whitman,	Large	&	Badger,	Portland,	and	Rory A.	McNamara,	Esq. (orally) ,	Drake	Law	LLC,	York,	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 F OR C LERK R EFERENCE O NLY