State v. Barry Bard
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 49
Docket:	Pen-01-295
Submitted 
      on Briefs:	January 28, 2002
Decided:	March 28, 2002

Panel:		SAUFLEY, C.J., RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

STATE OF MAINE

v.

BARRY BARD

DANA, J.

	[¶1]		Barry Bard appeals from judgments entered in the Superior Court
(Penobscot County, Mead, J.) following a jury trial finding him guilty of assault
(Class C),{1} 17-A M.R.S.A. § 207(1) (1983), criminal threatening (Class D), 17-A
M.R.S.A § 209(1) (1983), and violation of a condition of release (Class E), 15
M.R.S.A. § 1092 (Supp. 2001).  Because we agree that the evidence generated a
self-defense instruction, which the court did not give, we vacate the assault
conviction.

I. BACKGROUND

	[¶2]		Bard and Shirley Garland were romantically involved; in April of
2000 he met her at a bar in Bangor and they returned to Garland's apartment
in Old Town.  The versions of the ensuing events conflict. 
	[¶3]		Garland testified that: upon entering the living room in her
apartment Bard hit her and split open her eye, he hit and kicked her
repeatedly, threatened to kill her, tried to drag her down the stairs to "throw"
her in the Penobscot River, kept attacking her when she struggled back to the
apartment, ripped the phone out of the wall, made her take a shower, then
raped her.
	[¶4]		Bard testified that on the car ride back to Garland's apartment
Garland was drunk and became increasingly incensed after learning of Bard's
recent infidelity.   At the apartment Garland fell on the stairs splitting open
her eye, proceeded to ingest pills, and when Bard called her a "junkie," she
cried until he encouraged her to take a shower to wash the blood from the cut
on her face.  When Bard tried to flush the rest of the pills down the toilet,
Garland came at him; Bard accidentally kicked the phone jack, she grabbed his
throat, and "we were on the bed struggling over this bag of pills.  And we're
bouncing all over the bed.  And she gets ahold of this knuckle right here and
she bites so hard that blood squirts out . . . she won't let go . . . finally I just
put my hand right on her face and ripped my hand out."  The bite left a scar.
	[¶5]		Bard was indicted on one count of aggravated assault, two
counts of gross sexual assault, one count of criminal threatening with a
dangerous weapon, one count of assault, one count of criminal threatening,
and one count of violation of a condition of release.  The indictment did not
identify the specific events that induced each charge.  During the trial, after
the State rested the court granted Bard's motion for a judgment of acquittal on
the aggravated assault charge. 
	[¶6]		Bard testified and the following exchange occurred toward the
end of his testimony:

Q	Now, you know that Shirley's claiming that you were
	punching her in the face and kicking her and beating her up
	for hours, you know she's making that claim?

A	Yes, I heard that.  That's a lie.

Q	You never did that?

A	No, I just defended myself, pushed her away, tried to shrug
	her off my back, pulled her hands off my hair.  I pulled my
	hand out of her mouth.  I pulled on her lips trying to get her
	lips -- her mouth apart and to get my finger out of her
	mouth.  We wrestled and tussled over pills.

During a sidebar, the court asked if the defense had any "additions or
corrections" to the court's jury instructions, and defense counsel responded, "I
thought we may have generated a basis for the instruction on self-defense
based on the defense testimony in terms of his struggle with the finger and
pushing on her face and whatnot."   The court declined to give a self-defense
instruction. 
	[¶7]		The jury found Bard guilty of criminal threatening, assault and
violation of a condition of release, but not guilty of the two counts of gross
sexual assault and criminal threatening with a dangerous weapon.  The court
(Penobscot County, Mead, J.) sentenced Bard to concurrent sentences of four
years and nine months on the assault and criminal threatening counts.{2}  An
appeal to this Court followed; the transcript does not contain the opening or
closing statements of the parties.

II.  DISCUSSION

 	[¶8]		Bard contends that there was sufficient evidence to generate a
self-defense instruction and that such a failure "can never be harmless."   Bard
argues that because the indictment used "broad language . . . self-defense
generated as to any one of those possible allegations must result in a self-
defense instruction as to each count."  
	[¶9]		The State "assumes arguendo that the court erred," but asserts
that the error was harmless.   The State contends that the evidence
surrounding the "most significant injury"--when Garland's eye split open upon
arriving at her apartment--did not generate a self-defense instruction and that
"by Defendant's own account the cut happened well before the biting which
required him to respond in self-defense."  The State further contends that the
criminal threatening conviction should stand if this Court vacates the assault
conviction, because there was no need to instruct on self-defense for that
charge. 
	[¶10]		When a defendant preserves an objection to a court's denial of
his requested instruction on self-defense, we have stated that the decision is
reviewed for harmless error.  State v. Sullivan, 1997 ME 71, ¶ 5, 695 A.2d 115,
117.    Once the evidence is sufficient to raise the issue of self-defense, "a
defendant is entitled to an instruction."  Id. ¶ 6.  The State asks this Court to
engage in a comparative analysis of the evidence to show that the lack of an
instruction did not affect the verdict, i.e., a harmless error analysis.   
	[¶11]		However, our precedents demonstrate that typically "where self-
defense is an issue essential to the defendant's case, the court's failure to
instruct on self-defense pursuant to section 108 deprives the defendant of a
fair trial and amounts to obvious error."  Id. (quoting State v. Davis, 528 A.2d
1267, 1270 (Me. 1987)) (internal quotation marks omitted).  Rather than
engaging in a standard harmless error analysis, we analyze the evidence to
determine whether the instruction was generated in the first place. See State v.
Winchenbach, 658 A.2d 1083, 1085 (Me. 1995); Sullivan, 1997 ME 71, ¶ 7, 695
A.2d at 118.   In our analysis we "must view the evidence in the light most
favorable to the defendant."  State v. Glassman, 2001 ME 91, ¶ 12, 772 A.2d
863, 867.  We have held that the failure to give an instruction when the
evidence generated one is obvious error.  See State v. Corbin, 1997 ME 41, ¶ 8,
691 A.2d 188, 190.{3}  In Winchenbach, 658 A.2d at 1084, the alleged victim and
the defendant had an extended fight; he pulled the phone cord apart, 

[s]he was backed against the kitchen counter, and he slapped and
choked her. She bit him [and chased him out to the car] . . .
[d]efendant grabbed an aluminum baseball bat outside the trailer. 
The victim pleaded with him not to smash her car, and tried to
hold him back.  Defendant swore at her, and hit and broke her car
window.  She grabbed his arm.  He turned around and 'went to hit
her with the baseball bat.'  The bat struck her hands which were in
front of her face, and she fell down.

The jury found the defendant guilty of, inter alia, aggravated assault.  Id. at
1084.  We held that there was no error in refusing to instruct the jury on self-
defense because "[t]here is no evidence that the victim was about to use
unlawful force on defendant when he hit her with the bat.  Any force used by
the victim in attempting to keep defendant from hitting her car was justified to
prevent criminal mischief."  Id. at 1085;  see also State v. McKenzie, 605 A.2d
72, 74 (Me. 1992) ("The evidence is clear that throughout his stay in the
emergency room [the defendant] continuously engaged in combative conduct . .
. [t]here is nothing in the evidence to suggest [he acted in self-defense]," thus
the evidence did not generate an instruction) (emphasis added); compare with
Glassman, 2001 ME 91, ¶ 13, 772 A.2d at 867 (holding that the evidence was
sufficient to generate an instruction of self-defense for criminal threatening
with a dangerous weapon, when the defendant testified that "the gun came
loose when [the victim] pushed him, and he was attempting to secure it when
[the victim] lunged at him. He then pulled the gun out and pointed it at [the
victim]).
	[¶12]		The State treats the initial injury to Garland's eye as the basis of
the assault charge and contends that because there was no evidence around
that incident that illustrated Bard was defending himself, the court did not err
in refusing to give the instruction.  Bard argues that as long as there is some
evidence of self-defense about some conduct that could also be the basis of the
assault charge, i.e., when he pushed Garland's face after she bit his finger,
then the court must instruct on self-defense.   
	[¶13]		Because the jury acquitted Bard of numerous counts (indicating
that it did not believe everything Garland recounted) and there is no way to
assess which specific instances of alleged conduct the jury based its verdicts
on, we agree with Bard.  When the charges stem from several moments of
potentially criminal conduct, and the indictment does not identify the
particular facts that induced the charges,{4} a court should not refuse to
instruct on self-defense when evidence of self-defense surrounding one of the
events has been presented.   
	[¶14]		In Winchenbach, 658 A.2d at 1084, we were presented with a
factual scenario of extended fighting and the culminating moment of injury
when the defendant swung a baseball bat and hit the victim.   Although the
victim testified that the defendant had "slapped and choked her" earlier, we
analyzed the evidence to see whether a self-defense instruction was generated
by looking at the events surrounding the baseball bat injury.  See id. at 1085. 
We recognized:

Defendant attempts to portray the victim as twice provoking him
into arguments, first, when she pulled a telephone cord out of the
wall inside the trailer, and second, when she walked up to him
when he was allegedly breaking her car window.  Regardless of who
was the first aggressor inside the trailer, there is simply no
evidence that the victim provoked defendant into hitting her with
the bat in order to defend himself.  Defendant's argument on
appeal that if the victim 'was hurt, it was during the defendant's
attempt to wrest the bat from her and get rid of it' had no support
in the record.  The victim testified that defendant hit her with the
bat, and when she picked up the bat and went to swing it at him,
he grabbed it and threw it over the trailer.  There was no other
testimony on this point.  The Superior Court did not err in declining
to instruct on self defense.

Id. (emphasis added).  While we pinpointed the criminal conduct underlying
the aggravated assault charge to decide that there was no evidence of self-
defense surrounding the event to warrant a self-defense instruction, we are
unable to do the same in the present case.
	[¶15]		In Winchenbach, 685 A.2d at 1084, the defendant was charged
with aggravated assault, criminal threatening with a dangerous weapon, and
two counts of criminal mischief.  Between "slapping and choking," or swinging
a baseball bat at someone, it is apparent that swinging the baseball bat
qualified as the aggravated assault.  Here, the assault charge, (which requires
intentionally, knowingly, or recklessly causing bodily injury or offensive
physical contact), could be illustrated equally by Bard hitting Garland upon
arrival at the apartment, or by Bard forcibly pushing her face away.  Because
there were several incidents that could be the basis of the assault charge, and
the evidence surrounding one of them describes Garland biting Bard's finger so
that he pushed her face away in self-defense, the court should have instructed
on self-defense.    
	[¶16]		Whether the State meets its burden to disprove the defense of
self-defense, see 17-A M.R.S.A. § 101(1) (Supp. 2001), is for the jury to decide--
it is within the jury's purview to weigh the evidence presented and either accept
or reject the defense.  The jury should have had the means and the authority to
do that with a self-defense instruction.
	[¶17]		Finally, we disagree with Bard's contention that the criminal
threatening and violation of a condition of release convictions should be
vacated.   Bard requested a self-defense instruction based on the "struggle with
the finger," specifically seeking the instruction to justify his physical reaction
to Garland's bite.
	The entry is:

Judgment on the assault charge vacated. 
Judgment on the criminal threatening and on the
violation of a condition of release charges affirmed,
but remanded to the Superior Court for
resentencing.Attorneys for State:

R. Christopher Almy, District Attorney
C. Daniel Wood, Asst. Dist. Atty.
97 Hammond Street
Bangor, ME 04401

Attorney for defendant:

William R. Savage, Esq.
P O Box 223
Portland, ME 04112

FOOTNOTES******************************** {1} . Usually assault is a Class D crime, but section 1252(4-A) provides: If the State pleads and proves that, at the time any crime, excluding murder, under chapter 9, 11, 13 or 27 was committed, the defendant had been convicted of 2 or more crimes violating chapter 9, 11, 13, or 27 or essentially similar crimes in other jurisdictions, the sentencing class for the crime is one class higher than it would otherwise be. . . . 17-A M.R.S.A. § 1252(4-A) (Supp. 2001). {2} . Bard received thirty days for the violation of a condition of release to be served concurrently. {3} . In Corbin, the trial judge denied the defendant's request for a self-defense jury instruction. Corbin, 1997 ME 41, ¶ 6, 691 A.2d at 189. {4} . The indictment does not necessarily have to identify specific facts. In State v. Sprague, 583 A.2d 203, 204 (Me. 1990), the defendants contended that the criminal complaints were defective because they should have "contained facts 'particular to this case' rather than 'mere recitation of the statute.'" We held that a complaint is sufficient if it contains such plain, concise, and definite allegations of the essential facts constituting the offense as shall adequately apprise a defendant of reasonable and normal intelligence of the act charged, enabling him to defend himself, and, upon conviction or acquittal, to make use of the judgment as the basis for a plea of former jeopardy, should the occasion arise. Id. (quoting State v. Carter, 444 A.2d 37, 39 (Me. 1982)). "Where a complaint meets this test, it does not become insufficient merely because it charges in the words of the statute." Id.