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STATE v. RAUBESON

March 7, 1985

STATE OF MAINE
v.
ROLAND RAUBESON.[FN1]



Appeal from the Superior Court, Androscoggin County.

Before McKUSICK, C.J., Nichols, Roberts, VIOLETTE and Glassman, JJ., and Wernick, A.R.J.

The opinion of the court was delivered by: Roberts, Justice.

Roland Raubeson appeals from his conviction in Superior Court, Androscoggin County, of operating a motor vehicle while classified as an habitual offender, 29 M.R.S.A. § 2298 (Supp. 1984). Raubeson complains that the court weakened the impact of his "competing harms" defense by summarizing the State's burden of proof at the close of jury instructions without mention of "competing harms."*fn2 Because we determine that the absence of any mention of the burden of proof on the defense of justification is a more serious deficiency in the court's instructions, we vacate the conviction on that basis.

Our review of the record reveals that Raubeson admitted his habitual offender status and admitted that he had operated a trailer-truck on Center Street in Auburn on October 8, 1983. The sole issue presented at trial was Raubeson's claim of justification. Raubeson and other defense witnesses testified that the defendant's brother had gotten the vehicle into a dangerous position on Center Street in the midst of heavy traffic and then abandoned it. Raubeson claimed that he backed the vehicle off Center Street to avoid a situation dangerous to motorists on the highway.

The jury was instructed that it could "determine that the defendant's conduct was justified, that is legally accepted, in a limited circumstance." There followed an adequate explanation of the "competing harms" defense and then the jury was told that "this would come into play only if you feel that the facts justify it." At no time was the jury instructed that the ...


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