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 State had the burden of disproving the existence of the defense beyond a reasonable doubt.*fn3
M.R.Crim.P. 52(b) commands that we recognize obvious error affecting the defendant's substantial rights although not raised on appeal. See, e.g., State v. Pease, 452 A.2d 653, 654 (Me. 1982) (Superior Court purported to hear District Court probation revocation); State v. Weese, 424 A.2d 705, 710 (Me. 1981) (obvious conflict between the interests of co-defendants represented by the same attorney). In the case before us, the jury should have returned a verdict of not guilty if they entertained as a reasonable possibility the hypothesis that Raubeson's conduct was justified, according to ordinary standards of reasonableness, by the desirability and urgency of avoiding imminent physical harm to others. See State v. Glidden, 487 A.2d 642, 643-44 (Me. 1985). The language used by the presiding justice in his instructions to the jury conveyed exactly the opposite impression, i.e., that Raubeson had to persuade them of the existence of the defense.
We recognize that the evidence provided the jury with a substantial basis for discounting or disbelieving the defense witnesses. We conclude, nevertheless, that a jury following the instruction in this case could have returned a guilty verdict even though the State had not disproved the "competing harms defense" beyond a reasonable doubt. In these circumstances, Raubeson is entitled to a new trial.
The entry is:
Remanded for further proceedings consistent with the opinion herein.
*fn2 17-A M.R.S.A. § 103(1) (1983) provides in pertinent part:
Conduct which the actor believes to be necessary to avoid
imminent physical harm to himself or another is justifiable if
the desirability and urgency of avoiding such harm outweigh,
according to ordinary standards of reasonableness, the harm
sought to be prevented by the statute defining the crime