MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	80	
Docket:	   Fra-17-460	
Argued:	   June	13,	2018	
Decided:	  June	19,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                      STATE	OF	MAINE	
                                              	
                                             v.	
                                              	
                                     WESLEY	M.	VILLACCI	
	
	
GORMAN,	J.	

	       [¶1]	 	 Wesley	 M.	 Villacci	 appeals	 from	 a	 judgment	 of	 conviction	 of	

domestic	violence	assault	(Class	C),	17-A	M.R.S.	§	207-A(1)(B)(1)	(2017),	and	

violating	 a	 condition	 of	 release	 (Class	 E),	 15	 M.R.S.	 §	 1092(1)(A)	 (2017),	

entered	 by	 the	 trial	 court	 (Franklin	 County,	 Mallonee,	 J.)	 after	 a	 jury	 trial.		

Villacci	argues	that	the	court	erred	by	failing	to	fully	instruct	the	jury	on	the	

State’s	 burden	 to	 disprove	 the	 statutory	 justifications	 Villacci	 generated	 in	

defense	of	the	charges	or	on	the	consequences	of	the	State’s	failure	to	meet	that	

burden.		We	vacate	the	judgment.1	



    1		Although	not	raised	by	Villacci,	we	note	that	the	court	also	erred	by	failing	to	give	the	jury	a	

specific	unanimity	instruction.		See	State	v.	Hanscom,	2016	ME	184,	¶	16,	152	A.3d	632.		It	does	not	
appear	that	either	Villacci	or	the	prosecutor	requested	such	an	instruction,	despite	the	obvious	need	
for	one.	
2	

                                  I.		BACKGROUND	

      [¶2]		Viewing	the	evidence	presented	at	trial	in	the	light	most	favorable	

to	the	State,	the	jury	rationally	could	have	found	the	following	facts	beyond	a	

reasonable	doubt.		See	State	v.	Jeskey,	2016	ME	134,	¶	30,	146	A.3d	127.		In	2015,	

Villacci	and	the	victim	began	an	intimate	relationship.		During	a	disagreement	

on	October	1,	2016,	Villacci	hit	the	victim	on	her	face,	grabbed	her	by	her	hair	

and	banged	her	head	on	the	dashboard	and	side	window	of	the	vehicle	he	was	

driving,	pushed	her	into	the	passenger	side	door,	and	kicked	her.		The	vehicle	

went	off	the	road	and	crashed	into	some	trees;	after	exiting	the	vehicle,	Villacci	

again	hit	the	victim’s	 head	hard	enough	that	her	“vision	went	black”	and	she	

dropped	to	the	ground,	whereupon	Villacci	continued	hitting	and	kicking	her.		

When	Villacci	and	the	victim	later	reached	the	victim’s	home,	Villacci	slapped	

the	victim,	punched	her,	pushed	her	into	a	wall	and	onto	the	ground,	and	placed	

his	 hands	 around	 the	 victim’s	 throat	 and	 strangled	 her	 until	 she	 passed	 out.		

Villacci	then	began	hitting	and	pushing	the	victim	again.			

      [¶3]		Villacci	assaulted	the	victim	on	multiple	other	occasions	between	

October	of	2016	and	January	of	2017—at	least	once	per	week	and	sometimes	

daily—by	strangling	her	until	she	almost	passed	out;	kicking	her;	hitting	her;	

biting	her;	holding	her	face	down	in	the	snow;	and	slapping	her	face	with	an	
                                                                                      3	

open	palm,	giving	her	a	bloody	nose.		On	one	occasion	in	November	of	2016,	

Villacci	ripped	the	towel	off	the	victim	after	she	exited	the	shower,	whipped	her	

with	the	towel,	pushed	her	head	into	a	 wall,	pulled	her	down	the	hall	by	her	

hair,	and	hit	her	with	a	broom	handle.		On	another	occasion	in	January	of	2017,	

Villacci	pushed	the	victim	onto	a	table	and	held	her	there	face-down	while	he	

punched	 her	 on	 her	 back	 and	 arms.	 	 The	 victim	 suffered	 bruises,	 abrasions,	

soreness,	ringing	in	her	ear,	bite	marks,	and	other	injuries	as	a	result	of	these	

incidents.			

	     [¶4]	 	 By	 criminal	 complaint	 filed	 on	 January	 6,	 2017,	 and	 then	 by	

indictment	filed	on	May	18,	2017,	Villacci	was	charged	with	aggravated	assault	

(Class	B),	17-A	M.R.S.	§	208(1)(C)	(2017);	domestic	violence	assault	(Class	C),	

17-A	 M.R.S.	 §	207-A(1)(B)(1);	 and	 violating	 a	 condition	 of	 release	 (Class	 E),	

15	M.R.S.	§	1092(1)(A).		He	pleaded	not	guilty	to	all	counts.			

	     [¶5]	 	 The	 court	 conducted	 a	 jury	 trial	 on	 September	 13	 and	 14,	 2017.		

Villacci	testified	about,	and	his	defense	relied	in	large	part	on,	the	application	

of	four	statutory	justifications:	(1)	self-defense,	see	17-A	M.R.S.	§	108	(2017);	

(2)	defense	of	premises,	see	17-A	M.R.S.	§	104	(2017);	(3)	defense	of	property,	

see	17-A	M.R.S.	§	105	(2017);	and	(4)	consent,	see	17-A	M.R.S.	§	109	(2017).			
4	

	     [¶6]	 	 In	 its	 jury	 instructions,	 the	 court	 described	 the	 elements	 of	

aggravated	assault	and	domestic	violence	assault	by	tracking	the	language	of	

the	applicable	statutes	and	then	further	defining	various	terms	used	in	those	

statutes.	 	 See	 17-A	M.R.S.	 §§	 35(1)-(3),	 207-A(1)(B)(1),	 208(1)(C)	 (2017);	

19-A	M.R.S.	 §	4002(4)	 (2017).	 	 In	 other	 portions	 of	 the	 jury	 instructions,	 the	

court	stated	that	“[t]he	State	always	has	the	burden	to	prove	each	element	of	

the	offense	charged	beyond	a	reasonable	doubt”	and	that	“[y]our	only	interest	

is	 to	 determine	 whether	 the	 State	 has	 proved	 the	 pending	 charge	 beyond	 a	

reasonable	doubt.”			

      [¶7]	 	 With	 the	 State’s	 agreement	 that	 there	 was	 sufficient	 evidence	 to	

generate	 a	 jury	 instruction	 on	 each	 of	 the	 four	 justifications,	 the	 court	 also	

instructed	the	jury	on	the	elements	of	the	justifications,	again	by	tracking	the	

applicable	language	of	those	statutes:	

             A	 person	 is	 justified	 in	 using	 a	 reasonable	 degree	 of	
      nondeadly	 force	 upon	 another	 person	 in	 order	 to	 defend	 .	 .	 .	 the	
      person	or	a	third	person	from	what	the	person	reasonably	believes	
      to	be	the	imminent	use	of	unlawful,	nondeadly	force	by	such	other	
      person,	 and	 the	 person	 may	 use	 a	 degree	 of	 such	 force	 that	 the	
      person	reasonably	believes	to	be	necessary	for	such	purpose.	
             	
             A	person	in	possession	or	control	of	the	premises,	or	a	person	
      who	 is	 licensed	 or	 privileged	 to	 be	 thereon,	 is	 justified	 in	 using	
      nondeadly	force	upon	another	person	when	and	to	the	extent	that	
      the	 person	 reasonably	 believes	 it	 necessary	 to	 prevent	 or	
                                                                                5	

      terminate	 the	 commission	 of	 a	 criminal	 trespass	 by	 such	 other	
      person	in	or	upon	such	premises.	
               	
               A	 defendant	 is	 justified	 in	 using	 a	 reasonable	 degree	 of	
      nondeadly	force	upon	another	person	when	and	to	the	extent	that	
      the	person	reasonably	believes	it	necessary	to	prevent	what	is	or	
      reasonably	 appears	 to	 be	 an	 unlawful	 taking	 of	 the	 person’s	
      property,	or	criminal	mischief,	or	to	retake	the	person’s	property	
      immediately	following	its	taking.	
               	
               It	 is	 a	 defense	 that	 when	 a	 defendant	 engages	 in	 conduct	
      which	 would	 otherwise	 constitute	 a	 crime	 against	 the	 person	 or	
      property	of	another,	such	other	consented	to	the	conduct	and	 an	
      element	of	the	crime	is	negated	as	a	result	of	consent.	
               	
               When	 conduct	 is	 a	 crime	 because	 it	 causes	 or	 threatens	
      bodily	injury,	consent	to	such	conduct	or	to	the	infliction	of	such	
      injury	is	a	defense	only	if	neither	the	injury	inflicted,	nor	the	injury	
      threatened	was	such	as	to	endanger	life	or	to	cause	serious	bodily	
      injury.	
               	
               Consent	is	not	a	defense	within	the	meaning	of	this	section	if	
      it	 is	 given	 by	 a	 person	 who	 by	 reason	 of	 intoxication,	 physical	
      illness,	mental	illness	or	mental	defect,	including	but	not	limited	to	
      dementia	 and	 other	 cognitive	 [impairments],	 or	 youth,	 is	
      manifestly	unable	or	known	by	the	defendant	to	be	unable	to	make	
      a	 reasonable	 judgment	 as	 to	 the	 nature	 or	 harmfulness	 of	 the	
      conduct	charged	to	constitute	the	crime,	or	it	is	induced	by	force,	
      duress	or	deception	or	undue	influence.	
               	
See	17-A	M.R.S.	§§	104(1),	105,	108(1),	109(1)-(3).		No	additional	instruction	

was	given	regarding	the	statutory	justifications.		Neither	party	objected	to	the	

instructions	as	given.			
6	

	        [¶8]	 	 The	 court	 then	 presented	 the	 jury	 with	 the	 verdict	 form,	 which	

asked	only	whether	Villacci	was	guilty	or	not	guilty	of	aggravated	assault	and	

domestic	violence	assault	and	made	no	mention	of	the	statutory	justifications.		

The	jury	deliberated	for	almost	four	hours	before	reaching	a	verdict;2	it	found	

Villacci	guilty	of	domestic	violence	assault	but	not	guilty	of	aggravated	assault.		

The	 court	 also	 found	 Villacci	 guilty	 of	 violating	 a	 condition	 of	 release	 by	

committing	 new	 criminal	 conduct.3	 	 By	 judgment	 dated	 September	 21,	 2017,	

the	court	sentenced	Villacci	to	four	and	a	half	years	in	prison	with	all	but	three	

years	suspended	and	four	years	of	probation	for	the	domestic	violence	assault.		

For	violating	a	condition	of	release,	the	court	sentenced	Villacci	to	six	months	

in	jail,	concurrent	with	the	domestic	violence	assault	charge.		Villacci	appeals.			




     2		During	deliberations,	the	jury	sent	several	notes	to	the	court	seeking	additional	information.		In	

the	 fourth	 note,	 the	 jury	 asked,	 “Please	 give	 us	 the	 definition	 of	 Aggravated	 Assault	 in	 writing	 if	
possible.		Thank	you.”		In	response,	the	State	requested	that	the	court	also	supply	the	jury	with	the	
definitions	of	“intentionally,”	“knowingly,”	“recklessly,”	“bodily	injury,”	and	“strangulation,”	as	terms	
that	were	incorporated	into	the	elements	of	aggravated	assault;	the	court	agreed.		See	17-A	M.R.S.	
§§	35(1)-(3),	208(1)(C)	(2017).		Villacci’s	counsel	argued,	“If	you	are	going	to	do	that	though,	you	
should	 also	 send	 in	 the	 defenses	 as	 well.”	 	 The	 court	 declined	 to	 provide	 additional	 or	 clarifying	
instructions	on	the	justifications,	reasoning	that	“while	it	is	logically	connected,	they	did	not	ask	for	
the	defenses,	which	is	a	distinct	instruction.”			
     3		Villacci	stipulated	that	a	conviction	on	either	the	aggravated	assault	or	the	domestic	violence	

assault	would	constitute	a	violation	of	a	condition	of	release.			
                                                                                                                  7	

                                              II.		DISCUSSION	

        [¶9]		The	sole	issue	before	us	regards	the	jury	instructions	given	on	the	

statutory	 justifications	 for	 domestic	 violence	 assault.4	 	 When,	 as	 here,	 no	

objection	 was	 made	 to	 the	 instructions	 as	 given,5	 we	 review	 the	 instructions	

only	 for	 obvious	 error,	 that	 is,	 “highly	 prejudicial	 error	 tending	 to	 produce	

manifest	injustice.”		State	v.	Baker,	2015	ME	39,	¶	11,	114	A.3d	214	(quotation	

marks	omitted);	see	M.R.U.	Crim.	P.	52(b).		We	review	the	jury	instructions	in	

their	 entirety	 to	 determine	 if	 the	 instructions	 “fail[ed]	 to	 inform	 the	 jury	

correctly	and	fairly	in	all	necessary	respects	of	the	governing	law.”		State	v.	Fox,	

2014	ME	136,	¶	22,	105	A.3d	1029	(quotation	marks	omitted).			

        [¶10]		We	have	set	out	three	categories	of	defenses	in	criminal	matters:	

“a	 failure	 of	 the	 State’s	 proof,	 an	 affirmative	 defense,	 and	 a	 justification	 or	

excuse.”	 	 State	 v.	 Ouellette,	 2012	 ME	 11,	 ¶	 8,	 37	 A.3d	 921.	 	 “[A]	 justification	

places	 on	 the	 defendant	 a	 burden	 of	 production	 to	 generate	 an	 issue	 with	

sufficient	evidence,	and	then	imposes	on	the	State	the	burden	of	persuasion	to	


   4		Because	Villacci	was	found	not	guilty	of	aggravated	assault,	and	because	the	parties	agree	that	

the	violation	of	a	condition	of	release	charge	is	dependent	on	the	conviction	for	domestic	violence	
assault,	only	the	domestic	violence	assault	charge	is	at	issue	in	this	appeal.			
	
   5		Challenging	a	jury	instruction	issued	in	response	to	a	note	from	the	jury	does	not	constitute	a	

timely	 objection	 to	 the	 instruction;	 objections	 to	 jury	 instructions	 must	 be	 made	 “before	 the	 jury	
retires	 to	 consider	 its	 verdict.”	 	M.R.U.	 Crim.	 P.	 30(b);	 see	 State	 v.	 Baker,	2015	 ME	39,	 ¶¶	6-7,	 11,	
114	A.3d	214.			
8	

disprove	the	defense.”6		Id.;	see	17-A	M.R.S.	§	101(1)	(2017).		Thus,	when	the	

defendant	generates	a	justification,	“[i]t	is	the	State’s	burden	to	both	disprove	

[the	 justification]	 beyond	 a	 reasonable	 doubt	 and	 prove	 each	 element	 of	 the	

crime	 charged	 beyond	 a	 reasonable	 doubt.”	 	 Ouellette,	 2012	 ME	 11,	 ¶	 17,	 37	

A.3d	 921.	 	 If	 the	 State	 fails	 to	 disprove	 at	 least	 one	 of	 the	 elements	 of	 the	

justification	 beyond	 a	 reasonable	 doubt,	 the	 justification	 constitutes	 a	

“complete	defense,	meaning	that	it	negates	the	commission	of	the	crime,”	even	

if	the	State	otherwise	proves	all	the	elements	of	the	crime	charged.		Id.	¶¶	9,	17.		

Thus,	to	convict	a	defendant	when	a	justification	has	been	generated,	the	State	

must	 disprove,	 beyond	 a	 reasonable	 doubt,	 at	 least	 one	 element	 of	 the	

justification	and	prove	every	element	of	the	crime	charged.		Id.	¶	17.			

         [¶11]		Here,	the	State	did	not	dispute	that	the	evidence	generated	all	four	

justifications	as	to	the	domestic	violence	assault	charge,	and	Villacci	does	not	

argue	that	the	court	mischaracterized	the	elements	of	the	justifications.		Villacci	

contends,	 however,	 that	 the	 court’s	 jury	 instructions	 failed	 to	 adequately	

apprise	the	jury	of	the	State’s	obligations	to	disprove	the	justifications	beyond	




     6		“In	asserting	a	failure	of	the	State’s	proof,	the	defendant	argues	that	the	State	has	not	established	

one	 or	 more	 elements	 of	 the	 crime	 beyond	 a	 reasonable	 doubt,	 but	 the	 defendant	 himself	 has	 no	
burden.	 	 An	affirmative	 defense,	 in	 contrast,	places	 the	 burden	 of	 persuasion	 on	 the	 defendant	to	
establish	 certain	 facts	 by	 a	 preponderance	 of	 the	 evidence.”	 	 State	 v.	 Ouellette,	 2012	 ME	 11,	 ¶	 8,	
37	A.3d	921	(citations	omitted);	see	17-A	M.R.S.	§	101(1)-(2)	(2017).			
                                                                                                9	

a	reasonable	doubt	and	failed	to	inform	the	jury	that	the	State’s	inability	to	meet	

that	burden	would	require	the	jury	to	acquit	Villacci	of	the	charge.			

       [¶12]		Central	to	the	disposition	of	the	present	appeal	is	our	decision	in	

State	 v.	 Baker,	 2015	 ME	 39,	 114	 A.3d	 214.	 	 In	 that	 case,	 the	 defendant	 was	

charged	 with	 multiple	 crimes,	 including	 aggravated	 assault,	 after	 an	 alleged	

domestic	 dispute.	 	 Id.	 ¶¶	 2-3.	 	 At	 trial,	 the	 court	 instructed	 the	 jury	 that	 if	 it	

found	that	the	State	had	proved	each	element	of	the	crimes	charged	beyond	a	

reasonable	doubt,	it	should	find	the	defendant	guilty.		Id.	¶	4.		The	court	then	

instructed	the	jury	on	the	self-defense	justification,	informing	it	that	if	it	found	

the	defendant	had	committed	the	offenses,	it	then	had	to	decide	if	the	defendant	

was	 acting	 in	 self-defense;	 that	 it	 was	 the	 State’s	 burden	 to	 prove	 beyond	 a	

reasonable	doubt	that	the	defendant	was	not	acting	in	self-defense;	and	that	if	

the	 State	 met	 its	 burden	 to	 prove	 that	 the	 defendant	 was	 not	 acting	 in	

self-defense,	the	jury	should	find	the	defendant	guilty	of	the	offenses	proved.		

Id.	¶¶	4-5.			

       [¶13]		We	concluded	that	the	self-defense	instructions	suffered	from	two	

“structural	flaws”	that,	taken	together,	amounted	to	obvious	error.		Id.	¶¶	13,	

18,	 22.	 	 First,	 the	 court	 completed	 its	 aggravated	 assault	 instruction	 by	

informing	the	jury	that	if	the	State	proved	the	elements	of	that	charge	beyond	
10	

a	reasonable	doubt,	the	jury	should	find	the	defendant	guilty.		Id.	¶	14.		 This	

suggested	 to	 the	 jury	 that	 it	 could	 bypass	 consideration	 of	 the	 self-defense	

justification	and	find	the	defendant	guilty	based	only	on	the	State’s	proof	of	the	

elements	of	aggravated	assault.		Id.		The	court	later	instructed	the	jury	that	the	

State	 was	 also	 required	 to	 disprove	 the	 self-defense	 justification,	 but	 the	

conflict	 between	 the	 aggravated	 assault	 instruction	 and	 the	 self-defense	

instruction	“resulted	at	least	in	an	ambiguity	[that]	left	the	jury	without	clear	

guidance	about	whether	self-defense	was	relevant	to	the	charge	of	aggravated	

assault.”		Id.	¶	15.	

       [¶14]		The	second	flaw	in	the	instructions	was	that,	although	the	court	

informed	the	jury	what	its	verdict	should	be	if	the	State	successfully	disproved	

that	the	defendant	acted	in	self-defense,	the	court	failed	to	inform	the	jury	that	

if	the	State	did	not	disprove	self-defense,	the	jury	was	required	to	acquit	the	

defendant,	even	if	the	jury	otherwise	found	that	the	defendant	had	committed	

all	the	elements	of	aggravated	assault.		Id.	¶	16.		Notwithstanding	that	the	court	

referred	 to	 self-defense	 as	 a	 “justification,”	 the	 court	 did	 not	 inform	 the	 jury	

what	a	justification	is	or	explain	its	exculpatory	effect.		Id.		Thus,	“the	jury	was	
                                                                                                              11	

left	to	guess	about	whether	the	law	of	self-defense	could	result	in	an	acquittal	

or	whether	it	might	lead	to	some	other	result.”7		Id.	¶	18.	

        [¶15]	 	 We	 distinguished	 Baker	 in	 State	 v.	 Weaver,	 another	 matter	

involving	charges	of	aggravated	assault	in	connection	with	a	domestic	dispute.		

2016	ME	12,	¶¶	2-5,	130	A.3d	972.		In	that	case,	the	court	twice	instructed	the	

jury	 that,	 because	 the	 justification	 of	 self-defense	 was	 generated	 by	 the	

evidence,	the	State	was	obligated	to	prove	the	elements	of	aggravated	assault	

and	to	disprove	at	least	one	element	of	self-defense.		Id.	¶	7.		We	concluded	that	

although	 the	 court	 did	 not	 explicitly	 instruct	 the	 jury	 that	 it	 was	 required	 to	

acquit	 the	 defendant	 if	 it	 found	 that	 the	 State	 did	 not	 disprove	 self-defense	

beyond	 a	 reasonable	 doubt,	 the	 court’s	 instructions	 as	 a	 whole	 accurately	

informed	the	jury	of	the	State’s	entire	burden.		Id.	¶	13.		To	the	extent	that	the	

court	erred	by	failing	to	inform	the	jury	of	its	duty	to	acquit	if	the	State	did	not	

disprove	 self-defense,	 that	 error	 did	 not	 rise	 to	 the	 level	 of	 obvious	 error	

because	in	Weaver,	unlike	in	Baker,	the	court	did	not	suggest	that	the	jury	could	




   7		We	also	noted	that	the	court	could	have	cured	the	errors	by	giving	the	jury	corrected	written	

instructions	in	response	to	a	jury	note	seeking	clarification	on	what	the	court	meant	by	saying	the	
jury	“should	return	a	verdict	of	guilty	if	the	State	proved	the	charge	of	aggravated	assault	beyond	a	
reasonable	 doubt.”	 	 Baker,	2015	ME	 39,	 ¶¶	19-21,	114	A.3d	 214	 (quotation	 marks	 omitted).	 	 The	
instruction	 that	the	 court	 provided	 in	 response,	 however,	 still	 did	 not	 inform	the	 jury	 that	 it	 was	
required	to	acquit	the	defendant	if	it	found	that	the	State	did	not	disprove	self-defense.		Id.	¶	20.	
12	

find	the	defendant	guilty	of	aggravated	assault	without	considering	the	State’s	

burden	to	disprove	self-defense.		Id.			

	      [¶16]		 We	 again	distinguished	Baker	in	 State	v.	Marquis,	2017	ME	104,	

162	 A.3d	 818.	 	 In	 that	 case,	 the	 defendant	 generated	 the	 self-defense	

justification	in	his	trial	for	murder.		Id.	¶¶	11,	18,	21.		We	concluded	that	the	

court’s	 instruction—stating	 that	 the	 jury	 was	 required	 to	 find	 the	 defendant	

guilty	 if	 it	 found	 that	 the	 State	 proved	 each	 element	 of	 murder	 beyond	 a	

reasonable	doubt—was	error	when	read	in	isolation,	but	that	the	instruction	

had	 to	 be	 read	 in	 conjunction	 with	 the	 other	 jury	 instructions	 given.	 	 Id.	

¶¶	20-22.	 	 Those	 other	 instructions	 informed	 the	 jury	 of	 the	 elements	 of	 the	

self-defense	 justification,	 the	 State’s	 burden	 to	 disprove	 the	 self-defense	

justification	 beyond	 a	 reasonable	 doubt,	 and	 the	 jury’s	 obligation	 to	 find	 the	

defendant	 not	 guilty	 if	 the	 State	 failed	 to	 meet	 that	 burden.	 	 Id.	 ¶	 22.	 	 As	 in	

Weaver,	we	held	that	when	the	jury	instructions	were	“viewed	as	a	whole,”	the	

court’s	error	was	not	obvious	because	the	court	did	elsewhere	instruct	the	jury	

that	if	it	found	that	the	State	failed	to	disprove	self-defense,	it	was	required	to	

find	the	defendant	not	guilty.		Id.	¶¶	18,	25-26	(quotation	marks	omitted).	

	      [¶17]		Here,	the	sum	total	of	the	State’s	burden	as	explained	in	the	jury	

instructions	 given	 was	 that	 the	 State	 had	 to	 prove	 the	 elements	 of	 the	 crime	
                                                                                        13	

charged	 beyond	 a	 reasonable	 doubt.	 	 This	 was	 error.	 	 Although	 the	 court	

accurately	provided	the	elements	of	the	justifications,	it	offered	no	indication	

of	what	a	justification	is	and	did	not	explain	that	the	State	had	any	burden	to	

disprove	at	least	one	element	of	the	justifications	beyond	a	reasonable	doubt;	

that	the	jury	could	find	Villacci	guilty	only	if	it	found	that	the	State	had	met	its	

burden	to	both	disprove	the	justifications	and	prove	the	elements	of	the	crime;	

or	that	the	State’s	failure	to	disprove	the	justifications	obligated	the	jury	to	find	

Villacci	 not	 guilty,	 even	 if	 the	 State	 otherwise	 met	 its	 burden	 of	 establishing	

each	element	of	domestic	violence	assault	beyond	a	reasonable	doubt.		In	short,	

the	jury	was	informed	that	the	State	would	meet	its	obligations	in	establishing	

Villacci’s	guilt	merely	by	proving	each	element	of	the	crime	charged	beyond	a	

reasonable	doubt;	the	jury	was	otherwise	left	to	wonder	what	legal	affect,	if	any,	

the	justifications	had	in	the	matter.		See	Baker,	2015	ME	39,	¶	18,	114	A.3d	214.		

As	 in	 Baker,	 these	 instructions	 were	 “materially	 incomplete”	 and	 thereby	

misstated	 the	 law.	 	 Id.;	 see	 Alexander,	 Maine	 Jury	 Instruction	 Manual	 §	 6-58,	

Lexis	 (2017-2018	 ed.,	 last	 visited	 May	 18,	 2018)	 (setting	 out	 sample	

instructions	for	self-defense	consistent	with	Baker).	

	      [¶18]		The	court	also	did	not	correct	the	deficiencies	in	its	instructions	

when	it	had	the	opportunity	to	do	so	in	responding	to	the	notes	the	jury	sent	to	
14	

the	court	during	deliberations,	including	the	note	in	which	the	jury	asked	for	

clarification	 on	 the	 elements	 of	 aggravated	 assault.	 	 See	 id.	 ¶¶	 19,	 22	 (“The	

prejudice	created	by	these	errors	was	enhanced	by	the	jurors’	ongoing	use	of	

written	instructions	that	memorialized	the	errors.”).			

       [¶19]		The	State’s	attempt	to	liken	this	case	to	Weaver	is	unpersuasive.		In	

Weaver,	as	in	Marquis,	the	court	expressly	and	sufficiently	instructed	the	jury	

on	 the	 State’s	 burden	 to	 disprove	 the	 justification.	 	 Marquis,	 2017	 ME	 104,	

¶¶	22,	 25,	 162	A.3d	 818;	 Weaver,	 2016	 ME	 12,	 ¶¶	 7,	 13,	 130	 A.3d	 972.	 	 In	

contrast,	 here,	 as	 in	 Baker,	 the	 instructions	 improperly	 suggested	 to	 the	 jury	

that	it	could	find	the	defendant	guilty	based	only	on	the	State’s	proof	beyond	a	

reasonable	doubt	of	the	elements	of	the	crime,	and	they	did	not	inform	the	jury	

that	 it	 had	 to	 acquit	 Villacci	 if	 it	 found	 that	 the	 State	 did	 not	 disprove	 the	

justifications.	 	 2015	 ME	 39,	 ¶¶	14-18,	 114	A.3d	 214.	 	 If	 anything,	 the	 court’s	

instructions	in	Villacci’s	trial	were	even	more	incomplete	and	more	inaccurate	

than	those	deemed	obvious	error	in	Baker;	one	portion	of	the	jury	instructions	

in	 Baker	 did	 inform	 the	 jury	 that	 the	 State	 had	 a	 burden	 to	 disprove	 the	

justification	beyond	a	reasonable	doubt,	id.	¶	5,	but	the	jury	instructions	here	

made	no	mention	of	the	role	of	the	justifications	in	the	jury’s	deliberations	at	
                                                                                                           15	

all.		As	discussed	at	oral	argument,	neither	the	State	nor	Villacci	alerted	the	trial	

justice	to	the	gaps	in	the	instructions.	

        [¶20]		These	errors	in	the	jury	instructions	were	highly	prejudicial	and	

tended	to	produce	a	manifest	injustice,	particularly	given	that	Villacci’s	defense	

was	focused	in	large	part	on	the	application	of	the	statutory	justifications.		See	

id.	 ¶	11;	 Fox,	 2014	 ME	 136,	 ¶	 25,	 105	 A.3d	 1029	 (“An	 error	 affects	 the	

defendant’s	substantial	rights	if	the	error	was	sufficiently	 prejudicial	to	have	

affected	 the	 outcome	 of	 the	 proceeding.”	 (quotation	 marks	 omitted)).	 	 We	

conclude	that	the	errors	in	the	court’s	jury	instructions	here	constitute	obvious	

error,	 and	 on	 this	 basis,	 we	 vacate	 the	 judgment	 of	 conviction	 for	 domestic	

violence	assault—and	the	attendant	charge	of	violating	a	condition	of	release—

and	remand	the	matter	for	a	new	trial	on	these	two	charges.8	

        The	entry	is:	

                         Judgment	vacated.		Remanded	for	a	new	trial.		
	
	       	       	        	       	        	




    8		The	court	also	made	independent	findings,	by	the	lower	standard	of	proof	of	preponderance	of	

the	evidence,	that	Villacci	had	committed	all	three	crimes	charged,	and	it	revoked	his	probation	in	a	
prior	 criminal	 matter,	 State	 v.	 Villacci,	 ANDCD-CR-2015-1196	 (Me.	 Super.	 Ct.,	 Androscoggin	 Cty.,	
Sept.	21,	2017),	on	that	basis;	the	court	sentenced	Villacci	to	serve	the	entire	suspended	portion	of	
his	 sentence	 in	 that	 matter—338	 days.	 	 See	 17-A	 M.R.S.	 §	 1206(5)	 (2017).	 	 We	 denied	 Villacci’s	
request	for	a	certificate	of	probable	cause	to	appeal	the	probation	revocation.			
16	

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Wesley
Villacci

Andrew S. Robinson, District Attorney, and Claire G. Andrews, Asst. Dist. Atty.
(orally), Prosecutorial District III, Lewiston, for appellee State of Maine


Franklin County Unified Criminal Docket docket number CR-2017-15
FOR CLERK REFERENCE ONLY	
	
	
	
