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State v.  Daniel Lemieux
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 46
Docket:	Cum-00-400	
  on Briefs:	February 28, 2001
Decided:	March 12, 2001




	[¶1]  Daniel M. Lemieux appeals from the judgment of conviction for
operating a motor vehicle under the influence of alcohol pursuant to 29-A
M.R.S.A. § 2411(1) (Class D),{1} entered in the Superior Court (Cumberland
County, Cole, J.) after a jury trial.  Lemieux contends that the trial court
erred when it denied his request for a jury instruction on the competing
harms defense pursuant to 17-A M.R.S.A. § 103.{2}  We disagree and affirm the
	[¶2]  Jury instructions are reviewed "'as a whole to ensure that they
informed the jury correctly and fairly in all necessary respects of the
governing law.'"  State v. Day, 1999 ME 29, ¶ 8, 724 A.2d 1245, 1247
(quoting State v. Daniels, 663 A.2d 33, 36 (Me. 1995)).  We "review the trial
court's denial of a request for jury instructions for prejudicial error."  State
v. Doyon, 1999 ME 185, ¶ 7, 745 A.2d 365, 367 (citation omitted). 
	[¶3]  The competing harms defense applies to "[c]onduct which the
actor believes to be necessary to avoid imminent physical harm to himself or
another . . . ." 17-A M.R.S.A. § 103(1)(1983).  "In deciding whether a
justification issue is generated, the evidence presented in support of the
justification must be viewed in the light most favorable to the defendant." 
State v. Caswell, 2001 ME 23, ¶ 11, --- A.2d --- (citing State v. Wilder, 2000
ME 32, ¶ 23, 748 A.2d 444, 450).  In competing harms cases, we require
that the evidence, "construed most favorably to the defendant, must be
sufficient to make the existence of all facts constituting the competing
harms justification a reasonable hypothesis for the fact finder to entertain." 
Id. (citing State v. Poole, 568 A.2d 830, 831 (Me. 1990)). 
	[¶4]  Lemieux admitted that he had several drinks during the
afternoon and evening prior to his arrest.  Both Lemieux and Patty Dixon
testified that Dixon was driving the vehicle.  They testified that Dixon was
having panic attacks and that she stopped the vehicle, got out of the vehicle,
and ran to the middle of the road trying to stop passing cars.  Dixon further
testified that when she has panic attacks she has to get to a hospital for
medical care.  There was, however, no testimony that Lemieux needed to
drive while under the influence of alcohol to avoid imminent physical harm
to himself or another.  Without such evidence, an instruction on competing
harms was not warranted.  The trial court did not err when it denied
Lemieux's request for a "competing harms" jury instruction.
	The entry is:
Judgment affirmed.
Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Anthony J. Sineni III, Esq. 701 Congress Street Portland, ME 04102-3303
FOOTNOTES******************************** {1} . Section 2411 states in relevant part: § 2411. Criminal OUI 1. Offense. A person commits OUI, which is a class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. 29-A M.R.S.A. § 2411(1) (1996). {2} . § 103. Competing harms 1. 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 charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute. 2. When the actor was reckless or criminally negligent in bringing about the circumstances requiring a choice of harms or in appraising the necessity of his conduct, the justification provided in subsection 1 does not apply in a prosecution for any crime for which recklessness or criminal negligence, as the case may be, suffices to establish criminal liability. 17-A M.R.S.A. § 103 (1983). {3} . The trial court declined to give a competing harms instruction on the basis that Lemieux denied he drove the vehicle. As we have previously noted, "'[g]enerally, inconsistent defenses may be interposed in a criminal case.'" State v. Knowles, 495 A.2d 335, 338 (Me. 1985) (quoting State v. Harris, 455 A.2d 342, 344 (1983)). Although the trial court's rationale would have been in error had any evidence in support of the defense been presented, in the absence of such evidence, no error occurred.