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State v. Corbin (corrected 3-13-97)
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Decision: 1997 ME 41  
Docket: CUM-96-287
Submitted on briefs January 24, 1997
Decided March 12, 1997


	[¶1]  Linda Corbin appeals from the judgment entered in the Superior
Court (Cumberland County, Fritzsche, J.) on a jury verdict finding her guilty
of assault in violation of 17-A M.R.S.A. § 207 (1983 & Supp. 1996).{1}  We
agree with Corbin that the trial court erred by denying her request for an
instruction to the jury on self-defense.  Accordingly, we vacate the judgment.
	[¶2]  The record reveals that Corbin was charged in the District Court
(Portland) with theft in violation of 17-A M.R.S.A. § 353 (1983) and assault
in violation of section 207.  The case was transferred to the Superior Court. 
Following a trial, the jury returned a not guilty verdict as to the theft charge
and a guilty verdict on the charge of assault. 
	[¶3] At the time of the trial, the jury heard, inter alia, the following
evidence: On July 23, 1995, at approximately 6:30 p.m., Mary Larkin, a loss
prevention specialist for Filene's, a department store located in the Maine
Mall at South Portland, observed Corbin select several items of clothing and
leave the store without paying for the items.  Larkin followed Corbin outside,
identified herself as store security for Filene's and showed Corbin her badge. 
Corbin turned around and dropped the clothing she had carried from the
store.  In regard to what transpired after Larkin requested that Corbin come
back into the store with her, Larkin testified:
Q.	Did you -- Did she go back into the store?  
A.	No, she did not.  
	Q.	What happened?  
A.	I had to struggle with her at that point on the sidewalk.  
Q.	Could you please describe what happened during this
A.	During the struggle I asked her to return to the store.  She
refused.  I saw a Mall security person going to his car.  I asked
him to call South Portland.  She became more combative with
me and a struggle continued.  
	I had ahold of her hand and her arm.  She was carrying a
purse and a bag.  At that time she tried to hit me with her purse
which she succeeded in doing and hitting my right forearm area. 
At that point I reached around and grabbed a handful of hair, the
back of her head to contain her until assistance arrived.  

	[¶4]  As a result of the encounter, Larkin received some contusions to
her right bicep and her shirt was ripped.  Corbin and her treating physician
testified extensively regarding her bipolar disorder and the effect on Corbin
of failing to take her prescribed medications for three days preceding the
instant event.  As to her encounter with Larkin, Corbin testified:
Q.	. . .  The day, July 23rd.  Do you recall anything in
particular that day?  
A.	I do remember a great deal of what happened outside.  It's
almost like when she -- and I don't remember, I definitely don't
remember her identifying herself or even seeing a badge.  What I
think I remember she said, "Hold it." I dropped the items I had
in my arms and I do know what [sic] I was assaulted.  My hair
was pulled.  There was hair all over my shirt. . . .  
	I did not know who this woman was when she grabbed me. 
She was dressed in a pair of jeans and a shirt.  She was not
uniformed. . . .  	
Q.	There was testimony of your struggling.  Was any of your
struggle either in the flight or defending yourself?  
A.	I remember not being able to struggle.  Trying to pull away
is what I remember.  Not knowing who she was because she was
not in uniform.  And I remember being very, very sick and I
remember then, you know, like standing aside because I was so
sick. . . .  
Q.	So some of your struggling could be characterized as self-
defense in your own mind?  
A.	Oh, definitely.  I did not know who she was.  I do not
remember seeing a badge.  She said I grabbed her badge.  I don't
remember that.  

	[¶5] On cross-examination Corbin testified she did not remember
hitting Larkin with her purse, but remembered "trying to pull away"; and in
response to the inquiry, "But you do remember them hurting you?", she
responded, "Yes, I do."  
	[¶6] At the close of the trial, the court granted Corbin's request that
the jury be instructed on mental abnormality, see 17-A M.R.S.A. § 38 (1983)
("Evidence of an abnormal condition of the mind may raise a reasonable
doubt as to the existence of a required culpable state of mind."), but denied
her requested instruction on self-defense, pursuant to 17-A M.R.S.A. § 108
(1983 & Supp. 1996), on the ground that the issue of self-defense had not
been generated.  
	[¶7] Section 108 provides, in pertinent part:
1.A person is justified in using a reasonable degree of
nondeadly force upon another person in order to defend
himself . . . from what he reasonably believes to be the
imminent use of unlawful, nondeadly force by such other
person, and he may use a degree of such force which he
reasonably believes to be necessary for such purpose. 
However, such force is not justifiable if:

A.	With a purpose to cause physical harm to another
person, he provoked the use of unlawful, nondeadly force
by such other person; . . .  

The general rules governing defenses and affirmative defenses are set forth
in pertinent part in 17-A M.R.S.A. § 101(1) (1983).{2}  In interpreting the
applicability of this statute, we have stated:
	Pursuant to [section 101(1)], the State must disprove
beyond a reasonable doubt any statutory defense "in issue as a
result of evidence admitted at the trial which is sufficient to
raise a reasonable doubt on the issue." A defense is in issue
within the meaning of section 101 if the evidence is "sufficient
to make the existence of all the facts constituting the defense a
reasonable hypothesis for the factfinder to entertain." State v.
Glidden, 487 A.2d 642, 644 (Me. 1985).  Either the State or the
defense may introduce the evidence that generates the State's
obligation.  Id.  

State v. Begin, 652 A.2d 102, 106 (Me. 1995).  
	[¶8] When there is sufficient evidence to generate the issue, "an
instruction under section 108 must be given, and, where self-defense is an
issue essential to the defendant's case, a failure to so instruct amounts to
obvious error because the instructions are 'crucial to defendant's receiving a
fair trial.'" State v. Davis, 528 A.2d 1267, 1270 (Me. 1987) (quoting State v.
Daley, 440 A.2d 1053, 1055 (Me. 1982)).  The denial of the criminal act by
the defendant does not relieve the State of its burden to negate any defense
generated by the evidence.  State v. Knowles, 495 A.2d 335, 338 (Me. 1985). 
Applying these principles to the evidence in this case, we conclude the trial
court erred by denying Corbin's request that the jury be instructed on self-
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion

Attorneys for State: Stephanie Anderson, District Attorney Andrew P.T. Bloom, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: David J. Ferrucci, Esq. 98 Washington Avenue Portland, ME 04101
FOOTNOTES******************************** {1} 17-A M.R.S.A. § 207 provides, in pertinent part: 1. A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another. {2} 17-A M.R.S.A. § 101(1) provides: The State is not required to negate any facts expressly designated as a "defense," or any exception, exclusion or authorization which is set out in the statute defining the crime by proof at trial, unless the existence of the defense, exception, exclusion or authorization is in issue as a result of evidence admitted at the trial which is sufficient to raise a reasonable doubt on the issue, in which case the State must disprove its existence beyond a reasonable doubt.