MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2025 ME 81 Docket: Som-24-392 Argued: June 4, 2025 Decided: August 21, 2025
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.
STATE OF MAINE
v.
MICHAEL L. KILGORE
HORTON, J.
[¶1] Michael L. Kilgore appeals from a judgment of conviction of assault
on an officer1 (Class C), 17-A M.R.S. § 752-A(1)(A) (2025), entered by the trial
court (Somerset County, Benson, J.) after a jury verdict. Kilgore contends that
the court’s jury instructions contained two obvious errors of the same kind that
led us to vacate the judgment in State v. Baker, 2015 ME 39, 114 A.3d 214:
the court advised the jury that it should find Kilgore guilty if the State
proved the elements of certain charges, without informing the jury that
the State also had to disprove the existence of the three justification
1 Kilgore was also convicted of assault (Class D), 17-A M.R.S. § 207(1)(A) (2025), as a lesser
included offense of an aggravated assault charge of which Kilgore was acquitted. Because assault is also a lesser included offense of assault on an officer, the court merged Kilgore’s assault conviction into his conviction for assault on an officer for purposes of the judgment. 2
defenses—self-defense, competing harms, and duress—that the court
determined had been generated by the evidence; and
the court failed to advise the jury to acquit Kilgore if the State did not
disprove the existence of the defenses of duress and competing harms
beyond a reasonable doubt.
[¶2] Because we agree with Kilgore’s contentions, we vacate the
judgment and remand for a new trial.2
I. BACKGROUND
A. Facts
[¶3] “Viewing the evidence in the light most favorable to its verdict, the
jury rationally could have found the following facts.” State v. Idris, 2025 ME 17,
¶ 2, 331 A.3d 419.
[¶4] In the early evening of September 30, 2022, a Pittsfield police officer,
Chelsea Merry, was patrolling Phillips Corner Road in Pittsfield when she saw
a car turn onto the road and drive away at high speed. Her radar device
registered the car’s speed at sixty-eight or sixty-nine miles per hour in a
2 Kilgore also argues that the court erred in admitting, over his objection, testimony by the police
officer whom Kilgore was accused of assaulting about the long-term character of her injuries and convalescence. Because we are vacating the judgment on other grounds, we need not address his argument. 3
forty-five-mile-per-hour zone. She then followed the car and conducted a
traffic stop.
[¶5] Merry identified the driver as Michael Kilgore. She informed Kilgore
why she had stopped him and requested his driver’s license, registration, and
proof of insurance. Merry asked if Kilgore’s license was suspended, revoked, or
subject to conditions, and he said that it was not. Upon returning to her police
cruiser, she noticed two restrictions on the back of his license—“6-Conditional
License, 7-Ignition Interlock,”3—that drew her suspicion. She returned to his
vehicle and questioned him again. Kilgore told her that his license had
previously been subject to the two restrictions but that they had expired. He
added that the conditional license requirement was issued as a form of
“alcohol” restriction. The combination of Kilgore’s mention of “alcohol” and his
increasing agitation led Merry to order Kilgore to step out of his vehicle. When
he complied, his fists were clenched and he approached Merry in a
confrontational manner, so she directed him to get back into his vehicle. She
returned to her vehicle and wrote out a civil summons for speeding. As Merry
walked to Kilgore’s car for the third time, she noticed that the vehicle’s
3 In a radio call between Merry and the local dispatch center, the dispatch center confirmed that,
according to Bureau of Motor Vehicle records, Kilgore’s license was still subject to the “6-Conditional License” restriction but not to the “7-Ignition Interlock” restriction. Despite the dispatch center’s communication, Merry testified that she believed that the ignition interlock device was required. 4
inspection had expired and added to the summons a traffic infraction charge of
operating without a valid certificate of inspection. See 29-A M.R.S. § 1768(7)
(2025). Kilgore became even more frustrated. As Merry was standing next to
his vehicle and explaining the summons, Kilgore drove away, running over
Merry’s foot as he did so and causing her to fall.
[¶6] Merry called for assistance from other officers and pursued Kilgore
in her cruiser. When she caught up to his vehicle, he pulled over and stopped.
With her service firearm drawn, Merry approached his vehicle and ordered him
to get out and show his hands. Kilgore refused. Merry then came closer to the
vehicle and reached through the driver-side window to pull him out of his
vehicle. Kilgore rolled up the window, and Merry’s upper arms became
trapped. Kilgore then drove forward a short distance, dragging Merry
alongside, stopped, and then continued ahead. Merry was then able to extricate
her arms but felt “immense pain” and saw “a bright white light.”
[¶7] Kilgore’s vehicle turned onto Route 2, and Merry followed in her
cruiser. Her cruiser reached one-hundred miles per hour before she stopped
the pursuit for public safety reasons. When she pulled off Route 2 to turn
around, however, she spotted Kilgore’s vehicle on a dead-end road and blocked
it off. Kilgore exited his vehicle and, ignoring an order to get on the ground, 5
rushed toward Merry’s cruiser. Merry attempted to arrest him, and an
altercation ensued. Kilgore kicked and threw punches before Merry subdued
him with pepper spray. She handcuffed him and placed him in her cruiser, at
which time a sheriff’s deputy arrived. Kilgore apologized to Merry and the
deputy for having run over Merry’s foot.
[¶8] After being treated at a local hospital, Merry wore a sling on her left
arm, suffered bruising on both arms, and “couldn’t do anything without [her]
arms being in excruciating pain.” The bruising disappeared after a few weeks,
but her pain persisted.
B. Procedure
[¶9] On October 3, 2022, the State charged Kilgore by complaint with
seven counts: (1) aggravated assault with a dangerous weapon (Class B), 17-A
M.R.S. § 208(1)(B) (2025); (2) assault on an officer (Class C), 17-A
M.R.S. § 752-A(1)(A) (2025); (3) eluding an officer (Class C), 29-A M.R.S.
§ 2414(3) (2025); (4) driving to endanger (Class E), 29-A M.R.S. § 2413(1)
(2025); (5) criminal speed (Class E), 29-A M.R.S. § 2074(3) (2025); (6) refusing
to submit to arrest (Class E), 17-A M.R.S. § 751-B(1)(A) (2025); and (7) failure
to sign violation summons and complaint (Class E), 17-A M.R.S. § 17(1) (2025). 6
The grand jury returned an indictment for the same seven counts on
February 24, 2023.
[¶10] The court held a jury trial on June 20 and 21, 2024. The State
offered testimony from Merry, an eyewitness, and the sheriff’s deputy.4 After
its witnesses testified, the State rested its case. The court denied Kilgore’s
motion for a judgment of acquittal. Kilgore then testified and did not call other
witnesses.
[¶11] Before closing arguments, Kilgore’s counsel made requests
relating to jury instructions. Based on the requests, the court agreed to include
an instruction on assault as a lesser included offense of the charge of aggravated
assault. Implicitly determining that the defenses of self-defense, 17-A M.R.S.
§ 108 (2025); duress, 17-A M.R.S. § 103-A (2025); and competing harms, 17-A
M.R.S. § 103 (2025) had been placed at issue, the court also agreed to address
all three in the course of its instructions to the jury. After closing arguments,
the court gave its jury instructions.
[¶12] The first charge addressed in the instructions was aggravated
assault. After explaining the elements of the offense, the court instructed the
4 The court admitted several of the State’s exhibits, which included photos of Merry’s injuries and
photos of Kilgore’s driver’s license. On Kilgore’s motion, the court later admitted a physical copy of his driver’s license. 7
jury, without mentioning the State’s burden to disprove the existence of
defenses, “If you decide that the State has proven all three elements beyond a
reasonable doubt, the defendant is guilty of aggravated assault.” The court then
turned to the lesser included offense of assault and, again without referring to
the State’s burden on defenses, instructed the jury, “[I]f the State proves those
elements of assault beyond a reasonable doubt then the defendant is guilty of
that offense, the offense of simple assault or assault.”
[¶13] The court next gave an instruction on self-defense that was specific
to the aggravated assault charge. In the self-defense instruction, the court first
explained the State’s obligation to disprove the defense beyond a reasonable
doubt. It then added, “If you find that the State has not proven either that the
defendant was not acting in self-defense or that his beliefs that led to his actions
were a gross deviation from what a reasonable and prudent person would
believe in the same situation, then you must find the defendant not guilty.”
[¶14] After giving the self-defense instruction, the court instructed the
jury on the second charge, assault on an officer. It told the jury that, if the State
proved the elements of the offense, “your verdict on the charge of . . . assault on
an officer would be guilty.” It then added, without restating the State’s burden 8
to disprove self-defense, that “[t]he issue of self-defense also comes into play
. . . in the case of the charge of assault on an officer.”
[¶15] The court proceeded to instruct the jury on the other five charges
before explaining the remaining two defenses—duress and competing harms.
For these defenses, the court instructed the jury that they “are applicable to all
of the offenses that you will have to consider.” As it did for the self-defense
instruction, the court also instructed the jury that “the State must prove beyond
a reasonable doubt” that neither of these defenses applied. However, the court
did not explain, as it had in instructing the jury on self-defense, that the State’s
failure to disprove these defenses required the jury to acquit Kilgore.
[¶16] At the conclusion of the instructions, the jury received a written
copy of the instructions to refer to in the jury room. During deliberations, the
jury sent a series of questions to the court. First, concerning self-defense, the
jury asked, “Is this definition in regard to [Officer] Merry or Mr. Kilgore? Who
has the right to use it?” The court replied that the definition applied only to
Kilgore. Second, the jury inquired as to whether “duress falls under the assault
charge—just under the assault charge.” The court answered that “the issue of
duress applies to all charges.” Third, the jury asked, “Does being under duress
change the outcomes of guilt[y] or not guilty on all charges?” Over Kilgore’s 9
objection, the court issued the following response: “You may consider whether
the defendant acted under duress with respect to each charge. Remember that
you must consider each charge separately and independently.” In his objection,
Kilgore indicated that the court should have added the additional reminder that
the jury “must consider . . . any applicable defenses that the State is required to
disprove beyond a reasonable doubt.”5 Finally, the jury submitted a fourth
question, “[I]f we choose he is guilty of one of the assaults, would he then be
guilty of an additional assault?” The court responded by emphasizing to the
jury “that each of the charges has to be considered separately and
independently.” On defense counsel’s recommendation, the court also included
a reminder about the need for the State to disprove applicable defenses beyond
a reasonable doubt.6 Once the court agreed to include this additional
recommendation by defense counsel, the court asked, “[Y]ou’re good with
5 Kilgore objected to other portions of the jury instructions that are not at issue on appeal. For instance, he objected to the inclusion of summary paragraphs in the instructions on assault on an officer and criminal speed.
6 The court’s full response to the jury’s fourth question stated:
You also, however, in the most recent note, had listed, in order, aggravated assault, assault, and assault of an officer and had asked, if we choose that he’s guilty of one of the assaults, would he then be guilty of an additional assault. I want to remind you of the instruction that I gave earlier, that each of the charges has to be considered separately and independently. And you have to make the decision about whether the State has proven each of the elements of the separate offense beyond a reasonable doubt and has disproven any appropriate defenses beyond a reasonable doubt. So you have to consider them separately and independently. 10
that?” and defense counsel replied, “Yes.” Although the court spoke to the jury
when responding to the jury’s four separate questions, the court did not modify
the written instructions that it had previously provided.
[¶17] The jury found Kilgore guilty of the lesser included offense of
assault in Count 1 and found him guilty of Count 2, assault on an officer. The
jury found Kilgore not guilty on the other counts. The court denied Kilgore’s
renewed motion for a judgment of acquittal, reasoning that the jury could have
reasonably found Kilgore guilty of these charges—without finding him guilty of
aggravated assault—either by finding the bodily injury to have occurred from
the closing of the window or by finding that Kilgore’s vehicle was not a
dangerous weapon in the manner it was used. See 17-A M.R.S. §§ 207(1)(A),
208(1)(B), 752-A(1)(A).
[¶18] At sentencing, the court concluded that it was appropriate to
merge the assault conviction with the conviction for assault on an officer for
purposes of the judgment because it deemed the jury’s verdict on both counts
to stem from the same conduct. For assault on an officer, the court then 11
imposed a sentence on Kilgore of forty-two months in prison, with all but nine
months suspended, followed by two years of probation.7
[¶19] Kilgore filed a timely notice of appeal. See 15 M.R.S. § 2115 (2025);
M.R. App P. 2B(b)(1).
II. DISCUSSION
[¶20] On appeal, Kilgore argues that the court’s jury instructions
suffered from both of the defects that we discussed in Baker, 2015 ME 39,
¶¶ 13-16, 114 A.3d 214, in that (1) the instructions defined a pathway for the
jury to find the defendant guilty based only on the elements of charges without
referring to generated defenses; and (2) when discussing defenses, the
instructions did not offer corresponding pathways to acquittal. 8 Kilgore did not
object on either ground at trial.9
7 Regarding the simple assault count, the court stated: “And on the lesser included simple assault,
the Court merges the sentence with the sentence in connection with the charge of assault on an officer. And to the extent that it’s necessary that I impose anything, I would impose a concurrent six months to be merged with the sentence on the [C]lass C offense.” The judgment and commitment form also mentions that a six-month term of imprisonment has been set to be served concurrently with the forty-two-month term of imprisonment, with all but nine months suspended.
8 Kilgore separately argues that the instructions were erroneous because they caused juror confusion. Kilgore attributes the juror confusion to various features of the court’s instructions, some of which he argues also gave rise to the two deficiencies discussed in State v. Baker, 2015 ME 39, 114 A.3d 214. Because we resolve this appeal based on the Baker issue, we need not reach Kilgore’s argument claiming juror confusion.
9 In his brief, Kilgore acknowledges that his argument was not fully preserved. However, he contends that “some aspects” of the argument were preserved because he did object to the court’s reinstruction following the jury’s third question during deliberations. We disagree that this objection 12
[¶21] We therefore undertake review for obvious error. See State v.
Villacci, 2018 ME 80, ¶ 9, 187 A.3d 576; M.R.U. Crim. P. 52(b). When reviewing
for obvious error, we must determine whether there was “(1) an error, (2) that
is plain, and (3) that affects substantial rights. . . . [W]e will exercise our
discretion to notice an unpreserved error only if we also conclude that (4) the
error seriously affects the fairness and integrity or public reputation of judicial
proceedings.” State v. Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147.
[¶22] Our analysis of whether any deficiency in the court’s instructions
rises to the level of obvious error begins with Baker, 2015 ME 39, ¶¶ 10-18, 114
A.3d 214. In Baker, we undertook obvious error review of jury instructions that
addressed an aggravated assault charge and a claim of self-defense. Id.
¶¶ 13-14. In its aggravated assault instruction, the court in Baker stated, “Now,
if you find that the State has proved each of the elements of the crime of
aggravated assault you should return a verdict of guilty.” Id. ¶ 4 (quotation
marks and alterations omitted). After giving this instruction, the court next
instructed on the lesser included offense of assault and then on self-defense. Id.
was sufficient to preserve his argument under Baker because, in his objection, Kilgore requested a reminder that the State disprove all defenses beyond a reasonable doubt, and this reminder would not have resolved either of the two Baker deficiencies.
On the other hand, the State does not argue in its brief that Kilgore waived objection to the instructions at issue. See State v. Whitney, 2024 ME 49, ¶ 18, 319 A.3d 1072. 13
In its instructions on self-defense, the court stated that if the State proved that
the defendant did not qualify under the defense, “then as to this legal
justification the State has met its burden of demonstrating beyond a reasonable
doubt the absence of self-defense and you should find the defendant guilty of
aggravated assault or assault as you have found.” Id. ¶ 5 (quotation marks
omitted). The court, however, did not instruct the jury that it was required to
acquit the defendant if it found that the State did not disprove the defense. Id.
[¶23] We held that two flaws in the instructions, “taken together, [rose]
to the level of obvious error”: (1) the instruction that proof of the elements of
aggravated assault required the jury to find the defendant guilty even though
the defense of self-defense had been generated, and (2) the absence of an
instruction stating that the State’s failure to disprove the defense required an
acquittal.10 Id. ¶¶ 13-16.
10 Avoiding the two deficiencies identified in Baker is a matter of deferring instruction on the pathways to verdicts of guilty and not guilty on a charge until after instruction on the elements of the offense charged and any generated defenses, and assuring that the pathways to both a guilty verdict and an acquittal are explained through instructions on the required topics in the following sequence:
(1) The elements of the substantive offense that the State must prove beyond a reasonable doubt; (2) The elements of any justification defense that the State must disprove beyond a reasonable doubt; (3) The elements of any affirmative defense that the defendant must prove by a preponderance of the evidence; (4) The jury findings on the foregoing elements that would result in a guilty verdict on the charge; and 14
[¶24] We have expounded upon Baker in several recent cases. See State
v. Weaver, 2016 ME 12, ¶ 13, 130 A.3d 972 (concluding that the jury
instructions did not amount to obvious error where only the second of the two
Baker flaws was present); State v. Marquis, 2017 ME 104, ¶¶ 24, 26, 162 A.3d
818 (reaching the same conclusion as Weaver where only the first Baker flaw
was present); Villacci, 2018 ME 80, ¶ 19, 187 A.3d 576 (vacating a conviction
where both flaws were present).
[¶25] Here, the court’s instructions contained both of the flaws that we
identified in Baker.
[¶26] First, although it had decided that three justification defenses were
generated by the evidence and applicable to all charges, the court advised the
jury on the aggravated assault charge, “If you decide that the State has proven
all three elements beyond a reasonable doubt, the defendant is guilty of
aggravated assault,” and on the lesser included offense of assault, “[I]f the State
proves those elements of assault beyond a reasonable doubt, then the
(5) The jury findings on the foregoing elements that would result in an acquittal on the charge.
See 17-A M.R.S. § 101(1)-(2) (2025).
In a trial such as this, involving multiple offenses with the same or similar elements and multiple defenses, the court may incorporate by reference a previous definition or explanation of an element or defense, but for each charge it should clearly define the jury findings that lead to verdicts of guilty and not guilty. 15
defendant is guilty of [assault].” Although the court clarified before instructing
the jury on the charge of assault on an officer that the State was also required
to prove beyond a reasonable doubt that self-defense did not apply, the first
Baker flaw was still present at the time of the instruction on assault on an
officer. Indeed, the flaw persisted because the court advised the jury, without
mentioning the State’s obligation to disprove the duress and competing harms
defenses, that if the elements of the offense were proved beyond a reasonable
doubt, “your verdict on the charge of . . . assault on an officer would be guilty.”
Rather than incorporating applicable defenses in explaining the pathways to
verdicts of guilty and not guilty for each charged offense, the court did not
present its instructions on the duress and competing harms defenses until after
it had discussed the elements of all five of the remaining charged offenses.
[¶27] Second, as in Baker, the court failed to expressly instruct the jury
to acquit Kilgore if the State failed to carry its burden of disproving the defenses
of duress and competing harms, saying only that “the State must prove beyond
a reasonable doubt” that the defenses did not apply. The court did indicate that
the jury should acquit if the State failed to disprove the third defense—
self-defense. 16
[¶28] As a result, the court’s “instructions were materially incomplete
and thereby misstated the law.” Villacci, 2018 ME 80, ¶ 17, 187 A.3d 576
(quotation marks omitted).
[¶29] At least as to the charges for which the defenses were generated,11
the errors in the instructions were “plain,” “affect[ed] substantial rights,” and
“seriously affect[ed] the fairness and integrity or public reputation of judicial
proceedings.” Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147. The errors were plain
due to the clear precedent established in Baker and Villacci. See United States
v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (indicating that an error is plain if it
is contrary to clearly established precedent). As in Baker and Villacci, the
instructions given “were highly prejudicial and tended to produce a manifest
injustice,” Villacci, 2018 ME 80, ¶ 20, 187 A.3d 576; see Baker, 2015 ME 39, ¶ 11,
114 A.3d 214; Weaver, 2016 ME 12, ¶¶ 9 n.4, 11, 130 A.3d 972 (“[T]o vacate the
judgment on the basis of obvious error we must determine that the offending
instruction when reviewed with the charge as a whole constituted highly
prejudicial error tending to produce manifest injustice.” (quotation marks
11The court’s instruction that the jury should consider all three defenses—self-defense, competing harms, and duress—in deciding all charges seems open to question. For example, it is not clear how a competing harms defense applies to the charge of failure to sign violation summons and complaint (Class E), 17-A M.R.S. § 17(1) (2025). See State v. Sexton, 2017 ME 65, ¶ 19, 159 A.3d 335. Nonetheless, because we agree that one or more of the three defenses was arguably generated as to the charges of assault and assault on an officer, of which Kilgore was convicted, we cannot say that the Baker deficiencies were harmless. 17
omitted)). We further conclude that the errors affected Kilgore’s substantial
rights because there was a “reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” See Pabon,
2011 ME 100, ¶ 34, 28 A.3d 1147 (emphasis, alternation, and quotation marks
omitted). Indeed, several aspects of the trial enhanced the significance of the
errors: the prominence of the defenses in Kilgore’s defensive strategy, the
“written instructions that memorialized the errors,” the jury’s four questions
indicating a failure to comprehend the instructions, and the court’s failure to
“correct the deficiencies in its instructions when it had the opportunity to do so
in responding to the notes the jury sent to the court during deliberations.”
Baker, 2015 ME 39, ¶¶ 21-22, 114 A.3d 214; Villacci, 2018 ME 80, ¶¶ 18-20,
187 A.3d 576. Under the last prong of Pabon, the Baker errors affected the
fairness of Kilgore’s trial because the jury was provided with a statement of the
law that was as misleading as that in Baker.
[¶30] For these reasons, we vacate the judgment as we did in Baker and
remand for a new trial on the charge of assault on an officer (Class C), 17-A
M.R.S. § 752-A(1)(A).12
12 The lesser included assault offense may also be submitted to the jury if either party so requests
or the court in its discretion so decides. See 17-A M.R.S. § 13-A(1) (2025). 18
The entry is:
Judgment vacated. Remanded for a new trial.
Scott F. Hess, Esq. (orally), The Law Office of Scott F. Hess, LLC, Augusta, for appellant Michael L. Kilgore
Maeghan Maloney, District Attorney, and Sarah Gracie, Asst. Dist. Atty. (orally), Office of the District Attorney, Skowhegan, for appellee State of Maine
Somerset County Unified Criminal Docket docket number CR-2022-1158 FOR CLERK REFERENCE ONLY