State of Maine v. Heath G. Demerchant

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 49
Docket: Aro-24-207
Argued: December 11, 2024
Decided: June 10, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STATE OF MAINE

v.

HEATH G. DEMERCHANT

STANFILL, C.J.

[¶1] Heath G. Demerchant appeals from a judgment of conviction for

domestic violence assault (Class C) entered by the trial court (Aroostook

County, Nelson, J.) following a two-day jury trial. Demerchant argues that the

trial court erred by denying his request for a jury instruction on the competing

harms justification. See 17-A M.R.S. § 103 (2025). Because there was

insufficient evidence of imminent physical harm to another to generate the

justification, we affirm the judgment.
2

I. BACKGROUND

[¶2] On June 12, 2023, Demerchant was indicted for domestic violence

aggravated assault (Class B), 17-A M.R.S. § 208-D(1)(D) (2023) (Count 1);1 and

domestic violence assault (Class C), 17-A M.R.S. § 207-A(1)(B)(1) (2023)

(Count 2).2 The State later filed a supplemental indictment adding the charge

of assault (Class C), 17-A M.R.S. §§ 207(1)(A), 1604(5)(B) (2023) (Count 3). 3

[¶3] After the State voluntarily dismissed Counts 1 and 3, the case went

to trial on Count 2 on April 17 and 18, 2024. The parties stipulated that

Demerchant and the victim were family or household members as defined by

Maine law, see 17-A M.R.S. § 207-A(1)(A), and that Demerchant had a prior

domestic violence assault conviction within the last ten years, see 17-A M.R.S.

§ 207-A(1)(B)(1). The State presented testimony from the victim, the victim’s

friend, two other witnesses who viewed the assault from the nearby Second

Chances Thrift Store, and two police officers.

1Title 17-A M.R.S. § 208-D(1)(D) has since been amended, though the amendment is irrelevant
to the current case. See P.L. 2023, ch. 465, § 4 (effective Oct. 25, 2023) (codified at 17-A M.R.S. § 208-
D(1)(D) (2025)).
2 Title 17-A M.R.S. § 207-A(1)(B)(1) has since been amended, though the amendment is irrelevant

to the current case. See P.L. 2023, ch. 465, § 3 (effective Oct. 25, 2023) (codified at 17-A M.R.S
§ 207-A(1)(B)(1) (2025)).

3 Title 17-A M.R.S. § 1604(5)(B) has been amended several times since the date of the offenses,

but the amendments are irrelevant to the current case. See P.L. 2023, ch. 316, § 12 (effective Oct. 25,
2023); P.L. 2023, ch. 455, § 3 (effective Oct. 25, 2023); P.L. 2023, ch. 557, § 4 (effective Aug. 9, 2024)
(codified at 17-A M.R.S. § 1604(5)(B) (2025)).
3

[¶4] Viewing the evidence of the offense in the light most favorable to

the State, see State v. DesRosiers, 2024 ME 77, ¶ 2, 327 A.3d 64, and the evidence

supporting the claim of a competing harms justification in the light most

favorable to Demerchant, see State v. Caswell, 2001 ME 23, ¶ 11, 771 A.2d 375,

the following facts were established at trial.

[¶5] Demerchant and the victim were married. On May 9 in Presque Isle,

Demerchant, a friend of the victim’s, and the victim’s seventeen-year-old child

went to a nearby parking lot to work on a vehicle. Before they left, the victim

gave Demerchant her debit card so that he could use it to buy food for her child.

[¶6] At some point later that day, Demerchant went to a nearby

apartment to use illegal drugs. The friend brought the victim’s child home.

After hours had passed, the victim and her friend went to the apartment

building looking for Demerchant. After locating him at the apartment building,

the victim learned that he did not have her debit card and had given it to

another woman.4 In the hallway of the apartment building, Demerchant and

the victim argued about the debit card and Demerchant’s presence at the

4 Demerchant testified that he went to the apartment building to find someone to go out and buy

snacks, something he could not do himself because the victim’s frequent telephone calls were
interfering with his work on the friend’s vehicle. He testified that he gave the woman the debit card
because his cousin told him the woman “seemed like the most sober one” there.
4

apartment where substance misuse was common. Demerchant grabbed the

victim’s arm and escorted her away from the apartment unit.

[¶7] Demerchant, the victim, and the friend left the apartment building

to walk towards a parking lot; all the while, Demerchant and the victim

continued to argue. While on the street walking toward the parking lot,

Demerchant grabbed the victim’s throat and pulled her toward him. The

contact caused a red mark on the victim’s neck. The victim was scared and

asked the friend for help. Once in the parking lot, Demerchant backed the

victim up against a vehicle, screamed in her face, and hit her. A witness who

saw parts of the interaction called the police. Police officers arrived and

arrested Demerchant.

[¶8] Following the State’s presentation of evidence, Demerchant moved

for a judgment of acquittal, which the court denied.

[¶9] Demerchant then testified in his own defense, recounting two

instances of physical contact with the victim that could support the assault

conviction. First, Demerchant testified that he grabbed the victim’s arm and

escorted her away from the apartment that was generally known for drug

activity. He reasoned that this act protected the victim from entering the

apartment because she had never been “part of that world.”
5

[¶10] Second, Demerchant testified to the assault in the parking lot

behind the Second Chances Thrift Store. He stated that the woman with the

victim’s debit card began approaching them, and the victim started to “freak

out” and said, “[W]ait until she gets over here.” The victim also testified that

when she and Demerchant were in the parking lot, the woman “returned with”

her debit card and “came down the alley.” Demerchant testified that he

believed the victim was about to assault the woman with the debit card. Even

by Demerchant’s account, however, the woman with the card would not “even

come close to [the victim] because of the way the [victim] was acting,” and she

went back up the alleyway away from the parking lot. As the woman with the

card retreated up the alleyway, Demerchant held the victim back from

following her.

[¶11] In essence, the evidence viewed in the light most favorable to

Demerchant suggests that the victim was agitated about the woman having her

card, that the woman appeared in an alley somewhere around Demerchant and

the victim, and that the victim “ran for her.” Demerchant grabbed the victim’s

jacket to restrain her because he believed that she would contact the woman

and hurt her in some way. The woman with the card, however, did not come

close because of the way the victim was acting. Notably absent from the record
6

was any specific evidence about how far the victim and the other woman were

from one another when Demerchant made physical contact with the victim.5

[¶12] After the close of the evidence, Demerchant requested that the

court provide the jury with an instruction on the competing harms justification

pursuant to 17-A M.R.S. § 103. Section 103 provides in relevant part:

Conduct that the person believes to be necessary to avoid imminent
physical harm to that person 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.

Id. § 103(1); see also State v. Nobles, 2018 ME 26, ¶¶ 31-32, 179 A.3d 910

(discussing the evidentiary burden and elements required to generate a

competing harms instruction). The court denied the request. In explaining its

ruling, the court determined that the evidence surrounding Demerchant’s

physical contact with the victim in the apartment building was insufficient to

generate the competing harms instruction. With respect to Demerchant’s

contact with the victim in the parking lot, the court determined that despite

Demerchant’s testimony that the victim started in the direction of the woman

5The trial transcript suggests that Demerchant’s attorney used demonstrative maps or images
during witness testimony to assist the jury in understanding the physical layout of the area and the
distances between various landmarks such as the parking lot, the alley, and the apartment building.
These visual aids were not offered or admitted in evidence and neither party requested that they be
preserved for the appellate record, see M.R. Evid. 616(d) (providing that illustrative aids must be
preserved for the record for appeal upon the request of a party).
7

holding her card, the woman with the card was still some distance away and

was moving farther away at the time of the assault. The court ruled that

therefore there was insufficient evidence that there was imminent danger of

physical harm to another to generate the competing harms instruction.

[¶13] After the request for the instruction was denied, Demerchant’s

attorney argued during closing that Demerchant acted as a buffer between the

two women and that he made contact with the victim to stop her from reaching

the woman with the card. Demerchant’s attorney concluded by discussing how

“[Demerchant] dealt with a difficult situation the best that he could. He did not

want [the victim] getting hurt or hurting someone else.”

[¶14] In rebuttal, the State argued that there was no defense available to

Demerchant that would justify his conduct and pointed out that when the jurors

received the instructions from the court, those instructions would not include

a section discussing justification.

[¶15] The jury returned a guilty verdict. The court sentenced

Demerchant to five years in prison, with all but three years suspended and four

years of probation.6 Demerchant timely appealed. See M.R. App. P. 2B(b)(1);

15 M.R.S. § 2115 (2025).

6 During the sentencing hearing, the court described the relevant mitigating factors as amounting

to “a whimper at best” compared to the “near-deafening shriek” of the relevant aggravating factors.
8

II. DISCUSSION

[¶16] Demerchant argues that the evidence, viewed in the light most

favorable to him, was sufficient to generate the competing harms instruction

for the jury’s consideration and that therefore the trial court erred by denying

his request for the instruction. Conversely, the State argues that the trial court

correctly determined that the evidence was insufficient to generate the

requested instruction because it did not demonstrate the required level of

imminence.7

[¶17] We will “vacate a judgment based on a denied request for a jury

instruction if the appellant demonstrates that the requested instruction (1)

stated the law correctly; (2) was generated by the evidence; (3) was not

misleading or confusing; and (4) was not sufficiently covered in the instructions

the court gave,” and if the court’s refusal to give the instruction prejudiced the

requesting party. State v. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278. The

The court characterized Demerchant’s record of fifty-one prior convictions as “ghastly” and
“absolutely awful” and placed significant weight on the impact on the victim and Demerchant’s
attempt to influence the trial by tampering with the victim and the friend. Demerchant filed an
application for review of his sentence, and the Sentence Review Panel denied his request. See
15 M.R.S. §§ 2151-2152 (2025); M.R. App. P. 20(a)(1), (f).

7 On appeal, the State also argues that the competing harms defense was unavailable to
Demerchant because he was reckless or criminally negligent in bringing about the circumstances that
created the alleged competing harms scenario. See 17-A M.R.S. § 103(2) (2025). Demerchant argues
that the State waived this argument by not raising it before the trial court. Because we conclude that
there was insufficient evidence of a threat of imminent physical harm, we need not address this
argument.
9

competing harms instruction is generated only if the evidence makes the

existence of facts upon which the justification is based “a reasonable hypothesis

for the fact finder to entertain.” Nobles, 2018 ME 26, ¶ 31, 179 A.3d 910

(quotation marks omitted). Thus, before a court will give a competing harms

instruction, there must be evidence that (if believed by the jury) would

establish each element of the justification for the criminal conduct. State v.

Nadeau, 2007 ME 57, ¶ 9 & n.1, 920 A.2d 452.

[¶18] In discussing the adoption of the competing harms justification, we

have said that it “was not intended as an overlay of self defense, but rather was

designed to codify the principle inherent in the common law defense of

necessity.” State v. Crocker, 506 A.2d 209, 211 (Me. 1986) (citing State v. Dorsey,

395 A.2d 855, 856 (N.H. 1978)). Indeed, because he claimed his assault of the

victim in the parking lot was necessary to protect a third person, Demerchant

was arguably precluded from receiving a competing harms justification

instruction as a matter of law because defense of another is specifically codified

in Maine’s criminal code. See 17-A M.R.S. § 108(1) (2025). When examining

the Model Penal Code, one of the “progenitor[s] of section 103,” we noted that

an inherent principle of the codification is “that the competing harms defense
10

applies only in the absence of explicit legislative provision.” Crocker, 506 A.2d

at 211-12.

[I]n order for the defense to be considered, [t]he issue of competing
values must not have been foreclosed by a deliberate legislative
choice, as when the law has dealt explicitly with the specific
situation that presents the choice of evils. Sections 104 and 108 of
the Maine Criminal Code deal specifically and comprehensively
with the use of force in defense of self, third persons and premises.
A defendant who is unable to present an effective defense under
these specific provisions is precluded from justifying his use of force
under the general provision for competing harms.

Id. at 212 (emphasis added and quotation marks omitted); see also Model Penal

Code & Commentaries § 3.02 cmt. 2 at 13 (Am. L. Inst. 1962) (the competing

harms defense “cannot succeed if the issue of competing values has been

previously foreclosed by a deliberate legislative choice, as when some

provision of the law deals explicitly with the specific situation that presents the

choice of evils”); State v. Smith, 984 P.2d 1276, 1289 (Haw. Ct. App. 1999)

(concluding that the choice of harms defense was inapplicable when self

defense applied); Keng Her v. State, No. A-12155, 2018 WL 4492835, at *3 & n.9

(Alaska Ct. App. Sept. 19, 2018) (citing Crocker, 506 A.2d at 211) (“Although the

Alaska courts have not yet interpreted the scope of this provision, courts in

other jurisdictions have held that a general necessity instruction (or other

equivalent instruction) is precluded in situations where self-defense is
11

otherwise applicable.”). Because, however, we determine that there was

insufficient evidence of a threat of imminent physical harm, we need not

resolve the extent to which the justification might otherwise be precluded.

[¶19] To generate an instruction on the competing harms justification,

Demerchant needed to present evidence to support each of the following

elements: “(1) the defendant or another person must be threatened with

imminent physical harm, when viewed objectively; (2) the present conduct

must be for the purpose of preventing a greater harm, or stated another way,

the urgency of the present harm must outweigh the harm that the violated

statute seeks to prevent; (3) the defendant must subjectively believe that his

conduct is necessary; and (4) the defendant must have no reasonable, legal

alternatives to the conduct.” Nobles, 2018 ME 26, ¶ 32, 179 A.3d 910 (quotation

marks omitted). We have explained that “to generate the defense there must

be evidence that the defendant’s conduct was necessary because of a specific

and imminent threat of injury to the defendant or another leaving no reasonable

alternative other than violating the law.” State v. Moore, 577 A.2d 348, 350 (Me.

1990) (emphasis added). The competing harms defense is not applicable

“merely because a defendant subjectively believes that a threat of imminent

physical harm to person or property exists; it is requisite that it be shown as a
12

fact that such physical harm is imminently threatened.” State v. Poole, 568 A.2d

830, 831 (Me. 1990) (emphasis added and quotation marks omitted); see also

State v. Kee, 398 A.2d 384, 386 (Me. 1979) (noting that “the Legislature regards

the ‘circumstances’ giving rise to the need for a choice of harms, i.e., the

imminence of physical harm, as circumstances existing in fact”).

[¶20] Inherent in the common law defense was a certainty of the danger

sought to be avoided. “The common-law defense dealt with imminent dangers

from obvious and generally recognized harms. It did not deal with nonimminent

or debatable harms; nor did it deal with activities that the legislative branch of

government had expressly sanctioned and found not to be harms.” Dorsey, 395

A.2d at 857 (emphasis added) (citing Glanville Williams, Criminal Law: The

General Part 729 (2d ed. 1961)).

[¶21] Here, there was no evidence that the people in the apartment

posed an imminent physical threat to the victim. There was also no evidence

that the victim was close enough to the woman who had her card to cause her

any physical harm.8 We therefore cannot say that there was a specific threat of

8 We emphasize that imminent physical harm is required to invoke the justification, and an assault

does not necessarily involve physical harm at all. See 17-A M.R.S. § 207(1)(A) (2025) (“A person is
guilty of assault if . . . [t]he person intentionally, knowingly or recklessly causes bodily injury or
offensive physical contact to another person.” (emphasis added)).

Furthermore, under the competing harms justification, “the present conduct must be for the
purpose of preventing a greater harm, or stated another way, the urgency of the present harm must
13

“imminent physical harm” that would justify the requested instruction. See

Nobles, 2018 ME 26, ¶ 32, 179 A.3d 910 (requiring evidence that objectively

establishes an imminent threat of physical harm); Moore, 577 A.2d at 350

(requiring that “the defendant’s conduct [be] necessary because of a specific and

imminent threat of injury to the defendant or another leaving no reasonable

alternative other than violating the law” (emphasis added)); Dorsey, 395 A.2d

at 857 (concluding that the common law necessity defense did not deal with

debatable harms). Therefore, even when taking the evidence in the light most

favorable to Demerchant, an instruction on the competing harms justification

was not generated in this case.

The entry is:

Judgment affirmed.

Kurt C. Peterson, Esq. (orally), McKee Morgan, LLC, P.A., Augusta, for appellant
Heath Demerchant

Todd R. Collins, District Attorney, and Matthew A. Hunter, Asst. Dist. Atty.
(orally), Prosecutorial District 8, Presque Isle, for appellee State of Maine

outweigh the harm that the violated statute seeks to prevent.” State v. Nobles, 2018 ME 26, ¶ 32, 179
A.3d 910 (quotation marks omitted). At trial and oral argument, Demerchant and his counsel
acknowledged the physical contact between Demerchant and the victim. There is no indication that
the harm Demerchant feared the victim would inflict upon the woman with the victim’s card would
be greater than the harm he committed—in his words—by “grab[bing] her jacket.”
14

Aroostook County Unified Criminal Docket docket number CR-2023-40303
FOR CLERK REFERENCE ONLY