An instruction accurately tracking the statutory language of a term in the Criminal Code may be erroneous where the instruction broadens the issues beyond those charged in the indictment and tried to the jury. See State v. McKinney, 588 A.2d 310, 312 (Me. 1991). Such an instruction raises the possibility of jury confusion and a verdict based upon impermissible criteria.
An instruction is erroneous if it creates the possibility of jury confusion and a verdict based on impermissible criteria. See State v. McKinney, 588 A.2d 310, 312 (Me. 1991); State v. Huff, 469 A.2d 1251, 1253 (Me. 1984). Such an error is harmless only if the court believes it highly probable that it did not affect the verdict.
An instruction accurately tracking the statutory language of a term in the Criminal Code may be erroneous where the instruction broadens the issues beyond those charged in the indictment and tried to the jury. See State v. McKinney, 588 A.2d 310, 312 (Me. 1991). Such an instruction raises the possibility of jury confusion and a verdict based upon impermissible criteria.
[¶ 12] When evidence presented at trial does not raise the possibility that the defendant committed the elements of a charged offense, instruction on those elements is erroneous if it creates the potential for "jury confusion and a verdict based on impermissible criteria." State v. McKinney, 588 A.2d 310, 312 (Me. 1991) (citation omitted). Here, the jury may have based its conviction on the charge of theft by receiving or on the charge of theft by unauthorized taking.
We have made clear in our decisions that the second sentence of section 57(3)(A) must be read independently of the first, and refers only to situations in which the defendant is charged with a secondary crime that was a reasonably foreseeable consequence of an uncharged primary crime. See, e.g., State v. McKinney, 588 A.2d 310, 312 (Me. 1991). A person is an accomplice of another person in the commission of a crime if . . . [w]ith the intent of promoting or facilitating the commission of the crime, he solicits such other person to commit the crime, or aids or agrees to aid or attempts to aid such other person in planning or committing the crime.