October 6, 2015.
briefs: Sean Ociepka, Esq., Belfast, for appellant
R. Hollstrom, Asst. Dist. Atty., District Attorney's
Office, Bath, for appellee State of Maine.
L. Heiden, Esq., ACLU of Maine Foundation, Portland, and
Catherine R. Connors, Esq., and Joshua D. Dunlap, Esq.,
Pierce Atwood LLP, Portland, for amicus curiae American Civil
Liberties Union of Maine Foundation.
argument: Sean Ociepka, Esq., for appellant Christopher
R. Hollstrom, for appellee State of Maine.
SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY,
[¶1] After Christopher Sudsbury sold a
single strip of Suboxone to a confidential informant for
twenty-five dollars, a jury found him guilty of aggravated
trafficking of a schedule W drug (Class A), 17-A M.R.S.
§ 1105-A(1)(B)(1) (2015), and the court (Waldo County,
Alexander, J. ) sentenced him to eight years in
prison. The State now concedes that it failed
to present evidence--required for purposes of proving the
charged Class A crime--that the Suboxone was, in fact, a
schedule W drug. See 17-A M.R.S. § §
1102(1), 1105-A(1)(B)(1) (2015). Thus, we have
no choice but to vacate the conviction.
[¶2] To prove the charged crime of
aggravated trafficking in a schedule W drug, the State had to
prove that (1) Sudsbury intentionally or knowingly trafficked
in what he knew or believed to be a scheduled drug; (2) the
drug sold was " in fact a scheduled drug" ; (3)
Sudsbury had " one or more prior convictions for any
Class A, B or C offense under this chapter or for engaging in
substantially similar conduct to that of the Class A, B or C
offenses under this chapter in another jurisdiction" ;
and (4) the trafficked drug was " [a] schedule W
drug." 17-A M.R.S. § § 1103(1-A),
1105-A(1)(B)(1) (2015). Neither Suboxone itself nor its
active ingredient, buprenorphine, is explicitly named as a
prohibited scheduled drug in any of the schedules established
by the Legislature. See 17-A M.R.S. § 1102
(2015). Thus, proof that Sudsbury sold a strip of Suboxone
was insufficient to satisfy the statutory element requiring
that the trafficked substance be " in fact a scheduled
drug," see id. § 1103(1-A), or, more
particularly, a schedule W drug, see id. §
[¶3] To prove that Sudsbury's conduct
fell within the definition of the crime charged, the State
was therefore required to present evidence that Suboxone is a
drug that falls within one of the listed categories of
schedule W drugs, such as " any compound, mixture or
preparation containing narcotic drugs" that is not
listed or described in another schedule. Id. §
1102(1)(I). At trial, however, no evidence was presented to
the jury that Suboxone or
buprenorphine constituted a narcotic or fell into any other
category established in schedule W. See id. ...