Argued: March 7, 2018
Jamesa
J. Drake, Esq., and Rory A. McNamara, Esq. (orally), Drake
Law, LLC, Auburn, for appellant Kashawn McLaughlin
Janet
Mills, Attorney General, and Katie Sibley, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for
appellee State of Maine
Panel:
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
GORMAN, J.
[¶1]
Kashawn McLaughlin appeals from a judgment of conviction of
aggravated trafficking in schedule W drugs (Class A), 17-A
M.R.S. § 1105-A(1)(D) (2017), entered by the trial court
(Kennebec County, Murphy, J.) after a jury
trial.[1] McLaughlin argues that pursuant to section
1105-A(1)(D) the State must prove the weight of pure cocaine
base in isolation and that the court erred by failing to
include that requirement in its instructions to the jury.
Because we conclude that section 1105-A(1)(D) does not
require the State to prove the weight of "pure"
cocaine base, we affirm the judgment.[2]
I.
BACKGROUND
[¶2]
Viewed in the light most favorable to the jury's verdict,
the record supports the following facts. State v.
Adams, 2015 ME 30, ¶ 2, 113 A.3d 583. On November
2, 2015, agents from the Maine Drug Enforcement Agency (MDEA)
received information from a confidential informant indicating
that McLaughlin was staying in and selling drugs out of room
175 at the Senator Inn in Augusta. Based on this information
and their observation of individuals coming and going from
room 175, MDEA agents sought and obtained a search warrant
for the room. The search warrant referred to McLaughlin by
name.
[¶3]
At around 6:30 p.m. that evening, with the help of the
Augusta Police Department, MDEA agents executed the search
warrant for room 175. Upon executing the warrant, the
officers and agents secured and identified six individuals in
the room, including McLaughlin. In the room, agents observed
and seized, among other items, over $10, 000 in cash; two
firearms and ammunition; a dish in the microwave with white
and yellow residue; three digital scales; a plastic bag
containing a hard, light-brown material; fourteen
individually sealed bags with a hard, off-white material; and
an individual bag containing a large "ball" of
hard, off-white material. All six individuals in room 175
were arrested.
[¶4]
The State conducted a controlled substance analysis on
several of the items seized from room 175. The analysis
confirmed that the residue on the dish contained cocaine
base; all three digital scales had residue containing cocaine
and heroin; the light-brown material weighed sixty-five grams
and contained heroin; the total weight of the hard, off-white
material in the fourteen bags was 3.4 grams and at least one
of the bags contained cocaine base; and the large
"ball" of hard, off-white material weighed 100.6
grams and contained cocaine base. The controlled substance
analysis identified the presence of heroin and cocaine base
but did not determine the precise weight of each drug in
isolation.
[¶5]
On January 21, 2016, a grand jury indicted McLaughlin on five
charges stemming from his November 2, 2015, arrest. Among the
charges were Count 1, aggravated trafficking in schedule W
drugs (Class A), namely cocaine in the form of cocaine base,
17-A M.R.S. § 1105-A(1)(D), and Count 2, aggravated
trafficking in schedule W drugs (Class A), namely heroin,
17-A M.R.S. § 1105-A(1)(H) (2017).[3] A jury trial on
the charges took place over three days from November 1 to
November 3, 2016. On the first day of the trial, the State
orally moved to amend Count 2 to a charge of unlawful
trafficking in heroin (Class B), 17-A M.R.S. §
llO3(l-A)(A) (2017), which the court granted without
objection by the defendant. At trial, two of the individuals
arrested with McLaughlin testified that McLaughlin knowingly
trafficked in what he knew to be illegal drugs on November 2,
2015.
[¶6]
At the close of trial, the court provided several
instructions to the jury, including the following instruction
related to Count 1: "Cocaine base includes any mixture
or preparation that contains any quantity of cocaine base,
which is the alkaloid base of cocaine." McLaughlin did
not object to this instruction. The jury found McLaughlin
guilty of Count 1, aggravated trafficking in cocaine in the
form of cocaine base and Count 2, unlawful trafficking in
heroin, on November 3, 2016. On July 11, 2017, the court
sentenced McLaughlin to twenty years in prison with all but
twelve years suspended and four years of probation on Count
1, and a concurrent six-year prison sentence on Count 2.
McLaughlin appeals only the judgment of conviction for
aggravated trafficking in cocaine in the form of cocaine
base. See 15 M.R.S. §2115 (2017); M.R. App. P
2(b)(2)(A) (Tower 2016); see also M.R. App. P.
2B(b)(1).[4]
II.
DISCUSSION
[¶7]
McLaughlin argues that the court erred by instructing the
jury that "[c]ocaine base includes any mixture or
preparation that contains any quantity of cocaine base."
He contends that 17-A M.R.S. §§ 1102(1)(F),
1105-A(1)(D) (2017) require the State to prove the weight of
pure cocaine base in isolation- not the overall weight of the
mixture or preparation that contains some quantity of cocaine
base.
A.
Standard of Review
[¶8]
Because McLaughlin did not object to the jury instructions at
trial, we review the court's jury instruction regarding
cocaine base for obvious error. See State v. Daluz,
2016 ME 102, ¶ 51, 143 A.3d 800. "When we review
for obvious error, we review for (1) an error, (2) that is
plain, and (3) that affects substantial rights."
Id. (quotation marks omitted). If we conclude that
these three conditions are met, "we 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 reputation of judicial proceedings."
Id. (quotation marks omitted).
[¶9]
To determine whether the court erred by instructing the jury
on cocaine base, we must interpret-for the first time-the
definition of "cocaine" provided in 17-A M.R.S.
§ H02(1)(F), in conjunction with the phrase
"cocaine in the form of cocaine base" as used in
the aggravated trafficking statute, 17-A M.R.S. §
1105-A(1)(D). See State v. Pinkham, 2016 ME 59,
¶ 19, 137 A.3d 203. "We review questions of
statutory interpretation de novo," State v.
Christen, 2009 ME 78, ¶ 12, 976 A.2d 980, and our
standard for interpreting statutes is well established:
In interpreting these provisions, we first look to the plain
language of the provisions to determine their meaning. If the
language is unambiguous, we interpret the provisions
according to their unambiguous meaning unless the result is
illogical or absurd. If the plain language of a statute is
ambiguous-that is, susceptible of different meanings-we will
then go on to consider the statute's meaning in light of
its legislative history and other indicia of legislative
intent. In applying these principles, we examine the entirety
of the statute, giving due weight to design, structure, and
purpose as well as to aggregate language. We reject
interpretations that render some language mere surplusage.
State v. Dubois Livestock, Inc., 2017 ME 223, ¶
6, 174 A.3d 308 (citations omitted) (quotation marks
omitted). When, as here, we are "interpreting a criminal
statute, we are guided by two interrelated rules of statutory
construction: the rule of lenity, and the rule of strict
construction." Pinkham, 2016 ME 59, ¶ 14,
137 A.3d 203 (quotation marks omitted). If the
Legislature's intent remained indecipherable after using
the tools of construction available to us, the rule of lenity
would require us to resolve any ambiguities in
McLaughlin's favor. See State v. Stevens, 2007
ME 5, ¶ 16, 912 A.2d 1229; United States v.
Wells, 519 U.S. 482, 499 (1997) ("The rule of
lenity applies only if, after seizing everything from which
aid can be derived, ... we can make no more than a guess as
to what Congress intended." (quotation marks omitted)).
B. The
Statutes and Their Interpretation
1.
Plain Language
[¶10]
As with all statutory interpretation, we begin with the
statutory language while "giving due weight to design,
structure, and purpose." Dubois Livestock,
Inc., 2017 ME 223, ¶ 6, 174 A.3d 308 (quotation
marks omitted). The Maine Criminal Code, title 17-A,
comprises five parts. The statutes establishing drug-related
crimes are found in part 3, chapter 45, entitled simply
"Drugs." The chapter opens with two statutes
containing definitions and schedules of drugs that apply to
the entire chapter. See 17-A M.R.S. §§
1101-1102 (2017). The Legislature defined "cocaine"
in the second of those statutes, section H02(1)(F):
F. Cocaine means:
(1) Coca leaves, except coca leaves and extracts of coca
leaves from which cocaine, ecgonine and derivatives of
ecgonine and their salts have been removed; and
(2) A mixture or preparation that contains any quantity of
any of the following substances:
(a) Cocaine, its salts, optical and geometric isomers and
salts of isomers;
(b) Ecgonine, its derivatives, their salts, isomers and salts
of isomers; or
(c)Cocaine base, which is the alkaloid form of cocaine,
[¶11]
In the sections following section 1102, the Legislature set
out various types of drug crimes-possession, trafficking,
furnishing, and aggravated forms of trafficking and
furnishing. See 17'-A M.R.S. §§ 1103,
1105-A, 1105-C, 1106, 1107-A (2017). Intentional or knowing
possession of any amount of cocaine is a crime, although the
amount possessed, the existence or lack of any prior
convictions for possession, and whether the cocaine is in the
form of cocaine base will determine whether the crime is a
Class D, C, or B offense. See 17'-A M.R.S.
§ 1107-A. In addition, intentionally or knowingly
trafficking in any amount of cocaine is a Class B crime, 17-A
M.R.S.§1103(l-A)(A), and possession of fourteen grams or
more of cocaine or four grams or more of cocaine in the form
of cocaine base "gives rise to a permissible inference
under the Maine Rules of Evidence, Rule 303, that the person
is unlawfully trafficking in scheduled drugs." 17-A
M.R.S. §1103(3)(B). Trafficking in cocaine, Class B, is
elevated to aggravated trafficking, Class A, [5] if the individual
trafficks in cocaine
• to a child as a customer;
• with a child as an assistant;
• while having one or more convictions for
"engaging in substantially similar conduct";
• while in possession of a firearm;
• on a school bus or near a school or safe zone; or
• when "[d]eath is in fact caused by the use of
that ...