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State v. Brown

Supreme Court of Maine

March 14, 2019

STATE OF MAINE
v.
DAVID T. BROWN

          Argued: October 25, 2018

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant David T. Brown

          Janet T. Mills, Attorney General, and Johanna L. Gauvreau, 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.

          JABAR, J.

         [¶1] David T. Brown appeals from a judgment of conviction of four counts of aggravated trafficking in schedule W drugs (Class A), 17-A M.R.S. § 1105-A(1)(E)(1) (2018) (Counts 1-4), and one count of unlawful possession of schedule W drugs (Class C), 17-A M.R.S. § 1107-A(1)(B)(3) (2018) (Count 5), entered by the court (Androscoggin County, Delahanty, J.) following a jury trial.[1]Brown's primary contention on appeal is that there was insufficient evidence that he trafficked within 1, 000 feet of a school.[2] Because the State did not present evidence from which a jury could rationally conclude beyond a reasonable doubt that Brown trafficked within 1, 000 feet of a school, we vacate the aggravating factor that elevated the crime from Class B trafficking in schedule drugs, 17-A M.R.S. § 1103(1-A)(A) (2018), to Class A aggravated trafficking in schedule W drugs, 17-A M.R.S. § 1105-A(1)(E)(1), [3] and we remand to the Unified Criminal Docket for resentencing.

         I. BACKGROUND

         [¶2] By criminal complaint filed on February 21, 2017, and then by indictment filed on May 5, 2017, Brown was charged with four counts of aggravated trafficking in schedule W drugs (Class A). See 17-A M.R.S. § 1105-A(1)(E)(1). Viewed in the light most favorable to the jury's verdict, the record supports the following facts. See State v. Adams, 2015 ME 30, ¶ 2, 113 A. 3d 583.

         A. Four Counts of Aggravated Trafficking

         [¶3] In December 2016, an agent with the federal Drug Enforcement Agency (DEA) began conducting a series of controlled purchases of crack cocaine from Brown using a confidential informant. Brown resided on the second floor of an apartment building located at 72 Walnut Street in Lewiston, in the vicinity of the Governor James B. Longley Elementary School, which is located on Birch Street. The apartment building has two entrances: one at the front of the building on Walnut Street and another on the right side of the building on Prince Street. The entrance on the Prince Street side proceeds up a flight of stairs to the second floor. On the second floor, a door off the stairs leads into the kitchen area of the apartment. There is a living room to the left of the kitchen and off of the living room are two bedrooms. The bedroom closest to Walnut Street belonged to the owner of the apartment building, and the other bedroom was Brown's.[4]

         [¶4] During the first day of trial, the confidential informant testified about the three controlled buys from Brown, each of which took place somewhere in Brown's apartment. The confidential informant testified that she entered the apartment from the Prince Street side door and would meet Brown in either his bedroom or the living room. With regard to the actual location of the controlled buys, she testified:

Q. And where would you meet when you go inside of 72 Walnut?
A. Usually, if it wasn't the living room, it was his bedroom.
Q. Okay. Okay. So you would go into that [bedroom] and you ...
A. I usually wouldn't go into the room. I wouldn't go [nowhere] past the door. I would stand at the door like ... out the door. And he had a dresser, do his thing, give me -- if it wasn't there, it was on that end table in the living room.

         [¶5] The first count of aggravated trafficking in schedule W drugs stems from the first controlled purchase, which occurred on December 23, 2016. During this controlled buy, Brown sold the confidential informant 2.8 grams of crack cocaine in exchange for $400. Describing this buy, the confidential informant testified that Brown was "in the bedroom" and that she gave the money to him in return for crack cocaine.

         [¶6] The second controlled purchase, which was the basis of the second count of aggravated trafficking in schedule W drugs, took place on December 29, 2016. During this controlled buy, Brown sold the confidential informant 1.737 grams of crack cocaine in exchange for $400. The confidential informant did not testify about precisely where she was inside the apartment during this buy.

         [¶7] The third and final controlled purchase was conducted on February 10, 2017, when Brown sold the confidential informant 1.69 grams of crack cocaine for $300. This controlled buy led to the third count of aggravated trafficking in schedule W drugs. Again, the confidential informant did not testify about the precise location of this buy.

         [¶8] Following the three controlled buys, law enforcement officers obtained and executed a search warrant for the apartment at 72 Walnut Street. While searching Brown's bedroom, a DEA agent discovered a bag of crack cocaine weighing approximately 27 grams. This formed the basis for a fourth count of unlawful trafficking in schedule W drugs based on the permissible inference provided in 17-A M.R.S. § 1103(3)(B) (2018) that Brown's possession of fourteen grams or more of cocaine constituted unlawful trafficking in scheduled drugs.

         [¶9] The State charged all four counts as aggravated trafficking, alleging that the drugs were discovered, and the controlled buys occurred, within 1, 000 feet of the real property of Longley Elementary School. See 17-A M.R.S. § 1105-A(1)(E)(1).

         B. Evidence Concerning the Distance Between 72 Walnut Street and Longley Elementary School

         [¶10] The court held a three-day jury trial from September 25 to September 27, 2017. On the first day of trial, a DEA agent testified that he used a measuring wheel to measure the distance between the front entrance of 72 Walnut Street and the property line of Longley Elementary School. Specifically, the DEA agent started his measurement at the "front step" of 72 Walnut Street, took a diagonal route across Walnut Street, and proceeded down Howe Street in a straight line to Longley Elementary School, where he ended the measurement "four or five feet" onto school property. This measurement totaled 958.9 feet.

         [¶11] The following morning, after being informed that the "vertical distance" to the location where the drug transaction occurred should be accounted for in the measurement, the DEA agent returned to the apartment and conducted additional measurements. When he testified about his second set of measurements, the DEA agent explained that he entered the building using the Walnut Street entrance and then "measured from the living room to the exterior of the building, which was 16.9 feet. And from that second-floor exterior of the building to the ground, which was, I believe 12.4 feet." He then added in the distance from the spot on the ground out to the location on the platform where he had begun his initial measurements. All four measurements, added together, totaled 996.2 feet. On cross-examination, the agent acknowledged that, in taking his interior measurements, he had begun at the doorway to Brown's living room, and that it was "unlikely" that the buys had occurred in that doorway.[5]

         C. Jury Instructions and Verdict

         [¶12] During jury deliberations, the jury sent a note to the court asking whether vertical distance must be included in measuring the distance from the trafficking to the school and requesting "[clarification on the law on what is 1, 000 feet: a straight-line distance, a walking path, a radius?" Despite defense counsel's objection-that there was no evidence presented about what a straight-line measurement would be-the court gave the jury a new written instruction, stating, "The 1, 000 feet is a straight-line measurement from the location where the offense occurred to the property line of the school. Maine law is silent as to vertical feet. If there is a reasonable doubt or ambiguity because of a vertical measurement, it must be resolved in favor of the defendant."

         [¶13] The jury returned a guilty verdict on all four counts of aggravated trafficking in schedule W drugs. On December 4, 2017, Brown was sentenced to ten years in prison on the four convictions of aggravated trafficking in schedule W drugs. Brown timely appealed the judgment of conviction. See 15 M.R.S. § 2115 (2018); M.R. App P. 2B(b)(1).

         II. DISCUSSION

         [¶14] Brown argues that there was insufficient evidence for the jury to find that his drug trafficking occurred within 1, 000 feet of the real property of Longley Elementary School. "When a defendant challenges the sufficiency of the evidence supporting a conviction, we determine, viewing the evidence in the light most favorable to the State, whether a trier of fact rationally could find beyond a reasonable doubt every element of the offense charged." State v. Anderson, 2016 ME 183, ¶ 30, 152 A.3d 623 (quotation marks omitted). The jury is permitted to draw all reasonable inferences from the evidence presented at trial. State v. Hopkins, 2018 ME 100, ¶ 51, 189 A.3d 741. "The interpretation of a statute is a legal issue we review de novo." State v. Cannady, 2018 ME 106, ¶ 7, 190 A.3d 1019 (quotation marks omitted).

         [¶15] The narrow question presented is whether, based on the evidence presented, a jury rationally could have found, beyond a reasonable doubt, that Brown trafficked within 1, 000 feet of school property. Although we considered a similar issue in State v. Barnard, 2003 ME 79, 828 A.2d 216, we have yet to explicitly determine how the distance ought to be measured in order to sustain a conviction under 17-A M.R.S. § 1105-A(1)(E)(1)-(6) (2018). We do so today by determining (1) what two points must be measured, (2) whether the straight-line or the pedestrian-route approach applies, and (3) whether the 1, 000-foot distance includes any difference in elevation between the two points to be measured.

         A. Measuring the Distance Between the Real Property of the School ...


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