State of Maine v. David T. Brown

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 41
Docket: And-17-553
Argued: October 25, 2018
Decided: March 14, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Concurrence: SAUFLEY, C.J., and MEAD, J.

STATE OF MAINE

v.

DAVID T. BROWN

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

1 Brown was also convicted of four counts of violating a condition of release (Class E), 15 M.R.S.

§ 1092(1)(A) (2018) (Counts 6-9), after he waived his right to a jury trial on those charges pursuant
to M.R.U. Crim. P. 23(a). Because Brown does not assign error to these convictions, we do not address
them further.
2 Brown also contends that there was insufficient evidence that he possessed the requisite amount

of cocaine base in order to invoke the permissible inference for trafficking under 17-A M.R.S.
2

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.

§ 1103(3)(B) (2018) and to sustain a conviction under 17-A M.R.S. § 1107-A(1)(B)(3) (2018). In light
of our recent and controlling holding in State v. McLaughlin, 2018 ME 97, 189 A.3d 262, we affirm the
convictions on Count 4 and Count 5 and do not discuss Count 5 further. We discuss Count 4 only with
regard to the aggravating factor of trafficking within 1,000 feet of a school.
3 As relevant to this case, 17-A M.R.S. § 1105-A(1)(E) (2018) provides that a person commits the

enhanced trafficking offense if that person “violates [17-A M.R.S. § 1103]” and “[a]t the time of the
offense, the person is on a school bus or within 1,000 feet of the real property comprising a private
or public elementary or secondary school or a safe zone.”
 3

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

4 The evidence concerning the general layout of the interior of the 72 Walnut Street apartment

was provided through the testimony of various witnesses. Additionally, there was one photograph
taken from the street that depicted the front of the apartment building and a tax map showing the
location of Longley Elementary School and a portion of Walnut Street, but not the location of
72 Walnut Street specifically. There was no evidence that showed or described the entire layout of
the apartment, such as a schematic diagram.
4

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.
 5

[¶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.
6

[¶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
 7

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 “[c]larification 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

5 After the State presented its case-in-chief, defense counsel moved for a judgment of acquittal on

the aggravating trafficking charge, which the court denied, stating, “I do acknowledge that the
evidence with respect to the distance from the school, there is conflicting evidence, but that is a
matter for the jury to sort out.”
8

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
 9

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 and the
Location of the Offense

[¶16] In order to conduct a measurement, one must know the two points

that mark the distance to be measured. In Barnard, “we assume[d], without

deciding, that interior distances from the entrance closest to the school

property to the site of the transaction should be counted in calculating the

1,000-foot distance.” 2003 ME 79, ¶ 24 n.7, 828 A.2d 216. Today, we explicitly
10

hold that, in order to sustain a conviction under 17-A M.R.S.

§ 1105-A(1)(E)(1)-(6), the distance to be measured is the distance between the

real property of the school and the location of the drug trafficker at the time of

the offense.

[¶17] Pursuant to 17-A M.R.S. § 1105-A(1)(E):

1. A person is guilty of aggravated trafficking in a scheduled
drug if the person violates section 1103 and:

. . . .

E. At the time of the offense, the person is on a school bus or
within 1,000 feet of the real property comprising a private or
public elementary or secondary school or a safe zone . . . .

. . . .

Read carefully, the language of the statute provides a key distinction between

the two points between which the distance is to be measured. The statute

requires that a measurement be made between a point on “the real property” of

the school or safe zone and the point at which “the person” is trafficking.

17-A M.R.S. § 1105-A(1)(E) (emphasis added).

[¶18] The Legislature’s use of the terms “real property” and “person” in

section 1105-A(1)(E) is critical because, had the Legislature intended to have

jurors and courts determine the distance between the school property and the

property where the trafficking occurred, it would have used different language.
 11

Instead, the Legislature chose to focus on the location of the trafficker at the

time of the drug transaction. For us to disregard this distinction would be to

render the term “the person” mere surplusage, and “because no language is to

be treated as surplusage if it can be reasonably construed, we must give

meaning to this language.” McLaughlin, 2018 ME 97, ¶ 16, 189 A.3d 262

(alteration omitted) (quotation marks omitted).

[¶19] Although the plain language of section 1105-A(1)(E) is dispositive

in our analysis, we note that federal courts have interpreted comparable federal

statutes the same way. See United States v. Applewhite, 72 F.3d 140, 144 (D.C.

Cir. 1995) (holding that the government must prove that the distance between

the school and the “locus of the drug offense” is less than 1,000 feet); United

States v. Johnson, 46 F.3d 1166, 1169 (D.C. Cir. 1995) (“[T]he government

inexplicably offered evidence not of the distance from a school to the point in

the house where [the defendant] possessed the drugs, but only . . . to a point five

feet up the walkway to [the defendant’s] house.”). Thus, for purposes of

measuring the 1,000-foot distance under 17-A M.R.S. § 1105-A(1)(E), the State

must prove beyond a reasonable doubt that the distance between the real

property of the school and the location of the alleged drug trafficker at the time

of the offense is within 1,000 feet.
12

B. Straight-Line Measurement versus Pedestrian-Route Measurement

[¶20] In Barnard, 2003 ME 79, ¶¶ 5, 24, 828 A.2d 216, we affirmed a

defendant’s conviction of aggravated trafficking after the State established that

the trafficking occurred within 757 feet, 4 inches of a school. In doing so, we

relied on precedent from the United States Court of Appeals for the First Circuit

and determined that a straight-line measurement rather than a

pedestrian-route measurement should be applied. Id. ¶¶ 21, 24 n.7 (citing

United States v. Soler, 275 F.3d 146, 154-55 & n.6 (1st Cir. 2002)).

[¶21] Because the reasoning behind employing a straight-line

measurement is most persuasive, we reaffirm our holding in Barnard that the

1,000-foot measurement must be calculated using a straight-line measurement.

See United States v. Clavis, 956 F.2d 1079, 1088 (11th Cir. 1992) (stating that if

a pedestrian-route measurement were required, “[a] trafficker could operate

free of the statute by placing his operation within tossing distance of the

schoolyard fence if he could find—or create—a long enough footpath leading

to it”); United States v. Watson, 887 F.2d 980, 981 (9th Cir. 1989) (“Only a

straight line measurement creates a readily ascertainable zone of protection.”);

United States v. Ofarril, 779 F.2d 791, 792 (2d Cir. 1985) (reasoning that a

pedestrian-route measurement “would violate the plain meaning of the statute”
 13

and “generate needless and time-consuming debate, and ultimately hamper the

statute’s enforcement.”).

C. Difference in Elevation Between the Two Points to be Measured

[¶22] Next, we address whether, for purposes of measuring the

1,000-foot distance under 17-A M.R.S. § 1105-A(1)(E), the difference in

elevation between the two points—the boundary of the school property and

the location of the trafficker at the time of the offense—should be accounted for

in the calculation. We conclude that it should.

[¶23] Although section 1105-A(1)(E) does not expressly state that any

difference in elevation must be considered, we find critical guidance in what it

does and does not provide: the statute (a) identifies the beginning and ending

points of the measurement; (b) states that the distance between those two

points necessary to enhance a sentence under this section is less than

1,000 feet; and (c) does not require that the distance be measured only along a

horizontal plane. 17-A M.R.S. § 1105-A(1)(E). Moreover, because the plain

language of the statute is “reasonably susceptible to different interpretations”

with regard to whether any difference in elevation must be considered,

Cannady, 2018 ME 106, ¶ 7, 190 A.3d 1019 (quotation marks omitted), and the

record of the Legislature’s deliberative process does not shed any light on the
14

Legislature’s intent with regard to elevation, L.D. 1740, § 119 (120th

Legis. 2001), we consider other relevant indicia of legislative intent. Dyer v.

Dyer, 2010 ME 105, ¶ 7, 5 A.3d 1049. Among those indicia are two interrelated

canons of statutory construction: the rule of lenity and the rule of strict

construction. State v. Blum, 2018 ME 78, ¶ 10 n.5, 187 A.3d 566. “Pursuant to

each of these rules, any ambiguity left unresolved by a strict construction of the

statute must be resolved in the defendant’s favor.” State v. Pinkham, 2016 ME

59, ¶ 14, 137 A.3d 203 (quotation marks omitted).

[¶24] Consistent with Barnard, the distance between the two points

must be measured along a straight line from one point to the other, and the

course of the line must not deviate on account of any obstacles in its path. Our

discussion in Barnard, together with the aforementioned legislative

considerations and simple logic, allows us to conclude that the straight-line

measurement between the school boundary line and the location of the

trafficker in this case must account for any difference in elevation because that

difference could place the transaction site outside of the aggravating zone,

whereas a linear horizontal measurement might not.

[¶25] This leads to a related inquiry regarding the proper method for

measuring the distance between these points at different elevations. Other
 15

courts have approached this issue differently. In Soler, the First Circuit

suggested that the distance between the school boundary and a drug

transaction site located in an upper floor of a building could be measured

horizontally along the ground, then vertically up the side of the building, and

then horizontally again to the precise site of the transaction, moving along the

various external and internal surfaces of the building. 275 F.3d at 154-55.

Although there is no question that measuring in this way creates a line between

the two points that runs in a straight direction when seen from a bird’s-eye

view, it does not create a straight line consistent with Barnard. 2003 ME 79,

¶¶ 21, 24 n.7, 828 A.2d 216.6

[¶26] In contrast, the United States Court of Appeals for the Eleventh

Circuit employed a simpler methodology by extending 1,000-foot radii from

and around each point on the boundaries of the school property to capture any

drug transaction site within that area.7 Clavis, 956 F.2d at 1088 (“The way to

6 A straight line is one that extends in “the same direction throughout its length; having no

curvature or angularity.” Straight, Webster’s New World College Dictionary (5th ed. 2016). The
series of straight lines and right angles resulting from the United States v. Soler, 275 F.3d 146, 153-55
(1st Cir. 2002) measurement are more akin to the pedestrian route we have already dismissed in
State v. Barnard, 2003 ME 79, ¶¶ 21, 24 n.7, 828 A.2d 216.
7 A radius is “any straight line extending from the center to the periphery of a circle or sphere [or]

the circular area or distance limited by the sweep of such a line.” Radius, Webster’s New World
College Dictionary (5th ed. 2016).
16

create a definite and identifiable zone is by extending radii outward around the

property on which the school is located.”). Although Clavis involved measuring

the distance only on a horizontal plane, id., a variation on that approach may be

appropriate for measuring whether two points at different elevations are

within 1,000 feet of each other.8 For example, extending a straight line from the

trafficker’s location and adjusting the direction of that line at an angle up or

down directly to its intersection, if any, with the boundary line of the school

property creates a single, unbroken straight line rather than a series of

connected straight lines—heading in the same direction but extending at

different angles—as suggested in Soler.9

[¶27] However, because the State did not present evidence from which

a jury rationally could determine with any certainty the exact location of any of

the transactions at issue, as is necessary to be able to find beyond a reasonable

8 Unlike the creation of an area on a horizontal plane around the real property as in United States

v. Clavis, 956 F.2d 1079, 1088 (11th Cir. 1992), the radius methodology could be applied differently
to determine whether the trafficking occurred in a protected area where the trafficking and the
school are at different elevations. Relevant to the facts in this case, those points could be measured
along a straight line that is the shortest distance between a single identified point—the transaction
site on the second floor of a building—and the ground-level boundary of the school property, which
has an untold number of points around its perimeter. For that reason, the straight-line radius should
extend from the transaction site to its closest point of intersection, if any, with the school’s boundary.
9 The resources or formulae used to calculate or measure the actual distance between two points

at different elevations may vary depending on the circumstances of each case and, without limitation,
could include available technology, maps, line-of-sight measurement, or a relevant mathematical
formulation (for example, the distance between two points at different elevations may be ascertained
using the Pythagorean Theorem).
 17

doubt that Brown trafficked within 1,000 feet of school property, this case does

not require us to decide the proper method for measuring the distance between

these points. See infra ¶¶ 32-41. We hold only that the measurement of

1,000 feet, which acts as an aggravating element pursuant to 17-A M.R.S.

§ 1105-A(1)(E), must—in some way—include any difference in elevation

between the location of the trafficker at the time of the offense and the

boundary of the real property of the school.

D. Spatial Leeway

[¶28] In some cases involving the 1,000-foot distance for purposes of

enhancing a sentence for trafficking in scheduled drugs, federal courts have

determined that “[p]recise measurements may be unnecessary . . . where the

spatial leeway is relatively great and the gap in the chain of proof is relatively

small.” Soler, 275 F.3d at 154; see United States v. Baylor, 97 F.3d 542, 546-47

(D.C. Cir. 1996). The First Circuit has described spatial leeway as an exception

to its general insistence that the government prove the 1,000-foot distance with

precise measurements, and it has explained that it may be applied in such cases

where “common sense, common knowledge, and rough indices of distance can

carry the day.” United States v. Diaz, 670 F.3d 332, 338 (1st Cir. 2012)

(quotation marks omitted). Thus, spatial leeway may be applied in cases where
18

evidence of precise measurements is lacking but the amount of spatial leeway

allows a fact-finder to reasonably infer from other evidence that the distance is

still within 1,000 feet.

[¶29] In Applewhite, the government presented evidence that the

distance from a school to “the address” of the defendant’s apartment building

where the drug offense occurred was 920.2 feet, a distance that “clearly [did]

not include the distance between the entrance to the building and the place in

[the defendant’s] apartment where the drugs were discovered.” 72 F.3d at 142.

Rejecting the government’s argument that the jury reasonably could have

determined that the distance from the building entrance to the precise location

of the drugs was not more than 79.8 feet, the United States Court of Appeals for

the District of Columbia Circuit reasoned,

[T]he jury could not know how many other apartment units in the
same building also fronted upon [the same street], nor their location
relative to [the defendant’s apartment where the drug offense
occurred], nor their dimensions nor, therefore, the distance between
the building entrance and [the apartment’s] living room wall, nor
even whether [the] apartment was on the first floor.

Id. at 144.

[¶30] In Barnard, we applied the spatial leeway principle when we held

that the jury reasonably could infer that the distance was within 1,000 feet.

2003 ME 79, ¶¶ 2, 24, 828 A.2d 216. Because the facts in Barnard established
 19

that “any location within the building was, necessarily, even closer to the school

property” and the State’s measurement left 242 feet, 8 inches of spatial leeway,

we stated,

Even if the interior distance to [the defendant’s] apartment is
counted from either the back door or the front door, there is no
question that the jury could conclude, based on all of the evidence,
that [the defendant’s] apartment was within the 242-foot, 8-inch
distance necessary to bring the transaction within 1000 feet of the
school, beyond a reasonable doubt.

Id. ¶ 24. In reaching this conclusion, we were guided by the First Circuit’s

“observation that precise measurements may be unnecessary in some cases

where the spatial leeway is relatively great and the gap in the chain of proof is

relatively small.” Id. (quotation marks omitted).

[¶31] In sum, we hold that 17-A M.R.S. § 1105-A(1)(E) requires proof

beyond a reasonable doubt that the locus of the drug trafficker at the time of

the offense be within 1,000 feet of the real property of a school, measured in a

straight line and accounting for any difference in elevation between the two

points. Additionally, in cases where the State fails to offer a precise

measurement of the distance between the two points but the spatial leeway is

great enough to make up for such evidentiary gaps, the jury reasonably may

infer that the trafficking occurred within 1,000 feet of the school. The concept

of spatial leeway does not excuse the State from proving the 1,000-foot
20

distance, however; it only recognizes that jurors are well-equipped in

appropriate cases to apply their “common sense, common knowledge, and

rough indices of distance” when facts proved beyond a reasonable doubt permit

a jury to reasonably infer distances not precisely accounted for. Barnard,

2003 ME 79, ¶ 24, 828 A.2d 216 (quotation marks omitted).

E. Application to this Case

[¶32] Turning to the evidence in this case, which we view in the light

most favorable to the State, see Adams, 2015 ME 30, ¶ 2, 113 A.3d 583, the DEA

agent’s testimony was sufficient to establish beyond a reasonable doubt the

following measurements. First, the distance between the “front step of

72 Walnut Street,” which is at the Walnut Street entrance, and “four or five feet”

onto the real property of Longley Elementary School amounts to 958.9 feet.

Moreover, because the DEA agent testified that a terminus of his measurement

was “four or five feet” past Longley Elementary School’s property line, the jury

could reasonably infer that the actual distance between the front step of

72 Walnut Street’s front entrance and the real property line of Longley

Elementary School was 953.9 feet. See Barnard, 2003 ME 79, ¶ 23, 828 A.2d

216. Second, the jury rationally could have found, based on the DEA agent’s

testimony about his additional measurements and from other testimony
 21

regarding the layout of the apartment, that the distance between the “doorway

that opens into the living room” from the Walnut Street entrance and the front

step of 72 Walnut Street, where the initial measurement began, constitutes an

additional 37.3 feet. Therefore, based on the evidence presented at trial, the

jury rationally could conclude that the distance between the “doorway that

opens into the living room” and the real property line of Longley Elementary

School was 991.2 feet.10 As a result, the evidence established, at a maximum,

8.8 feet of spatial leeway.

[¶33] In an attempt to use the spatial leeway exception, the State

contends that, because its measurements included a vertical distance using the

method suggested in Soler and employed a pedestrian-route measurement

rather than a straight-line route measurement, the jury could have reasonably

inferred that the apartment was even closer to the school. We are unpersuaded

by this argument for two reasons.

[¶34] First, because the difference in elevation between the school

boundary line and the location of the trafficker at the time of the offense must

10 Again, this calculation comes from the 953.9-foot measurement conducted with the measuring

wheel and accepting the DEA’s agent’s testimony that he went five feet past the property line, plus
the three measurements conducted on the morning of the second day of trial, which totaled 37.3 feet.
Together, these measurements equal 991.2 feet.
22

be accounted for in the measurement required by 17-A M.R.S. § 1105-A(1)(E),

the vertical distance included in the State’s measurement does not provide

more spatial leeway that the jury could have applied in reasonably inferring

that Brown trafficked within 1,000 feet of Longley Elementary School. Second,

the State’s argument that the jury could reasonably infer that a straight-line

measurement would have provided even more spatial leeway that the jury

could have applied in reasonably inferring that Brown was trafficking within

1,000 feet of Longley Elementary School is also unavailing. The DEA agent

measured the distance from Longley Elementary School to 72 Walnut Street

using a pedestrian-route measurement, and the State provided no

“straight-line” measurement for the jury to consider. Therefore, there was no

evidence from which the jury reasonably could have inferred that, if a

straight-line measurement had been conducted, the distance would have been

within 1,000 feet. See Johnson, 46 F.3d at 1169. Although common sense would

dictate that a pedestrian-route measurement is necessarily longer than a

straight-line measurement, it would be pure guesswork for a jury to determine

how much shorter the straight-line measurement would have been. See

Applewhite, 72 F.3d at 143 (“[T]here is no evidence in the record here from

which the jury could have derived the shorter straight-line distance. The
 23

Government’s case must therefore stand or fall upon the adequacy of [the

government’s pedestrian-route measurement].”).

[¶35] Because 8.8 feet of spatial leeway is very slight, “and [because]

personal liberty is at stake, [we] must examine the [State’s] proof with a more

critical eye.” Soler, 275 F.3d at 154. In doing so, we evaluate each count of

aggravated trafficking and determine whether there was sufficient evidence to

convict Brown of that count, applying the rule of lenity in the absence of any

clear direction as to how to account for the difference in elevation between the

school and the various transaction sites. See Blum, 2018 ME 78, ¶ 10 n.5, 187

A.3d 556; Pinkham, 2016 ME 59, ¶ 14, 137 A.3d 203.

1. Count 1

[¶36] The confidential informant specifically testified that the first buy

occurred at the doorway of the defendant’s bedroom. However, with regard to

Count 1, there is no evidence from which the jury could reasonably infer that

the distance from the doorway of the living room to Brown’s bedroom doorway

is within the spatial leeway of 8.8 feet. The only evidence depicting the inside

of the apartment building were several photographs of the inside of Brown’s
24

bedroom11 and several close shots of specific pieces of evidence found in the

apartment. Although photographs may sometimes allow a jury to make a

reasonable inference concerning distance, see United States v. Harrison,

103 F.3d 986, 990 (D.C. Cir. 1997),12 that is not the case here.

[¶37] The First Circuit held in Soler that the jury could not have

determined beyond a reasonable doubt that the vertical distance not accounted

for in measurements was within 37 feet based on a videotape that was played

several times. 275 F.3d at 154-55. As its reasoning, the First Circuit explained,

Although the videotape was played several times for the jury, it was
neither filmed with an eye toward elucidating relative distances
nor introduced into evidence for that purpose. Moreover, it
showed the relevant portion of the building fleetingly and as an
incidental matter; the camera angles were distorted by the
repeated use of a zoom lens; and the prosecutor did not even
attempt to draw the jury’s attention to the scale involved.

Id. at 155. Applying the same reasoning here, in light of the absence of evidence

in the record demonstrating the size of the apartment, or even the size of the

living room, the jury could not make a reasonable inference that the doorway

11 These photographs are irrelevant for purposes of Count 1 because the transaction took place

at the doorway of Brown’s bedroom.
12 Somewhat analogous to the aerial map used in United States v. Harrison, 103 F.3d 986, 990 (D.C.

Cir. 1997), the State did offer in evidence a tax map that portrayed an aerial view of Longley
Elementary School and some surrounding neighborhoods. However, the tax map did not include
72 Walnut Street. Therefore, the jury could not have relied upon the map’s scale as an independent
means of finding that the apartment building was within 1,000 feet of the school’s location.
 25

of Brown’s bedroom was within 8.8 feet of the living room doorway. See

Goodson v. United States, 760 A.2d 551, 554-55 (D.C. 2000).

2. Counts 2-3

[¶38] There is no specific evidence as to the exact location of the second

and third controlled buys. The testimony elicited during trial demonstrated

only that the controlled buys took place either in Brown’s bedroom doorway or

by an end table in the living room.13 Because the State’s 991.2-foot

measurement extends only to the doorway of the living room, and the

confidential informant testified that the drug transactions took place beyond

that location, in either the doorway of Brown’s bedroom or by an end table in

the living room, there was no evidence that would permit the jury to reasonably

infer that the drug transactions took place within the 8.8 feet of spatial leeway

permitted by the evidence presented. See Soler, 275 F.3d at 154-55.

3. Count 4

[¶39] For the fourth count of aggravating trafficking, the State was

required to prove that the location inside of Brown’s bedroom where the drugs

were discovered was within 1,000 feet of the school property. The only

evidence presented to show—or even suggest—the distance from the living

13 There is no evidence in the record regarding the location of the end table in the living room.
26

room doorway to the location inside Brown’s bedroom where the drugs were

found were the photographs showing where the drugs were found in Brown’s

bedroom. The photographs reveal a relatively significant distance between the

doorway of Brown’s bedroom and where the drugs were found by Brown’s bed.

Consequently, no jury rationally could find, based on the evidence presented,

that the cocaine was located within 1,000 feet of Longley Elementary School.

[¶40] As we acknowledged in Barnard, “‘the government must prove

beyond a reasonable doubt that the distance from a school to the actual site of

the transaction, not merely to the curtilage or exterior wall of the structure in

which the transaction takes place, is 1,000 feet or less.’” 2003 ME 79, ¶ 21,

828 A.2d 216 (quoting Soler, 275 F.3d at 154). Here, unlike in Barnard, the DEA

agent did not measure to the farthest point of the building from the school,

which might have permitted the jury to find that “any location within the

building was, necessarily, even closer to the school property.” Id. ¶ 24. Rather,

the DEA agent measured only to the “doorway that opens into the living room”

from the Walnut Street front entrance.

[¶41] Given the absence of precise measurements of the distance from

the doorway that opens into the living room to the doorway of Brown’s

bedroom, the living room end table, or the location where the drugs were found
 27

in Brown’s bedroom, and given the actual evidence and the limited utility of the

“spatial leeway” principle, the jury could not have found, beyond a reasonable

doubt, that any of Brown’s trafficking took place within 1,000 feet of Longley

Elementary School. See Johnson, 46 F.3d at 1169-70 (D.C. Cir. 1995) (“It is

entirely possible—perhaps probable—that this is true. If so, we have no idea

why the government did not prove it. . . . Since there is no evidence of either

the straight line measurement or the distance between the terminal point of

[the officer’s] measurement and the point of possession, it is impossible to

determine whether or not this equation is true.”); see also Soler, 275 F.3d at 155

(“Although it is possible (indeed, probable) that the distance from the school to

the site of the heroin sales was less than 1,000 feet, that is not good enough.

The government must prove the elements of an offense beyond a reasonable

doubt—and its proof here simply does not conform to that high standard.”

(footnote omitted)).

III. CONCLUSION

[¶42] Accordingly, we vacate the aggravating elements of the convictions

of Counts 1-4 and remand to the Superior Court for resentencing on four counts

of trafficking in schedule W drugs (Class B). See 17-A M.R.S. § 1103(1-A)(A),

(3)(B).
28

The entry is:

Judgment vacated in part. Remanded for entry of
modified judgment and resentencing on Counts
1-4.

SAUFLEY, C.J., with whom MEAD, J., joins, concurring.

[¶43] We concur completely in the Court’s opinion. We write separately

to draw attention to the broader consequences of the statute making drug

trafficking an aggravated offense if the transaction occurs within 1,000 feet of

the real property of a school. See 17-A M.R.S. § 1105-A(1)(E)(1) (2018).

[¶44] To be clear, the Legislature’s adoption of a statute designed to keep

school children from obtaining drugs, witnessing the sale of drugs, or being

exposed to the violence that could arise during a drug transaction is laudable.

Protecting our children from exposure to this pernicious activity and the

presence of a culture that includes violence, misery, and death is a critically

important legislative goal.

[¶45] The statute put in place to effectuate such goals, however, misses

its mark. The case at bar is a perfect example of the unintended consequences

of this blunt instrument. The drug sales at issue occurred in a private dwelling,

outside the view of any children, youth, or participants in school activities. The
 29

transactions had no connection to the school. Had the sales occurred in an

apartment closer to the part of the building that was nearest to the school,

rather than in the apartment at issue, the aggravating factor would likely have

been proved, subjecting the defendant to a longer period of incarceration for

each crime, even in the absence of any school involvement.

[¶46] Worse than the arbitrary nature of this aggravating factor is the

potential that it may disproportionately affect defendants in more densely

populated geographic areas, where neighborhood schools are present

throughout a municipality. The result could include a disparate racial or

poverty-based impact that was unintended by the drafters. Meanwhile, in

suburban or rural areas where much of the population resides more than

1,000 feet from school property, drug transactions between adults in private

homes are significantly less likely to incidentally result in convictions of

aggravated trafficking based on proximity to a school.

[¶47] Although this challenge was not raised in the matter before the

court, likely because challenges to similar laws based on assertions of

constitutional infirmity have regularly been unsuccessful,14 the fact that a law

14 See United States v. Holland, 810 F.2d 1215, 1218-24 (D.C. Cir. 1987); State v. Coria, 839 P.2d

890, 894-901 (Wash. 1992); cf. United States v. Falu, 776 F.2d 46, 48-50 (2d Cir. 1985) (applying
principles of statutory construction). The United States Court of Appeals for the Sixth Circuit
observed: “The court [in Falu] concluded that Congress intended that dealers bear the burden of
30

meets minimal constitutional standards does not make it a good law. Hence,

we raise this issue for consideration by the people’s elected representatives.

[¶48] In short, although the noble goal of the statute is to protect

schoolchildren from the ills of drug trafficking, the statute may

disproportionately expose people living in diverse, urban areas to aggravated

convictions and harsher sentences for conduct that may have no effect

whatsoever on the schoolchildren the statute seeks to protect. A more

descriptive definition of the activity to be proscribed would greatly enhance the

justice of this aggravating factor, and we hope that the Maine Legislature will

seriously consider the consequences of the provision as written.15

ascertaining where schools are located and removing their operations from those areas.” United
States v. Cross, 900 F.2d 66, 69 (6th Cir. 1990). “Similarly, in Holland, the D.C. Circuit stated that it
would not be appropriate to apply the rule of lenity here, where the application would undercut the
unambiguous legislative design of the section.” Id. (quotation marks omitted). Based on Falu and
Holland, the Sixth Circuit held that “the lack of knowledge of the proximity of a school does not violate
due process.” Id.

15 The Legislature may consider some of the language provided in a similar, although procedurally

distinct, statute in New Jersey:

It is an affirmative defense to prosecution for a violation of this section that the
prohibited conduct took place entirely within a private residence, that no person
17 years of age or younger was present in such private residence at any time during the
commission of the offense, and that the prohibited conduct did not involve distributing,
dispensing or possessing with the intent to distribute or dispense any controlled
dangerous substance or controlled substance analog for profit. The affirmative
defense established in this section shall be proved by the defendant by a
preponderance of the evidence. Nothing herein shall be construed to establish an
affirmative defense with respect to a prosecution for an offense defined in any other
section of this chapter.
 31

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

Androscoggin County Unified Criminal Docket docket number CR-2017-472
FOR CLERK REFERENCE ONLY

N.J. Stat. Ann. § 2C:35-7(e) (LEXIS through 2018 Second Annual Sess.) (emphasis added).