290 A.3d 558
Me.2023Background
- Two controlled buys (Aug 22 and Sept 12, 2019) where a confidential informant (CI) purchased fentanyl from Osborn; laboratory tests showed ~999 mg and ~978 mg of fentanyl mixtures. Osborn was arrested Dec 5, 2019 and officers seized ~961 mg fentanyl mixture, 1.18 g cocaine base, and $4,290.
- Superseding indictment aggregated three fentanyl incidents (Aug 22, Sept 12, Dec 5) into one Count 1 under a “one continuing scheme or course of conduct” theory; Count 2 charged cocaine-base trafficking/possession; Count 3 criminal forfeiture.
- The State’s bill of particulars identified the three specific drug events it would rely on to prove Count 1. The trial court earlier ruled the State could not aggregate quantities to reach a different statutory definition of trafficking for sentencing purposes and indicated the “one continuing scheme” language might be surplusage here.
- At trial the CI testified about prior, uncharged drug transactions with Osborn to explain how he contacted and met Osborn; the State introduced audio of controlled buys and text messages. Defense counsel disparaged the CI; in closing the prosecutor made arguments praising CI cooperation and social value of CIs. Defendant objected; no curative instruction was given.
- The court instructed the jury with a specific-unanimity requirement: jurors must unanimously find guilt based on the same one incident (of the three alleged) in Count 1. Jury convicted on Count 1 (aggravated trafficking in fentanyl) and convicted on Count 2 of possession (not aggravated trafficking); sentences were imposed and appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| A. Admissibility of CI testimony about prior uncharged buys | CI testimony showed relationship, modus operandi, and thus relevant to knowledge, intent, plan (permissible non-character purpose) | Testimony was 404(b) character evidence and unfairly prejudicial under Rule 403 | Admission was proper: testimony probative of relationship/knowledge/intent; trial court did not clearly err and did not abuse discretion under Rule 403 |
| B. Prosecutor’s closing about social value of CIs; failure to give curative instruction | State: comments rebutted defense attack on CI’s credibility and were responsive; harmless in context | Osborn: comments vouched for CI and appealed to facts not in evidence; curative instruction required | Any error was harmless: comments responsive to defense attacks, isolated, and jury had proper instructions on role of argument, burden, and presumption of innocence |
| C. Effect of phrase "one continuing scheme or course of conduct" in Count 1; whether it was an element or unconstitutionally vague | State relied on aggregation language but bill of particulars made underlying incidents clear; aggregation not needed here to charge Class A | Osborn: phrase is an element that should be defined; argued surplusage prejudiced notice and was vague | Phrase was surplusage on these facts: indictment otherwise sufficiently alleged elements; court permissibly declined to instruct jury on that language and did not reach vagueness claim |
| D. Specific unanimity instruction requiring jurors to agree on the same incident | State: any one of the alleged incidents independently supports conviction; jurors must unanimously agree on which incident | Osborn: instruction requiring jury to pick one incident was erroneous or inadequate given aggregation claim | Specific-unanimity instruction was correct here: because aggregation was surplusage, a single incident could support conviction and jury properly required to unanimously agree on the same incident |
Key Cases Cited
- State v. Pillsbury, 161 A.3d 690 (Me. 2017) (standard for admitting prior-act evidence under M.R. Evid. 404(b) and review)
- State v. Anderson, 152 A.3d 623 (Me. 2016) (prior drug-dealing evidence probative of intent/plan)
- State v. Michaud, 168 A.3d 802 (Me. 2017) (Rule 403 cumulative-evidence analysis)
- State v. Dolloff, 58 A.3d 1032 (Me. 2012) (prosecutorial vouching and limits on argument)
- State v. White, 285 A.3d 262 (Me. 2022) (contextual analysis of prosecutorial error; weight of repeated misconduct)
- State v. Gauthier, 939 A.2d 77 (Me. 2007) (indictment sufficiency and notice standard)
- State v. Fortune, 34 A.3d 1115 (Me. 2011) (specific-unanimity rule when multiple similar incidents support one charge)
- State v. Rosario, 280 A.3d 199 (Me. 2022) (explaining specific-unanimity instruction purpose)