STATE OF MAINE v. DAMIEN OSBORN
Docket: Pen-21-362
MAINE SUPREME JUDICIAL COURT
March 9, 2023
2023 ME 19
STANFILL, C.J.
Reporter of Decisions; Argued: October
STANFILL, C.J.
[¶1] Damien Osborn appeals from a judgment of conviction for aggravated trafficking of scheduled drugs (Class A),
I. BACKGROUND
[¶2] Viewing the evidence admitted at trial in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See, e.g., State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387.
[¶3] On August 22, 2019, at the direction of agents of the Maine Drug Enforcement Agency (MDEA), a CI sent a text message to Osborn about purchasing drugs. That same day, an MDEA agent drove the CI to a parking lot in Bangor, where the CI, fitted with an electronic monitoring device, entered Osborn‘s truck, placed $100 cash on the console, and took from the adjacent cup holder a small baggie that contained 999 milligrams of fentanyl, acetyl fentanyl, cocaine, and 4-ANPP.2
[¶4] On September 12, 2019, the MDEA conducted another controlled buy, during which the CI similarly entered Osborn‘s truck and returned with a small baggie containing 977.6 milligrams of fentanyl and acetyl fentanyl.
[¶5] On December 5, 2019, Osborn was stopped in his truck by the Bangor Police Department and arrested by MDEA agents. The officers searched Osborn incident to the arrest and recovered two small baggies; one contained 1.1798 grams of cocaine base and the other contained 960.6 milligrams of fentanyl, 4-ANPP, and xylazine.3 Officers also seized $4,290 cash during the search of Osborn and the truck.
[¶6] Osborn was charged with the following five counts by complaint and then by indictment dated February 26, 2020:
-
Count 1: Aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) , for the controlled buy of fentanyl on August 22, 2019. - Count 2: Aggravated trafficking of scheduled drugs (Class A), id., for the controlled buy of fentanyl on September 12, 2019.
- Count 3: Unlawful possession of scheduled drugs (Class C),
17-A M.R.S. § 1107-A(1)(B-1)(2) , for Osborn‘s possession of cocaine on December 5, 2019. - Count 4: Unlawful possession of scheduled drugs (Class C), id.
§ 1107-A(1)(B-1)(3) , for Osborn‘s possession of cocaine base on December 5, 2019. - Count 5: Criminal forfeiture,
15 M.R.S. § 5826 (2018),4 of the cash found in Osborn‘s car on December 5, 2019.
Each of Counts 1 through 4 also alleged that Osborn had a previous conviction for similar conduct in the U.S. District Court for the District of Connecticut. That allegation increased the sentencing class for each offense.
[¶7] On November 25, 2020, the State filed a superseding indictment charging Osborn with three counts:
- Count 1: Aggravated trafficking in scheduled drugs (Class A),
17-A M.R.S. § 1105-A(1)(B)(1) , alleging trafficking of fentanyl powder “[p]ursuant to one continuing scheme or course of conduct beginning on or about August 22, 2019[,] and continuing through December 5, 2019.” - Count 2: Aggravated trafficking in scheduled drugs (Class A), id., alleging trafficking of cocaine base on December 5, 2019.
- Count 3: Criminal forfeiture,
15 M.R.S. § 5826 , of the cash found in Osborn‘s car on December 5, 2019.
Counts 1 and 2 continued to allege that Osborn had a previous conviction for similar conduct, increasing the sentencing class for each offense. The superseding indictment essentially made two changes. First, it charged aggravated trafficking in the new Count 2 rather than possession of the cocaine base on December 5, 2019. Second, it combined into one count the original Count 1, the original Count 2, and the fentanyl seizure on December 5, 2019, by alleging a single “course of conduct” pursuant to
Quantities of scheduled drugs involved in violations of section . . . 1105-A . . . committed pursuant to one scheme or course of conduct and confiscated within a 6-month period may be aggregated to charge a single violation of appropriate class. Subject to the requirement that the conduct of the defense may not be prejudiced by lack of fair notice or by surprise, the court may at any time order that a single aggregate count be considered as separate violations.
[¶8] On June 7, 2021, Osborn filed a motion for a bill of particulars, requesting that the State clarify its “generic allegations” of Osborn‘s conduct having occurred “[p]ursuant to one continuing scheme or course of conduct beginning on or about August 22, 2019[,] and continuing through December 5, 2019.” The court granted the motion in an order dated June 16, 2021. The State filed its bill of particulars the next day, stating that it intended “to prove the elements of Count 1 (the indicted continuing course of conduct) based upon the controlled purchase of fentanyl on August 22, 2019, the controlled purchase of fentanyl
[¶9] Osborn had moved for relief from prejudicial joinder in response to the original indictment; that motion became moot upon return of the superseding indictment. At the hearing on June 16, 2021, Osborn pressed for severance of Counts 1 and 2 of the superseding indictment from each other, arguing that they should be tried separately. Notably, Osborn did not argue that the violations aggregated in Count 1 should be considered or tried as separate violations or counts. See
[¶10] In the same June 18, 2021 order, the court addressed the effect of the allegation of “one continuing scheme or course of conduct” in Count 1. At the time of these events, the definition of “trafficking” included possession of “2 grams or more of fentanyl powder.”
[¶11] The court held a two-day jury trial on June 21 and 22, 2021. At trial, the CI testified that he had known Osborn before the controlled buys, that he had previously purchased drugs from Osborn, and that the purchases happened “[p]retty much the same every time.” The State introduced audio recordings of the controlled buys as well as images of text conversations between the CI and Osborn purporting to schedule the controlled buys. Both pieces of evidence are relatively vague without further context; in the texts the CI asks Osborn “Yo where you at” and “Hey need 1 d got 100 can we meet mall,” and the audio recordings capture little specific to the alleged transaction. The State argued before trial that the “only way that [it was] able to essentially translate the text messages and make it clear” how the CI knew to enter the truck and not discuss drugs “is from the fact that he had a course of dealing with this defendant.”
He‘s a person that the defense called interchangeably, I believe, a mole, a rat, and any number of other vaguely derogatory terms. I submit to you that the only person who would call a confidential informant a rat or mole is someone who is guilty of something. From the perspective of any ordinary citizen, a confidential informant is doing something that we all want to see happen as a society. They‘re helping catch the people that are out there actually moving illicit drugs and selling them to people on the street. Without the cooperation of people like that who are admittedly drug addicts themselves, drug users—if you weren‘t already an addict, you weren‘t already a drug user, you wouldn‘t have ties to drug dealers.
Osborn objected, arguing that this “type of public policy argument” is prohibited. The State responded that it was simply rebutting statements made by Osborn‘s attorney during cross-examination of a witness, in which Osborn‘s attorney referred to CIs as “moles,” “rats,” “drug addicts,” and “felons.” The court declined Osborn‘s request to provide a curative instruction to the jury, but the court instructed the jury both before and after the presentation of evidence that the attorneys’ closing arguments were not evidence for the jury to consider in determining the facts.
[¶13] At the conclusion of the trial, the court instructed the jury as to the elements of Count 1 (trafficking fentanyl) and Count 2 (trafficking cocaine base). The court then instructed the jury that Count 1 required specific unanimity:
Concerning this count, it has been argued that there is more than one incident described in the testimony that could satisfy the elements of trafficking during this time period. To return . . . a guilty verdict that is unanimous in this context, all 12 of you must agree that the State has proved all required elements of trafficking with regard to at least one incident, and it must be the same incident for all of you.
Osborn requested that the court instruct the jury on the definition of “one continuing scheme or course of conduct,” asserting that it was an element of the offense. The court denied the request, reiterating its view that the language was surplusage on the facts of the case. Thus, although the charge was read to the jury, the instructions did not provide any definition of “one continuing scheme or course of conduct.”
[¶14] The jury found Osborn guilty of Count 1, trafficking in fentanyl; the parties stipulated to Osborn‘s prior conviction and the judgment reflects that he was convicted of Class A aggravated trafficking pursuant to
II. DISCUSSION
A. The evidence of the CI‘s prior interactions with Osborn was admissible.
[¶16] Osborn argues that the court erred when it allowed the CI to testify about his “prior uncharged transactions” with Osborn because such testimony constituted inadmissible character evidence under Maine Rule of Evidence 404(b) and because its probative value was substantially outweighed by a danger of unfair prejudice, rendering it inadmissible under Maine Rule of Evidence 403. We disagree.
[¶17] “We review a trial court‘s decision to admit evidence of prior bad acts pursuant to M.R. Evid. 404(b) for clear error . . . .” State v. Pillsbury, 2017 ME 92, ¶ 22, 161 A.3d 690. “Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.” M.R. Evid. 404(b). However, evidence of prior bad acts may be admissible “for any other permissible purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Pillsbury, 2017 ME 92, ¶ 22, 161 A.3d 690 (quotation marks omitted).
[¶18] Here, the trial court did not commit clear error in admitting the CI‘s testimony regarding the manner in which he had previously met with Osborn to obtain drugs. As the court ruled in advance of trial, such evidence was probative of the relationship between the CI and the defendant—a relationship that “might cause [the CI] to call [Osborn] to purchase drugs.” That the CI and Osborn had a prior course of communicating via text message to coordinate exchanges for drugs, which took place in Osborn‘s truck, is relevant to Osborn‘s knowledge that the CI was requesting drugs in his cryptic August 22 and September 12, 2019, text messages to Osborn. Evidence of the CI‘s prior transactions with Osborn is also relevant to Osborn‘s intent to sell drugs to the CI on August 22 and September 12, 2019, because the jury could have concluded that on those dates, after receiving the text messages from the CI, the CI similarly met inside Osborn‘s truck, where they did not speak about drugs but where drugs were exchanged. See State v. Anderson, 2016 ME 183, ¶¶ 12-15, 152 A.3d 623 (explaining that references to the defendant‘s prior involvement selling drugs was not improper 404(b) evidence when it was probative of whether the defendant intended to aid in the trafficking of drugs at the later date of the charged conduct).
[¶19] Likewise, the court did not err or abuse its discretion in admitting the evidence after weighing its probative value against the danger of unfair prejudice under Rule 403. A court may exclude relevant
[¶20] Here, the court permitted the State to inquire only generally into the nature of the CI‘s prior dealings with Osborn so as to establish the basis for how the CI would know how to contact Osborn for drugs. Given the vague nature of the text messages sent from the CI to Osborn and the limited conversation recorded between the CI and Osborn, the CI‘s testimony regarding how he previously obtained drugs—by texting Osborn and meeting him in his truck—was not cumulative of other less prejudicial evidence and in fact demonstrated the relevance of other evidence presented. See State v. Michaud, 2017 ME 170, ¶ 8, 168 A.3d 802 (explaining that a court must weigh the probative value of the evidence when “its value is merely cumulative of other less prejudicial evidence” (quotation marks omitted)); State v. Smith, 612 A.2d 231, 235 (Me. 1992) (concluding that the trial court correctly exercised its discretion to admit evidence of the defendant‘s prior assaults on the victim when the testifying victim did not relate any specific details or instances of those prior assaults).
B. Any prosecutorial error did not affect Osborn‘s substantial rights.
[¶21] Osborn challenges the comments9 made by the prosecutor during his closing argument about the role of CIs in society. Because Osborn objected to the prosecutor‘s argument, we review the preserved claim of prosecutorial error for harmless error. See Pillsbury, 2017 ME 92, ¶ 18, 161 A.3d 690. “Harmful error is error that affects the criminal defendant‘s substantial rights, meaning that the error was sufficiently prejudicial to have affected the outcome of the proceeding.” Id. (quotation marks omitted).
[¶22] We analyze claims of prosecutorial error “in the overall context of the trial.” State v. Ayotte, 2019 ME 61, ¶ 13, 207 A.3d 614 (quotation marks omitted). “This includes taking into account the statements, comments, and strategy of the defense, especially when the prosecutor‘s statements are made in response to the theory, argument, or provocation of the defendant or defense counsel.” State v. Dolloff, 2012 ME 130, ¶ 44, 58 A.3d 1032.
[¶23] A prosecutor‘s statements cannot “invite the jury to make its decision based on something other than the evidence.” Pillsbury, 2017 ME 92, ¶ 21, 161 A.3d 690. Because jurors “should not be invited to arrive at a verdict for any reason other than their evaluation of the evidence,” we have “long criticized prosecutors’ appeals to public perception or other social issues that go beyond the evidence produced at trial,” State v. Woodard, 2013 ME 36, ¶ 34, 68 A.3d 1250, and have likewise concluded that the use of “the authority or prestige of the prosecutor‘s office to shore up the credibility of a witness, sometimes called ‘vouching,‘” constitutes prosecutorial error, Dolloff, 2012 ME 130, ¶ 42, 58 A.3d 1032.
[¶25] Finally, the court instructed the jury both before and after the presentation of evidence that the attorneys’ opening statements and closing arguments were not testimony for the jury to consider in determining the facts, and it provided instruction on the burden of proof and the presumption of innocence. See State v. Begin, 2015 ME 86, ¶ 28, 120 A.3d 97 (concluding that the trial court remedied any prejudice resulting from prosecutorial error when it instructed the jury on its role, the presumption of innocence, and the State‘s burden of proof); Pillsbury, 2017 ME 92, ¶¶ 19-21, 161 A.3d 690 (concluding that there was no invitation to make a decision based on facts not in evidence and noting that the court had instructed the jury that opening statements and closing arguments were not facts in evidence). Thus, given the entire context of the trial, we conclude that any prosecutorial error did not affect Osborn‘s substantial rights.
C. In the particular circumstances of this case, the allegation in the indictment of “one continuing scheme or course of conduct” was surplusage.
[¶26] Osborn raises several arguments stemming from the court‘s treating as surplusage the phrase “one continuing scheme or course of conduct” in Count 1 of the superseding indictment, including that the court should have instructed the jury that the language was an element of the underlying offense and that the phrase is unconstitutionally vague. We agree with the trial court that the allegation in Count 1 that Osborn trafficked in fentanyl “[p]ursuant to one continuing scheme or course of conduct” is surplusage on the specific facts of this case.
[¶27] Language in an indictment is surplusage if it neither adds nor detracts from the sufficiency of the indictment and, accordingly, may be disregarded or stricken without affecting the legal substance of the count. See State v. Grant, 266 A.2d 232, 234-35 (Me. 1970); see also State v. Mihill, 299 A.2d 557, 558 (Me. 1973) (holding that if an “allegation may be struck out of the indictment without injury to the charge, it may be treated as surplusage” (quotation marks omitted)). “The test for determining whether an indictment is sufficient is whether an accused of reasonable and normal intelligence would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof, so that the accused could properly prepare his defense and be protected against a subsequent prosecution for the same cause.” State v. Gauthier, 2007 ME 156, ¶ 17, 939 A.2d 77 (alterations and quotation marks omitted); see also
[¶28] Here, Count 1 of the superseding indictment is legally sufficient because it includes all of the elements of a charge of aggravated trafficking in violation of
[¶29] Ordinarily, aggregation statutes are used to increase the sentencing classification, so that the aggregated charge has a higher sentencing classification than would each underlying charge prosecuted individually.
Courts regularly encounter indictments that may aggregate, in one count of the indictment, several identical crimes committed against one or more victims. Such charging practices are encountered most frequently when there are allegations of multiple drug transactions, multiple sex acts committed against a minor child, or multiple thefts and aggregation of the theft values enhances the seriousness of the charge.
State v. Fortune, 2011 ME 125, ¶ 26, 34 A.3d 1115; see also State v. Fournier, 617 A.2d 998, 1001 (Me. 1992) (Collins, J., dissenting) (noting that
[¶30] We also note that
[¶31] Accordingly, on the specific facts of this case, when coupled with the specific unanimity instruction as discussed below,13 the court did not err in treating the “one continuing scheme or course of conduct” language as surplusage. We therefore need not decide whether “one scheme or course of conduct” is a discrete element in cases where it is not surplusage.14 Likewise, the court did not err in failing to instruct the jury on its meaning. Finally, we need not address Osborn‘s argument that the phrase “one scheme or course of conduct” in
D. The instruction that the jury must unanimously agree on only one specific incident in order to convict Osborn on Count 1 was correct in the circumstances of this case.
[¶32] Osborn contends that the court erred in instructing the jury that it had to unanimously agree on only one of the three instances of alleged conduct in order to convict Osborn of Count 1. We disagree.
[¶33] Unanimity in convictions is indispensable under the Maine Constitution, and “[e]rrors in criminal cases that affect constitutional rights are reviewed to determine that we are satisfied, beyond a reasonable doubt, that the error did not affect substantial rights or contribute to the verdict.” Gauthier, 2007 ME 156, ¶ 14, 939 A.2d 77; see also
[¶34] “A specific unanimity instruction explains to jurors that they are required to unanimously agree that a single incident of the alleged crime occurred that supports a finding of guilt on a given count.” State v. Rosario, 2022 ME 46, ¶ 34, 280 A.3d 199 (quotation marks omitted). Thus, if the State alleges multiple instances of the charged offense, any one of which is independently sufficient for a guilty verdict as to that charge, specific unanimity instructions are proper. See Fortune, 2011 ME 125, ¶¶ 31, 34, 34 A.3d 1115 (“When separate,
[¶35] Here, the instruction on specific unanimity was appropriate given the allegations against Osborn and the evidence presented in this case. Because the “scheme or course of conduct” language was surplusage, any one of the three instances of drug sales alleged in Count 1 was sufficient to support a guilty verdict on that count.15
III. CONCLUSION
[¶36] The court did not err in allowing the CI to testify about his prior history of drug interactions with Osborn because the testimony was limited and relevant to motive, intent, plan, and knowledge. With respect to the prosecutor‘s closing argument, any improper appeal to social mores did not affect Osborn‘s substantial rights. On the specific facts and circumstances of this case, the allegation in the indictment of “one continuing scheme or course of conduct” was surplusage and not an element of the crime requiring a jury instruction. Finally, because the allegation of “one continuing scheme or course of conduct” was surplusage and a single alleged transaction was sufficient to support Osborn‘s conviction of Class A aggravated trafficking in fentanyl, the court properly instructed the jury that specific unanimity as to only one incident was required to convict Osborn of Count 1.
The entry is:
Judgment affirmed. The trial court is directed to amend the docket and the judgment and commitment to correctly reflect the concurrent term of the sentences imposed.
Timothy E. Zerillo, Esq. (orally), Zerillo Law Firm, LLC, Portland, for appellant Damien Osborn
Aaron M. Frey, Attorney General, and Jason Horn, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2019-4468
FOR CLERK REFERENCE ONLY