Pеdro Sostre appeals from his conviction and sentence for aggravated trafficking in cocaine, 17-A M.R.S.A. § 1105(1)(E) (Supp. 1992), in the Suрerior Court (Androscoggin County, Alexander, J.). Sostre challenges as obvious error the introduction of evidence that invited racial prejudice and a jury instruction on accomplice liability. He also challenges both the propriety of his 15-year sentence and the manner in which it was imposed. We affirm the conviction but vacate the sentence.
I.
In January 1990 a confidential informant made a controlled purchase of cocaine in an apartment at 293 Bates Street occupied by twо men described as Hispanic. Approximately ninety minutes after the purchase, the police executed a warrant to search the apartment. Sostre and Elvis Ruiz were arrested in the vicinity of the apartment because they matched thе informant’s descriptions. Ruiz was carrying $4,600 in plastic bags, including the money used by the informant. Sostre admitted that he
II.
Sostre challenges the introduction of testimony by Michael Buchanan, a senior investigator for the Immigration аnd Naturalization Service of the U.S. Department of Justice, that virtually all of the cocaine sold in the Lewiston-Auburn area came from the Dominican Republic and was sold directly or indirectly by Hispanic individuals. Buchanan also testified that Ruiz was of Dominiсan nationality. Sostre argues that this evidence was highly inflammatory, irrelevant, and thus prejudicial to the extent that he was deрrived of a fair trial. Because the evidence was admitted without objection, we review for obvious error affecting Sоstre’s substantial rights. M.R.Crim.P. 52(b).
Ordinarily we would condemn such conduct on the part of the State and would not hesitate to vacate a сonviction based on such obvious and manifestly prejudicial evidence. We have previously condemned reliancе on Hispanic ethnicity as a factor in sentencing. See State v. Gonzales,
We agrеe with the State, at least with respect to an obvious error analysis, that the defendant opened the door to evidence that many Hispanics were being arrested because they were in fact selling cocaine. Indeed, counsel’s fаilure to object to the officer’s testimony may be explained on the theory that it strengthened his argument that Sostre was unfairly charged.
III.
Sostre also argues that the court erroneously responded to the jury’s request for instruction on whether Sostre cоuld be convicted for merely being present where drugs were sold. The court answered in the negative, but proceeded tо state that “[a] person is an accomplice to someone else if they aid someone else in trafficking and that person has the intent to commit the crime of trafficking in cocaine, as I defined that term, ... and with that intent, they aid or attempt to aid or take a step towards the aiding of the other person in completing the crime of trafficking in cocaine.” Sostre did not object to the instruction. On appeal, however, he contends that the instruction leaves unclear whethеr it is Sostre who must intend to commit the crime of trafficking. Although the instruction required the jury to infer that the State must prove the intent of the accomplice as well as the intent of the principal, we conclude that the court committed no obvious error. Undoubtedly the court’s inflection would have helped the jury distinguish between the “person” who is an accomplice that must intend to commit the crime from the “someone else” who is the principal that is aided. We do not find the instruction so unclear as tо amount to obvious error.
IV..
We vacate the 15-year sentence for several reasons, many of which are spelled out in Gonzales,
The entry is:
Judgment of conviction affirmed.
Sentence vacated. Remanded for further proceedings consistent with the opinion herein.
All concurring.