State of Maine v. Kashawn McLaughlin ( 2018 )


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  • MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions
    Decision:	 
    2018 ME 97
    Docket:	   Ken-17-326
    Argued:		  March	7,	2018
    Decided:	  July	12,	2018
    Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
    Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JJ.
    Dissent:	  HJELM,	JABAR,	and	HUMPHREY,	JJ.
    STATE	OF	MAINE
    v.
    KASHAWN	MCLAUGHLIN
    GORMAN,	J.
    [¶1]	 	 Kashawn	 McLaughlin	 appeals	 from	 a	 judgment	 of	 conviction	 of
    aggravated	 trafficking	 in	 schedule	 W	 drugs	 (Class	 A),	 17-A	 M.R.S.
    §	1105-A(1)(D)	 (2017),	 entered	 by	 the	 trial	 court	 (Kennebec	 County,
    Murphy,	J.)	 after	 a	 jury	 trial.1	 	 McLaughlin	 argues	 that	 pursuant	 to	 section
    1105-A(1)(D)	the	State	must	prove	the	weight	of	pure	cocaine	base	in	isolation
    and	that	the	court	erred	by	failing	to	include	that	requirement	in	its	instructions
    1		After	the	jury	trial,	the	court	also	entered	a	judgment	of	conviction	for	unlawful	trafficking	in
    schedule	W	drugs	(Class	B),	17-A	M.R.S.	§	1103(1-A)(A)	(2017),	and	made	two	findings	regarding
    criminal	forfeiture	of	property,	15	M.R.S.	§	5826	(2017).		Because	McLaughlin	does	not	assign	error
    to	these	judgments,	we	do	not	address	them	further.
    2
    to	the	jury.		Because	we	conclude	that	section	1105-A(1)(D)	does	not	require
    the	State	to	prove	the	weight	of	“pure”	cocaine	base,	we	affirm	the	judgment.2
    I.		BACKGROUND
    [¶2]		Viewed	in	the	light	most	favorable	to	the	jury’s	verdict,	the	record
    supports	the	following	facts.		State	v.	Adams,	
    2015 ME 30
    ,	¶	2,	
    113 A.3d 583
    .		On
    November	2,	2015,	agents	from	the	Maine	Drug	Enforcement	Agency	(MDEA)
    received	information	from	a	confidential	informant	indicating	that	McLaughlin
    was	staying	in	and	selling	drugs	out	of	room	175	at	the	Senator	Inn	in	Augusta.
    Based	 on	 this	 information	 and	 their	 observation	 of	 individuals	 coming	 and
    going	from	room	175,	MDEA	agents	sought	and	obtained	a	search	warrant	for
    the	room.		The	search	warrant	referred	to	McLaughlin	by	name.
    [¶3]		At	around	6:30	p.m.	that	evening,	with	the	help	of	the	Augusta	Police
    Department,	 MDEA	agents	executed	the	search	warrant	for	room	175.		Upon
    executing	 the	 warrant,	 the	 officers	 and	 agents	 secured	 and	 identified	 six
    individuals	in	the	room,	including	McLaughlin.		In	the	room,	agents	observed
    and	 seized,	 among	 other	 items,	 over	 $10,000	 in	 cash;	 two	 firearms	 and
    ammunition;	 a	 dish	 in	 the	 microwave	 with	 white	 and	 yellow	 residue;	 three
    digital	 scales;	 a	 plastic	 bag	 containing	 a	 hard,	 light-brown	 material;	 fourteen
    2		McLaughlin’s	other	arguments	on	appeal	are	unpersuasive,	and	we	do	not	address	them	further.
    3
    individually	sealed	bags	with	a	hard,	off-white	material;	and	an	individual	bag
    containing	a	large	“ball”	of	hard,	off-white	material.		All	six	individuals	in	room
    175	were	arrested.
    [¶4]		The	State	conducted	a	controlled	substance	analysis	on	several	of
    the	items	seized	from	room	175.		The	analysis	confirmed	that	the	residue	on
    the	dish	contained	cocaine	base;	all	three	digital	scales	had	residue	containing
    cocaine	 and	 heroin;	 the	 light-brown	 material	 weighed	 sixty-five	 grams	 and
    contained	heroin;	the	total	weight	of	the	hard,	off-white	material	in	the	fourteen
    bags	was	3.4	grams	and	at	least	one	of	the	bags	contained	cocaine	base;	and	the
    large	 “ball”	 of	 hard,	 off-white	 material	 weighed	 100.6	 grams	 and	 contained
    cocaine	 base.	 	 The	 controlled	 substance	 analysis	 identified	 the	 presence	 of
    heroin	and	cocaine	base	but	did	not	determine	the	precise	weight	of	each	drug
    in	isolation.
    [¶5]	 	 On	 January	 21,	 2016,	 a	 grand	 jury	 indicted	 McLaughlin	 on	 five
    charges	stemming	from	his	November	2,	2015,	arrest.		Among	the	charges	were
    Count	1,	aggravated	trafficking	in	schedule	W	drugs	(Class	A),	namely	cocaine
    in	 the	 form	 of	 cocaine	 base,	 17-A	 M.R.S.	 §	 1105-A(1)(D),	 and	 Count	 2,
    aggravated	 trafficking	 in	 schedule	 W	 drugs	 (Class	 A),	 namely	 heroin,	 17-A
    4
    M.R.S.	§	1105-A(1)(H)	(2017).3		A	jury	trial	on	the	charges	took	place	over	three
    days	from	November	1	to	November	3,	2016.		On	the	first	day	of	the	trial,	the
    State	 orally	 moved	 to	 amend	 Count	 2	 to	 a	 charge	 of	 unlawful	 trafficking	 in
    heroin	(Class	B),	17-A	M.R.S.	§	1103(1-A)(A)	(2017),	which	the	court	granted
    without	 objection	 by	 the	 defendant.	 	 At	 trial,	 two	 of	 the	 individuals	 arrested
    with	 McLaughlin	 testified	 that	 McLaughlin	 knowingly	 trafficked	 in	 what	 he
    knew	to	be	illegal	drugs	on	November	2,	2015.
    [¶6]		At	the	close	of	trial,	the	court	provided	several	instructions	to	the
    jury,	 including	 the	 following	 instruction	 related	 to	 Count	 1:	 “Cocaine	 base
    includes	any	mixture	or	preparation	that	contains	any	quantity	of	cocaine	base,
    which	 is	 the	 alkaloid	 base	 of	 cocaine.”	 	 McLaughlin	 did	 not	 object	 to	 this
    instruction.		The	jury	found	McLaughlin	guilty	of	Count	1,	aggravated	trafficking
    in	 cocaine	 in	 the	 form	 of	 cocaine	 base	 and	 Count	2,	 unlawful	 trafficking	 in
    heroin,	 on	 November	 3,	 2016.	 	 On	 July	 11,	 2017,	 the	 court	 sentenced
    McLaughlin	to	twenty	years	in	prison	with	all	but	twelve	years	suspended	and
    four	years	of	probation	on	Count	1,	and	a	concurrent	six-year	prison	sentence
    3		The	indictment	also	charged	McLaughlin	with	Count	3,	possession	of	a	firearm	by	a	prohibited
    person	(Class	C),	15	M.R.S.	§	393(1)(A-1)(3)	(2017);	Count	4,	criminal	forfeiture	of	money,	15	M.R.S.
    §	5826	(2017);	and	Count	5,	criminal	forfeiture	of	firearms,	15	M.R.S.	§	5826.		The	State	eventually
    dismissed	Count	3.		After	the	sentencing	hearing,	the	court	made	specific	findings	regarding	Counts
    4	and	5	and	ordered	the	forfeiture	of	the	money	and	firearms	at	issue.		See	15	M.R.S.	§	5826.
    5
    on	Count	2.		McLaughlin	appeals	only	the	judgment	of	conviction	for	aggravated
    trafficking	in	cocaine	in	the	form	of	cocaine	base.		See	15	M.R.S.	§	2115	(2017);
    M.R.	App.	P	2(b)(2)(A)	(Tower	2016);	see	also	M.R.	App.	P.	2B(b)(1).4
    II.		DISCUSSION
    [¶7]		McLaughlin	argues	that	the	court	erred	by	instructing	the	jury	that
    “[c]ocaine	base	includes	any	mixture	or	preparation	that	contains	any	quantity
    of	 cocaine	 base.”	 	 He	 contends	 that	 17-A	 M.R.S.	 §§	 1102(1)(F),	 1105-A(1)(D)
    (2017)	require	the	State	to	prove	the	weight	of	pure	cocaine	base	in	isolation—
    not	 the	 overall	 weight	 of	 the	 mixture	 or	 preparation	 that	 contains	 some
    quantity	of	cocaine	base.
    A.	    Standard	of	Review
    [¶8]		Because	McLaughlin	did	not	object	to	the	jury	instructions	at	trial,
    we	review	the	court’s	jury	instruction	regarding	cocaine	base	for	obvious	error.
    See		 State	 v.	Daluz,	 
    2016 ME 102
    ,	 ¶	 51,	 
    143 A.3d 800
    .	 	 “When	 we	 review	 for
    obvious	error,	we	review	for	(1)	an	error,	(2)	that	is	plain,	and	(3)	that	affects
    substantial	rights.”		
    Id. (quotation marks
    omitted).		If	we	conclude	that	these
    three	 conditions	 are	 met,	 “we	 will	 exercise	 our	 discretion	 to	 notice	 an
    4		The	Maine	Rules	of	Appellate	Procedure	were	restyled	and	are	applicable	to	appeals	commenced
    on	or	after	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).		Because	McLaughlin	filed	this
    appeal	before	September	1,	2017,	the	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply.
    6
    unpreserved	error	only	if	we	also	conclude	that	(4)	the	error	seriously	affects
    the	fairness	and	integrity	or	reputation	of	judicial	proceedings.”		
    Id. (quotation marks
    omitted).
    [¶9]	 	 To	 determine	 whether	 the	 court	 erred	 by	 instructing	 the	 jury	 on
    cocaine	base,	we	must	interpret—for	the	first	time—the	definition	of	“cocaine”
    provided	in	17-A	M.R.S.	§	1102(1)(F),	in	conjunction	with	the	phrase	“cocaine
    in	the	form	of	cocaine	base”	as	used	in	the	aggravated	trafficking	statute,	17-A
    M.R.S.	§	1105-A(1)(D).		See	State	v.	Pinkham,	
    2016 ME 59
    ,	¶	19,	
    137 A.3d 203
    .
    “We	 review	 questions	 of	 statutory	 interpretation	 de	 novo,”	 State	 v.	 Christen,
    
    2009 ME 78
    ,	¶	12,	
    976 A.2d 980
    ,	and	our	standard	for	interpreting	statutes	is
    well	established:
    In	 interpreting	 these	 provisions,	 we	 first	 look	 to	 the	 plain
    language	 of	 the	 provisions	 to	 determine	 their	 meaning.	 	 If	 the
    language	is	unambiguous,	we	interpret	the	provisions	according	to
    their	unambiguous	meaning	unless	the	result	is	illogical	or	absurd.
    If	the	plain	language	of	a	statute	is	ambiguous—that	is,	susceptible
    of	different	meanings—we	will	then	go	on	to	consider	the	statute’s
    meaning	 in	 light	 of	 its	 legislative	 history	 and	 other	 indicia	 of
    legislative	 intent.	 	 In	 applying	 these	 principles,	 we	 examine	 the
    entirety	of	the	statute,	giving	due	weight	to	design,	structure,	and
    purpose	as	well	as	to	aggregate	language.		We	reject	interpretations
    that	render	some	language	mere	surplusage.
    State	 v.	 Dubois	 Livestock,	 Inc.,	 
    2017 ME 223
    ,	 ¶	 6,	 
    174 A.3d 308
     (citations
    omitted)	 (quotation	 marks	 omitted).	 	 When,	 as	 here,	 we	 are	 “interpreting	 a
    7
    criminal	 statute,	 we	 are	 guided	 by	 two	 interrelated	 rules	 of	 statutory
    construction:	the	rule	of	lenity,	and	the	rule	of	strict	construction.”		Pinkham,
    
    2016 ME 59
    ,	¶	14,	
    137 A.3d 203
    (quotation	marks	omitted).		If	the	Legislature’s
    intent	remained	indecipherable	after	using	the	tools	of	construction	available
    to	 us,	 the	 rule	 of	 lenity	 would	 require	 us	 to	 resolve	 any	 ambiguities	 in
    McLaughlin’s	favor.		See	State	v.	Stevens,	
    2007 ME 5
    ,	¶	16,	
    912 A.2d 1229
    ;	United
    States	v.	Wells,	
    519 U.S. 482
    ,	499	(1997)	(“The	rule	of	lenity	applies	only	if,	after
    seizing	everything	from	which	aid	can	be	derived,	.	.	.	we	can	make	no	more	than
    a	guess	as	to	what	Congress	intended.”	(quotation	marks	omitted)).
    B.	   The	Statutes	and	Their	Interpretation
    1.	    Plain	Language
    [¶10]		As	with	all	statutory	interpretation,	we	begin	with	the	statutory
    language	while	“giving	due	weight	to	design,	structure,	and	purpose.”		Dubois
    Livestock,	Inc.,	
    2017 ME 223
    ,	¶	6,	
    174 A.3d 308
    (quotation	marks	omitted).		The
    Maine	Criminal	Code,	title	17-A,	comprises	five	parts.		The	statutes	establishing
    drug-related	 crimes	 are	 found	 in	 part	 3,	 chapter	 45,	 entitled	 simply	 “Drugs.”
    The	 chapter	 opens	 with	 two	 statutes	 containing	 definitions	and	 schedules	 of
    drugs	that	apply	to	the	entire	chapter.		See	17-A	M.R.S.	§§	1101-1102	(2017).
    8
    The	 Legislature	 defined	 “cocaine”	 in	 the	 second	 of	 those	 statutes,	 section
    1102(1)(F):
    F.		Cocaine	means:
    (1)	 Coca	 leaves,	 except	 coca	 leaves	 and	 extracts	 of	 coca
    leaves	 from	 which	 cocaine,	 ecgonine	 and	 derivatives	 of
    ecgonine	and	their	salts	have	been	removed;	and
    (2)	 A	 mixture	 or	 preparation	 that	 contains	 any	 quantity	 of
    any	of	the	following	substances:
    (a)	 Cocaine,	 its	 salts,	 optical	 and	 geometric	 isomers
    and	salts	of	isomers;
    (b)	 Ecgonine,	 its	 derivatives,	 their	 salts,	 isomers	 and
    salts	of	isomers;	or
    (c)	Cocaine	base,	which	is	the	alkaloid	form	of	cocaine.
    [¶11]	 	 In	 the	 sections	 following	 section	 1102,	 the	 Legislature	 set	 out
    various	 types	 of	 drug	 crimes—possession,	 trafficking,	 furnishing,	 and
    aggravated	 forms	 of	 trafficking	 and	 furnishing.	 	 See	 17-A	 M.R.S.	 §§	 1103,
    1105-A,	1105-C,	1106,	1107-A	(2017).		 Intentional	or	 knowing	possession	of
    any	amount	of	cocaine	is	a	crime,	although	the	amount	possessed,	the	existence
    or	lack	of	any	prior	convictions	for	possession,	and	whether	the	cocaine	is	in
    the	form	of	cocaine	base	will	determine	whether	the	crime	is	a	Class	D,	C,	or	B
    offense.	 	 See	 17-A	 M.R.S.	 §	 1107-A.	 	 In	 addition,	 intentionally	 or	 knowingly
    trafficking	 in	 any	 amount	 of	 cocaine	 is	 a	 Class	 B	 crime,	 17-A	 M.R.S.
    9
    §	1103(1-A)(A),	and	possession	of	fourteen	grams	or	more	of	cocaine	or	four
    grams	or	more	of	cocaine	in	the	form	of	cocaine	base	“gives	rise	to	a	permissible
    inference	 under	 the	 Maine	 Rules	 of	 Evidence,	 Rule	 303,	 that	 the	 person	 is
    unlawfully	 trafficking	 in	 scheduled	 drugs.”	 	 17-A	 M.R.S.	 §	1103(3)(B).
    Trafficking	in	cocaine,	Class	B,	is	elevated	to	aggravated	trafficking,	Class	A,5	if
    the	individual	trafficks	in	cocaine
    • to	a	child	as	a	customer;
    • with	a	child	as	an	assistant;
    • while	having	one	or	more	convictions	for	“engaging	in	substantially
    similar	conduct”;
    • while	in	possession	of	a	firearm;
    • on	a	school	bus	or	near	a	school	or	safe	zone;	or
    • when	“[d]eath	is	in	fact	caused	by	the	use	of	that	[cocaine].”
    See	17-A	M.R.S.	§	1105-A(1).
    [¶12]	 	 Furthermore,	 a	 cocaine	 trafficking	 charge	 can	 be	 elevated	 to	 an
    aggravated	trafficking	charge	when	the	person	charged	with	trafficking	has	in
    his	 or	 her	 possession	 an	 amount	 of	 cocaine	 that	 exceeds	 a	 specified	 amount
    determined	by	the	Legislature.	 	See	17-A	M.R.S.	 §	1105-A(1)(D).		At	trial,	the
    State	 presented	 evidence	 that,	 at	 the	 time	 of	 his	 arrest	 for	 trafficking,
    McLaughlin	was	in	possession	of	a	hard,	off-white	material	that	cumulatively
    5		If	a	person	trafficks	in	cocaine	and	“[s]erious	bodily	injury	is	in	fact	caused	by	the	use	of	that
    [cocaine],”	the	crime	is	Class	B	aggravated	trafficking.		17-A	M.R.S.	§	1105-A(1)(L)	(2017).
    10
    weighed	over	one-hundred	grams	and	contained	some	undetermined	amount
    of	cocaine	base.		Based	on	the	weight	of	this	material,	McLaughlin	was	charged
    with	and	convicted	of	aggravated	trafficking	in	cocaine	as	defined	by	subsection
    (1)(D)	of	section	1105-A,	which	states:
    D.		At	the	time	of	the	offense,	the	 person	trafficks	in	cocaine	in	 a
    quantity	of	112	grams	or	more	or	cocaine	in	the	form	of	cocaine	base
    in	a	quantity	of	32	grams	or	more.		Violation	of	this	paragraph	is	a
    Class	A	crime.
    (Emphasis	added.)		As	the	language	makes	clear,	a	person	may	be	found	guilty
    of	aggravated	trafficking	in	cocaine	due	 to	the	weight	of	the	drug	if	the	State
    proves	that	the	person	was	trafficking	in	(1)	“cocaine	in	a	quantity	of	112	grams
    or	more”	or	(2)	“cocaine	in	the	form	of	cocaine	base	in	a	quantity	of	32	grams	or
    more.”		17-A	M.R.S.	§	1105-A(1)(D)	(emphasis	added).
    [¶13]		McLaughlin	contends	that	although	“cocaine	in	a	quantity	of	112
    grams	or	more”	refers	to	112	grams	or	more	of	“[a]	mixture	or	preparation	that
    contains	 any	 quantity	 of”	 cocaine,6	 “cocaine	 in	 the	 form	 of	 cocaine	 base	 in	 a
    quantity	of	 32	grams	or	more”	must	be	 “pure”	cocaine	base	in	isolation.		See
    17-A	 M.R.S.	 §§	 1102(1)(F),	 1105-A(1)(D).	 	 He	 asserts	 that,	 because	 the	 State
    6		We	agree	with	this	contention	made	by	McLaughlin.		In	State	v.	Johnson,	
    2005 ME 46
    ,	
    870 A.2d 561
    ,	 we	 considered	 certain	 trafficking	 offenses	alongside	 the	definition	 of	 cocaine	 as	provided	 by
    17-A	M.R.S.	§	1102(1)(F)	(2017)	and	held	that	“[a]	defendant	is	guilty	of	trafficking	in	cocaine	if	he
    trafficks	in	cocaine	in	whatever	form.”		Johnson,	
    2005 ME 46
    ,	¶	12,	
    870 A.2d 561
    (emphasis	added).
    11
    failed	 to	 present	 evidence	 that	 at	 least	 thirty-two	 grams	 of	 the	 material	 he
    possessed	 containing	 cocaine	 base	 was	 pure	 cocaine	 base,	 the	 State	 failed	 to
    meet	its	burden	of	proof.		We	disagree.
    [¶14]		In	our	recent	decision	in	State	v.	Pinkham,	we	concluded	that	17-A
    M.R.S.	§§	1101(17)(E),	1102(1)(I),	1103(1-A)(A)	(2015)	required	the	State	to
    prove	 the	 actual	 amount	 of	 pure	 heroin	 in	 isolation	 as	 an	 element	 of	 the
    trafficking	offense	because	“heroin”	was	no	longer	specifically	defined	as	any
    mixture	or	“compound	containing	heroin.”7		Pinkham,	
    2016 ME 59
    ,	¶¶	15-18,
    
    137 A.3d 203
    .		 We	also	 explained	 in	 Pinkham	that	the	 definition	of	“cocaine”
    found	in	section	1102(1)(F)	is	an	example	of	how,	“when	the	Legislature	uses
    the	name	of	a	drug	and	intends	for	the	term	to	include	mixtures	containing	that
    drug,	it	knows	how	to	accomplish	that	result.”		
    2016 ME 59
    ,	¶	21,	
    137 A.3d 203
    .
    [¶15]		In	dividing	various	drugs	into	schedules,	and	then	setting	out	its
    definitions	 of	 the	 drugs,	 including	 cocaine,	 within	 those	 schedules,	 the
    Legislature	explained	that	the	definitions	were	to	be	used	“[f]or	the	purposes
    of	 defining	 crimes	 under	 this	 chapter	 and	 of	 determining	 the	 penalties
    7		The	Legislature	has	since	changed	the	definition	of	schedule	W	drugs	to	include	“any	compound,
    mixture	 or	 preparation	 containing	 narcotic	 drugs	 in	 any	 quantity,	 including	 but	not	 limited	 to	 .	 .	 .
    heroin.”		17-A	M.R.S.	§	1102(1)(I)	(2017)	(emphasis	added);	see	P.L.	2017,	ch.	274,	§	2	(adding	the
    phrase	“in	any	quantity”);	L.D.	1546,	Summary	(128th	Legis.	2017)	(explaining	that	the	“bill	clarifies
    that	any	compound,	mixture	or	preparation	containing	narcotic	drugs	in	any	quantity	is	a	schedule
    W	drug”).
    12
    therefor.”	 	 17-A	 M.R.S.	 §	 1102.	 	 Section	 1102(1)(F)(2)	 states	 that	 “[c]ocaine
    means	.	.	.	[a]	mixture	or	preparation	that	contains	any	quantity	of	any	of	the
    following	 substances”;	 among	 “the	 following	 substances”	 is	 “[c]ocaine	 base,
    which	 is	 the	 alkaloid	 form	 of	 cocaine.”	 	 17-A	 M.R.S.	 §	 1102(1)(F).	 	 “When	 a
    statute	specifically	defines	a	term,	we	cannot	redefine	it.”		Rockland	Plaza	Realty
    Corp.	v.	City	of	Rockland,	
    2001 ME 81
    ,	¶	10,	
    772 A.2d 256
    .		Because	“cocaine”	as
    defined	by	the	Legislature	specifically	includes	mixtures	containing	any	amount
    of	cocaine,	“cocaine”	throughout	title	17-A,	chapter	45	means	“[a]	mixture	or
    preparation”	 containing	 cocaine.	 	 17-A	 M.R.S.	 §	 1102(1)(F).	 	 Contrary	 to
    McLaughlin’s	argument,	the	words	“in	the	form	of”	in	the	phrase	“cocaine	in	the
    form	 of	 cocaine	 base”	 do	 not	 change	 the	 definition	 of	 “cocaine”	 in	 that	 same
    phrase.		17-A	M.R.S.	§	1105-A(1)(D)	(emphasis	added).		Cocaine,	as	defined	by
    the	 Legislature	 and	 as	 used	 in	 that	 phrase,	 includes	 “mixture[s]	 or
    preparation[s]”	that	contain	any	amount	of	cocaine.		17-A	M.R.S.	§	1102(1)(F).
    [¶16]	 	 Thus,	 when	 examined	 “in	 the	 context	 of	 the	 entire	 statutory
    scheme,”	 State	 v.	 Kendall,	 
    2016 ME 147
    ,	 ¶	 14,	 
    148 A.3d 1230
    ,	 the	 thirty-two
    gram	 weight	 threshold	 in	 section	 1105-A(1)(D)	 applies	 to	 a	 specific	 form	 of
    “cocaine”:	a	mixture	or	preparation	that	contains	cocaine	base.		See	17-A	M.R.S.
    §§	1102(1)(F),	1105-A(1)(D).		Had	the	Legislature	intended	to	apply	the	lower
    13
    weight	threshold	to	pure	cocaine	base	in	isolation,	it	would	not	have	attached
    that	weight	to	the	phrase	“cocaine	in	the	form	of	cocaine	base”—which	includes
    a	 word	 explicitly	 defined	 as	 “[a]	 mixture	 or	 preparation.”	 	 17-A	 M.R.S.
    §§	1102(1)(F),	 1105-A(1)(D)	 (emphasis	 added);	 see	 Pinkham,	 
    2016 ME 59
    ,
    ¶	18,	
    137 A.3d 203
    .		To	read	section	1105-A(1)(D)	as	McLaughlin	urges	would
    render	 the	 words	 “cocaine	 in	 the	 form	 of”	 mere	 surplusage.	 	 “[B]ecause	 no
    language	is	to	be	treated	as	surplusage	 if	it	can	be	reasonably	construed,	we
    must	give	meaning	to	this	language.”		Cobb	v.	Bd.	of	Counseling	Prof’ls	Licensure,
    
    2006 ME 48
    ,	¶	20,	
    896 A.2d 271
    .		We	therefore	conclude	that	a	plain	reading	of
    sections	 1102(1)(F)	 and	 1105-A(1)(D)	 indicates	 a	 legislative	 intent	 that	 the
    thirty-two	gram	weight	threshold	applies	to	the	overall	weight	of	any	mixture
    or	preparation	that	contains	any	quantity	of	cocaine	base.
    2.	    Ambiguity	and	Legislative	History
    [¶17]		Although	the	plain	language	review	discussed	above	leaves	little
    room	 for	 a	 claim	 of	 ambiguity,	 to	 the	 extent	 that	 sections	 1102(1)(F)	 and
    1105-A(1)(D)	 could	 be	 deemed	 ambiguous,	 the	 applicable	 legislative	 history
    and	 other	 indicia	 of	 legislative	 intent	 support	 our	 interpretation.	 	 See	 Dubois
    Livestock,	Inc.,	
    2017 ME 223
    ,	¶	6,	
    174 A.3d 308
    .		The	language	establishing	the
    current	definition	of	cocaine	in	section	1102(1)(F)	and	the	language	setting	the
    14
    weight	thresholds	for	aggravated	trafficking	in	section	1105-A(1)(D)	became
    effective	in	1996.		See	P.L.	1995,	ch.	635,	§§	1,	4.8		Before	1996,	the	Legislature
    had	not	included	the	term	“cocaine	base”	in	the	definition	of	“cocaine”	in	section
    1102(1)(F).9		Congress,	on	the	other	hand,	has	included	the	term	“cocaine	base”
    in	its	criminal	offenses	regarding	cocaine	since	the	1980s.		DePierre	v.	United
    States,	
    564 U.S. 70
    ,	74-75	(2011).10
    8		Title	17-A	M.R.S.A.	§	1105	(Supp.	2000)	was	repealed	and	replaced	by	the	Legislature	with	17-A
    M.R.S.	 1105-A	 (2017)	 in	 2001.	 	 See	 P.L.	 2001,	 ch.	 383,	 §§	 119,	 156	 (effective	 Jan.	 31,	 2003).	 	 The
    language	in	the	current	version	of	17-A	M.R.S.	§	1105-A(1)(D)	stating	“cocaine	in	the	form	of	cocaine
    base	in	a	quantity	of	32	grams	or	more”	is	the	same	language	added	by	P.L.	1995,	ch.	635,	§	4.
    9		Before	this	change,	the	Maine	Revised	Statutes	Annotated	contained	the	following	definition	of
    cocaine:
    Coca	 leaves	 except	 coca	 leaves	 and	 extracts	 of	 coca	 leaves	 from	 which	 cocaine,
    ecgonine	and	derivatives	of	ecgonine	or	their	salts	have	been	removed;	cocaine,	its
    salts,	 optical	 and	 geometric	 isomers	and	 salts	 of	 isomers;	 ecgonine,	 its	derivatives,
    their	salts,	isomers	and	salts	of	isomers;	or	any	compound,	mixture	or	preparation	of
    which	contains	any	quantity	of	any	of	the	substances	referred	to	in	this	paragraph.
    17-A	M.R.S.A.	§	1102(1)(F)	(Supp.	1995)	(emphasis	added);	see	P.L.	1989,	ch.	334,	§	1.
    10		The	 United	States	Supreme	 Court’s	 decision	 in	 DePierre	 v.	 United	 States,	
    564 U.S. 70
     (2011)
    discusses	 the	 different	 forms	 of	 cocaine.	 	 The	 Court	 in	 DePierre	 had	 to	 “decide	 whether	 the	 term
    ‘cocaine	 base’	 as	 used	 in	 [21	 U.S.C.S.	 §	 841(b)(1)(B)	 (LEXIS	 through	 Pub.	 L.	 No.	 115-193]	 refers
    generally	to	cocaine	in	its	chemically	basic	form	or	exclusively	to	what	is	colloquially	known	as	‘crack
    cocaine.’”		
    DePierre, 564 U.S. at 72
    .		The	Court	explained	that	when	the	leaves	from	a	coca	plant	are
    processed,	a	paste-like	substance	known	as	coca	paste	is	formed,	and	coca	paste	contains	“cocaine	in
    its	base	form,”	which	has	the	molecular	formula	C17H21NO4.		
    Id. at 73.
    	“Dissolving	coca	paste	in	water
    and	hydrochloric	acid	produces	(after	several	intermediate	steps)	cocaine	hydrochloride,	which	is	a
    salt	with	the	molecular	formula	C17H22NO4+Cl-.”		
    Id. Cocaine hydrochloride—referred
    to	as	“powder
    cocaine”—is	chemically	distinct	from	cocaine	base	 and	is	usually	ingested	by	snorting	to	obtain	a
    high.		
    Id. Cocaine hydrochloride
    can	be	converted	into	“crack	cocaine”	by	combining	it	with	water	and	a
    base,	 such	 as	 sodium	 bicarbonate	 (baking	 soda),	 and	 applying	 heat.	 	 
    Id. Crack cocaine
     contains
    cocaine	 in	its	 alkaloid	 form,	 i.e.,	 cocaine	 as	a	 base.	 	 
    Id. at 73-74.
     	 Cocaine	 hydrochloride	 can	also,
    however,	 be	converted	into	“freebase”	cocaine	which	also	contains	cocaine	in	its	basic	or	alkaloid
    15
    [¶18]		The	Legislature	was	deeply	concerned	with	the	spread	of	cocaine
    base,	generally	known	as	“crack,”	when	it	enacted	P.L.	1995,	ch.	635.		Not	only
    was	 the	 pertinent	 bill	 titled	 “An	 Act	 to	 Discourage	 the	 Spread	 of	 ‘Crack’
    Cocaine,”	L.D.	1457	(117th	Legis.	1995),	but	the	Statement	of	Fact	for	the	bill
    explained	 that	 it	 was	 responding	 “to	 the	 recent	 appearance	 in	 the	 State	 of
    cocaine	base,	commonly	referred	to	as	crack	cocaine,	and	seeks	to	discourage
    the	spread	of	cocaine	base.”		L.D.	1457,	Statement	of	Fact	(117th	Legis.	1995).
    [¶19]	 	 The	 bill’s	 Statement	 of	 Fact	 referred	 to	 the	 different	 forms	 of
    cocaine,	and	how	they	are	used:
    Cocaine	 hydrochloride,	 the	 powder	 form	 of	 cocaine,	 is	 usually
    ingested	 by	 snorting,	 whereas	 cocaine	 base	 can	 be	 smoked	 by
    heating	 it	 and	 inhaling	 the	 hot	 vapors.	 	 Smoking	 cocaine	 base
    delivers	the	drug	to	the	brain	more	rapidly	than	snorting	cocaine
    hydrochloride.		The	resulting	high	is	quicker	and	far	more	intense,
    so	 typically	 the	 user	 is	 addicted	 more	 quickly	 and	 develops	 an
    exponentially	increasing	demand	for	additional	cocaine	base.
    form.		
    Id. at 74.
    	Coca	paste,	crack	cocaine,	and	freebase	cocaine,	therefore,	are	all	forms	of	cocaine
    base,	and	all	three	forms	are	smoked	to	obtain	a	high.		
    Id. at 72-74.
    The	 decision	 in	 DePierre	 also	 sheds	 some	 light	 on	 why	 Congress	 and	 the	 Maine	 Legislature
    sought	to	treat	cocaine	in	the	form	of	cocaine	base	differently	from	other	forms	of	cocaine.		As	the
    Court	 noted	 in	 DePierre,	 “[n]umerous	 witnesses	 at	 the	 [Congressional]	 hearings	 testified	 that	 the
    primary	reason	crack	cocaine	was	so	dangerous	was	because—contrary	to	cocaine	powder—cocaine
    in	 its	 base	 form	 is	 smoked,	 which	 was	 understood	 to	 produce	 a	 faster,	 more	 intense,	 and	 more
    addictive	high	than	powder	cocaine.”		
    Id. at 84.
    	The	Court	ultimately	concluded	that	the	term	“cocaine
    base”	encompassed	more	than	just	“crack	cocaine.”		
    Id. at 89.
    16
    L.D.	1457,	Statement	of	Fact	(117th	Legis.	1995).		Tellingly,	the	bill	elaborated
    that	“[t]he	disparity	between	the	sentences	imposed	under	this	bill	for	cocaine
    base	and	for	cocaine	hydrochloride	is	justified	by	the	addictive	nature	of	cocaine
    base	and	the	level	of	violence	associated	with	its	use	and	distribution.”		L.D.	1457,
    Statement	 of	 Fact	 (117th	 Legis.	 1995)	 (emphasis	 added).	 	 The	 Legislature,
    therefore,	intended	to	establish	harsher	punishments	for	those	individuals	who
    possessed	cocaine	in	the	form	of	cocaine	base	because	it	saw	this	form—the
    alkaloid	or	basic	form	of	cocaine	that	is	smoked—as	more	dangerous.11		See	L.D.
    1457,	 Statement	 of	 Fact	 (117th	 Legis.	 1995).	 	 To	 realize	 its	 intent,	 the
    Legislature	promulgated	statutes	that	make	the	possession	of	smaller	amounts
    of	cocaine	in	the	form	of	cocaine	base	trigger	a	presumption	of	trafficking,	17-A
    M.R.S.	 §	1103(3)(B),	 and	 elevate	 trafficking	 to	 aggravated	 trafficking,	 17-A
    M.R.S.	§	1105-A(1)(D).
    [¶20]	 	 In	 addition,	 the	 Committee	 Amendment	 inserting	 the	 phrase
    “cocaine	in	the	form	of	cocaine	base”	throughout	title	17-A,	chapter	45,	clarifies
    that	the	Legislature	was	focused	on	the	“usage	units”	when	setting	the	lower
    11		It	makes	sense	that	the	Legislature	established	the	weight	differential	based	on	perceived	harm
    rather	than	the	relative	purity	of	the	drugs	or	the	weight	of	the	drugs	in	isolation,	because	cocaine	in
    the	 form	 of	 cocaine	 base	 (crack	 cocaine)	 is	 not	 necessarily	 purer	 than	 cocaine	 hydrochloride
    (powdered	cocaine).		See	United	States	v.	Nelson,	
    6 F.3d 1049
    ,	1052	(4th	Cir.	1993)	(explaining	that
    the	 crack	 cocaine	 seized	 was	 eighty-seven	 to	 ninety-one	 percent	 pure	 cocaine	 base	 while	 the
    powdered	cocaine	seized	was	ninety-six	percent	pure	cocaine	hydrochloride).
    17
    weight	threshold—not	the	weight	of	pure	cocaine	base	in	isolation.12		Comm.
    Amend.	 A	 to	 L.D.	 1457,	 No.	 H-696	 (117th	 Legis.	 1996).	 	 The	 Amendment
    explained	 that	 the	 weight	 associated	 with	 the	 permissible	 inferences	 for
    trafficking	in	cocaine	in	the	form	of	cocaine	base	“is	based	upon	a	finding	that
    the	present	single	usage	unit	of	cocaine	base	in	Maine	has	an	average	weight	of
    less	than	.10	grams.”		Comm.	Amend.	A	to	L.D.	1457,	No.	H-696	(117th	Legis.
    1996)	(emphasis	added).		This	reference	to	usage	units	demonstrates	that	the
    Legislature	 understood	 that	 cocaine	 in	 the	 form	 of	 cocaine	 base—including
    crack	 cocaine—is	 a	 mixture	 or	 preparation	 that	 contains	 some	 quantity	 of
    cocaine	 base.	 	 See	 
    DePierre, 564 U.S. at 79
    ,	 n.9	 (“[C]rack	 cocaine	 is	 itself	 a
    ‘substance’	involved	in	drug	offenses;	it	is	the	end	product	that	is	bought,	sold,
    and	consumed.”	(emphasis	added));	United	States	v.	Tucker,	
    20 F.3d 242
    ,	244
    (7th	Cir.	1994)	(“Users	of	cocaine	base	need	not	wait	until	the	water	evaporates
    before	 using	 the	 drug;	 nor,	 for	 that	 matter,	 must	 users	 separate	 the	 cocaine
    from	 the	 baking	 soda.	 	 All	 three	 ingredients	 are	 part	 of	 a	 whole,	 blended
    12		Indeed,	every	time	the	Legislature	has	associated	cocaine	base	with	a	weight	threshold	it	used
    the	phrase	“cocaine	in	the	form	of”	rather	than	just	using	the	words	“cocaine	base.”		See	17-A	M.R.S.
    §§	 1103(3)(B),	 1105-A(1)(D),	 1105-C(1)(D),	 1106(3)(B),	 1107	A(1)(A)(2),	 (B)(3),	 1118-A(1)(C)
    (2017);	P.L.	1995,	ch.	635,	§§	2,	4-6.		This	includes	section	1103(3)(B),	which	provides	a	permissible
    inference	 of	 unlawful	 trafficking	 in	 scheduled	 drugs	 if	 the	 State	 provides	 proof	 “that	 the	 person
    intentionally	or	knowingly	possesses	.	.	 .	4	grams	or	more	of	cocaine	in	the	form	of	cocaine	base.”
    (Emphasis	added.)
    18
    together,	and	therefore	comport	with	the	common	understanding	of	‘mixture’
    .	.	.	.”).
    [¶21]	 	 The	 Amendment	 also	 explained	 the	 reasons	 for	 distinguishing
    between	112	grams	of	“cocaine”	and	thirty-two	grams	of	“cocaine	in	the	form
    of	cocaine	base.”		Comm.	Amend.	A	to	L.D.	1457,	No.	H-696	(117th	Legis.	1996).
    The	 lower	 threshold	 for	 cocaine	 in	 the	 form	 of	 cocaine	 base	 stemmed	 from
    “evidence	that	individuals	in	possession	of	32	grams	or	more	of	cocaine	base
    have	 significant	 direct	 links	 to	 major	 sources	 of	 supply	 and	 present	 an
    extraordinary	 threat	 and	 risk	 to	 the	 health	 and	 safety	 of	 the	 citizens	 of	 the
    State.”	 	 Comm.	 Amend.	 A	 to	 L.D.	 1457,	 No.	 H-696	 (117th	 Legis.	 1996).	 	 The
    Legislature	based	its	thirty-two	gram	weight	threshold	in	section	1105-A(1)(D)
    on	a	“comparison	with	21	U.S.C.	§	841(b)(1)(B)(iii)”—which	specifies	weights
    based	on	a	“mixture	or	substance”	that	“contains	cocaine	base.”		Comm.	Amend.
    A	 to	 L.D.	 157,	 No.	 H-696	 (117th	 Legis.	 1996);	 21	 U.S.C.S.	 §	 841(b)(1)(B)(iii)
    (LEXIS	 through	 Pub.	 L.	 No.	 115-193).	 	 Contrary	 to	 McLaughlin’s	 contentions,
    there	is	nothing	in	the	legislative	history	to	suggest	that	the	Legislature	set	a
    lower	weight	threshold	for	crimes	involving	cocaine	in	the	form	of	cocaine	base
    because	it	wanted	to	require	the	State	to	prove	the	weight	of	pure	cocaine	base
    in	isolation.
    19
    [¶22]		As	a	whole,	the	legislative	history	supports	our	conclusion	that	the
    Legislature	 intended	 to	 impose	 harsher	 punishment	 on	 individuals	 in
    possession	of	smaller	amounts	of	cocaine	in	the	form	of	cocaine	base	because	it
    saw	the	usable	units	of	that	drug	as	 more	harmful	in	smaller	quantities	than
    powdered	cocaine.		We	therefore	reject	McLaughlin’s	arguments	regarding	the
    interpretation	 of	 sections	 1102(1)(F)	 and	 1105-A(1)(D),	 and	 because	 the
    applicable	 legislative	 history	 resolves	 any	 potential	 ambiguities,	 the	 rule	 of
    lenity	does	not	apply.		See	Stevens,	
    2007 ME 5
    ,	¶	16,	
    912 A.2d 1229
    ;	
    Wells, 519 U.S. at 499
    .
    III.		CONCLUSION
    [¶23]		We	conclude	that	section	1105-A(1)(D)	does	not	require	the	State
    to	prove	the	weight	of	“pure”	cocaine	base	because	the	definition	of	cocaine	in
    the	 form	 of	 cocaine	 base	 is	 “[a]	 mixture	 or	 preparation	 that	 contains	 any
    quantity	 of”	 cocaine	 base.	 	 17-A	 M.R.S.	 §	 1102(1)(F).	 	 In	 this	 case,	 the	 court
    committed	 no	 error,	let	alone	obvious	 error,	when	it	 instructed	the	 jury	that
    “[c]ocaine	base	includes	any	mixture	or	preparation	that	contains	any	quantity
    of	cocaine	base,	which	is	the	alkaloid	base	of	cocaine.”
    20
    The	entry	is:
    Judgment	affirmed.
    HJELM,	J.,	with	whom	JABAR	and	HUMPHREY,	JJ.,	join,	dissenting.
    [¶24]	 	 As	 it	 applies	 to	 cocaine,	 the	 quantitative	 threshold	 necessary	 to
    commit	 the	 Class	 A	 crime	 of	 aggravated	 trafficking	 of	 scheduled	 drugs	 is
    112	grams	of	“cocaine”	or	32	grams	of	“cocaine	in	the	form	of	cocaine	base.”		See
    17-A	 M.R.S.	 §	 1105-A(1)(D)	 (2017).13	 	 In	my	 view,	 when	 a	 prosecution	 is	 for
    aggravated	 trafficking	 of	 “cocaine	 in	 the	 form	 of	 cocaine	 base,”	 the	 plain
    language	of	this	statute	requires	the	State	to	prove	the	weight	of	that	cocaine
    base	in	isolation	and	without	regard	to	the	weight	of	any	other	accompanying
    material.	 	 Further,	 even	 if	 there	 is	 a	 need	 to	 resort	 to	 consideration	 of	 the
    legislative	history	of	the	relevant	statutes,	the	result	is	the	same.		Consequently,
    the	court’s	instructions	to	the	jury	in	this	case	contained	obvious	error	because
    the	instructions	misstated	a	central	element	of	the	charge	and	thereby	relieved
    the	State	of	its	burden	to	 prove	the	quantity	of	cocaine	base	 required	by	the
    13	 	 This	 stands	 in	 contrast	 to	 17-A	 M.R.S.	 §	 1103(1-A)(A)	 (2017),	 which	 creates	 the	 lesser,
    nonaggravated	Class	B	crime	of	trafficking	in	cocaine.		A	prosecution	for	a	violation	of	that	statute
    does	not	require	the	State	to	prove	any	particular	quantity	of	the	drug,	although	a	person’s	possession
    of	at	least	4	grams	of	“cocaine	in	the	form	of	cocaine	base”	supports	a	permissible	inference	that	the
    person	is	trafficking	in	the	drug.		17-A	M.R.S.	§	1103(3)(B)	(2017).		Therefore,	the	interpretation	of
    the	language	central	to	this	case	will	bear	on	the	identical	language	found	in	that	statute.
    21
    statute.		More	importantly,	the	State	presented	no	evidence	whatsoever	of	the
    amount	 of	 actual	 cocaine	 base	 that	 Kashawn	 McLaughlin	 was	 charged	 with
    trafficking.	 	 As	 a	 matter	 of	 law,	 the	 evidence	 was	 therefore	 insufficient	 to
    support	 a	 conviction	 for	 aggravated	 trafficking	 in	 cocaine	 base.	 	 For	 these
    reasons,	 I	 respectfully	 dissent	 from	 the	 Court’s	 conclusion	 affirming	 the
    conviction	for	that	charge.
    [¶25]		The	issue	presented	here	is	entirely	one	of	statutory	construction,
    which	the	Court	must	determine	de	novo.		See	State	v.	Stevens,	
    2007 ME 5
    ,	¶	5,
    
    912 A.2d 1229
    .	 	 I	 will	 consider	 in	 turn	 the	 plain	 language	 of	 section
    1105-A(1)(D)	and	then	that	statutory	language	as	seen	through	the	lens	of	its
    legislative	history.
    A.	    Plain	Language
    [¶26]		When	presented	with	an	issue	of	statutory	construction,	the	Court
    must	“first	examine	the	plain	meaning	of	the	statutory	language”	to	determine
    legislative	intent	and	the	legislation’s	purpose.		State	v.	Solomon,	
    2015 ME 96
    ,
    ¶	9,	120	A3d	661	(quotation	marks	omitted).		In	doing	so,	the	Court	will	seek	to
    “avoid[]	 results	 that	 are	 absurd,	 inconsistent,	 unreasonable,	 or	 illogical.”	 	 
    Id. (quotation marks
    omitted).		Further,	the	Court	“examine[s]	the	entirety	of	the
    statute,	 giving	 due	 weight	 to	 design,	 structure,	 and	 purpose	 as	 well	 as	 to
    22
    aggregate	 language.”	 	 State	 v.	 Dubois	 Livestock,	 Inc.,	 
    2017 ME 223
    ,	 ¶	 6,
    
    174 A.3d 308
    (quotation	marks	omitted).
    [¶27]		The	Legislature	has	defined	“cocaine”	in	the	following	way:
    F.		Cocaine	means:
    (1)	 Coca	 leaves,	 except	 coca	 leaves	 and	 extracts	 of	 coca
    leaves	 from	 which	 cocaine,	 ecgonine	 and	 derivatives	 of
    ecgonine	and	their	salts	have	been	removed;	and
    (2)	 A	 mixture	 or	 preparation	 that	 contains	 any	 quantity	 of
    any	of	the	following	substances:
    (a)	 Cocaine,	 its	 salts,	 optical	 and	 geometric	 isomers
    and	salts	of	isomers;
    (b)	 Ecgonine,	 its	 derivatives,	 their	 salts,	 isomers	 and
    salts	of	isomers;	or
    (c)	Cocaine	base,	which	is	the	alkaloid	form	of	cocaine.
    17-A	M.R.S.	§	1102(1)(F)	(2017).		“Cocaine”	is	therefore	an	umbrella	term	that
    comprises	four	different	categories,	the	last	of	which	is	the	one	relevant	to	this
    appeal.
    [¶28]	 	 Pursuant	 to	 section	 1102(1)(F)(2)(c),	 “cocaine”	 includes	 “any
    mixture	or	preparation	that	contains	any	quantity	of	.	.	.	[c]ocaine	base.”		This
    means	that	any	mixture	or	preparation	containing	any	amount	of	cocaine	base
    is	“cocaine,”	whereas	“cocaine	base”	is	but	one	specific	form	of	cocaine,	namely,
    “the	 alkaloid	 form	 of	 cocaine.”	 	 But	 see	 State	 v.	 Johnson,	 
    2005 ME 46
    ,	 ¶	 10,
    23
    
    870 A.2d 561
     (stating,	 notwithstanding	 the	 definition	 of	 “cocaine	 base”
    contained	 in	 section	 1102(1)(F)(2)(c),	 that	 the	 term	 “‘cocaine	 base’	 is	 not
    defined”).		In	other	words,	“cocaine	base”	is	a	subset	of	“cocaine.”		Therefore,	if
    a	person	is	charged	with	possession	of	or	trafficking	in	cocaine	generally,	it	is
    sufficient	for	the	State	to	prove	that	the	substance	involved	was	an	amalgam
    that	contained	one	of	three	forms	of	cocaine,	which	includes	cocaine	base.
    [¶29]	 	 Here,	 however,	 McLaughlin	 was	 prosecuted	 for	 aggravated
    trafficking	in	scheduled	drugs,	which,	based	on	the	statutory	formulation	of	the
    charge,	required	the	State	to	prove	specifically	that	he	trafficked	in	“cocaine	in
    the	form	of	cocaine	base	in	a	quantity	of	32	grams	or	more.”14		See	17-A	M.R.S.
    §	1105-A(1)(D)	 (emphasis	 added).	 	 That	 phrase—“in	 the	 form	 of	 cocaine
    base”—is	 plainly	 a	 restrictive	 modifier	 because	 it	 explicitly	 requires	 the
    substance	to	be	cocaine	in	the	specific	form	of	cocaine	base.
    [¶30]		The	Court	reaches	the	contrary	conclusion—that	“cocaine	in	the
    form	of	cocaine	base”	can	be	any	mixture	or	preparation	containing	any	amount
    of	cocaine	base.		See	supra	¶	16.		This	reading,	however,	reverses	the	statutory
    14		An	alternative	way	a	person	can	commit	the	crime	of	aggravated	trafficking	in	cocaine	is	if	the
    State	proves	that	the	substance	involved	is	“cocaine	in	a	quantity	of	112	grams	or	more.”		17-A	M.R.S.
    §	1105-A(1)(D)	(2017).		This	alternative	is	not	at	issue	here	because	the	total	weight	of	the	material
    that	contained	some	amount	of	cocaine	is	less	than	112	grams.
    24
    construct	because	it	is	cocaine—not	cocaine	base—that	can	be	“any	mixture	or
    preparation	 that	 contains	 any	 amount	 of”	 cocaine	 base.	 	 See	 17-A	M.R.S.
    §	1102(1)(F)(2)(c).		As	we	held	in	State	v.	Pinkham,	“when	the	Legislature	uses
    the	name	of	a	drug	and	intends	for	the	term	to	include	mixtures	containing	that
    drug,	it	knows	how	to	accomplish	that	result.”		
    2016 ME 59
    ,	¶	21,	
    137 A.3d 203
    .
    With	respect	to	its	definitions	of	“cocaine”	and	“cocaine	base,”	the	Legislature
    has	 exhibited	 that	 skill.	 	 The	 Legislature	 established	 that	 a	 substance	 is
    “cocaine,”	no	 matter	whether	and	what	 other	ingredients	 may	be	present,	so
    long	as	it	contains	any	amount	of	any	of	the	three	forms	of	cocaine	described	in
    section	1102(1)(F)(2)(a)-(c).		In	contrast,	the	definition	of	“cocaine	base”	does
    not	leave	room	for	the	presence	of	any	extrinsic	ingredients.		If	the	Legislature
    had	 intended	 “cocaine	 in	 the	 form	 of	 cocaine	 base”	 to	 mean	 a	 mixture
    containing	 any	 amount	 of	 cocaine	 base,	 then,	 having	 gone	 so	 far	 as	 to	 define
    cocaine	base	as	the	alkaloid	form	of	cocaine,	see	17-A	M.R.S.	§	1102(1)(F)(2)(c),
    it	could	and	would	have	done	so	either	as	part	of	that	definitional	provision	or
    in	section	1105-A(1)(D)	itself.15
    15		In	its	Opinion,	
    see supra
    ¶	14,	the	Court	points	to	the	same	passage	I	quote	from	State	v.	Pinkham,
    where	we	explained	that	the	definition	of	“cocaine”	found	in	section	1102(1)(F)	is	an	example	of	the
    Legislature’s	 ability	 to	 define	 a	 drug	 to	 allow	 for	 mixtures	 of	 that	 drug	 with	 other	 material.
    
    2016 ME 59
    ,	 ¶¶	 19-21,	 
    137 A.3d 203
    ;	 see	 17-A	 M.R.S.	 §	 1102(1)(F)(2)(a)-(c)	 (2017)	 (defining
    “cocaine”	as	“[a]	mixture	or	preparation	that	contains	any	quantity	of”	cocaine,	ecgonine,	or	cocaine
    base”).	 	 The	 statutory	 definition	 at	 issue	 here,	 however,	 is	 the	 separate	 term	 of	 “cocaine	 base,”
    which—unlike	the	definition	of	“cocaine”—the	Legislature	has	defined	in	specific	terms	that	do	not
    25
    [¶31]	 	 Based	 on	 the	 Court’s	 analysis,	 the	 cocaine	 that	 would	 suffice	 to
    meet	 the	 requirement	 of	 section	 1105-A(1)(D)	 is	 not	 “cocaine	 in	 the	 form	 of
    cocaine	 base.”	 	 Rather,	 the	 substance	 could	 be	 anything	 at	 all,	 so	 long	 as	 it
    contains	some	amount—however	miniscule—of	cocaine	base.		For	that	reason,
    the	Court’s	conclusion	that	“cocaine	base”	means	any	concoction	that	contains
    any	measure	of	cocaine	base	renders	the	phrase	“in	the	form	of	cocaine	base”
    as	 surplusage	 because	 the	 phrase	 is	 left	 with	 little	 effect.	 	 See	 State	v.	 Tozier,
    
    2015 ME 57
    ,	 ¶	 6,	 
    115 A.3d 1240
     (“Nothing	 in	 a	 statute	 may	 be	 treated	 as
    surplusage	 if	 a	 reasonable	 construction	 applying	 meaning	 and	 force	 is
    otherwise	possible.”	(quotation	marks	omitted)).		In	my	view,	pursuant	to	the
    definition	 in	 section	 1102(1)(F)(2)(c),	 “cocaine	 base”	 is	 the	 alkaloid	 form	 of
    cocaine,	and	at	trial	that	is	what	the	State	must	prove	the	substance	to	be.
    [¶32]		In	contrast	to	the	Court’s	analysis,	when	the	statutory	language	at
    issue	is	read	to	require	the	requisite	amount	of	actual	cocaine	base,	all	words
    in	that	phrase	are	given	effect.		Although	I	agree	that	the	Legislature	could	also
    have	simply	referred	directly	to	“cocaine	base”	instead	of	“cocaine	in	the	form
    allow	for	a	mixture	with	other	substances.		
    Id. § 1102(1)(F)(2)(c).
    	Therefore,	rather	than	supporting
    the	Court’s	holding,	our	analysis	in	Pinkham	demonstrates	that,	because	the	statutory	references	to
    “cocaine	 base”	 do	 not	 use	 the	 language	 that	 would	 tolerate	 a	 mixture,	 section	 1102(1)(F)(2)(c)
    cannot	properly	be	read	to	include	cocaine	base	when	it	is	merely	one	part	of	an	amalgam.
    26
    of	cocaine	base,”	the	word	choice	has	 meaning	because	it	is	a	function	of	the
    structure	 of	 the	 overall	 definition	 of	 “cocaine”	 that	 begins	 with	 section
    1102(1)(F).		Starting	there,	the	Legislature	simply	tracked	its	way	through	the
    definitional	layers	to	end	up	at	the	particular	subsection	that	contains	“cocaine
    base.”		In	this	way,	the	Legislature	particularized	the	substance	at	issue,	so	that
    the	specific	form	of	“cocaine”	that	must	be	quantified	in	a	case	such	as	this	is—
    as	the	words	make	clear—cocaine	in	the	form	of	cocaine	base	and	not	cocaine
    base	as	part	of	a	mixture	that	in	total	weighs	at	least	32	grams.		Further,	as	I
    discuss	 below,	 the	 legislative	 history	 shows	 that	 the	 Legislature	 used	 the
    phrases	 “cocaine	 base”	 and	 “cocaine	 in	 the	 form	 of	 cocaine	 base”
    interchangeably,	 revealing	 that	 the	 Legislature	 saw	 the	 phrases	 as	 having
    identical	meanings.
    [¶33]	 	 Therefore,	 in	 my	 view,	 pursuant	 to	 a	 plain	 language	 reading	 of
    sections	1102(1)(F)	and	1105-A(1)(D),	 the	State	was	obligated	to	 prove	that
    McLaughlin	possessed	at	least	32	grams	of	cocaine	base	in	isolation.		No	such
    evidence	 was	 presented	 at	 trial,	 and	 for	 that	 reason,	 McLaughlin	 cannot	 be
    convicted	of	aggravated	trafficking	on	this	record.
    27
    B.	     Legislative	History
    [¶34]	 	 Even	 if	 the	 relevant	 statutes	 were	 ambiguous,	 the	 legislative
    history	supports	the	conclusion	that	the	Legislature	intended	“cocaine	in	the
    form	 of	 cocaine	 base”	 to	 mean	 just	 that.	 	 See	 Stevens,	 
    2007 ME 5
    ,	 ¶	 5,
    
    912 A.2d 1229
    (explaining	that	when	statutory	language	is	ambiguous,	we	look
    to	legislative	history	for	guidance).		This	is	apparent	in	two	ways.
    [¶35]		First,	one	of	the	legislative	vehicles	that	resulted	in	the	enactment
    of	section	1105-A	was	Legislative	Document	1457	from	the	117th	Legislature.
    The	 Office	 of	 the	 Attorney	 General	 presented	 an	 amendment	 to	 that	 bill	 to
    differentiate	between	“cocaine	in	the	form	of	cocaine	base	(crack	cocaine)”	and
    “cocaine	 hydrochloride	 (powder	 cocaine).”	 	 Comm.	 Amend.	 A.	 to	 L.D.	 1457,
    No.	H-696,	 Statement	 of	 Fact	 (117th	 Legis.	 1995);	 Comm.	 Amend.	 A.	 to
    L.D.	1457,	 No.	 H-696	 (117th	 Legis.	 1995)	 (letter	 dated	 January	 16,	 1995	 to
    Chairs	of	the	J.	Standing	Comm.	on	Crim.	Justice	from	David	Lauren,	an	attorney
    with	the	Department	of	the	Attorney	General).		When	referring	to	cocaine	base,
    the	Statement	of	Fact	accompanying	the	Amendment	uses	the	terms	“cocaine
    in	the	form	of	cocaine	base”	and	“cocaine	base”	interchangeably.16		L.D.	1457,
    16		The	following	excerpt	from	the	Amendment	demonstrates	the	fungible	use	of	the	two	terms:
    Section	 3	 of	 the	 amendment	 provides	 that	 a	 person	 is	 guilty	 of	 Aggravated
    Trafficking	 or	 Furnishing	 Scheduled	 Drugs	 if	 the	 person	 trafficks	 in	 or	 furnishes
    28
    Comm.	 Amend.	 A.	 to	 L.D.	 1457,	 No.	H-696,	 Statement	 of	 Fact	 (117th	 Legis.
    1995);	 see	 Marcoux	 v.	 Parker	 Hannifin/Nichols	 Portland	 Div.,	 
    2005 ME 107
    ,
    ¶¶	11-12,	
    881 A.2d 1138
    (indicating	that	a	statement	of	fact	accompanying	a
    committee	 amendment	 to	 a	 proposed	 bill	 is	 a	 proper	 source	 of	 legislative
    history).	 	 Similarly,	 in	 testimony	 presented	 to	 the	 legislative	 committee	 of
    jurisdiction,	Lauren,	appearing	for	the	Attorney	General’s	office,	explained	that,
    pursuant	to	the	Amendment,	“[t]rafficking	or	furnishing	32	grams	or	more	of
    cocaine	 base	 would	 constitute	 an	 [a]ggravating	 [f]actor	 under	 17-A	 M.R.S.
    §	1105.”	 	 An	 Act	 to	 Deter	 the	 Spread	 of	 Crack	 Cocaine:	 Hearing	 on	 L.D.	 1457
    Before	the	J.	Standing	Comm.	on	Crim.	Justice,	117th	Legis.	(1995)	(testimony	of
    David	 Lauren)	 (emphasis	 added);	 see	 Craig	 v.	 Caron,	 
    2014 ME 115
    ,	 ¶	 14,
    
    102 A.3d 1175
     (relying	 in	 part	 on	 testimony	 presented	 to	 the	 legislative
    cocaine	in	the	form	of	cocaine	base	in	a	quantity	of	32	grams	or	more.		The	32-gram
    level	is	based	upon:	(1)	evidence	that	individuals	in	possession	of	32	grams	or	more
    of	cocaine	base	have	significant	direct	links	to	major	sources	of	supply	and	present	an
    extraordinary	threat	and	risk	to	the	health	and	safety	of	the	citizens	of	the	State	of
    Maine;	 (2)	 evidence	 that	 32	 grams	 of	 cocaine	 base	 has	 a	 street	 value	 in	 excess	 of
    $12,000.00;	(3)	the	comparison	with	21	U.S.C.	§	841(b)(1)(B)(iii)	which	establishes	a
    five	year	minimum	mandatory	sentence	for	the	distribution	or	possession	with	intent
    to	 distribute	 five	 or	 more	 grams	 of	 cocaine	 base	 .	 .	 .	 .	 	 Therefore,	 the	 Aggravated
    Trafficking	or	Furnishing	level	of	32	grams	is	consistent	with	the	4-gram	cocaine	base
    presumptive	level	for	Trafficking	in	Cocaine	Base.
    Comm.	 Amend.	 A.	 to	 L.D.	 1457,	 No.	 H-696,	 Statement	 of	 Fact	 (117th	 Legis.	 1995)	 (emphases
    added).
    29
    committee	of	jurisdiction	to	evaluate	legislative	intent).		Just	as	the	Court	places
    weight	on	the	Amendment,	I	find	it	significant	that,	in	his	testimony	before	the
    Legislature,	the	representative	of	the	 very	office	that	submitted	the	 proposal
    assigned	 the	 same	 meaning	 to	 the	 term	 “cocaine	 base”	 and	 to	 the	 term
    contained	in	the	Amendment,	“cocaine	in	the	form	of	cocaine	base.”
    [¶36]	 	 Contrary	 to	 the	 Court’s	 view,	 this	 demonstrates	 that	 there	 is	 no
    statutory	difference	between	the	two—“cocaine	in	the	form	of	cocaine	base”	is
    “cocaine	base”—and	that	the	 Legislature	intended	that	section	 1105-A(1)(D)
    require	 the	 State	 to	 prove	 the	 presence	 of	 at	 least	 32	 grams	 of	 cocaine	 base,
    exclusive	of	any	other	substance,	in	order	for	a	defendant	to	be	found	guilty	of
    aggravated	trafficking	of	cocaine	base.
    [¶37]		Second,	as	the	Court	notes,	
    see supra
    ¶	21,	the	legislative	history
    establishes	 that	 the	 Legislature	 looked	 to	 21	 U.S.C.S.	 §	841(b)(1)(B)(iii)
    (LEXIS	through	Pub.	L.	No.	115-191),	which	is	included	in	the	federal	Controlled
    Substances	Act,	as	 a	guide	for	what	became	the	weight	threshold	for	cocaine
    base	subsequently	enacted	in	section	1105-A(1)(D).		See	Comm.	Amend.	A.	to
    L.D.	 1457,	 No.	 H-696,	 Statement	 of	 Fact	 (117th	 Legis.	 1995).	 	 Section	 841(a)
    criminalizes	 particular	 drug-related	 conduct,	 such	 as	 manufacturing	 and
    distributing	controlled	substances	and	possessing	controlled	substances	with
    30
    the	intent	to	manufacture	or	distribute—conduct	that	is	similar	to	trafficking
    as	defined	in	Maine	law,	see	17-A	M.R.S.	§	1101(17)	(2017).		Section	841(b)(1)
    then	 establishes	 the	 penalties	 for	 violations	 of	 section	 841(a)	 based	 on	 the
    nature	 and	 weight	 of	 the	 drug.	 	 See	 21	 U.S.C.	 §	841(b)(1)(B)	 (LEXIS	 through
    Pub.	L.	No.	115-191).		Section	841(b)(1)(B)(ii)	sets	out	sentencing	provisions
    for	crimes	involving	the	following	forms	of	cocaine:
    (ii)	 500	 grams	 or	 more	 of	 a	 mixture	 or	 substance	 containing	 a
    detectable	amount	of--
    (I)	coca	leaves	.	.	.	;
    (II)	cocaine	.	.	.	;
    (III)	ecgonine	.	.	.	;	or
    (IV)	any	compound,	mixture,	or	preparation	which	contains
    any	 quantity	 of	 any	 of	 the	 substances	 referred	 to	 in
    subclauses	(I)	through	(III).
    Then,	section	841(b)(1)(B)(iii)	applies	the	same	penalty	provisions	to	crimes
    involving	cocaine	base	by	describing	that	form	of	the	drug	in	the	following	way:
    “28	 grams	 or	 more	 of	 a	 mixture	 or	 substance	 described	 in	 clause	 (ii)	 which
    contains	cocaine	base.”		
    Id. § 841(b)(1)(B)(iii)
    (emphasis	added).
    [¶38]	 	 As	 the	 Court	 notes,	 
    see supra
     ¶	 14,	 we	 have	 recognized	 the
    Legislature’s	 proven	 ability	 to	 define	 its	 terms	 clearly	 when	 it	 intends	 for	 a
    compound	 or	 mixture	 that	 includes	 some	 form	 of	 cocaine	 to	 be	 treated	 as
    31
    cocaine	 itself.	 	 See	 Pinkham,	 
    2016 ME 59
    ,	 ¶¶	 19-21,	 
    137 A.3d 203
    .	 	 This
    additional	 legislative	 history	 bolsters	 that	 observation.	 	 Although	 the
    Legislature	 drew	 on	 the	 quantitative	 standard	 found	 in	 section
    841(b)(1)(B)(iii)	 of	 the	 federal	 law,	 it	 notably	 did	 not	 adopt	 the	 connected
    federal	language	that	explicitly	states	that	cocaine	base	can	mean	a	mixture	of
    substances	that	merely	includes	cocaine	base.		The	Legislature’s	choice	to	not
    use	 the	 very	 clear	 federal	 language	 it	 reviewed	 suggests	 that	 the	 Legislature
    purposefully	 did	 not	 intend	 to	 define	 the	 crime	 of	 aggravated	 trafficking	 of
    cocaine	base	in	a	way	that	would	allow	proof	of	less	than	32	grams	of	that	drug
    in	isolation.
    [¶39]		In	support	of	its	holding,	the	Court	also	refers	to	another	element
    of	legislative	history	that	I	find	to	be	unenlightening	on	the	present	issue.		As
    the	 Court	 correctly	 notes,	 “the	 Legislature	 intended	 to	 impose	 harsher
    punishment	on	individuals	in	possession	of	smaller	amounts	of	cocaine	in	the
    form	 of	 cocaine	 base	 because	 it	 saw	 the	 usable	 units	 of	 that	 drug	 as	 more
    harmful	in	smaller	quantities	than	powdered	cocaine.”		See	supra	¶	22.		Because
    the	Legislature	deemed	the	weight	of	a	single	usage	unit	of	cocaine	base	to	be
    smaller	 than	 a	 single	 usage	 unit	 of	 cocaine	 hydrochloride,	 the	 Legislature
    reasonably	 concluded	 that	 a	 smaller	 batch	 of	 the	 former	 should	 be	 treated
    32
    comparably,	for	criminological	 purposes,	to	a	larger	batch	of	the	latter.		This
    says	nothing,	however,	about	the	degree	of	purity	that	the	Legislature	intended
    to	require	for	the	State	to	prove	the	quantitative	element	for	cocaine	base	as	set
    out	in	section	1105-A(1)(D).
    [¶40]	 	 In	 fact,	 if	 anything,	 the	 Class	 A	 sentencing	 classification	 for	 a
    violation	of	section	1105-A(1)(D)—which	enhances	by	twenty	years	in	prison
    the	maximum	sentence	that	could	be	imposed	for	the	straight	Class	B	trafficking
    crime,	see	17-A	M.R.S.	§	1103(1-A)(A)	(2017)—suggests	that	great	care	must
    be	exercised	in	defining	the	applicable	scope	of	section	1105-A(1)(D).		Pursuant
    to	 the	 holding	 reached	 by	 the	 Court,	 a	 person	 who	 trafficks	 in	 32	 grams	 of	 a
    mixture	 or	 substance	 that	 contains	 only	 an	 insignificant	 amount	 of	 actual
    cocaine	 base	 would	 be	 just	 as	 guilty	 of	 the	 Class	 A	 offense	 as	 a	 person	 who
    possesses	32	grams—or	more—of	cocaine	base	in	isolation.		The	Legislature
    has	 expressly	 allowed	 such	 a	 result	 for	 “cocaine”	 as	 defined	 in	 section
    1102(1)(F)(2),	because	that	reference	to	“cocaine”	explicitly	includes	mixtures
    and	preparations	that	contain	any	quantity	of	certain	forms	of	cocaine.		Without
    similar	language	assigned	to	the	particularized	definition	of	“cocaine	base,”	the
    equivalence	in	criminal	exposure	for	widely	divergent	levels	of	culpability	does
    not	 lend	 confidence	 to	 the	 Court’s	 conclusion	 that	 the	 Legislature	 intended
    33
    them	 to	 be	 treated	 on	 the	 same	 plane.	 	 See	 Solomon,	 
    2015 ME 96
    ,	 ¶	 9,
    
    120 A.3d 661
     (stating	 that	 statutes	 are	 to	 be	 construed	 so	 as	 to	 avoid
    unreasonable	 or	 illogical	 results);	 see	 also	 Pinkham,	 
    2016 ME 59
    ,	 ¶	 14,
    
    137 A.3d 203
    (“[W]hen	interpreting	a	criminal	statute,	we	 are	guided	by	two
    interrelated	rules	of	statutory	construction:	the	rule	of	lenity,	and	the	rule	of
    strict	 construction.	 	 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.”	(quotation	marks	omitted)).
    [¶41]		For	these	reasons,	I	conclude	that	the	legislative	history	resolves
    any	 ambiguities	 that	 may	 exist	 in	 the	 language	 of	 sections	 1102(1)(F)	 and
    1105-A(1)(D),	 and	 confirms	 that	 the	 Legislature	 intended	 that	 section
    1105-A(1)(D)	require	the	State	to	prove	the	presence	of	at	least	32	grams	of
    cocaine	base	itself	for	a	person	to	be	found	guilty	of	aggravated	trafficking	of
    that	drug.
    C.	   Conclusion
    [¶42]		The	Legislature	did	not	intend	for	the	words,	“cocaine	in	the	form
    of	 cocaine	 base,”	 to	 encompass	 adulterated	 cocaine	 base.	 	 In	 its	 case	 against
    McLaughlin,	 the	 State	 presented	 no	 evidence	 of	 the	 weight	 of	 actual	 cocaine
    base	 in	 which	 McLaughlin	 trafficked.	 	 Rather,	 the	 evidence	 regarding	 the
    34
    composition	of	the	substance	took	two	forms.		The	first	was	the	Certificate	of
    Controlled	 Substance	 Analysis,	 which	 indicated	 the	 presence	 of	 cocaine	 base
    mixed	with	other	substances,	but	without	any	quantitative	information	about
    the	weight	of	the	cocaine	base	itself.		Second,	the	State	presented	the	testimony
    of	its	chemist,	who	was	unable	to	state	how	much	cocaine	base	was	in	the	larger
    mixture.		Because	of	the	State’s	failure	to	present	any	evidence	regarding	the
    weight	of	the	mixture,	the	court	committed	obvious	error	by	allowing	the	jury
    to	 deliberate	 on	 the	 amount	 of	 cocaine	 base.	 	 See	 Clewley	 v.	 Whitney,
    
    2002 ME 61
    ,	 ¶	 8,	 
    794 A.2d 87
     (stating	 that	 for	 a	 party	 to	 be	 entitled	 to	 an
    instruction,	 the	 evidence	 must	 generate	 the	 issue	 that	 is	 the	 subject	 of	 the
    instruction);	see	also	State	v.	Fox,	
    2014 ME 136
    ,	¶	22,	
    105 A.3d 1029
    (discussing
    obvious	error	on	an	appellate	challenge	to	jury	instructions).
    [¶43]	 	 For	 the	 same	 reason,	 and	 more	 importantly,	 the	 conviction	 for
    aggravated	 trafficking	 of	 cocaine	 base	 as	 defined	 in	 section	 1105-A(1)(D)
    cannot	 stand	 because	 it	 is	 not	 supported	 by	 any	 evidence	 of	 the	 amount	 of
    cocaine	base.		See	State	v.	Johnson,	
    2014 ME 83
    ,	¶¶	10-13,	
    95 A.3d 621
    (vacating
    defendant’s	conviction	because	of	insufficient	evidence	presented	at	trial).
    35
    [¶44]	 	 Accordingly,	 I	 would	 vacate	 the	 conviction	 for	 that	 offense	 and
    remand	for	further	proceedings	on	the	lesser	offense	of	trafficking	in	scheduled
    drugs.17		See	17-A	M.R.S.	§	1103(1-A)(A).
    Jamesa	J.	Drake,	Esq.,	and	Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,
    Auburn,	for	appellant	Kashawn	McLaughlin
    Janet	Mills,	Attorney	General,	and	Katie	Sibley,	Asst.	Atty.	Gen.	(orally),	Office
    of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine
    Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2015-2040
    FOR	CLERK	REFERENCE	ONLY
    17		If	the	lesser	charge	of	trafficking	in	cocaine	base	proceeded	to	trial,	the	evidence	of	McLaughlin’s
    possession	 of	 a	 substance	 containing	 cocaine	 base	 would	 not	 generate	 the	 statutory	 permissive
    inference	of	trafficking,	
    see supra
    ¶	n.13,	because	that	statutory	inference	arises	only	with	proof	of	at
    least	 four	 grams	 of	 “cocaine	 in	 the	 form	 of	 cocaine	 base,”	 see	 17-A	 M.R.S.	 §	 1103(3)(B).	 	 For	 the
    reasons	I	have	discussed	in	this	dissenting	opinion,	this	means	cocaine	base	in	isolation.		The	absence
    of	any	quantitative	evidence	of	cocaine	base	means	that	a	jury	cannot	find	the	factual	predicate	for
    that	 permissive	 inference.	 	 Nonetheless,	 the	 present	 record	 would	 allow	 the	 State	 to	 pursue	 a
    trafficking	 charge	 based	 on	 other	 types	 of	 evidence	 of	 drug	 dealing	 in	 the	 hotel	 room	 where
    McLaughlin	and	others	were	arrested.