State of Maine v. Eric Anderson , 2016 Me. LEXIS 206 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 183Docket: Ken-15-619
Argued: October 25, 2016
Decided: December 22, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
ERIC ANDERSON
JABAR, J.
[¶1] Eric Anderson appeals from a conviction entered by the trial court
(Kennebec County, Mullen, J.) of two counts of unlawful trafficking in
schedule W drugs (Class B), 17-A M.R.S. § 1103(1-A)(A) (2015), following a
jury trial. He contends that the court erred in allowing the jury to consider
evidence of prior bad acts, and improperly instructed the jury on accomplice
liability and constructive possession. He also contends that the evidence was
insufficient to convict him of the two counts as charged. We affirm.
I. BACKGROUND
[¶2] “Viewing the evidence in the light most favorable to the State, the
jury could rationally have found the following facts beyond a reasonable
doubt.” State v. Haag, 2012 ME 94, ¶ 2, 48 A.3d 207.
2
[¶3] On February 11, 2015, a special agent of the Maine Drug
Enforcement Agency (MDEA) and a confidential informant (CI) fitted with an
electronic monitoring device went to Anderson’s home at 88 Second Avenue1
in Augusta, with the purpose of targeting Anderson and another individual,
Kathy Tupper, in a drug-purchasing sting. When they arrived at Anderson’s
home, the special agent and the CI entered the garage, and Anderson let them
into a kitchen area through a door inside the garage. Other unidentified
individuals were also present.
[¶4] After their arrival, Anderson made a phone call to “Mama Love,”
Tupper’s alias. The CI asked Anderson whether Tupper had “ups” and
“downs,” common slang for cocaine and heroin, and Anderson responded
affirmatively. While waiting for Tupper to arrive, Anderson discussed
“cooking” cocaine in the special agent’s presence.
[¶5] After Tupper arrived at Anderson’s home, the special agent and
the CI used recorded bills to purchase what the special agent believed to be
three folds of heroin and three crack rocks for $60 and $100, respectively.
Anderson was “hovering” during the transaction, asking the special agent and
the CI “what do you want, what do you want.”
1 Throughout the trial, Anderson’s address was referred to as “88 Second Street,” but the State’s
exhibits 3A and 3B, records from the Kennebec County Registry of Deeds, list Anderson’s street
address as 88 Second Avenue.
3
[¶6] On February 20, 2015, several MDEA agents returned to
Anderson’s home as part of a team to execute a search warrant. The agents
knocked and announced themselves, rang the doorbell, and after receiving no
response, used a battering ram to break open the locked door leading from the
garage into the house. Two individuals who had not been present at the home
on February 11 were found attempting to flush drugs, which a chemist later
identified as heroin and cocaine, down the toilet. On a table close to the door,
agents found a plate with white powder and a razor blade, wax paper, cash,
two scales with residue later identified as cocaine, and paper folds containing
powder later identified as heroin.
[¶7] Anderson was found upstairs, alone and asleep. The MDEA agents
did not find any drugs or illicit material on Anderson’s person or on the
second floor. None of the agents knew how long he had been asleep, or how
long he had been at the house prior to execution of the search warrant.
[¶8] Anderson was indicted by a grand jury on four counts of unlawful
trafficking in schedule W drugs (Class B), 17-A M.R.S. § 1103(1-A)(A) (2015):
Counts 1 and 2 charged trafficking in heroin and cocaine, respectively, on
February 11, 2015; and Counts 3 and 4 charged trafficking in cocaine and
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heroin, respectively, on February 20, 2015. He pleaded not guilty to all four
counts.
[¶9] A jury trial was held on October 26 and 27, 2015. Because the
State failed to provide the defendant with copies of chemical analyses of the
alleged drugs purchased by the special agent and the CI on February 11, 2015,
the court sanctioned the State by ruling that the chemical analysis of those
substances could not be admitted in evidence. The court subsequently
granted Anderson’s motion for judgment of acquittal as to Counts 1 and 2,
concluding that there was not sufficient evidence for the jury to find beyond a
reasonable doubt that Anderson had trafficked in drugs on that date. The
court denied Anderson’s motion for judgment of acquittal as to Counts 3
and 4.
[¶10] The court instructed the jury on both constructive possession
and accomplice liability over Anderson’s objection. The jury returned a
unanimous guilty verdict, and the court imposed concurrent sentences of four
years imprisonment with all but one year suspended and two years of
probation. Anderson’s motion for a new trial was denied. He now timely
appeals from the judgment entered on the jury verdict. See M.R.
App. P. 2(b)(2)(A).
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II. DISCUSSION
[¶11] Anderson raises three issues on appeal: (1) whether he was
deprived of a fair trial by the State’s closing argument that referred to his
prior bad acts of February 11, (2) whether the trial court erred by failing to
properly instruct the jury regarding constructive possession and accomplice
liability, and (3) whether the evidence was sufficient to support his conviction.
A. Evidence of Prior Bad Acts
1. The State’s References to Evidence from February 11, 2015
[¶12] The State’s presentation of evidence relating to the CI’s and
special agent’s alleged drug purchases on February 11, 2015, was proper,
because when the State presented that evidence, Counts 1 and 2 had not yet
been dismissed by the court. The question presented is whether the State’s
references to the evidence from February 11 during closing argument
improperly suggested, in violation of Maine Rule of Evidence 404(b), that
Anderson had a propensity to commit drug crimes. Anderson contends that
Rule 404(b) prohibited the State from referencing the events of February 11.
Because Anderson did not object to the State’s argument that referred to those
events at trial, we review for obvious error. State v. Robinson, 2016 ME 24,
¶ 25, 134 A.3d 828. To prevail on his challenge under this standard, Anderson
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must show that the State’s references to the events of February 11 in its
closing argument constitute a plain error that “affects substantial rights” and
“seriously affects the fairness and integrity or public reputation of judicial
proceedings.” State v. Westgate, 2016 ME 145, ¶ 15, --- A.3d --- (quotation
marks omitted). Anderson fails to meet this burden.
[¶13] “Evidence of [prior bad acts] 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). Evidence of prior bad acts
is admissible, however, if offered to prove identity, intent, knowledge, motive,
opportunity, plan, preparation, or absence of mistake. State v. Poulos,
1998 ME 43, ¶ 4, 707 A.2d 1307; State v. Roman, 622 A.2d 96, 98 (Me. 1993).
[¶14] Here, the State limited its use of the evidence from the events of
February 11 to permissible uses, specifically, Anderson’s motive, knowledge,
and intent. In its closing argument, the State summarized the evidence
concerning February 11, then stated “that information is highly important to
what happened only nine days later in Mr. Anderson’s house.” The State went
on to tell the jury that “[t]he totality of the evidence indicates he knew just
what was going on” in his home on February 20, and asked the jury to draw
reasonable inferences from the events of both days. During its rebuttal
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argument, the State contended that “[w]hat happened on the 11th is highly
relevant to what happened on the 20th, and [the jury] should consider that
information in regards to Mr. Anderson’s motive and intent on the 20th.”
[¶15] At no point did the State argue that because of Anderson’s
involvement in the sale of alleged drugs on February 11 he was more likely to
have engaged in the sale of drugs on the 20th. Instead, the State emphasized
that Anderson’s acts on February 11 were probative of whether he knew that
individuals were present in his home and trafficking drugs on February 20,
and whether he intended to aid them in that endeavor. See State v. Olmo,
2014 ME 138, ¶ 15, 106 A.3d 396 (stating that evidence found on a
defendant’s person on a date later than the date of offenses charged would
have been admissible pursuant to M.R. Evid. 404(b) because the events were
“connected by details that [were] probative of a common scheme of trafficking
in specific types of controlled substances”). This constitutes a permissible use
of evidence of prior bad acts pursuant to Rule 404(b).
2. Limiting Instructions
[¶16] In addition to arguing that the trial court erred by admitting the
evidence concerning the February 11, 2015, events, Anderson argues that the
trial court erred by allowing the State to reference the February 11 events
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during its closing argument without issuing a limiting instruction. Because
Anderson did not request a limiting instruction, we again review for obvious
error. See Robinson, 2016 ME 24, ¶ 25, 134 A.3d 828.
[¶17] Where a defendant does not request a limiting instruction after
evidence of a defendant’s prior bad acts is admitted, we “assume that counsel
concluded that a limiting instruction would have overemphasized the
importance of the evidence and decided to forego the request for strategic
reasons.” State v. Rogers, 389 A.2d 36, 38 (Me. 1978); see State v. Shuman,
622 A.2d 716, 718 (Me. 1993). Here, because the State limited its use of the
evidence to argue that Anderson had the motive, knowledge, or intent to aid
others in drug trafficking on February 20, the lack of a limiting instruction
does not rise to a level affecting Anderson’s substantial rights or affecting the
fairness and integrity of the trial. Without a request from counsel, the absence
of a limiting instruction is not reversible error. See Shuman, 622 A.2d at 718.
B. Jury Instructions
[¶18] Anderson next argues that the trial court erroneously instructed
the jury regarding accomplice liability and constructive possession. We
address each claim in turn, reviewing the “jury instructions as a whole for
prejudicial error, and to ensure that they informed the jury correctly and
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fairly in all necessary respects of the governing law.” State v. Tucker, 2015 ME
68, ¶ 11, 117 A.3d 595 (quotation marks omitted). Because Anderson
preserved his objection to the inclusion of accomplice liability instructions as
well as the exclusion of his recommended constructive possession
instructions, we will vacate his judgment of conviction “if the erroneous
instruction[s] resulted in prejudice.” Caruso v. Jackson Lab., 2014 ME 101,
¶ 12, 98 A.3d 221; see also M.R.U. Crim. P. 30(b).
1. Accomplice Liability
[¶19] Over Anderson’s objection, the court instructed the jury that
[a] person may be guilty of a crime if they personally do the acts
which constitute the crime, or if they are an accomplice of the
person or persons who actually commit the crime. A person may
be found guilty of a crime as an accomplice if the State proves
beyond a reasonable doubt that, with the intent of promoting or
facilitating the commission of a crime, that person solicits, or aids,
or agrees to aid, or attempts to aid another person who commits a
crime in the planning or commission of that crime. Mere presence
at the scene of a crime without more does not prove that a person
is an accomplice to a crime.
Anderson contends that the court should not have instructed the jury as to
accomplice liability at all because the evidence from the February 20, 2015,
search warrant execution does not support the conclusion that Anderson
performed any act to facilitate or promote drug trafficking.
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[¶20] A person is guilty as an accomplice of a crime committed by
another person if he or she “aids or agrees to aid or attempts to aid such other
person in planning or committing the crime,” and has the “intent of promoting
or facilitating the commission of the crime.” 17-A M.R.S. § 57(3)(A) (2015).
The State must prove something more than the defendant’s mere presence,
but need not prove an overt act of physical assistance. State v. Pheng,
2002 ME 40, ¶ 9, 791 A.2d 925. “[O]nce presence is proven, accomplice
liability may attach upon the State’s proof of any conduct promoting or
facilitating, however slightly, the commission of the crime.” Id.[¶21] For example, we held in State v. Nason that a defendant’s
presence at the scene during the commission of a crime, in conjunction with
other factors, was sufficient for a jury to find her guilty as an accomplice to
unlawful drug trafficking. 498 A.2d 252, 255-56 (Me. 1985). In Nason, police
officers executed a search warrant at the house where the defendant lived
with her husband, seizing cocaine and marijuana from various locations in the
home, cash from the defendant’s purse, and plastic baggies and a set of scales
from her shared bedroom. Id. at 253-54. We reasoned that based on those
facts, the jury heard sufficient circumstantial evidence by which it rationally
could have found that the defendant was an accomplice to her husband’s drug
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dealing. Id. at 256; see also State v. Gervais, 394 A.2d 1183, 1185 (Me. 1978)
(holding that a defendant’s “presence as a friend” in a car “could be taken as a
circumstance suggesting encouragement” for the purposes of accomplice
liability); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (“[T]he line
that separates mere presence from culpable presence is a thin one, often
difficult to plot.”).
[¶22] The circumstances here are similar to those in Nason. On the day
that the search warrant was executed, drugs packaged as if for sale, additional
packaging, and scales with drug residue were found inside Anderson’s home,
although not on his person. Additionally, two individuals were apprehended
that day attempting to flush heroin and cocaine down Anderson’s toilet. If the
jury accepted as true the State’s theory of the case, that on February 11, 2015,
Anderson called Tupper to come to his house in order to facilitate the sale of
drugs to the special agent and the CI, it would be reasonable for the jury to
infer that less than two weeks later, on February 20, Anderson knew of the
presence of the drugs in his home and had either (1) invited the other
individuals there with the purpose and knowledge that they would package or
sell drugs in his home, or (2) knew that the individuals were present for the
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purpose of packaging and selling drugs and allowed them to remain despite
their activities.
[¶23] Because the circumstantial evidence supported the inference that
Anderson acted as an accomplice to the trafficking of cocaine and heroin on
February 20, 2015, and because the trial court correctly instructed the jury as
to the law of accomplice liability in Maine, the court did not err.
2. Constructive Possession
[¶24] Anderson also objected to the court’s instructions regarding
constructive possession, which consisted of the following:
A person can also have constructive possession of something[. T]o
have constructive possession of something means that although a
person does not have actual physical control of an item they have
a relationship with that item such that one could conclude that
they have dominion, authority or control over the item either
alone, by themselves or jointly with others. Before you may
decide someone to have control over an item, you must find
beyond a reasonable doubt that the person has a relationship to
that property that would enable them to exercise a power, that is
dominion, authority or control over the property so as to being in
a relationship with the item that would allow them to gain
physical custody or control over the item.
You should understand that a person[’]s mere presence in a place
where the item is located does not by itself establish dominion or
control over the item. You should also understand that a person
does not have to be the owner of an item in order to have actual
or constructive possession of the item.
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Anderson argues that the court committed prejudicial error by omitting from
its constructive possession instruction language requiring that, for the jury to
find him guilty under a theory of constructive possession, the State must
prove beyond a reasonable doubt that Anderson had knowledge of the
presence of drugs in his home as well as an intention and ability to gain
physical control of the drugs.
[¶25] We have long held that a defendant charged with unlawful
trafficking may be found guilty if the State proves beyond a reasonable doubt
that the drugs were within the defendant’s constructive possession. State v.
Ellis, 502 A.2d 1037, 1040 (Me. 1985) (citing State v. Lambert, 363 A.2d 707,
711 (Me. 1976)). Constructive possession is established by showing that the
defendant had “dominion and control” over particular property or goods.
State v. Ketchum, 1997 ME 93, ¶ 13, 694 A.2d 916 (quotation marks omitted).
Constructive possession also “may be joint with one or more persons.” State v.
Gellers, 282 A.2d 173, 179 (Me. 1971).
[¶26] For example, in State v. Lambert we held that a jury could
determine that a defendant had constructive possession of the drugs
contained in a briefcase and a strong box found on the ground below his
bedroom window. 363 A.2d at 710-11. The jury could have inferred that the
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defendant had thrown those items out the window himself, and thus both the
briefcase and strongbox were within his dominion and control. Id. at 711. By
contrast, the defendant had actual possession of “paraphernalia connected
with the use and packaging of contraband drugs” that were found inside his
house. Id.[¶27] In another case, when a search warrant was executed and police
found marijuana in a defendant’s house, we held that although the defendant
was not home when the warrant was executed, the evidence was sufficient to
support a conviction of unlawful trafficking of a scheduled drug based on the
defendant’s constructive possession of the drugs found there. Ellis, 502 A.2d
at 1040. We relied on an inference the jury could have made—that the room
in which the drugs were found was the defendant’s bedroom—to conclude
that the jury had sufficient evidence to find that the “drugs involved were
subject to the defendant’s dominion and control.” Id.; see also State v. Deering,
1998 ME 23, ¶¶ 3, 13-14, 706 A.2d 582 (upholding a defendant’s conviction of
aggravated furnishing of drugs where marijuana discovered in a hidden
compartment in the defendant’s car was subject to his dominion and control,
but without discussion of his knowledge or intent concerning the marijuana).
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[¶28] Here, in defining “voluntary conduct,” another element the jury
was instructed to find in order to convict Anderson, the court instructed the
jury to consider whether Anderson “knowingly procure[d] or receive[d] the
thing possessed.” The court also instructed the jury that “a person acts
knowingly if he is aware that it is practically certain [his] conduct will cause a
result,” and that “the State must prove beyond a reasonable doubt that the
defendant was aware that it was practically certain that he was trafficking in
cocaine . . . and . . . heroin.” Further, the court instructed the jury regarding
intent that “in the context of acting intentionally, the State must prove beyond
a reasonable doubt that it was the defendant’s conscious object to traffic in
cocaine . . . and . . . heroin.”
[¶29] The jury was therefore tasked not merely with finding whether
the drugs were under Anderson’s dominion and control, but also whether he
acted voluntarily, knowingly, and intentionally. The elements of knowledge
and intent that Anderson now claims were absent from the jury instructions
regarding constructive possession were implicit within a finding of “dominion
and control” because the jury had to find, on the whole, that Anderson acted
knowingly and intentionally in order to convict him of Counts 3 and 4. See
17-A M.R.S. § 1103(1-A); see also 17-A M.R.S. § 35(1), (2) (2015) (defining
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“intentionally” and “knowingly”). Although the court’s instructions may not
have reflected the exact wording that Anderson would prefer, his requested
language was in fact included in the instructions. Looking at the jury
instructions as a whole for prejudicial error, we conclude that the trial court
correctly and fairly instructed the jury.2
C. Sufficiency of the Evidence
[¶30] Finally, Anderson asserts that the evidence was insufficient for
the jury to convict him of either constructive possession or accomplice
liability as to Counts 3 and 4. “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. Dorweiler, 2016 ME 73, ¶ 6, 143 A.3d 114 (quotation marks omitted). The
jury may draw all reasonable inferences from the evidence presented at trial.
State v. McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012.
[¶31] To convict Anderson of Counts 3 and 4, the jury needed to find
beyond a reasonable doubt that Anderson either (1) intentionally or
2 We note, however, that it may be a better practice to incorporate the definition of knowledge
and intent within the specific instruction for constructive possession to clarify that a defendant’s
knowledge and intent concerning the item constructively possessed must be proved beyond a
reasonable doubt.
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knowingly possessed—whether actually or constructively—what he knew or
believed to be heroin and cocaine and was in fact heroin and cocaine, and had
the intent to sell the heroin and cocaine; or (2) with the intent of promoting or
facilitating the sale of heroin and cocaine, was accomplice to—by aiding or
agreeing to aid—others in the sale of heroin and cocaine, or in their
possession with the intent to sell heroin and cocaine. 17-A M.R.S. §§ 57(3)(A),
1101(17), 1103(1-A)(A). The jury could therefore find him guilty either
because he was an accomplice to the sale or possession with intent to sell
heroin and cocaine, or because he himself actually or constructively possessed
the drugs with the intent of selling them. Id.
[¶32] Viewing the evidence in the light most favorable to the State,
including all reasonable inferences, there was sufficient evidence presented at
trial from which the jury rationally could have found each element of Counts 3
and 4 beyond a reasonable doubt based on the State’s theory of accomplice
liability or constructive possession. See McBreairty, 2016 ME 61, ¶ 14,
137 A.3d 1012.
[¶33] Specifically, the jury could have found that on February 11, 2015,
Anderson opened the door to his house to the special agent and the CI, and
called Tupper on the phone, inviting her to his house and confirming for the CI
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that she had “ups” and “downs”—common slang for cocaine and heroin.
Before Tupper arrived, Anderson discussed “cooking” cocaine in the presence
of the special agent. After Tupper arrived, he “hovered” over the special
agent’s purchase of alleged heroin and the CI’s purchase of alleged crack rocks
from Tupper.
[¶34] On February 20, 2015, Anderson was found asleep upstairs in his
house, while downstairs several individuals were discovered attempting to
dispose of heroin and cocaine. Also found in the house on February 20 were
two scales with cocaine residue, folds of heroin appearing identical to the
alleged heroin folds purchased on February 11, wax paper, and cash.
[¶35] Based on his behavior on February 11, the jury could reasonably
have inferred that Anderson either allowed individuals into his home on
February 20 intending that they package for sale or sell heroin and cocaine, or
that he knew that they were there and that packaging for sale or selling heroin
and cocaine was the purpose of their presence. These inferences would
permit a jury to rationally find beyond a reasonable doubt that Anderson was
an accomplice to unlawful trafficking of, or constructively possessed with the
intent to sell, heroin and cocaine on February 20, 2015.
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The entry is:
Judgment affirmed.
Darrick X. Banda, Esq. (orally), Law Offices of Ronald W. Bourget,
Augusta, for appellant Eric Anderson
Janet T. Mills, Attorney General, and Katie Sibley, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State
of Maine
Kennebec County Superior Court docket number CR-2015-187
FOR CLERK REFERENCE ONLY