MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 97 Docket: Ken

- 17

- 326 Argued : March	7 ,	2018 Decided: July	12,	2018 Revised: July	24 ,	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	 f rom	 a	 judgment	 of	 conviction	 of aggravated trafficking	 in schedule	 W	 drug s (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 argue s	 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	f acts

. 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	Mc Laughlin. 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;	 fo urteen

2 McLaughlin’s	other	arguments	on	appeal	are	unpersuasive , and	we	do	not	ad dress	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	individ uals	in	room 175	were	arrested. [¶4 ] The	State	conducted	a	controlled	substance	analysis	on	s ev eral of the	items	seized	 from	room	175.		The	analysis	confirmed	 that	 the	residue	on the dish	contained	cocaine	base; all	three	digital	scales	had	residu e	containing cocaine	 and	 heroin; the	 lig ht

- 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	 subst ance	 analysis identified	 the	 presence	 of heroin	and	cocaine base	but did	not determine	the precise	weight	of	each	drug in	isolation. [¶5 ] On	 January	 2 1 ,	 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

- A4 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,	 t wo	 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	 r elated	 to Count	 1:	 “Cocaine	 base includes	any	mixture	or	preparation	that	contains	any	quantity	of	cocaine	base, which	 is	 the	 alkaloid	 ba se of	 cocaine.”	 	 McLaughlin	 did	 not	 object	 to	 this
instruction. T he	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	f or	aggravated trafficking	in	cocaine	in	the	form	of	cocaine	base

. S ee 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	 mixt u re	 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 the se thr ee	 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,	t he	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	traffic king	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	 s tatutory	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	the n	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	surp lusage. State	 v.	 Dubois	 Livestock,	 Inc. ,	 2017	 ME	 223, ¶	 6, 174	 A.3d	 308 (citations omitted)	 (quotation	 marks	 omitted).	 	 When,	 as	 here,	 we	 are	 “interpreting	 a7 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 i ndecip herable 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 T heir	Interpretation
1. Plain	Language [¶1 0 ] 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, titl e 17

- A, comprises five p arts

. The statutes establishing drug

- relat ed	crimes	are	 found	in	 part	2 ,	c hapter	 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. [¶1 1 ] 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).		 I ntentional	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	 an y	 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).
T rafficking 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)

. [¶1 2 ] 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	coc aine	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	th is	paragraph	is	a Class	A	crime. (E mphasis	added

. ) A s	the	language	ma kes	clear,	a person	may	be	found	guilty of	a ggravated	 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). [¶1 3 ] McLaughlin contend s that although	“cocaine	in	a	quantity	of	112 grams	or	more”	refers	to	112	grams	or	more	of	“ [ a ] mixture	or	preparation	that

con tains	 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 .		I n 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. [¶1 4 ] 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) (201 5 )	require d 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	accompli sh	that	result.”		2016	ME	59,	¶ 21,	137	A.3d	203. [¶1 5 ] In dividing	various	drugs	into	schedules,	and	then setting	out	its definition s of the drugs ,	 including	 cocaine, wi thin	 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,	Sum mary	(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	“c ocaine” 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)

. [¶1 6 ] 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	lower13 weight	threshold to pure	cocaine	base	in	isolation,	it	would	not	have attached that weight	to	the	phrase	“ cocaine in	the	form	of	coca ine	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) ; s ee	 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.	o f	Counseling	Prof’ls	Licensure , 2006	ME	48,	¶	2 0,	896	A.2d	271

. We therefore conclude that	a plain	reading	of
secti ons	 1102(1)(F)	 and	 1105

- A(1)(D) indicate s a	l egislative	 intent	 that	 the thirty

- two	gram	weight	threshold	applies	to	the	overall	weight	of	a ny mixture or	preparation	that	contains	any	quantity	of cocaine	base

. 2. Ambiguity	and	Legislative	History [¶1 7 ] Although	the	plain	language	review discussed	above	leaves	little room	 for	 a	 claim	 of	 ambiguity,	 t o	 the	 extent	 that sections	 1102(1)(F)	 and 1105

- A(1)(D) could	 be	 deemed ambiguous ,	 the	 applicable l egislative	 history and	 other	indicia	 of l egislative	intent support	 o u r 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	the14 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,	ha s included	the	term	“cocaine	base” in	its	criminal	offenses	r egarding	cocaine	since	the	1980 s. 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 l anguage 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	 cocain e, 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 )	 (L EXIS	 through	 Pub.	 L.	 No.	 115

- 193 ] refers generally	to	cocaine	in	its	chemically	basic	fo rm	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	“cocain e	in its	base	form , ”	which	has	the molecular formula	C 17 H 21 NO 4 . 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	C 17 H 22 NO 4 +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	hydrochlo ride	can	also, however,	be	converted	into	“freebase”	cocaine	which	also	contains	cocaine	in	its	basic	or	alkaloid15 [¶1 8 ] 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	 t he pertinent	 bill titled “An	 A ct	 to	 Discourage	 the Spread	 of	 ‘Crack ’
Cocaine ,” L.D. 1457	(117th	Legis.	1995 ) ,	but	t he	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	sp read	of	cocaine	base.”		L.D.	1457 ,	Statement	of	Fact (117th	Legis.	1995 ). [¶1 9 ] The bill ’s	 Statement	 of	 Fact	 referred	 to the	 different	 forms	 of cocaine,	and	how	they	are	used:
C ocaine	 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 hydroch loride.		T he	resulting	high	is	quicker	and	far	more	intense, so	 typically	 the	 user	 is	 addicted	 more	 quickly	 and	 develops	 an exponentially	increasing	dema nd	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 t o	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 De Pierre ,	 “ [n]um erous	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	 wa s understood	 to	 produce	 a	 faster,	 more	 intense,	 and	 more add ictive	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 bi ll 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	 Fa ct	 (117th	 Legis.	 1995 ) (emphasis	 added)

. T he	 Legislature, therefore, intended to establish	harsher	punishments	for those	individuals	who possessed cocaine	in	 the	 form	of	cocaine	base	because	it	s aw	 th is	 form

— the alkaloid	or	basic	for m 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	presumptio n	of	trafficking,	17

- A M.R.S.	 § 1103(3)(B),	 and	 elevate	 traffi cking	 to	 aggravated	 trafficking, 17

- A M.R.S.	§ 1105

- A (1)(D). [¶20 ] In	 addition , t he	 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	se nse	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	hydrochlorid e).17 weight	threshold

— not	the	weight	of	pure	cocaine	ba se	in	isolation. 12 Com m. 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.” Com m.	Amend.	A	 to	L.D.	1457,	No.	H

- 696	(117th	Legis. 1996) (emphasis	added). This	reference	to	usage	units demonstrates	tha t	the Legislature	 understood	 that cocaine	 in	 the	 form	 of	 cocaine	 base

— including crack	 cocaine

— is a mixture or	 preparation	 that	 contain s 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 .	 	 A ll	 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	per missible inference	 of	 unlawful trafficking	 in	 schedule d drugs	 if	 the	 State	 provides	 proof	 “that	 the	 person inten tionally	or	knowingly	possesses	.	.	 .	4	grams	or	more	of cocaine	in	the	form	of cocaine	base.” (Emphasis	added

. )18 together ,	and	therefore	comport	with	the	comm on	understanding	of	‘mixture’

. .	.	. ”)

. [¶ 2 1] The A mendment 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.	 1 4 57,	 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	cocain e	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, the re	is	nothing	in	the	l egislative	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	l egislative	history supports	our conclusion	that	the Legislature	 intended	 to impose	 harsher punish ment	 on	 individuals	 in possession	of smaller	amount s 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	c ocaine

. We	therefore	reject	McLaughlin’s	arguments	regarding	the interpretation	 of	 section s 1102(1)(F)	 and	 1105

- A(1)(D) , and	 b ecause	 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	d efinition	of	cocaine in the	 form	 of	 cocaine base	 is	 “[a] mixtu re	 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	prepa ration	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	coc aine.		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 what so ever of	the amount	 of	 ac tual	 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	 Cou rt’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,	 unreas onable,	 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	 to22 aggregate	 language.” State	 v.	 Dubois	 Livestock,	 Inc .,	 2017	 ME	 223,	 ¶	 6,
1 74 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	th e	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]oc aine	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	po ssession	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	a ggravated	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	co ntained	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	mix tures	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	cocain e, 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.	 §	 110 2(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	defi nition	of	“cocaine”

— the	Legislature	has	defined	in	specific	terms	that	do	not25 [¶ 3 1]	 	 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	concoc tion	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 surpl usage	 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	d irectly	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	s imply	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	i n	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	11 05

- 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.	 1 457,
No. H

- 696,	 Statement	 of	 Fact	 (117th	 Legis.	 1995);	 Comm. Amend.	 A.	 to
L.D. 1457,	 No.	 H

- 69 6	 (117th	 Legis.	 1995) (letter	 dated	 January	 16,	 1995	 to Chairs	of	the	J.	Standing	Comm.	on	Cr im.	Justice	from	David	Lauren,	an	a ttorney with	the	Department	of	the	Atto rney	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	de monstrates	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	 furnishes28 Comm.	 Amend.	 A.	 to	 L.D.	 1457,	 No. H

- 696,	 Statement	 of	 Fac t	 (117th	 Legis. 1995);	 s ee 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).	 	 Simila rly,	 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]g gravati ng	 [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	 M E 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	safe ty	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	distribu tion	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

. Com m.	 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 Legisl ature, 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	demon strates	 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 aggravate d	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	with30 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.	 § 8 41(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	 treat ed	 as31 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	 no tably	 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	 t he	 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	g rams	of	that	drug in	isolation. [¶39 ]		In	support	of	its	holding,	the	Court	also	refers	to	another	el ement 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	 treated32 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	se t 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	 insignifican t	 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	expo sure	for	widely	divergent	levels	of	culpability	does not	 lend	 confidence	 to	 the	 Court’s	 conclusion	 that	 the	 Legislature	 intended33 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) ). [¶ 4 1]		For	these	reasons,	I	conclude	that	the	legislative	history	resolves any	 ambiguities	 that	 may	 exist	 in	 the	 language	 of	 sectio ns	 1102(1)(F)	 and 1105

- A(1)(D), and	 c onfirms	 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 aggrav ated	trafficking	of that	drug.
C. Conclusion [¶42 ]		The	Legislatur e	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	 the34 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
t he	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	mi xture,	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	 issu e	 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	 tr afficking	 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	insuff icient 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 F OR C LERK R EFERENCE O NLY

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	 n ot	 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.