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	 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	
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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.		
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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	
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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	2,	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.	
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§ 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.