MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 41 Docket: And

- 17

- 553 Argued : October	25,	2018 Decided: March 14 ,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ. Majority: SAUFLEY,	C.J.,	and ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ. Concurrence: SAUFLEY,	C.J. , and MEAD ,	J.

STATE	OF	MAINE

v. DAVID	T.	BROWN
JABAR ,	J

. [¶1]	 	 David	 T.	 Brown	 appeals	 from	 a	 judgment	 of	 conviction	 of	 four counts	 of	 aggravated	 trafficking	 in	 schedule	 W	 drugs	 (Class	 A), 17

- A	 M.R.S. § 1105

- A(1)(E)(1)	(201 8 ) (Counts	1

- 4), and	one	count	of	unlawful	possession of	schedule	W	drugs	(Class	C), 17

- A	M .R.S.	§ 1107

- A(1)(B)(3 )	(201 8 ) (Count	5), entered	by	the	court	(Androscoggin	County, Delahanty , J

. )	following	a	jury	trial. 1
Brown ’s	primary conten tion	on	appeal	is that	there	was	insufficient	evidence that	 he	 trafficked	 within	 1,000	 feet	 of	 a	 school. 2 Because	 the	 State	 did	 not

1 Brown	was	also	convicted	of	four	counts	of	violating	a	condition	of	release	(Class	E), 15	M.R.S. § 1092(1)(A)	(201 8 ) (Counts	6

- 9),	after	he	waived	his	right	to	a	jury	trial	on	those	charges	pursuant to M.R.U.	Crim.	P.	23(a) .		Because	Brown	does	not	assign	error	to	these convictions ,	we	do	not	address them	further.

2 Brown	also	contends	that	there	was	insufficient	evidence	that	he	possessed	the	requisite	amount of	 cocaine	 base	 in	 order	 to	 invoke	 the	 permissible	 inference	 for	 trafficking	 under 17

- A	 M.R.S.2 present	 evidence	 from	 which	 a	 jury	 could rationally conclude	 beyond	 a reasonable	doubt	that	Brown	trafficked	within	1,000	feet	of	a	school,	we	vacate the aggravating factor that elevated the	 crime	 from	 Class	 B	 trafficking	 in sch edule	 drugs, 17

- A	 M.R.S.	 § 110 3(1

- A)(A) (2018) ,	 to	 Class	 A	 aggravated trafficking	 in	 schedule	 W	 drugs, 17

- A M.R.S.	 §	 1105

- A(1)(E)(1) , 3 and	 we remand	to	the Unified	Criminal	Docket for	resentencing.
I. BACKGROUND [¶ 2 ] By	 criminal	 complaint	 filed	 on February	 21,	 2017,	 and	 then	 by indictment	 filed	 on	 May	 5,	 2017,	 Brown	 was	 charged	 with	 four	 counts	 of aggravated	 trafficking	 in	 schedule	 W	 drugs	 (Class	 A). See 17

- A M.R.S. § 1105

- A(1)(E)(1). Viewed	in	the	light	most	favorable	to	the	jury’s	verdict,	the

r ecord	 supports	 the	 following	 facts. See State	 v

. Adams ,	 2015	 ME	 30,	 ¶ 2,
113 A.3d	583

.

§ 1103(3)(B)	(201 8 ) and	to	sustain	a	conviction	under 17

- A	M.R. S.	§	1107

- A(1)(B)(3) (2018) .		In	light of	our	recent	and	controlling	holding	in State	v

. McLaughlin ,	2018	ME	97,	189	A.3d	262 ,	we	affirm	the convictions	on	Count	4	and	Count	5	and	do	not	discuss	Count	5	further.		We	discuss	Count 4	only	with regard	to	the aggravating	factor	of	trafficking	within	1,000	feet	of	a	school.

3 As	relevant	to	this	case,	17

- A	M.R.S.	§	1105

- A(1)(E) (2018) provides	that	a	person	commits	the enhanced	trafficking	offense	if	that	person “violates	[17

- A	M.R.S.	§	1103]” and	“[a]t	the	tim e	of	the offense,	the	person	is	on	a	school	bus	or	within	1,000	feet	of	the	real	property	comprising	a	private or	public	elementary	or	secondary	school	or	a	safe	zone .”3 A. Four	Counts	of	Aggravated	Trafficking [¶ 3 ] In	 December	 2016,	 an	 agent	 with	 the	 federal	 Drug	 Enforcement Agency	 (DEA) began conduct ing a	 series	 of	 controlled	 purchases	 of	 crack cocaine	 from	 Brown	 using	 a	 confidential	 informant.	 	 Brown	 resided	 on	 the second	floor	of	an	apartment	building	located	at	72 Walnut	Street	in	Lewiston, in	 the	vicinity	of	 the	Governor	 James	B.	 Longley	Elementary	S chool, which	is located	on	Birch	Street. The	apartment building has	two	entrances : one	at	the front	 of	 the	 building	 on	 Walnut	 Street	 and	 another	 on	 the	 right	 side	 of	 the building	on	Prince	Street. The	entrance	on the Prince	Street side proceeds	up	a flig ht	of	stairs	to the	second	floor .		On	the	second	floor,	a	door	off	the	stairs	leads
into the	kitchen area	of	the	apartment.		There	is	a	living	room	to	the	left	of	the kitchen	and	off	of	the	living	room	are	two	bedrooms

. The	bedroom	closest	to Walnut Street	belonged	to	the	owner	of	the	apartment	building , and	the	other bedroom	was Brown’s

. 4 [¶ 4 ] During	 the	 first	 day	 of	 trial,	 the	 confidential	 informant	 testified about	 the	 three	 controlled	 buys	 from	 Brown ,	 each	 of	 which	 took	 place

4 Th e evidence	concerning the	general layout	of	the	interior	of	the	72	Walnut	Street	a partment was	provided	through	the	testimony	of	various	witnesses.		Additionally,	there	was	one	photograph taken	from	the	street	that	depicted	the	front	of	the	apartment	building	and	a	tax	map	showing	the location	 of	 Longley	 Elementary	 School	 and	 a	 portion of	 Walnut	 Street,	 but	 not	 the	 location	 of 72 Walnut	Street	specifically.		There	was	no	evidence that	showed	or	described	the entire layout	of the	apartment,	such	as	a schematic diagram

.4 somewhere in	Brown’ s	apartment

. The	confidential	informant testified that	she entered the	apartment	from	the	Prince	Street side	door and	would	meet	Brown in	either	his	bedroom	or	the	living	room.		With	regard	to	the	actual	location	of the	controlled	buys, she	testified : Q A nd	 where	 would	 you	 meet	 when	 you	 go	 inside	 of 72 Walnut?
A Usually,	if	it	wasn’t	the	living	room,	it	was	his	bedroom.

.	.	.	. Q Okay.		Okay.		So	you	would	go	into	that [bed room ] and	you

. . . A I	usually	wouldn’t	go	into	the	room.		I	wouldn’t	go [nowhere] past	the	door.		I	would	stand	at	the	door	like	.	.	.	out	the	door. And	he	had	a	dresser,	do	his	thing,	give	me

-- if	it	wasn’t	there, it	was	on	that	end	table	in	the	living	room. [¶ 5 ] The	first	count	of	aggravated	trafficking in schedule	W	dru gs stems from	 the	 first	 controlled	 purchase, which occurred	 on	 December	 23,	 2016. During	this	controlled	buy,	Brown	sold	the	confidential	informant	2.8 grams	of crack	 cocaine	 in	 exchange	 for	 $400. Describing	 this	 buy ,	 the	 confidential informant	 testified that	 Brown	 was	 “in	 the	 bedroom”	 and	 that	 she	 gave	 the money	to him in	return	for	crack	cocaine.5 [¶ 6 ] The	second	controlled purchase,	which was	the	basis	of the	second count	 of	 aggravated	 trafficking	 in	 schedule	 W	 drugs,	 took	 place	 on December 29,	2016. During	 this	controlled	buy,	Brown	sold	 the	confidential informant	1.737	grams	of	crack	cocaine	in	exchange	for	$400. The	confidential informant	did	not	testify	about	precisely	where	she	was	inside	the	apartment during	this	buy

. [¶ 7 ] The	 third	 and	 fin al	 controlled	 purchase	 was	 conducted	 on February 10,	2017 , when Brown	sold	the	confidential	informant	1.69	grams	of crack	cocaine	for	$300.		This	controlled	buy	led	to	the	third	count	of	aggravated trafficking	 in	 schedule	 W	 drugs. Again,	 the	 confidential informant	 did	 not testify	about	the	precise	location	of	this	buy

. [¶ 8 ] Following	 the	 three	 controlled	 buys, law	 enforcement	 officers obtained	and	executed a	search	warrant for	the	apartment	at 72	Walnut	Street

. While searching	 Brown’s	 bedroom , a	 DEA	 agent	 discovered	 a	 bag	 of	 crack cocaine	weighing	approximately	27	grams. This	formed	the	basis	for	a fourth count	 of	 unlawful	 trafficking	 in	 schedule	 W	 drugs based	 on the	 permissible inference provided in 17

- A	M.R.S.	§	1103(3)(B) (2018) that Brown’ s possession of	 fourteen	 grams	 or	 more	 of	 cocaine	 constituted	 unlawful	 trafficking	 in scheduled	drugs.6 [¶ 9 ] The	State	charged all	four count s as	aggravat ed trafficking,	alleging that	 the	 drugs	 were discovered,	 and the	 controlled	 buys	 occurred, within 1,0 00 feet	of	the	real	property	of	Longley	Elementary	School. See 17

- A	M.R.S. § 1105

- A(1)(E)(1).
B. Evidence	Concerning	the	Distance	Between	72	Walnut	Street	and	Longley Elementary	School [¶1 0 ] The	 court	 held	 a	 three

- day	 jury	 trial from	 September	 25	 to September 27,	2017. On	the	first	day	of	trial, a	DEA	agent	testified that	he	used a	 measuring	 wheel	 to	 measure	 the	 distance	 between	 the	 front	 entrance	 of
72 Walnut	 Street	 and	 the	 property	 line	 of Longley	 Elementary	 School. Specifica lly,	 t he	 DEA	 agent started	 his	 measurement at	 the “ front	 step ” of
72 Walnut	Street,	 took	a	diagonal	route	across	Walnut	Street, and proceeded down	Howe	Street	in	a	straight	line	 to Longley	Elementary	School , where	he ended	 the	 measurement	 “four	 or	 five	 fee t”	 onto	 school	 property. T his measurement	totaled	958.9	feet. [¶1 1 ] The	 following	 morning , after being	 informed that	 the “ vertical distance ” to	 the	 location	 where	 the	 drug	 transaction	 occurred	 should	 be accounted	 for in	 the	measurement , the	DEA	agent returned	 to	 the	apartment and conducted	additional	measurements. When	he	testified	about	his	second set	 of measurements ,	 the DEA	 agent explained that	 he entered	 the building7 using	the Walnut	Street	entrance and	then	“measured	from	the	living	room	to the exterior	of	the	building,	which	was	16.9	feet.		And	from	that	second

- floor exterior	of	the	building	to	the	ground,	which	was , I	believe	12.4 feet.”		He	then added	in	 the	distance	 from	 the	spot	on	 the	ground	out	 to	 the	location	on	 the platform	where	he	had begun	his	initial	measurements.		All	four	measurements, added	 together,	 totaled	 996.2 feet. On	 cross

- examination,	 the	 agent acknowledged	that,	in	taking	his	interior	measurements,	he	had	begun	at	the doorway	to	Brown’s	living	room,	and	that	it	was	“unlike ly”	that	the	buys	had occurred	in	that	doorway. 5
C. Jury Instructions and	Verdict [¶1 2 ] D uring	jury	deliberations, the	jury	sent	a	note	to	the	court	asking whether vertical distance must be included	in measuring the	distance	from	the trafficking	 to	 the school and	requesting	 “[c]larification	on the law	on	what	is 1,000	feet : a straight

- line	distance , a walking	path ,	a radius?”		Despite	defense counsel’s	 objection

— that	 there was	 no	 evidence	 presented about	 what	 a straight

- line	measurement	would	be

— the	cour t gave the	jury	 a	 new	written

5 After	the	State	presented	its	case

- in

- chief,	defense	counsel	moved for	a	judgment	of	acquittal	on the	 aggravating	 trafficking	 charge,	 which	 the	 court	 denied,	 stating , “I	 do	 acknowledge	 that	 the evidence	with	 respect	 to	 the	 distance	 from	 the	 school,	 there	is	 conflicting	 evidence,	 but	 that	is	a matter	for	the	jury	to	sort	o ut.”8 instruction , stating , “ T he	 1,000	 feet	 is	 a	 straight

- line	 measurement	 from	 the location	where	the	offense	occurred	to	the	property	line	of	the	school.		Maine law	 is	 silent	 as	 to	 vertical	 feet.	 	 If	 there	 is	 a	 reasonable	 doubt	 or ambiguity because	 of	 a	 vertical	 measurement,	 it	 must	 be	 resolved	 in	 favor	 of	 the defendant.” [¶1 3 ] The	jury	returned	a	guilty	verdict	on	all	four	counts	of	aggravated trafficking	in	schedule	W	drugs. On	December	4,	2017,	Brown	was	sentenced to	 ten	 years	 in	 prison	 on	 the	 four	 convictions	 of	 aggravated	 trafficking	 in schedule	 W	 drugs.	 	 Brown	 timely	 appealed	 the judgment	 of	 conviction

. See 15 M.R.S.	§ 2115	(201 8 ) ; M.R.	App P. 2B(b)(1)

. II.		DISCUSSION [ ¶1 4 ]		Brown	argues	that	there	was	insufficient	evidence for the	jury	to find	that	his	drug	trafficking	occurred	within	1,000	feet	of	the	real	property	of Longley	Elementary	School.		“When	a	defendant	challenges	 the	sufficiency	of the	evidence	supporting	a conviction,	we	determine,	 viewing	 the	evidence	in the	light	most	favorable	to	the	State,	whether	a	trier	of	fact	rationally	could	find beyond	 a	 reasonable	 doubt	 every	 element	 of	 the	 offense	 charged.” State	 v

. Anderson ,	2016	ME	183,	¶	30,	152	A.3d	623 (quo tation	marks	omitted).		The jury	is	permitted	to	draw	all	reasonable	inferences	from	the	evidence	presented9 at	trial. State	v

. Hopkins ,	2018	ME	100,	¶	51,	189	A.3d	741

. “The	interpretation of	a	statute	is	a	legal	issue	we	review	de	novo.” State	v. Cannady ,	2018	ME	106, ¶	7,	190	A.3d	1019	(quotation	marks	omitted). [¶1 5 ]		The	narrow	question	presented	is	whether ,	based	on	the	evidence presented, a	jury rationally could	have	found, beyond	a	reasonable	doubt ,	that Brown	trafficked	within	1,000	feet of school property .		Although	we	considered a	similar	issue in State	v

. Barnard ,	2003	ME	79,	828	A.2d	216 ,	we	have	yet	to explicitly	determine	how the distance	ought	to	be	measured	in	order	to	sustain a	conviction	under 17

- A	M.R.S.	§	1105

- A(1)(E) (1)

- (6) (2 018)

. We	do	so	today by	 determining (1) what two	 points must be measur ed ,	 (2)	 whether	 the straight

- line	 or	 the	 pedestrian

- route	 approach	 applies,	 and	 (3)	 whether	 the 1,000

- foot	distance includes	any	difference in	elevation	between	the	two	points to	be	measured

. A. Measuring	the	Distance	Between	the	Real	Property	of	the	School	and	the Location	of	the	Offense [¶1 6 ]		In	order	to	conduct	a	measurement,	one	must	know	the	two	points that mark	 the	distance to	be	meas ured. In Barnard , “ we ass ume[d],	without deciding,	 that	 interior	 distances	 from	 the	 entrance	 closest	 to	 the	 school property	 to the site	 of	 the	 transaction	 should	 be	 counted	 in calculating the 1,000

- foot	distance.” 2003	ME	79,	¶	24	n.7,	828	A.2d	216

. Today , we	explicitly10 hold that, in	 order	 to	 sustain	 a	 conviction	 under 17

- A	 M.R.S. § 1105

- A(1)(E)(1)

- (6) ,	the distance	to	be	measured is the distance	between	the real	property	of	the	school	and	the	loc ation of	the	drug	trafficker	at	the	time	of the	offense

. [¶1 7 ] Pursuant	to 17

- A	M.R.S.	§	1105

- A(1)(E) : 1. A	person	is	guilty	of	aggravated	trafficking	in	a	scheduled drug	if	the	person	violates	section	1103	and :

.	.	.	. E
. A t	the	time	of	the	offense,	the	person	is	on	a	school	bus	or within	1,000	feet	of the	real	property	comprising	a	private	or public	elementary	or	secondary	school	or	a	safe	zone

.	.	.	.

.	.	.	. Read	carefully,	t he	language	of	the	statute	provides	a	key	distinction	between the	 two	 points between	 which	 the	 distance	 is to	 be	 measured. The	 statute requires	that	a	measurement	be	made	between a	point	on	“the	real property ”	of the	 school	 or	 safe	 zone	 and	 the	 point	 at	 which	 “the person ”	 is	 trafficking

. 17

- A M.R.S.	§ 1105

- A(1)(E) (emphasis	added)

. [¶1 8 ] The	Legislature’s	use	of the	term s “real	property” and	“person” in section	1105

- A(1)(E) is	critical	because , had	the	Legislature	intended	to have jurors	and	courts	determine	the	distance between	the	school	property	and	the property	where	the	trafficking	occurred,	it	would	have used different	language

.11 Instead,	 the	Legislature	chose	 to	 focus	on	 the	location	of	 the	 trafficker	at	 the time	of	the	drug	transaction. For	us	to	disregard	this	distinction	would	be	to render	the term “the	person” mere	surplusage,	and	“because	no	language	is to be	 treated	 as	 surplusage	 if	 it	 can	 be	 reasonably	 construed,	 we	 must	 give meaning	 to	 this	 language.” McLaughlin ,	 2018	 ME	 97,	 ¶	 16,	 189	 A.3d	 262 (alteration	omitted) (quotation	marks	omitted). [¶1 9 ] Although	the	plain language of	section	1105

- A(1)(E) is dispositive in	our	analysis, we	note	that	federal	courts have	interpreted	comparable	federal statutes	the	same	way

. See United	States v.	Applewhite ,	72	F.3d	140,	144 (D.C. Cir.	1995) (holding that	the	government	must	prove that the	distance	between the school	and the “locus	of	 the	drug	offense”	is	less	 than	1,000	 feet ) ; United States	 v.	 Johnson ,	 46	 F.3d	 1166,	 1169	 (D.C.	 Cir.	 1995) (“[T]he	 government inexplicably	offered	evidence not of	the	distance	from	a	school	to	the	point	in the	house	where	[the	defe ndant]	possessed	the	drugs,	but	only	.	.	.	to	a	point	five feet	 up	 the	 walkway	 to	 [the	 defendant’s]	 house.”). Thus,	 for	 purposes	 of measuring	the	1,000

- foot	distance	under 17

- A	M.R.S.	§ 1105

- A(1)(E) ,	the State must	 prove beyond	 a	 reasonable	 doubt that	 the distance	 between	 the	 real property	of	the	school	and	the	loc ation of	the alleged drug trafficker	at	the	time of	the offense	is within 1,000	feet.12 B. Straight

- Line	Measurement	versus	Pedestrian

- Route	Measurement [¶ 20 ] In Barnard ,	2003 ME	79, ¶¶	5,	24, 828 A.2d	216, we	 affirmed	a defendant’s	conviction of	aggravated	trafficking after	the	State	established	that the	trafficking	occurred	within	757	feet , 4	inches of a	school

. In	doing	so,	we relied	on	precedent	from	the United	States Court	of	Appeals for	t he	First	Circuit and determin ed that	 a	 straight

- line	 measurement	 rather	 than	 a pedestrian

- route	 measurement	 should	 be	 applied. I d .	 ¶¶	 21,	 24	 n.7 (citing United	States	v.	Soler ,	275	F.3d	146 ,	154

- 55 & n.6 (1st	Cir.	2002) )

. [¶ 2 1 ] Because	 the	 reasoning	 behind	 employing	 a	 straight

- line measurement	is	most	persuasive,	we	reaffirm	our	holding	in Barnard that	the 1,000

- foot	measurement must be	calculated	using	a	straight

- line	measurement

. S ee United	States	v.	Clavis ,	956	F.2d	1079, 1088	(11th	Cir.	1992) ( stating	that if a	pedestrian

- route	measurement	were	required,	“[a]	 trafficker	could	operate free	 of	 the	 statute	 by	 placing	 his	 operation	 within	 tossing	 distance	 of	 the schoolyard	fence	if	he	could	find

— or	create

— a	long	enough	footpat h	leading to	 it”); United	 States	 v.	 Watson ,	 887	 F.2d	 980,	 981	 (9th	 Cir.	 1989) (“Only	 a straight	line	measurement	creates	a	readily	ascertainable	zone	of	protection.”); United	 States	 v.	 Ofarril ,	 779	 F.2d	 791,	 792	 (2d	 Cir.	 1985) ( reasoning that	 a pedestrian

- route	measurement	“would	violate	the	plain	meaning	of	the	statute ”13 and “ generate	needless	and	time

- consuming	debate,	and	ultimately	hamper	the statute’s	enforcement

. ”).
C. Difference	in	Elevation	Between	the	Two	Points	to	be	Measured [¶ 2 2 ] Next,	 we	 address whether ,	 for	 purposes	 of	 measuring	 the 1,000

- foot	 distance under 17

- A	 M.R.S.	 §	 1105

- A(1)(E) , the difference	 in elevation	between	 the	 two	points

— the	 boundary	 of	 the	 school	property	and the	location	of	the	trafficker	at	the	time	of the	offense

— should	be	accounted	for in	the	calculation.		We	conclude	that	it	should. [¶ 2 3 ]		Although section	1105

- A (1)(E) does	not	expressly	state	that	any difference	in	elevation	must	be	considered , we	find	critical	guidance	in	what it does	and	does	not provide:	the	statute	(a)	identifies	the	beginning	and	ending points	 of	 the	 measurement;	 (b)	 states	 that	 the	 distance	 between	 those	 two points	 necessary	 to	 enhance	 a	 sentence	 under	 this	 section	 is less	 than 1,000 feet;	and	(c)	does	not	require	that	the distance	be	measured	only	along	a horizontal	 plane.	 	 17

- A	 M.R.S.	 § 1105

- A(1)(E). Moreover,	 b ecause	 the	 plain language	of	the	statute	is	“reasonably	susceptible	to	different	interpretations” with	 regard	 to	 whether	 any	 difference	 in	 elevation	 must	 be	 consid ered, Cannady, 2018	ME	106,	¶	7,	190	A.3d	1019 (quotation	marks	omitted) , and	the record	of	the	Legislature’s	deliberative	process	does	not	shed	any	light	on	the14 Legislature’s	 intent	 with	 regard	 to	 elevation, L.D.	 1740 ,	 §	 119 (120th Legis. 2001) , w e	 consider other relevant	indicia	 of	legislative	intent. Dyer	v. Dyer ,	2010	ME	105,	¶	7,	5 A.3d	1049

. Among	those	indicia	are two interrelated canons	 of	 statutory	 construction:	 the	 rule	 of	 lenity	 and	 the	 rule	 of	 strict
construction. State	v

. Blum ,	2018	ME	78,	¶	10	n.5,	187	A.3d	566.		“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.” State	v

. Pinkham ,	2016	ME 59,	¶	14,	137	A.3d	203 (quotation	marks	om itted). [¶ 2 4 ] C onsistent	 with Barnard ,	 the distance between	 the	 two	 points must	be measured along	 a	 straight l ine	 from	 one	 point	 to	 the	 other,	and	 the course	of	the	line must not	deviate	on	account	of	any	obstacles	in	its	path.		Our discussion	 in Barnard , together	 with	 the	 aforementioned	 legislative considerations	 and	 simple	 logic , allows	 us	 to	 conclude	 that	 the	 straight

- line measurement	 between	 the	 school	 boundary	 line	 and	 the	 location	 of	 the trafficker	in	this	case	must	account	for	any	difference	in	elev ation	because	that difference	 could	 place	 the	 transaction	 site	 outside	 of	 the	 aggravating	 zone , whereas	a	linear	horizontal	measurement	might	not. [¶ 2 5 ]		This	leads	 to	a	 related	inquiry regarding the	proper	method	 for measuring	 the	 distance	 between	 these	 points	 at	 different	 elevation s . Other15 courts	 have	 approached	 this	 issue	 differently .	 	 In Soler ,	 the	 First	 Circuit suggested	 that	 the	 distance	 between	 the	 school	 boundary	 and	 a	 drug
transaction	 si te	 located	 in	 an	 upper	 floor	 of	 a	 building	 could	 be	 measured horizontally	along	the	ground,	then	vertically	up	the	side	of	the	building,	and then	horizontally	again	to	the	precise	site	of	the	transaction,	moving	along	the various	 external	 and	 internal	 surf aces	 of	 the	 building.	 	 275 F.3d at 154

- 55

. Although there	is	no	question	that	measuring	in	this	way	creates	a	line	between the	 two	 points	 that	 runs	in	 a straight	 direction when	 seen	 from	 a	 bird’s

- eye view ,	it	does	not	create	a straight	line consistent	wit h Barnard

. 2003	ME	79, ¶¶ 21,	24	n.7,	828	A.2d	216. 6 [¶ 2 6 ] In	contrast,	 the United	States Court	 of	Appeals for	 the Eleventh
Circuit employed	 a	 simpler	 methodology	 by	 extending 1,000

- foot radii from and	around each	point	on	the boundar ies of	the	school	property	to	capture	any drug	transaction	site	within	that area . 7 Clavis ,	956	F.2d	at	1088	(“ The	way	to

6 A	 straight	 line	 is	 one	 that	 extends	 in	 “the	 same	 direction	 throughout	 its	 length;	 having	 no curvature	 or	 angularity.” Straight ,	Webster’s	New	World	 College	Dictionary	 (5th	 ed.	 2016).	 	 The series	of	straight	lines	and	right	angles	resulting	from the United	States	v.	Soler ,	275	F.3d	146 ,	153

- 55 (1st	Cir.	2002) measurement	are	more	akin	to	the	pedestrian	route	we	have	already	dismissed	in State	v. Barnard , 2003	ME	79,	¶¶	21,	24	n.7,	828	A.2d	216.

7 A	radius	is	“any	straight	line	extending	from	the	center	to	the	periphery	of	a	circle	or	sphere	[or] the	 circular	area	 or	distance	limited	 by	 the	 sweep	 of	 such	 a	line.” Radius ,	Webster’s	New	World College	Dictionary	(5th	ed.	2016).16 create	a	definite	and	identifiable	zone	is	by	extending	radii	outward	around	the property	on	which	the	school	is	located. ”) .		Although Cl avis involved	measuring the	distance	only	on	a	horizontal	plane, id ., a	variation	on	that	approach	may	be appropriate	 for	 measuring	 whether	 two	 points	 at	 different	 elevations	 are within	1,000	feet	of	each	other. 8 For	example, extending	a straight line from the trafficker’s	location	and	adjusting the direction of	 th at line	at	an	angle	up	 or down	directly	 to	its	intersection,	if	any,	with	 the	boundary	line	 of	 the	 school property creates	 a single,	 unbroken	 straight	 line	 rather	 than	 a	 series	 of connected straight	 lines

— heading	 in	 the	 same	 direction	 but extending	 at different	angles

— as	suggested	in Soler

. 9 [¶ 2 7 ]		However,	because	the	State	did	not	present	evidence	from	which a	jury rationally could determine	with	any	certainty the	exact	location	of	any	of the	transactions at	issue, as is	necessary	to	be	able	to find beyond	a	reasonable

8 Unlike	the	creation of an area on	a	horizontal	plane around	the	real	property	as in United	States v.	Clavis ,	956	F.2d	1079 ,	1088 (11th	Cir.	1992) ,	the	radius	methodology c ould	be	applied	differently to determine	whether	 the	 trafficking	 occurred	 in	 a	 protected	 area where	 the trafficking	 and	 the school are	at	different	elevations.		Relevant	to	the	facts	in	this	case,	those	points c ould	be	measured along	a	straight	line	that	is	the	shortest	distance	between	a	single	identified	point

— the	transaction site	on	the	second	floor	of	a building

— and	the	ground

- level	boundary	of	the	school	property , which has	an	untold	number	of	points	around	its	perimeter.		For	that	reason,	the	straight

- line	radius sh ould extend from the	transaction	site	to	its	closest	point	of	intersection,	if	any,	with the	school’s	boundary.

9 The	resources	or	formulae used	to calculat e or	measure the	actual	distance	between	two	points at	different	elevations	may	vary	depending	on	the	circumstances	of	each	cas e	and,	without	limitation, could	 include available	 technology , maps , line

- of

- sight	 measurement , or	 a relevant mathematical formulation (for	example,	the distance	between	two	points at	different	elevations	may be ascertained using	the	Pythagorean	Theorem).17 doubt	that	Brown	trafficked	within	1,000	feet	of	school	property,	this	case	does

not require us	to decide	the	proper	method for	measuring	the	distance	between these	 points

. See	 infra ¶¶	 32

- 41

. W e	 hold only that	 the	 measurement	 of 1,000 feet,	 which	 acts	 as	 an	 aggravating	 element	 pursuant	 to 17

- A	 M.R.S. § 1105

- A(1)(E), must

— in	 some	 way

— include	 any	 difference	 in	 elevation between	 the	 location	 of	 the	 trafficker	 at	 the	 time	 of	 th e	 offense	 and	 the boundary	of	the real	property	of	the	school

. D

. Spatial	Leeway [¶ 2 8 ] In	 some cases	involving	 the	1,000

- foot	distance	 for	purpose s of enhancing	 a	 sentence for trafficking in scheduled	 drugs ,	 federal	 courts	 have determine d that	 “[p]recise	measurements	may	be	unnecessary	 .

. . where	 the spatial	leeway	is	relatively	great	and	the	gap	in	the	chain	of	proof	is	relatively small

. ” Soler ,	275	F.3d at 154 ; see U nited	States v . Baylor ,	97	F.3d	542,	546

- 47 (D

. C

. Cir.	1996)

. The	First	Circuit	has described spatial	leeway	as	an	exception to	its	general	insistence	that	the government prove	the	1,000

- foot	distance	with precise	measurements ,	and it	has explained	that	it	may	be	applied in such cases where “common	sense,	common	know ledge,	and	rough	indices	of	distance	can carry	 the	 day.” United	 States	 v

. Diaz ,	 670	 F.3d	 332,	 338	 (1st	 Cir.	 2012) (quotation	marks	omitted). Thus, s patial	leeway may	be applied	in	cases	where18 evidence	of	precise	measurements is lacking	but	the	amount	of	spatial	leeway allows a	fact

- finder	to	reasonably	infer from	other	evidence that	the	distance	is still	within	1,000 feet

. [¶ 2 9 ] In Applewhite ,	 the	 government	 presented evidence	 that	 the distance from a	school	to “the	address” of	the defendant’s	apartment	building where	the	drug	offense	occurred	was	920.2	feet,	a	distance	that	“clearly	[did] not	include	the	distance	between	the	entrance	to	the	building	and	the	place	in [the defendant’s] apartment	where	the	drugs	were	discovered .” 72	F.3d	at	142

. Rejecting	 the	 government’s	 argument that	 the	 jury reasonably could	 have determined	that the	distance	from	the	building	entrance	to	the precise	location of	the	drugs was not	more	than	79.8	feet,	the	United	States	Court	of	Appeals	for th e	District	of	Columbia	Circuit	reasoned , [T] he	jury	 could	 not	 know	 how	many	 other	apartment	 units	in	 the same	building	also	fronted	upon	[the	same	street],	nor	their	location relative	 to	 [the defendant’s apartment	 where	 the	 drug	 offense occurred],	nor	the ir	dimensions	nor,	therefore,	the	distance	between the	 building	 entrance	 and	 [the	 apartment’s]	 living	 room	 wall, nor even	whether	[the]	apartment	was	on	the	first	floor.
Id. at	144

. [¶ 30 ] I n B arnar d , we	applied	th e	spatial	leeway principle whe n we held that	 the	 jury reasonably could infer	 that	 the	 distance	 was	 within	 1,000 feet

. 2003 ME	7 9 ,	¶¶	2,	24,	828	A.2d	216 .		Because	the	facts in B arnard establish ed19 that “any	location	within	the	building	was,	necessarily,	even	closer	to	the	school property”	and	the	State’s	measurement	left	242	feet , 8	inches	of	spatial	leeway,

we stated , E ven	 if	 the	 interior	 distance	 to	 [the	 defendant’s]	 apartment	 is counted	 from	 either the	 back	 door	 or	 the	 front	 door ,	 there	is	 no question	that	the	jury	could	conclude,	based	on	all	of	the	evidence, that	 [the	defendant’s]	apartment	was	within	 the	242

- foot,	8

- inch distance	necessary	to	bring	the	transaction	within	1000	feet	of	the school,	b eyond	a	reasonable	doubt.
Id. ¶	 24

. In	 reaching	 this	 conclusion,	 we	 were	 guided	 by	 the	 First	 Circuit ’s “observation	 that	 precise	 measurements	 may	 be	 unnecessary	 in	 some	 cases where	the	spatial	leeway	is	relatively	great	and	the	gap	in	the	chain	of	proo f	is relatively	small.” Id

. (quotation	marks	omitted). [¶ 3 1 ] In	 sum , we	hold	 that 17

- A	M.R.S.	 §	1105

- A(1)(E) requi res	proof beyond	a	reasonable	doubt	that	the	locus	of	the drug	trafficker	at	the	time	of the	offense	be within	1,000	feet	of	the	real	property	of a school ,	measured	in a straight line and accounting for	any difference	in	elevation	between	 the	 two points

. Additionally,	 in	 cases	 where	 the	 State	 fails	 to	 offer	 a precise
measurement of	the	distance between	the two	points	but	the	spatial	leeway	is great	enough	 to	make	up	 for	 such	evidentiary	gaps, t he	jury reasonably may infer	that	the	trafficking	occurred	within	1,000 feet of	the	school

. Th e	concept of	 spatial	 leeway	 does	 not	 excuse	 the	 State	 from	 proving	 the 1,000

- foot20 distance, however ; it	 only recognizes that	 jur ors a re	 well

- equipped in appropriate	 cases to	 apply their	 “common	 sense,	 common	 knowledge,	 and rough	indices	of	distance”	when facts	prove d beyond	a	reasonable	doubt	permit a	 jury	 to reasonabl y infer distance s	 not precisely accounted	 for

. Barnard , 2003 ME	79,	¶	2 4,	828	A.2d	216 (quotation	marks	omitted).
E

. Application	to	this	Case [¶ 3 2 ] Turning	 to	 the evidence	in	 this	case , which	we view in	 the	light most	favorable	to	the	State, see	Adams ,	2015	ME 30, ¶ 2,	113	A.3d	583, the	DEA agent’s	 testimony	was	 sufficient	 to	 establish	 beyond	 a	 reasonable	 doubt the following	 measurements

. First, the	 distance	 between	 the	 “front	 step	 of
72 Walnut	Street , ” which	is	at the	Walnut	Street	entrance , and “four	or	five feet” onto	 the real	 property	 of	 Longley	 Elementary	 School	 amount s to	 95 8 .9 feet

. Moreover,	b ecause the	DEA	agent	testi f ied that a	terminus	of his	measurement

was “four	or	five	feet”	past	Longley Elementary School’s	property	line ,	th e jury could	 reasonabl y	 infer	 that the actual distance	 between	 the	 front	 step	 of
72 Walnut	 Street’s	 front	 entrance and	 the real	 property	 line	 of	 Longley Elementary	School was	953.9	 feet

. See Barnard ,	2003	ME	79,	¶	23,	828	A.2d
216

. Second ,	 the	jury rationally could	have	 found,	based	 on	 the	DEA	agent’s testimony	 about his additional	 measurements	 and from other testimony21 regarding	the	layout	of	the	apartment,	that	the	distance	between	the	“doorway that	opens	into	the	living	room”	from	the	Walnut	Street	entrance	a nd	the	front step	of	72	Walnut	Street , where	the	initial	measurement	began , constitute s an additional	37.3	 feet. Therefore,	b ased	on	 th e evidence	presented	at	 trial ,	 the jury rationally could	 conclude	 that	 the	 distance	 between	 the “doorway	 that opens	into the	living	room” and the	real	property	line	of	Longley	Elementary School was 991.2	feet. 10 As	a	result,	the	evidence established ,	at	a	maximum,
8. 8 feet	of	spatial	leeway. [¶ 3 3 ] In	 an	 attempt	 to use	 the spatial	 leeway exception ,	 the	 State contends	that ,	because its measurements included a vertical	distance using	the method	 suggested	 in Soler and	 employ ed a	 pedestrian

- route	 measurement rather	than	a	straight

- line	route	measurement , the	jury	could have reasonably infer red that	the	apartment	was	even	close r	to	the	school

. We	are	unpersuaded by	this	argument for	two	reasons

. [¶ 3 4 ]	 	 First,	 because the difference	 in	 elevation	 between	 the	 school boundary	line	and	the location	of	the trafficker	at	the	time	of	the	offense must

10 Again,	this	calculation	comes	from	the	953.9

- foot	measurement	conducted	with	the	measuring wheel	and	accepting	the	DEA’s	agent’s	testimony	that	he	went	five	feet	past	the	property	line,	plus the	three	measurements	conducted	on	the	morning	of	the	second	d ay	of	trial , which	totaled	37.3	feet. Together,	these	measurements	equal	991.2	feet.22 be	account ed for in the	measurement required	by 17

- A	M.R.S.	§ 1105

- A(1)(E) , the	 vertical	 distance	 included	 in the	 State’s measurement does	 not	 provide more	 spatial	leeway	 that	 the	jury	could	have	 applied	in	 reasonably	inferring that	Brown	trafficked	within	1,000	feet	of	Longley	Elementary	S chool

. Second, the	 State’s	 argument	 that	 the	jury	 could	 r easonabl y	infer that	 a	 straight

- line

measurement would	 have provided	 even	 more	 spatial	 leeway that the	 jury could	have	applied	in reasonably inferring	 that	Brown	was	 trafficking	within 1,000	 feet	 of	 Longley	 Elementary	 School	 is	 also	 unavailing. T he DEA	 agent measured	 the	 distance	 from	 Longley	 Elementary School to	 72	Walnut	 Street using	 a	 pedestrian

- route measurement , and the	 State provided	 no “straight

- line”	measurement	for	the	jury	to	consider. Therefore, the re	was no evidence from	 which	 the jury reasonably could	 have inferred that , if	 a straight

- line	measurement	had	been	conducted,	the	distance	would	have been within 1,000	feet

. See Johnson ,	46 F.3d at 1169

. Although	common	sense	would dictate	 that	 a	 pedestrian

- route measurement is	 necessarily longer than a straight

- line	measurement,	it	would	be	pure	guesswork	for	a	jury	to	determine how	 much shorter the	 straight

- line	 measurement	 would have	 been

. See Applewhite ,	 72 F.3d at 143 (“ [T] here	 is	 no	 evidence	 in	 the	 record	 here	 from which	 the	 jury	 could	 have	 derived	 the	 shorter	 straight

- line	 distance.	 	 The23 G overnment’s	 case	 must	 therefore	 stand	 or	 fall	 upon	 the	 adequacy	 of	 [the government’s pedestrian

- route	measurement]

. ” )

. [¶ 3 5 ] Because 8.8	 feet	 of	 spatial	leeway is	 very	 slight,	 “and [because] personal	liberty	is	at	stake,	[we]	must	examine	the	[State’s]	proof	with	a	more critical	 eye.” Soler ,	 275	 F.3d at 154 .	 	 In	 doing	 so,	we	 evaluate each	 count	 of aggravated	trafficking and	determine	whether	there	was	sufficient	evidence	to convict	Brown	of that count ,	applying	the	rule of lenity	in	the	absence	of	any clear	direction	as	to	how	to	account	for	the	difference	in	elevation	between	the scho ol	and	the	various	transaction	sites. See	Blum ,	2018	ME	78,	¶	10	n.5,	187 A.3d	556; Pinkham ,	2016	ME	59,	¶	14,	137	A.3d	203.
1. Count	1 [¶ 3 6 ] T he	confidential	informant specifically testified	that	the	first	buy occurred	at	the	doorway	of	the	defendant’s	bed room. However,	w ith	regard	to Count	1,	there	is	no	evidence	from	which	the	jury	could reasonably infer	that the	distance	from	the	doorway	of	the	living	room	to Brown’s bedroom doorway is	within	the	spatial	leeway	of	8.8	feet. T he only evidence depicting the	inside of	 the	apartment	building	were	several photographs of the	inside	of Brown’s24 bedroom 11 and several close shots	of	specific	pieces	of evidence found	in	 the apartment

. Although	 photographs	 may	 sometimes	 allow a jury	 to	 make	 a reasonable	 inference	 c oncerning	 distance, s ee United	 States	 v.	 Harrison,
103 F.3d	986,	990	(D.C. Cir. 1997) , 12 that	is	not	the	case	here

. [¶ 3 7 ]	 	 T he	 First	 Circuit	 held in Soler that the jury	 could	 not	 have determined	beyond	a	reasonable	doubt	that	the	vertical	distance	not	accounted for	in	measurements	was within 37 feet	based	on	a	videotape	that	was	played several	times. 275	F.3d at	154

- 55

. As	its	r easoning,	the	First	Circuit explaine d , Although	the	videotape	was	played	several	times	for	the	jury,	it	was neither	 filmed	 with	 an	 eye	 toward	 elucidating	 relative	 distances nor	 introduced	 into	 evidence	 for	 that	 purpose.	 	 Moreover,	 it showed	 the	 relevant	 portion	 of	 the	 building	 fleetingly	 an d	 as	 an incidental	 matter;	 the	 camera	 angles	 were	 distorted	 by	 the repeated	 use	 of	 a	 zoom	 lens;	 and	 the	 prosecutor	 did	 not	 even attempt	to	draw	the	jury’s	attention	to	the	scale	involved. Id .	at	155

. Applying	the	same	reasoning	here, in	light	of the	ab sence	of evidence in	the	record	demonstrating	the	size	of	the	apartment , or	even	the	size	of	the living	room, the	jury	could not make a reasonable	inference that	the	doorway

11 These	photographs	are	irrelevant	for	purposes	of	Count	1	because	the	transaction	took	place at	the	doorway	of	Brown’s	bedroom.

12 Somewhat	analogous	to	the	aerial	map used	in United	States	v.	Harrison , 103	F.3d	986,	990	(D.C. Cir. 1997) , the	 State	 did offer in	 evidence	 a	 tax	 map	 that	 portrayed	 an	 aerial	 view	 of	 Longley Elementary	School	and	some	surrounding	neighborhoods.		However,	 the	 tax	map did	not include 72 Walnut Street.		Therefore,	the	jury	could	not	have	relied	upon	the	map’s	scale	as	an	independent means	of	finding	that	the	apartment	building	was	within	1,000	feet	of	the	school’s	location.25 of	 Brown’s	 bedroom	 was	 within	 8.8	 feet	 of	 the	 living	 room	 doorway

. See Goodson	v. United	States ,	760	A.2d	551,	554

- 55	(D.C.	2000)

. 2. Counts	2

- 3 [¶ 3 8 ] T here	is	no specific evidence	as	to	the	exact	location	of the	second and	 third	 controlled	 buys

. The	 testimony	 elicited	 during	 trial	 demonstrated only that	the	controlled	buys took place either in	Brown’s	bedroom doorway or by	 an	 end	 table in the	 living	 room. 13 Because	 the	 State’s	 99 1 .2

- foot measurement	 extends	 only to the	 door way of the	 living	 room,	 and	 the confidential	informant	 testified	 that	 the	drug	 transactions	 took	 place beyond that	location , in	either	the doorway of Brown’s	bedroom or	by	an	end	table	in the living	room , there	was	no	evidence	that	would	permit	the	jury	to	reasonably infer that the	drug	transactions	took	place	within	the 8 .8	feet	of	spatial	leeway permitted	by	th e	evidence	presented. See Soler ,	275	F.3d	at	154

- 55

. 3. Count	4 [¶ 3 9 ] For	 t he	 fourth	 count	 of	 aggravating	 trafficking ,	 the	 State	 was required	to	prove	that	the	location inside of Brown’s bedroom	where	the	drugs

were discovered was	 within	 1,000	 feet	 of	 the	 school	 property. The	 only evidence presented	 to	 show

— or	 even	 suggest

— th e distance	 from	 the	 living

13 There	is	no	evidence	in	the	record	regarding	the	location	of	the	end	t able	in	the	living	room.26 room	doorway	to	the	location	inside	Brown’s	bedroom	where	the	drugs	were found were	the	photographs	showing where	the	drugs	wer e	found	in	Brown’s bedroom .		The	photographs reveal a relatively significant distance between	the doorway	of	Brown’s	bedroom and where	the	drugs	were	foun d by	Brown’s	bed

. Consequently,	no jury rationally could find,	based	on	the	evidence	presented, that the	cocaine was located within	1,000	feet	of	Longley	Elementary	School. [¶ 40 ]	 	 As	 we	 acknowledged	 in Barnard ,	 “ ‘ the	 government	 must	 prove beyond	a	reasonable	doubt	that	the	distance	from	a	school	to	the	actual	site	of the	transaction,	not	merely	to	the	cu rtilage	or	exterior	wall	of	the	structure	in which	 the	 transaction	 takes	place ,	is	 1,000	 feet	 or	less

. ’ ” 2003	ME	 79,	¶	21,
828 A.2d	216 (quoting Soler ,	275	F.3d	at	154)

. Here,	u nlike in Barnard , the DEA agent did	 not	 measure	 to	 the farthest point	 of	 the	 building	 from	 the	 school, which might have	 permitted	 the	 jury	 to	 find	 that	 “any	 location	 within	 the building	was,	necessarily,	even	closer	to	the	school	property.” Id. ¶	24 .		Rather, the DEA	agent measured only to	the	“doorway	that	opens	into	the	living	room” from	the	Walnut	Street	front	entrance. [¶ 4 1 ] Given	the	absence	of	precise	measurements of the	distance	from the	 doorway	 that	 opens	 into	 the	 living	 room	 to	 the	 doorway	 of	 Brown’s bedroom,	the	living	room end	table, or the	location	where	the	drugs	were	found27 in	Brown’s	bedroom, and	given the	actual	evidence	and	the	limited	utility	of	the “spatial	leeway”	principle, the	jury	could	not	have	found ,	beyond	a	reasonable doubt, that any	of Brown’s	trafficking	to ok	place	within	1,000	feet	of	Longley Elementary	 School. See Johnson ,	 46	 F.3d at 1169

- 70 (D.C. Cir. 1995)	 (“It	 is entirely	possible

— perhaps	probable

— that	this	is	true.		If	so,	we	have	no	idea why	the	government	did	not	prove	it.	.	.	. Since	there	is	no evidence	of	either the	 straight	line	measurement	 or	 the	distance	between	 the	 terminal	point	 of [the officer’s ]	 measurement	 and	 the	 point	 of	 possession,	 it	 is	 impossible	 to determine	whether	or	not	this equation is	true.”) ; see	also Soler ,	275	F.3d at 155 ( “Although	it	is	possible	(indeed,	probable)	that	the	distance	from	the	school	to the	site	of	 the	heroin	sale s was	less	 than	1,000	 feet,	 that	is	not	good	enough. The	government	must	prove	 the	elements	of	an	offense	beyond	a	reasonable doubt

— and	 its	 proof here	 simply	 does	 not	 conform	 to	 that	 high	 standard.” (footnote	omitted) )

. III.		CONCLUSION [¶ 4 2 ] Accordingly,	we	vacate	the aggravating	elements	of	the convictions of Counts	1

- 4	and	remand	to	the	Superior	Court	for	resentencing on	four	counts of	 traffick ing in schedule W	drugs (Class	B)

. See 17

- A	M.R.S.	§ 1103(1

- A)(A), (3)(B).28 The	entry	is: Judgment vacated	in	part

. R emanded for	entry	of modified	judgment	and resentencing	on	Counts 1

- 4.

SAUFLEY,	C.J ., with	whom	MEAD,	J.,	joins, concurring. [¶ 43 ] We concur	completely	in	the	Court’s	opinion.		We	write	separately to	 draw	 attention	 to	 the	 broader	 consequences	 of	 the	 statute	 making	 drug trafficking	an	aggravated	offense	if	the	transaction	occurs	within	1,000	feet	of the	real	property	of	a	school. S ee 17

- A	M.R.S.	§	1105

- A(1)(E)(1)	(2018). [¶44]		To	be	clear,	the	Legislature’s	adoption	of	a	statute	designed	to	keep school	 children	 from	 obtaining	 drugs,	 witnessing	 the	 sale	 of	 drugs,	 or	 being exposed	to	the	violence	that	could	arise	during	a	drug	trans action	is	laudable. Protecting	 our	 children	 from	 exposure	 to	 this	 pernicious	 activity	 and	 the presence	 of	 a	 culture	 that	includes	 violence,	misery,	 and	 death	is	 a	 critically important	legislative	goal. [¶45]		The	statute	put	in	place	to	effectuate	such	go als,	however,	misses its	mark.		The	case	at	bar	is	a	perfect	example	of	the	unintended	consequences of	this	blunt	instrument.		The	drug	sales	at	issue	occurred	in	a	private	dwelling, outside	the	view	of	any	children,	youth,	or	participants	in	school	activi ties.		The29 transactions	 had	 no	 connection	 to	 the	 school.	 	 Had	 the	 sales	 occurred	 in	 an apartment	 closer	 to	 the	 part	 of	 the	 building	 that	 was	 nearest	 to	 the	 school, rather	than	in	the	apartment	at	issue,	the	aggravating	factor	would	likely	have been	proved, subjecting	the	defendant	to	a	longer	period	of	incarceration	for each	crime,	even	in	the	absence	of any school	involvement. [¶46]		Worse	 than	 the	arbitrary	nature	of	 this	aggravating	 factor	is	 the potential	 that	 it	 may	 disproportionately	 affect	 defendan ts	 in	 more	 densely populated	 geographic	 areas,	 where	 neighborhood	 schools	 are	 present throughout	 a	 municipality.	 	 The	 result	 could include	 a	 disparate	 racial	 or poverty
- based	 impact	 that	 was	 unintended	 by	 the	 drafters.	 	 Meanwhile,	 in suburban	 or	 rural	 area s	 where	 much	 of	 the	 population	 resides	 more	 than 1,000 feet	 from	school	property,	drug	 transactions	between	adults	in	private homes	 are	 significantly	 less	 likely	 to	 incidentally	 result	 in	 convictions	 of aggravated	trafficking	based	on	proximity	to	a	school

. [¶47] Although	 this	challenge	was	not	 raised	in	 the	matter	before	 the
court, likely	 because challenges to	 similar	 laws based	 on	 assertions	 of constitutional	infirmity	have	regularly	been	unsuccessfu l, 14 the	fact	that	a	law

14 See United	States	v.	Holland ,	810	F.2d	1215,	1218

- 24	(D.C.	Cir.	1987) ; State	v.	Coria ,	839	P.2d 890,	894

- 901	(Wash.	1992); cf. United	States	v.	 Falu ,	776	F.2d	46,	48

- 50	(2d	Cir.	1985)	(applying principles	 of	 statutory construction) .	 	 The United	 States Court	 of	 Appeals for	 the	 Sixth	 Circuit observed: “The	court	 [in Falu ]	concluded	 that	Congress	intended	 that	dealers	bear	 the	burden	of30 meets	minimal	constitutional	standards	does	not	make	it	a	good	law.		Hence,

we raise	this issue for	consideration	by	the	people’s	elected	representatives. [¶48]	 	 In	 short,	 although	 the	 noble	 goal	 of	 the	 statute	 is	 to	 protect schoolchildren	 from	 the	 ills	 o f	 drug	 trafficking,	 the	 statute	 may disproportionately	expose	people	living	in	diverse,	urban	areas	to	aggravated convictions	 and	 harsher	 sentences	 for	 conduct	 that	 may	 have	 no	 effect whatsoever	 on	 the	 schoolchildren	 the	 statute	 seeks	 to	 protect.	 	 A	 more d escriptive	definition	of	the	activity	to	be	proscribed	would	greatly	enhance	the justice	of	this	aggravating	factor,	and	we	hope	that	the	Maine	Legislature	will seriously	consider	the	consequences	of	the	provision	as	written. 15

ascertaining	where	 schools	are	located	and	 removing	 their	 operations	 from	 those	 areas.” United States	v.	Cross ,	900	F.2d	66,	69	(6th	Cir.	1990). “Similarly,	in Holland ,	the	D.C.	Circuit	stated	that	it would	not	be	appropriate	to	apply	the	rule	of	lenity	here,	where	the	application	would	undercut	the unambiguous	legislative	design	of	the	section.” Id. (quotation	marks	omitted).		Based	on Falu	and Holland ,	the	Sixth	Circ uit	held	that	“the	lack	of	knowledge	of	the	proximity	of	a	school	does	not	violate due	process.” Id.

15 The	Legislature	may	consider	some	of	the	language	provided	in	a	similar,	although	procedurally distinct,	statute	in	New	Jersey: It	 is	 an	 affirmative defense	 to	 prosecution	 for	 a	 violation	 of	 this	 section	 that the prohibited	 conduct	 took	 place	 entirely	 within	 a	 private	 residence,	 that	 no	 person 17 years	of	age	or	younger	was	present	in	such	private	residence	at	any	time	during	the commission	of	the	offe nse ,	and	that	the	prohibited	conduct	did	not	involve	distributing, dispensing	 or	 possessing	 with	 the	 intent	 to	 distribute	 or	 dispense	 any	 controlled dangerous	 substance	 or	 controlled	 substance	 analog	 for	 profit.	 	 The	 affirmative defense	 established	 in	 this section	 shall	 be	 proved	 by	 the	 defendant	 by	 a preponderance	 of	 the	evidence.		Nothing	herein	shall	be	construed	 to	establish	an affirmative	defense	with	respect	to	a	prosecution	for	an	offense	defined	in	any	other section	of	this	chapter.31

Rory	A.	McNamara,	Esq. (orally) ,	Drake	Law,	LLC,	Berwick,	for	appellant	David T.	Brown Janet	 T.	 Mills,	 Attorney	 General,	 and	 Johanna	 L.	 Gauvreau,	 Asst.	 Atty.	 Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Andr oscoggin	County	Unified	Criminal	Docket	docket	number	CR

- 2 017

- 472 F OR C LERK R EFERENCE O NLY

N.J.	Stat.	Ann. §	2C:35

- 7(e)	(LEXIS	through	2018	Second	Annual	Sess.) (emphasis	added).