MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 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)	(2018) (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)	(2018) (Count	5),

entered	by	the	court	(Androscoggin	County,	Delahanty,	J.)	following	a	jury	trial.1		

Brown’s	primary contention	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)	(2018) (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	

schedule	 drugs,	 17-A	 M.R.S.	 § 1103(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	

record	 supports	 the	 following	 facts.	 	 See State	 v.	 Adams,	 2015	 ME	 30,	 ¶ 2,

113 A.3d	583.		

 

§ 1103(3)(B)	(2018) 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	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.”
3

A. Four	Counts	of	Aggravated	Trafficking

[¶3]	 In	 December	 2016,	 an	 agent	 with	 the	 federal	 Drug	 Enforcement	

Agency	 (DEA)	 began	 conducting 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	School,	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	

flight	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		The evidence	concerning the	general layout	of	the	interior	of	the	72	Walnut	Street	apartment	

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 And	 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	[bedroom] 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	drugs 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	 final	 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	counts as	aggravated trafficking,	alleging	

that	 the	 drugs	 were	 discovered,	 and the	 controlled	 buys	 occurred, within	

1,000 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

[¶10]	 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.		

Specifically,	 the	 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	 feet”	 onto	 school	 property.	 	 This	

measurement	totaled	958.9	feet.		

[¶11]	 	 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	 building	
7

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	“unlikely”	that	the	buys	had	

occurred	in	that	doorway.5		

C. Jury	Instructions and	Verdict

[¶12]	 During	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	court	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	out.”		
8

instruction, stating, “The	 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.”		

[¶13]	 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	(2018);	M.R.	App P. 2B(b)(1).

II.		DISCUSSION

[¶14]		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 (quotation	marks	omitted).		The	

jury	is	permitted	to	draw	all	reasonable	inferences	from	the	evidence	presented	
9

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).			

[¶15]		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) (2018).		We	do	so	today	

by	 determining (1) what two	 points must	 be	 measured,	 (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

[¶16]		In	order	to	conduct	a	measurement,	one	must	know	the	two	points	

that	mark	 the	distance to	be	measured. In	Barnard, “we	assume[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	explicitly	
10

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	location of	the	drug	trafficker	at	the	time	of	

the	offense.	

[¶17]		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.		At	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,	the	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).		

[¶18]		The	Legislature’s	use	of the	terms “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).		

[¶19]		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	defendant]	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	location 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	the	First	Circuit

and determined that	 a	 straight-line	 measurement	 rather	 than	 a	

pedestrian-route	 measurement	 should	 be	 applied.	 Id.	 ¶¶	 21,	 24	 n.7 (citing

United	States	v.	Soler,	275	F.3d	146,	154-55	&	n.6 (1st	Cir.	2002)).		

[¶21]	 	 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.	

See	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	footpath	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

[¶22]	 	 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.		

[¶23]		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,	 because	 the	 plain	

language	of	the	statute	is	“reasonably	susceptible	to	different	interpretations”	

with	 regard	 to	 whether	 any	 difference	 in	 elevation	 must	 be	 considered,	

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	the	
14

Legislature’s	 intent	 with	 regard	 to	 elevation, L.D.	 1740,	 §	 119 (120th	

Legis. 2001),	we	 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	omitted).

[¶24]	 	 Consistent	 with	 Barnard,	 the	 distance between	 the	 two	 points	

must	be	measured	along	 a	 straight line	 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	elevation	because	that	

difference	 could	 place	 the	 transaction	 site	 outside	 of	 the	 aggravating	 zone,

whereas	a	linear	horizontal	measurement	might	not.

[¶25]		This	leads	 to	a	 related	inquiry regarding the	proper	method	 for	

measuring	 the	 distance	 between	 these	 points	 at	 different	 elevations.	 	Other	
15

courts	 have	 approached	 this	 issue	 differently.	 	 In Soler,	 the	 First	 Circuit

suggested	 that	 the	 distance	 between	 the	 school	 boundary	 and	 a	 drug	

transaction	 site	 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	 surfaces	 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	with	Barnard.		2003	ME	79,	

¶¶ 21,	24	n.7,	828	A.2d	216.6		

[¶26]		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 boundaries 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	Clavis 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	 that 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

[¶27]		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	could	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	could	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	should	

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 calculate or	measure the	actual	distance	between	two	points	

at	different	elevations	may	vary	depending	on	the	circumstances	of	each	case	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.	 	 We	 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	 the	 offense	 and	 the	

boundary	of	the	real	property	of	the	school.

D. Spatial	Leeway

[¶28]		In	 some cases	involving	 the	1,000-foot	distance	 for	purposes of	

enhancing	 a	 sentence	for	trafficking in	 scheduled	 drugs,	 federal	 courts	 have	

determined 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 United	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	knowledge,	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,	spatial	leeway may	be applied	in	cases	where	
18

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.		

[¶29]	 	 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	

the	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	their	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]		In	Barnard, we	applied	the	spatial	leeway principle when we held	

that	 the	 jury	 reasonably	 could	 infer	 that	 the	 distance	 was	 within	 1,000 feet.		

2003 ME	79,	¶¶	2,	24,	828	A.2d	216.		Because	the	facts	in Barnard established	
19

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,

Even	 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,	beyond	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	proof	is	

relatively	small.”		Id. (quotation	marks	omitted).

[¶31]		In	 sum, we	hold	 that 17-A	M.R.S.	 §	1105-A(1)(E) requires	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,	the	jury	 reasonably	may	

infer	that	the	trafficking	occurred	within	1,000 feet of	the	school.		The	concept

of	 spatial	 leeway	 does	 not	 excuse	 the	 State	 from	 proving	 the	 1,000-foot	
20

distance,	 however;	 it	 only	 recognizes that	 jurors are	 well-equipped	 in	

appropriate	 cases	 to	 apply their	 “common	 sense,	 common	 knowledge,	 and	

rough	indices	of	distance”	when	facts	proved beyond	a	reasonable	doubt	permit	

a	 jury	 to	 reasonably infer distances	 not precisely accounted	 for.	 Barnard,	

2003 ME	79,	¶	24,	828	A.2d	216 (quotation	marks	omitted).

E. Application	to	this	Case

[¶32]		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	 amounts to	 958.9 feet.		

Moreover,	because	the	DEA	agent	testified that	a	terminus	of	his	measurement

was “four	or	five	feet”	past	Longley	Elementary School’s	property	line,	the jury	

could	 reasonably	 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	 testimony	
21

regarding	the	layout	of	the	apartment,	that	the	distance	between	the	“doorway	

that	opens	into	the	living	room”	from	the	Walnut	Street	entrance	and	the	front	

step	of	72	Walnut	Street, where	the	initial	measurement	began, constitutes an	

additional	37.3	 feet.		Therefore,	based	on	 the	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.		

[¶33]	 	 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	 employed a	 pedestrian-route	 measurement	

rather	than	a	straight-line	route	measurement,	the	jury	could	have	reasonably	

inferred that	the	apartment	was	even	closer	to	the	school.		We	are	unpersuaded	

by	this	argument for	two	reasons.

[¶34]	 	 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	day	of	trial, which	totaled	37.3	feet.		

Together,	these	measurements	equal	991.2	feet.
22

be	accounted 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	School.		Second,	

the	 State’s	 argument	 that	 the	jury	 could	 reasonably	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.	 	 The	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,	there	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.	 	 The	
23

Government’s	 case	 must	 therefore	 stand	 or	 fall	 upon	 the	 adequacy	 of	 [the	

government’s	pedestrian-route	measurement].”).

[¶35]	 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	

school	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

[¶36]		The	confidential	informant	specifically	testified	that	the	first	buy	

occurred	at	the	doorway	of	the	defendant’s	bedroom.		However,	with	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.		The	only	evidence depicting	the	inside	

of	 the	apartment	building	were	several photographs	of the	inside	of	Brown’s	
24

bedroom11 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	 concerning	 distance,	 see	 United	 States	 v.	 Harrison,	

103 F.3d	986,	990	(D.C. Cir. 1997),

12 that	is	not	the	case	here.

[¶37]	 	 The	 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	reasoning,	the	First	Circuit	explained,

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	 and	 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	absence	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

[¶38]	 There	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	 991.2-foot	

measurement	 extends	 only	 to the	 doorway	 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	the	evidence	presented.		See	Soler,	275	F.3d	at	154-55.

3. Count	4

[¶39]	 	 For	 the	 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—the distance	 from	 the	 living	

 13		There	is	no	evidence	in	the	record	regarding	the	location	of	the	end	table	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	were	found	in	Brown’s	

bedroom.		The	photographs reveal a relatively	significant	distance between	the	

doorway	of	Brown’s	bedroom	and where	the	drugs	were	found 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	curtilage	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,	unlike 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.		

[¶41]		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	found	
27

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	took	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	sales 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

[¶42]		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	 trafficking	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. Remanded 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.		See 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	transaction	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	goals,	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	activities.		The	
29

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	 defendants	 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	 areas	 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	unsuccessful,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	of	
30

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	 of	 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	

descriptive	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	Circuit	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	offense,	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

Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2017-472

FOR	CLERK	REFERENCE	ONLY

 

N.J.	Stat.	Ann.	§	2C:35-7(e)	(LEXIS	through	2018	Second	Annual	Sess.) (emphasis	added).