MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2014 ME 29 Docket: Yor

- 13

- 250 Argued: January 15, 2014 Decided: February 2 5 , 2014 Panel: SAUFLEY, C.J. , and ALEXANDER , LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE

v. AARON S. LOWDEN
ALEXANDER, J. [¶1] Aaron S. Lowden appeals from a judgment of conviction of aggravated trafficking of scheduled drugs (Class A ), 17

- A M.R.S. § 1105

- A(1)(B)(1) (2013) , entered by the Superior Court ( York County, O’Neil, J. ) following a jury trial. 1 [¶ 2 ] Lowden argues that the evidence presented at trial was insufficient to

su pport the jury’s guilty verdict and , accordingly , that the court erred in denying his motion for a judgment of acquittal pursuant to M.R. Crim. P. 29. Specifically, Lowden argues that the State failed to introduce evidence that he successfully

man ufactured methamphetamine

. See 17

- A M.R.S. § 1101(4) (20 13)

. Because the record does not include sufficient evidence from which a jury could rationally

1 Lowden and the State stipulated to Lowden’s prior convictions for drug related offenses, which elevated the charge of unlawful trafficking in schedule W drugs (Class B), 17

- A M.R.S. § 1103(1

- A )(A) (2013) , to aggravated trafficking of scheduled drugs (Class A), 17

- A M.R.S. § 1105

- A(1)(B)(1) (2013)

.2 conclude , beyond a reasonable doubt, that the defendant completed the manufacture of methamphetamine , a necessary element of unlawful trafficking in schedule W drug s via the manufacture of the drug , see 17

- A M.R.S. §§ 1101(4), (17)(A), 1103(1

- A)(A) (2013) , we vacate the judgment of conviction against Lowden for aggravated trafficking of scheduled drug s and remand the matter to the trial court for entry of a judgment of acquittal.
I. CASE HISTORY [¶3 ] Viewing the evidence in the l igh t most favorable t o the State and the jury ’s verdict, the evidence could rationally support finding the following facts.
See State v. Carey , 20 13 ME 8 3 , ¶ 3, 77 A. 3 d 471

. [¶4 ] In January of 2012, a woman rented a room on the second floor of her home in Lebanon to Lowden. On January 14 , 2012, Lowden began making regular trips from his room on the second floor to the ba sement, where, as far as the homeowner knew, Lowden had no belongings stored. When the homeowner opened the basement door to investigate Lowden’s activities, she smell ed a strange odor and called the police. [¶5 ] A York Coun ty Sheriff’s Deputy respond ed to the call. Upon arriving at the residence, he found that the basement door had been barricaded with a trash can. He yelled down to the basement and requested that Lowden come up , but3 L owden instead asked the deputy to come down. The d eputy re moved the trashcan and entered the basement. [¶6 ] On ce in the basement, the d eputy observed Lowden standing in front of

a n inactive wood stove with a Coleman cooking stove placed on top of it. On the Coleman stove were two glass containers, one of which cont ained a boiling substance. Lowden was tend ing to the stove and the boiling substance was emitting fumes. The d eputy turned off the Coleman stove ; evacuated the home ; and contacted the fire department, the rescue unit, and the Maine Drug Enforcement Agency (MDEA). [¶7 ] The Clandestine Lab Response Team, part of the MDEA, responded to the residence. After conducting a safety sweep of the residence, the t eam conduct ed and filmed a pre

- search walk

- through during which they discovered various chemicals in the bedroom Lowden was renting

. The team later sear ched Lowden’s bedroom and found a book known as “ Uncle Fester’s Synthetic Manual ” as well as various chemicals and glassware. 2 The t eam then searched the basem ent where Lowden had been apprehended

. There, they found additional chemicals and laboratory equipment. The t eam took samples of the s ubstances found in the basement , which were then tested in a laboratory.

2 “Uncle Fester’s Synthetic Manual” is a book entitled “ Advanced Techniques of Clandestine Psychedelic & Amphetamine Manufactur e.” Testimony at trial described it as a “how to” cookbook fo r the manufacture of illicit drugs.4 [¶8 ] “ Uncle Fester’s Synthetic Manual, ” t he boo k recovered in Lowden’s bedroom , contained a detailed method of how to convert phenylalanine into meth amphetamine . The chemicals found at the scene constituted some of the “key components sufficient for the manufacture of methamphetamine” through the method described in the book. However, no methamphetamine was found, n or was there evidence that any of the syntheses necessary to manufacture meth amphetamine had occurred. Furthermore, and as the trial court found in ruling on a post

- judgment motion, Lowden did not have all of the ingredients necessary to complete the manufacture of methamphetamine. [¶9 ] On June 5 , 2012, Lowden was indicted by a grand jury for aggravated trafficking of scheduled drug s (Clas s A), 17

- A M.R.S. § 1105

- A(1)(B)(1)

. A jury
t rial was held beginning on April 22, 2013. At the close of the trial, the court , without objection by Lowden or the State , instructed the jury correctly on both unlawful trafficking in schedule W drug s , 17

- A M.R.S. § 1103( 1

- A )(A) , and attempted t rafficking in schedule W drug s , 17

- A M.R.S. § § 152(1)(B) , 1103(1

- A)(A) (2013)

. The instruction on the trafficking charge indicated, consistent w ith the trafficking statute, that Lowden could be convicted if the jury
f

ound beyond a reasonable doubt that he engaged in intentional or knowing conduct.5 [¶1 0 ] On April 26, 2013, t he jury returned a guilty verdict on the charge of unlawful trafficking in schedule W drug s
. T he jury, having returned a guilty verdict on the more serious charge, was not asked to return a verdict on the lesser offense of attempted trafficking , and the State did not request that the jury give further consideration to the attempt charge

. [¶1 1 ] L owden moved for a judgment of acqu ittal pursuant to M.R. Crim. P. 29 on the grounds that no reasonable jury could have concluded , based on the evidence presented at trial , that he unlawfully t rafficked in methamphetamine. The court denied Lowden’s motion , despit e issuing findings of fact stating that it was “apparent that [Lowden] did not have in his possession all [of the] ingredients necessary to complete [the manufacture of] methamphetamine.” The court sentenced Lowden to seven years in prison. [¶1 2 ] Lowden timely appealed his conviction pursuant to 15 M.R.S. § 2115 (2013) and M.R. App. P. 2. He argues that there was insufficient evidence from which a jury could rationally conclude that he unlawfully trafficked in a schedule W drug via the manufacture of methampheta mine. See 17

- A M.R.S. §§ 110 1 ( 4), 110 3 ( 1

- A)(A )

. Specifically, he argues that in order to be co nvicted of unlawful traffick ing in scheduled drug s via the manufacture of metham phetamine, the State must prove that he completed the manufacture of methamphetamine , which the State failed to establish in this case. He further argues that to interpret6 the term “ [ m ] anufacture” within the meaning of 17

- A M.R.S. § 1101(4), to require preparation or processing without the completed produc t , runs afoul of the rules of statutory construction by renderi ng the criminal attempt statute , 17

- A M.R.S. § 152, surplusage.
II. LEGAL ANALYSIS
A. Standard of Review [¶1 3 ] We review the denial of a motion for a judgment of acquittal under the same standard as a challenge to the sufficiency of the evidence, that is, by “viewing the evidence in the light most favorable to the State to determine whether the trier of fact ration ally could have found beyond a reasonable doubt every element of the offense charged.” State v. Severy , 2010 ME 126, ¶ 8, 8 A.3d 715 (alteration omitted) . “If statutory interpretation is necessary, that interpretation is conducted de novo.” Id. [¶1 4 ] When interpreting a statute, we look first to the plain meaning in order to discern legislative intent, viewing the relevant provision in the context of the entire statutory scheme to generate a harmonious result. Id. ¶ 9. Words are to be construed acco rding to their common meaning. Id. “Nothing in a statute may be treated as surplusage if a reasonable construction applying meaning and force is otherwise possible.” State v. Harris , 1999 ME 80, ¶ 3, 730 A.2d 1249 (alteration omitted)

.7 [¶1 5 ] When int erpreting a criminal statute, we are guided by two interrelated rules of statutory construction: the rule of lenity , see State v. Stevens , 2007 ME 5, ¶ 16, 912 A.2d 1229 ; and the rule of strict construction, see State v. Nastvogel , 2002 ME 97, ¶ 6, 7 98 A.2d 1114

. 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. Stevens , 2007 ME 5, ¶ ¶ 16, 18, 912 A.2 d 1229 (“[T]he rule of lenity is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department .” ( citing United States v. Wiltberger , 18 U.S. (5 Wheat

. )
76 , 95 (1820) ) ) ; State v. Shepley , 2003 ME 70, ¶ 15, 822 A.2d 1147

. B. Statutory Definition of Manufacture [¶1 6 ] A person is guilty of aggravated trafficking of scheduled drug s if the person violates 17

- A M.R.S. § 1103 (1

- A) , and, at the time of the offense, the person has one or more prior convictions for any Class A, B, or C drug offense. 3
17

- A M.R.S. § 1105

- A(1)(B). A person is gui lty of unlawful trafficking in schedule W drug s pursuant to 17

- A M.R.S. § 1103(1

- A)(A) if the person (1) intentionally or knowingly (2) trafficks in (3 ) what the person knows or

3 Because of the aggravating factor, Lowden’s conviction was agreed to by stipulation and not left for the jury to decide, s ee 17

- A M.R.S. § 1105

- A(1)(B), and Lowden’s challenge on appeal deals exclusively with the st atutory interpretation of unlawful trafficking in schedule W drugs, see 17

- A M.R.S. § 1103(1

- A)(A), we refer to the elements of unlawful trafficking in schedule W drugs when evaluating the sufficiency of the evidence to support Lowden’s conviction.8 believes to be a scheduled drug, which (4 ) is in fact a scheduled drug and (5 ) the drug is a schedule W drug. T o “[t] raffick , ” in this context, means “[t]o make, create, manufacture.” 17

- A M.R.S. § 1101(17) (A)

. To “[m] anufacture ” mea ns “to produce, prepare, propagate, compound, convert or process, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis .” 17

- A M.R.S. § 1101(4)

. [¶1 7 ] Although the definition of “[ m ] anufacture ” could appear to suggest that mere preparation or processing of chemicals may be sufficient, when the language is read in the context of the crime of unlawful trafficking in scheduled drugs, it is clear that pre paration and processing , witho ut more, is in sufficient

. Unlawful trafficking in scheduled drugs mandates not only that a person “traffick s ” in a drug, but that the drug “is in fact a scheduled drug.” 17

- A M.R.S. § 1103(1

- A). One cannot “prepare” or “process,” and therefor e traffick in , a drug that “is in fact a scheduled drug” without a scheduled drug ultimately being produced. 17

- A M.R.S. §§ 1101(4), 1103(1

- A); s ee Shepley , 2003 ME 70, ¶ 15,
822 A.2d 1147 (stating that courts must not construe statutory language “ in a manner that c reates an absurd, illogical, or inconsistent result ” ). [¶1 8 ] This interpretation is corroborated by an examination of the relationship between unlawful trafficking in scheduled drug s via manufacture and the criminal attempt statute, which provides9 1. A person is guilty of criminal attempt if, acting with the kind of culpability required for the commission of the crime, and with the intent to complete the commission of the crime, the per son engages in conduct that in f act constitutes a substantial ste p toward its commission and the crime is:

. . . . B. A Class A crime. Violati on of this paragraph is a Class B crime;

. . . . A substantial step is any conduct that goes beyond mere preparation and is strongly corroborati ve of the firmness of the actor’ s intent to complete the commission of the crime.
17

- A M.R.S. § 152 (1) (emphasis added). To interpret “[ m ] anufacture ” pursuant to 17

- A M.R.S. § 1101(4) to require only “mere preparation ” and processing of ingredients, without more, would allow defendants to be convicted of attempted unlawful trafficking or unlawful trafficking base d on the same actions . This runs afoul of the rules of construction by making the crime of criminal attempt redundant, yet carrying a lesser penalty. See State v. White , 2001 ME 65, ¶ 4 , 769 A.2d 827 ( stating that statutes will be interpreted as being free of “ unnecessary and superfluous language ” ). [¶1 9 ] W e will attempt to harmonize inconsistent provisions within a statutory scheme if at all possible in order to give effect to the Legislature’s intent

. I

d. The most appropriate way to harmonize the definition of manufacture with the10 criminal attempt statute is to require that a scheduled drug actually be pr oduced. There is nothing in the text of 17

- A M.R.S. § 1101(4) or 17

- A M.R.S. § 1103 that suggests that the L egislature intended to duplicate criminal attempt in this context , and we will not infer such an intention. [¶20 ] We have previously addressed what type of evidence is required to support a conviction for unlawful trafficking in schedule W drug s via the

m anufacture of methamphetamine. In State v. Woo , we affirmed a convicti on for unlawful trafficking in schedule W drug s where , like in this case, no methamphetamine was found in the defendant’s possession. 2007 ME 151, ¶ ¶ 15, 23, 938 A.2d 13

. Likewise, the defendant in Woo did not have all of the ingredients to manufacture methamphetamine in his possession at that time he was apprehended

. Id. ¶ 21. There was, however, “substantial circumstantial evidence that Woo successf ully made methamphetamine . ” Id. ¶ 2 0

. B ased upon that evidence, we concluded that a rational jury could have found beyond a reasonable doubt that the defendant unlawfully tr afficked in methamphetamine

. Id. ¶ 21. [¶21 ] Here , unlike in Woo , there is no evidence, either direct or circumstantial, from which the jury could infer that Lowden successfully created meth amphetamine or that methamphetamine had been created on or brought to the premises . No meth amphetamine was found , Lowden lacked some of the chemicals necessary to create it , and the State did not present evidence

— direct or11 circumstantial

— from which a jury could have rationally inferred that Lowden successfully ma nufactured or possessed methamphetamine . Therefore , we must
vacate his conviction for aggravated trafficking of schedule d drug s
. C. Lesser Offense Consideration [¶22 ] With the underlying conviction vacated, we must next consider whether Lowden can be con victed of a lesser included offense of attemp ted trafficking in scheduled dru gs. Reducing a conviction for a principal offense to a lesser included offense, after determining that the evidence did not support conviction for the principal offense, but woul d support a finding of attempt to

c ommit the principal offense, is a practice that is constitutionally acceptable. See Rutledge v. United States , 517 U.S. 292, 306 (1996) (noting that appellate courts have “ uniformly concluded that they may direct the ent ry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense ” ); Morris v. Mathews , 475 U.S. 237, 246

- 47 (1986) (upholding the process of reducing an erroneous judgment of conviction o n a greater offense to a lesser included offense unless the defendant can demonstrate a reasonable probability that he would not have been convicted of the lesser offense absent the p resence of the greater offense). [¶23 ] Modification of a judgment of conviction for a principal offense to that of a lesse r offense is only available , however, when the lesse r included offense12 is necessarily committed when the greater offense is committed

. 17

- A M .R.S. § 13

- A(2)(A) (2013) ; State v. Gantnier , 2012 ME 123, ¶ ¶ 9

- 10, 55 A.3d 404

. Thus, it is necessary to determ ine whether attempted trafficki ng of scheduled drugs , 17

- A M.R.S. § § 152 , 1103(1

- A) , is a lesse r included offense of trafficking of sc heduled drugs , 17

- A M.R.S. § 1103(1

- A)

. [¶24 ] A person may be convicted of trafficking if, as the court instructed the jury here, a person engages in conduct that is intentional or knowing. 17

- A M.R.S. §§ 152, 1103(1

- A); see 17

- A M.R.S. § 35(1)

- (2) (20 13). However, a person may be convicted of attempt, 17

- A M.R.S. § 152 (1) , only if the person is proved to have “the intent to complete the commission of the crime.” Because Lowden could have been convicted of trafficking based on the jury’s finding that he engaged in knowing, but not intentional , conduct, the crime of attempted trafficking was not necessarily committed when the crime of trafficking was committed. Thus , atte mpted trafficking is not a lesse r included offense of the crime of trafficking.
See State v. Huff , 469 A.2d 1251, 1252

- 54 (Me. 198 4) (discussing the attempt

- intent issue generally in the context of an attempted murder case).
Because atte mpted trafficking is not a lesser included offense of trafficking, and the evidence does not suppo rt the trafficking conviction, w e must remand for the entry of a judgment of acquittal.13 The entry is:
J udgment vacated. Remand to the Superior Court for the entry of a judgment of acquittal.

____________________________________________ On the briefs: Thomas J. Connolly, Esq., Portland, for appellant Aaron Lowden Janet T. Mills, Attorney General, and Jonathan Sahrbeck, Asst. Atty. Gen., Office of Attorney General, Augusta, for appellee State of Maine
At oral argument: Thomas J. Connolly, Esq., for appellant Aaron Lowden Jonathan Sahrbeck, Asst. Atty. Gen., for appellee State of Maine

York County Superior Court docket number CR

- 2012

- 555 F OR CLERK REFERENCE ONLY