MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 19 Docket: Pen

- 21

- 362 Argue d : O ctober	5,	2022 Decided: March	9,	2023 Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS ,	and	LAWRENCE , JJ.

STATE	OF	MAINE

v. DAMIEN	OSBORN

STANFILL , C. J. [¶1] Damien	 Osborn	 appeals	 from	 a	 judgment of	 conviction	 for aggravated	 trafficking	 of	 scheduled	 drugs	 (Class	 A),	 17

- A	 M.R.S. § 1105

- A(1)(B)(1)	 (20 22 ) , and unlawful	 possession	 of	 scheduled	 drugs (Class C),	 17

- A	 M.R.S. § 1107

- A(1)(B)(8)	 (20 22 ), entered	 by	 the trial c ourt ( Penobscot	 County, Anderson,	 J. )	 following	 a	 jury	 trial. 1 Osborn	 argues	 on appeal	 that the	 court	 erred in (A)	 allow ing a confidential	 informant	 (CI) to testify about the	CI’s prior	drug	purchases	 from	Osborn,	 (B) failing	 to	give	a curative	instruction	in	response	to	improper	prosecutorial	argument about	the

1 A third	count	of	criminal	forfeiture	was	not	submitted	to	the	jury	but	was	decided	by	the	court ; a	 judgment	 of	 criminal	 forfeiture was	 entered at	 the	 same	 time	 as	 the	 criminal	 judgment. See 15 M.R.S.	§ 5826	(2018)

. Title	15	M.R.S.	§	5826	has	since been	amended ,	though	not	in	any	way	that affects	the	present	case

. See P.L.	2021 , c.	454,	§	13 (effective Oct. 18,	2021) (codified	at	15	M.R.S. § 5826	(2022) )

.2 social value	of	CIs,	(C)	treating	the language “one continuing scheme	or	course
of	conduct”	in	Count	1	of	the	indictment as	surplusage,	and	(D)	instructing	the jury	on	specific	unanimity	for	Count 1.		We	disagree	and	affirm.
I.		BACKGROUND [¶ 2 ] Viewing	the	evidence	admitted	at	trial	in	the	light	most	favorable	to the	 State,	 the	 jury	 rationally could have	 found	 the	 following	 facts	 beyond	 a
reasonable	doubt. See,	e.g. , State	v.	Athayde ,	2022	ME	41,	¶ 2,	277	A.3d	387. [¶ 3 ] On	August	22,	2019,	at	 the	direction	of agents of	 the	Maine	Drug Enforcement	 Agency	 (MDEA),	 a	 CI sent	 a text	 message to Osborn	 abou t purchasing	drugs.		That	same	day,	an	MDEA	agent	drove the	CI to a parking lot in	Bangor,	where the	CI ,	 fitted	with	an	electronic	monitoring	device,	entered Osborn’s	 truck,	placed	$100	cash	on	 the	console,	and	 took	 from	 the	adjacent cup	 holder	 a	 small	 bag gie	 that	 contained	 999	 milligrams	 of	 fentanyl,	 acetyl fentanyl,	cocaine,	and	4

- ANPP. 2 [¶ 4 ] On	September	12,	2019, the	MDEA	conducted	another controlled buy, during	which the	CI similarly	entered	Osborn’s	truck	and	returned	with	a small	baggie containing 977.6	milligrams	of	fentanyl	and	acetyl	fentanyl.

2 A chemist for	the	Maine	Health	and	Environmental	Testing	Laboratory testified	that 4

- ANPP	is a	“precursor	in	the	manufacture	of	fentanyl

. ”3 [¶ 5 ] On	 December	 5,	 2019,	 Osborn	 was	 stopped	 in	 his	 truck	 by	 the Bangor	Police	Department	and	arrested	by	MDEA	agents. The	of ficers search ed
Osborn incident	to	th e arrest and recovered	two small	baggies ; one	contain ed 1.1798	 grams	 of	 cocaine	 base	 and	 the	 other	 contained	 960.6	 milligrams	 of fentanyl,	 4

- ANPP,	and	xylazine. 3 Officers	also	 seized	 $4,290	 cash	 during	 the
search	of	O sborn and	the truck. [¶ 6 ] Osborn	was charged with	the	following	five	counts by complaint	and then	by	indictment dated February	26,	2020 :

• Count	1:	Aggravated	trafficking	of	scheduled	drugs	(Class	A), 17

- A	M.R.S. §	1105

- A(1)(B)(1), for the	controlled	buy	of	fentanyl on August	22,	2019

.

• Count	2:	Aggravated	trafficking	of	scheduled	drugs	(Class	A), i d. , for the controlled	buy	of	fentanyl on Se ptember	12,	2019

.

• Count	3:	Unlawful	possession	of	scheduled	drugs	(Class	C),	17

- A	M.R.S. § 1107

- A(1)(B

- 1)(2), for Osborn’s	possession	of	cocaine	on	December	5, 2019

.

• Count	 4:	 Unlawful	 possession	 of	 scheduled	 drugs	 (Class	 C), id. § 1107

- A(1)(B

- 1)(3), for Osborn’s	 possession	 of	 cocaine	 base	 on December	5,	2019

.

• Count	5:	Criminal	forfeiture , 15	M.R.S.	§	5826	(2018) , 4 of the	cash	found in	Osborn’s	car on December	5,	2019

.

3 Xylazine	is	a	sedative designed	for	use	with large	animals

.

4 Title	15	M.R.S.	§	5826	has	since	been	amended. See	supr a n.1.4 Each	of	Counts	1	through	4	also	alleged	that	Osborn	had	a	previous	conviction
for	similar	conduct	in	the U.S. District Court for	the	District of	Connecticut .		That allegation increas ed the	sentencing	class	for	each	offense. [¶ 7 ] On	November	 25,	 2020,	 th e	State	 filed	 a superseding	indictment charging	Osborn	with	three	c ounts:

• Count	1:	Aggravated	trafficking	in	scheduled	drugs	(Class	A),	17

- A	M.R.S. §	1105

- A(1)(B)(1), alleging trafficking	of	fentanyl	powder “[ p ] ursuant	to one	 continuing	 scheme	 or course	 of	 conduct	 beginning	 on	 or	 about August	22,	2019 [,] and	continuing	through	December	5,	2019

. ”

• Count	2:	Aggravated	trafficking	in	scheduled	drugs	(Class	A), id. , alleging trafficking	of	cocaine	base	on	December	5,	2019

.

• Count	 3: Criminal	 forfeitu re,	 15	 M.R.S.	 §	 5826,	 of	 the	 cash	 found	 in Osborn’s	car	on	December	5,	2019. Counts	1	and	2	continued	to	allege	that	Osborn	had	a	previous	conviction	for similar	 conduct,	 increasing	 the	 sentencing	 class	 for	 each	 offense. T he superseding	 indictment essent ially	 made	 two	 changes.	 	 First,	 it	 charged aggravated trafficking	in	the	new	Count	2	rather	than	possession of the	cocaine base	 on	December	 5,	 2019.	 	Second,	it combined into	 one	 count	 the	 original
Count	1 ,	the	original	Count 2 , and the	fentanyl seizure	on December	5,	2019, by alleging	 a	 single “course	 of	 conduct” pursuant	 to 17

- A	 M.R.S.	 §	 1106

- A(1) (20 22 ) , which provides as	follows:5 Quantities of scheduled drugs involved in violations of section

. . . 1105

- A

. . . committed pursuant to one scheme or course of conduct and confiscated within a 6

- month period may be aggregated to charge a single violation of appropriate class. Subject to the requirement that the conduct of the defense may not be prejudiced by lack of fair notice or by surprise, the court may at any time order that a single aggregate count be considered as separate violations. [¶ 8 ] On	 June	 7,	 2021,	 Osborn	 filed	 a	 motion	 for	 a	 bill	 of	 particulars, requesting	 that	 the	State	clarify	its	 “generic	allegation s ”	 of	Osborn’s	conduct having	 occurred	 “ [ p ] ursuant	 to	 one	 continuing	 scheme	 or	 course	 of	 conduct beginning	on	or	about	August	22,	201 9[ , ] and	continuing	through	December	5,
2019.” T he	court	granted the	motion in	an	order	dated June 16, 2021

. The	State filed	its	bill	of	particu lars	 the	next	day,	stating	 that	it	intended	 “to	prove	 the elements	of	Count	1	(the	indicted	continuing	course	of	conduct)	based	upon	the controlled	purchase	of	fentanyl	on	August 22,	2019,	the	controlled	purchase	of fentanyl	 on	 September 12,	 2019,	 and	 the	 fentanyl	 recovered	 from	 the Defendant	upon	his	arrest	on	December	5,	2019.”		The State	also stated that
Count	2 was	based	on “the	cocaine	base	recovered	from	the	Defendant	upon	his arrest	on	December	5,	2019.” [¶ 9 ] Osborn had moved	for relief	from	prejudicial	joinder	in	response	to the	 original	 indictment ;	 that	 motion	 became	 moot	 upon	 return	 of	 the superseding	indictment .		At	the hearing	on June	16,	2021,	Osborn	pressed	for6 severance	 of	Counts	1	and	2	 of	 the	 superseding	indictment from each	other , arguing that they	should	be	tried	separately. Notably,	Osborn	did	not	argue	that
the violations aggregate d	in Count	1	should	be	considered or	tried as	separate violations	 or	 counts. See 17

- A	 M.R.S.	 §	 1106

- A(1)	 ( dictating	 that	 w hen quantities	of	drugs	are	aggregated	because	violations	are	committed	pursuant to	one	scheme	or	course	of	conduct,	 “ the	court	may	at	any	 time	order	 that	a single	aggregate	count	be	considered	as	separate	violations”)

. I n	an	order	dated June	18,	2021,	t he co urt	refused	to	sever	the	two	counts	for	trial, determining that	the	prejudice	to	Osborn	of	trying	the	cocaine	and	fentanyl	counts	together
would	be	minimal. [¶1 0 ] In the	same	June	18,	2021 order ,	the	court addressed	the	effect	of the	allegation	of “ one continuing scheme	or	course	of	conduct ”	in	Count	1 .		At the	time of	these	events ,	the	definition	of	“trafficking”	included	possession	of
“2 grams	or	more	of	fentanyl	powder.” 17

- A	M.R.S.	§	1101(17)(F)	(2018)

. 5 The

court ordered that the	State	could	not use	section	1106

- A	to aggregate	the drug
qu antities seized	on each	of the three dates in Count	1 to	reach	a	quantity	of

5 Th e definition of	“trafficking” in 17

- A	M.R.S

. § 1101(17)(F) (2018) was later repealed at	the	same time	that	17

- A	M.R.S.	§	1103(3)(C

- 2) (2022) was enacted, provid ing that	possession	of	four	or	more grams	of	fentanyl	powder	gives	rise	to	a	permissible	inference	of	trafficking. See P.L.	2021,	ch.	396, § § 1 ,	3 (effective	Oct.	18,	2021)

.7 two	grams	or	more , construing 17

- A	M.R.S.	§ 1101 (17)(F) as	requiring	that	two or	 more	 grams	 be	 possessed	 at	 one	 poin t	 in	 time in	 order	 to meet that
definition

. 6 The	 court	 then noted that ,	 because each	 instance	 of	 alleged trafficking	was	already	a	Class	A	offense due	to Osborn’s	prior	convictions , the “reason	for	aggregation”

— “determin ing the	class	or	grade	of	the	offense”

— was “not	present	in	this	case,”	making	“one continuing scheme	or	course	of	conduct” mere	surplusage. [¶1 1 ] The	court	held	a	two

- day	jury	trial	on	 June	21	and	22,	2021. At trial, the	CI testified that he had known Osborn before the controlled	buys,	that he	 had	 previously	 purchased	 drugs	 from	 Osborn,	 and	 that	 the	 purchase s happened	 “ [ p ] retty	much	 the	 same	every	 time.” T he	State	introduced audio recordings	 of	 the	 controlled	 buys	 as	 well	 as images	 of	 text	 conver sations between the	CI and Osborn purporting	to	schedule	the controlled	buys

. Both pieces	of	evidence	are	relatively	vague	without	further	context ;	in	the	texts the
CI ask s Osborn	“Yo	where	you	at”	and	“Hey	need	1	d	got	100	can	we	meet	mall , ” and	the	audio	recordings	capture	little	specific	to	the	alleged	transaction. The

6 Otherwise,	the	court	noted,	“if	the	State	could	prove	that	an	accused	personall y	used	.2	grams	of fentanyl	on	10	occasions,	that	person	would	be	guilty	of	class	A	trafficking,	a	result	undoubtedly n ot contemplated by	the	legislature	in	creating	the	definition.” Neither	the	State	nor	Osborn	argues	that the	court	erred	in	that	determi nation.8 State	 argued	 before	 trial	 that	 the	 “only	 way	 that	 [it	 was]	 able	 to	 essentially translate	 the	 text	messages	and	make	it	clear ”	how the	CI knew	 to	enter	 the
truck	and	not	disc uss	drugs	“ is	from	the	fact	that	he	had	a	course	of	dealing	with this	defendant.” [¶1 2 ] In	its	closing , the S tate discussed the	CI and argued	as follows : He’s	a	person	that	the	defense	called	interchangeably,	I	believe,	a mole,	a	rat,	and	any	number	of other	vaguely	derogat ory terms.		I submit	to	you	that	the	only	person	who	would	call	a	confidential informant	 a	 rat	 or	 mole	 is	 someone	 who	 is	 guilty	 of	 something

. From	 the	 perspective	 of	 any	 ordinary	 citizen,	 a	 confidential informant	is	doing	something	th at	we	all	want	to	see	happen	as	a society.		They’re	helping	catch	the	people	that	are	out	there	actually moving	 illicit	 drugs	 and	 selling	 them	 to	 people	 on	 the	 street. Without	 the	 cooperation	 of	 people	 like	 that	 who	 are	 admittedly drug	 addicts themselves , drug	 users

— if	 you	 weren’t	 already	 an addict,	you	weren’t	already	a	drug	user,	you	wouldn’t	have	ties	to drug	dealers. Osborn	 objected,	 arguing	 that	 this	 “type	 of	 public	 policy	 argument ” is prohibited. The S tate	responded	that	it	was	simply	rebutting statements	made by Osborn’s	attorney during cross - examination of	a	witness , in	which Osborn’s attorney referred	 to	 CIs	 as	 “moles,”	 “rats,”	 “drug	 addicts,”	 and	 “felons.” The court	declined	Osborn’s	request	 to	pro vide	a	curative	instruction	 to	 the	jury , but the	 court	 instruct ed the	 jury	 both	 before	 and	 after	 the	 presentation	 of
evidence	that the	attorneys’ closing arguments were	not evidence for	the	jury to	consider	in	determining	the	facts.9 [¶1 3 ] At	the	conclusion	of	the	trial,	the	court	instructed	the	jury	as	to	the elements	 of	 Count	 1	 (trafficking	 fentanyl)	 and	 Count	 2	 (trafficking	 cocaine base)

. The	 court	 t hen	 instructed	 the	 jury	 tha t	 Count	 1	 required	 specific unanimity: Concerning	this	count,	it	has	been	argued	that	there	is	more	than one	 incident	 described	 in	 the	 testimony	 that	 could	 satisfy	 the elements	 of	 trafficking	 during	 this	 time	 period.	 	 To	 return	 .	 .	 .	 a guilty	verdict	that is	unanimous	in	this	context,	all	12	of	you	must agree	that	the	State	has	proved	all	required	elements	of	trafficking with	 regard	 to	 at	 least	 one	 incident,	 and	 it	 must	 be	 the	 same incident	for	all	of	you. Osborn	 requested	 that	 the	 court	 instruct the	 jury on	 the	 definition	 of	 “one continuing scheme	or	course	of	conduct , ”	assert ing that it	was	an	element	of	the
offense. The	court	denied	 the	request,	reiterating	its	 view	 that	 the	language was	surplusage	on	the	facts	of	the	case.		Thus,	a lthough	the	charge	was	read	to the	 jury,	 the instructions did	 not	 provide	 any	 definition	 of	 “one continuing scheme	or	course	of	conduct

. ” [¶1 4 ] T he	jury	found	Osborn	guilty	of Count	1, trafficking	in	fentanyl ;	the parties	stipulated	to	Osborn’s	prior	co nviction and	the	judgment	reflects	that he	 was	 convicted	 of	 Class	 A aggravated	 trafficking pursuant	 to	 17

- A	 M.R.S. § 1105

- A(1)(B)(1). On Count	2,	the	jury	found	Osborn	not	guilty	of	aggravated trafficking	 but	 found	 him	 guilty	 of	 unlawful	 possession	 of	 sch eduled	 drugs10 (cocaine	 base) , 7 and	 the judgment reflects	 that	 he	 was	 convicted	 of	 Class	 C possession pursuant	to	17

- A	M.R.S.	§	1107

- A(1)(B)(8)

. [¶1 5 ] The court thereafter sentenced	Osborn on	Count	1 to twelve	years’ imprisonment,	 with	 all	 but	 six	 years	 suspended, together	 with	 four	 years	 of probation	 and	 a	 $400	 fine

. On	 Count	 2,	 t he	 court	 sentenced Osborn to	 four years’	imprisonment concurrent	with	Count	1 and	a noncumulative $400	fine

. 8
The	 court als o	 ordered a	 judgment	 of	 forfeiture	 on	 Count	 3. Osborn timely appealed	the	convictions

. See 15	M.R.S.	§	2115	(2022);	M.R.	App.	P.	2B(b)(1)

. II. DISCUSSION
A. The	 evidence	 of the	 CI’s prior	 interactions	 with	 Osborn	 was admissible. [¶1 6 ] Osborn	argues	that	the	court	erred	when	it	allowed the	CI to	testify
about his	“prior	uncharged	transactions”	with	Osborn	because	such	testimony
constituted	 inadmissible	 character	 evidence	 under	 Maine Rule	 of	 Evidence

7 The court	instructed	the	jury	that	it	could	find	Osborn	guilty	of	the “ lesser	included	offense ” of possession. U nlawful possession is not a lesser included offense of unlawful trafficking in scheduled drugs, however, because one need not "possess" the drugs in order to "traffick" in them. State	v. Hardy ,	651	A.2d	322,	325	(Me.	1994) .		P ursuant	to 17

- A	M.R.S.	§	13

- A(3) (2022) , an	inst ruction	on the	alternative	offense	of	possession	is nonetheless appropriate	if it is	justified	by	the	evidence ,	as	it was	here, and	both	the	State	and	the	defendant	consent	to	its	being	given. There	is	no thing	specific in the	record to	show such	consent,	b ut	we	infer	it	given	that	neither	party	objected	to	the	instruction and Osborn reference d possession	in his	opening.

8 Although	 neither	 the	 docket	 record	 nor	 the	 judgment	 and	 commitment	 form	 reflect s that Osborn's	sentences	were	to	run	concurrently,	the	audio	recording	of	the	proceeding	establishes	that the	court	actually	imposed	concurrent	sentences.	We	direct	an	amendmen t	of	 the	docket	and	 the judgment	and	commitment	form	to	correctly	reflect	the concurrent nature of	the	sentences	imposed.11 404(b)	 and	 because	 its	 probative	 value	 was	 substantially	 outweighed	 by	 a danger	 of	 unfair	 prejudice,	 rendering	 it	 inadmissible	 under	 Maine	 Rule	 of Evidence	403.		We	disagree. [¶1 7 ] “ We	review	a	trial	court’s	decision	to	admit evidence	of	prior	bad acts	pursuant	to	M.R.	Evid.	404(b)	for	clear	error

.	.	. .” State	v.	Pillsbury ,	2017 ME	92,	¶	22,	161	A.3d	690.		 “Evidence	of	a	crime,	wrong,	or	other	act	is	not admissible	to	prove	a	person’s	character	in	order	to	show	that	on	a	par ticular occasion	the	person	acted	in	accordance	with	the	character.”		M.R.	Evid.	404(b). However,	 evidence	 of	 prior	 bad	 acts may	 be admissible “ for	 any	 other permissible	 purpose , such	 as	 motive, opportunity,	 intent,	 preparation,	 plan, knowledge,	identity, or	absence	of	mistake	or	accident.” Pillsbury ,	2017	ME	92, ¶	22,	161	A.3d	690 (quotation	marks	omitted). [¶1 8 ] Here,	the	trial	court	did	not	commit	clear	error	in	admitting the
CI’s testimony	 regarding	 the	 manner	 in	 which	 he	 had	 previously	 met	 with
Osbo rn	to	obtain	drugs.		As	the	court	ruled	in	advance	of	trial,	such	evidence was	 probative	 of	 the	 relationship	 between the	 CI and	 the	 defendant

— a relationship	that	“might	cause	[ the	CI ] to	call	[Osborn]	to	purchase	drugs.”		That
the	 CI and	Osborn	 had	a	 prior	 course	 of	 communicating	 via	 text	message	 to coordinate	exchanges	for	drugs,	which	took	place	in	Osborn’s	truck,	is	relevant12 to	Osborn’s	knowledge	that the	CI was	requesting	drugs	in his	cryptic	August 22 and	September	12,	2019,	text	messages	to	Osborn.		Evidence	of the	CI’s prior transactions	with	Osborn	is	also	relevant	to	Osborn’s	intent	to	sell	drugs	to the
CI on	 August	 22	 and	 September 12,	 2019, because the	 jury	 could	 have
conclud ed	that on	those	dates ,	after	receiving	the	text	messages	from the	CI , the
CI similarly	met	inside	Osborn’s	truck,	where	they	did	not	speak	about	drugs but	 where	 drugs	 were	 exchanged. See	 State	 v.	 Anderson ,	 2016	 ME	 183, ¶¶ 12

- 15,	 152	 A.3d	 623	 (explaining that	 references	 to	 the	 defendant’s	 prior involvement	 selling	 drugs	 was	 not	 improper	 404(b)	 evidence	 when	 it	 was probative	of	whether	the	defendant	intended	to	aid	in	the	trafficking	of	drugs at	the	later	date	of	the	charged	conduct). [¶1 9 ] Likewise,	the	c ourt	did	not	err	or	abuse	its	discretion	in	admitting the	 evidence	 after	 weighing	its	 probative	 value	 against	 the	 danger	 of	 unfair prejudice	 under	 Rule	 403.	 	 A	 court	 may	 exclude relevant evidence	 “if	 its probative	value	is	substantially	outweighed	by	a	dan ger	of	.	.	.	unfair	prejudice.”
M.R. Evid.	403

. We	review	a	trial	court’s	weighing	of	probative	value	against the	danger	of	unfair	prejudice	for	an	abuse	of	discretion. Pillsbury ,	2017	ME	92, ¶	22,	161	A.3d	690.13 [¶ 20 ] Here,	the	court	permitted	the	State	to	inquire	only	generally	into
the	nature	of the CI’s prior	dealings	with	Osborn	so	as	to	establish	the	basis	for
how the	 CI would	 know	 how	 to	 contact	 Osborn	 for	 drugs. Given	 the	 vague nature	 of	 the	 text	 messages	 sent	 from the	 CI to	 Osborn	 and	 the	 limited
conversation	recorded	between the	CI and	Osborn , the	CI’s testimony	regarding how	he	previously	obtained	drugs

— by	texting	Osborn	and	meeting	him	in	his
truck

— was	 not	 cumulative	 of	 other	 less	 prejudicial	 evidence	 and	 in	 fact demonstrated	the	relevance	of	other	evidence	presented. See	State	v.	Michaud , 2017	 ME	 170,	 ¶	 8,	 168	 A.3d	 802	 (explaining	 that	 a	 court	 must	 weigh	 the probative	value	of	the	evidence	when	“its	value	is	merely	cumulative	of	other less	prejudicial	evidence”	(quotation	marks	omitted)); State	v.	Smith ,	612	A.2d 231,	 235	 (Me.	 1992)	 (conclu ding	 that	 the	 trial	 court	 correctly	 exercised	 its discretion	 to	 admit	 evidence	 of	 the	 defendant’s	 prior	 assaults	 on	 the	 victim when	 the	 testifying	 victim	 did	 not	 relate	 any	 specific	 details	 or	 instances	 of those	prior	assaults).
B. Any	prosecutorial	error did	not	affect	Osborn’s	substantial	rights. [¶ 2 1]		Osborn	challenges	the	comments 9 made	by	the	prosecutor	during his	closing argument about	the	role	of	CIs	in	society. Because	Osborn	objected

9 Osborn	 argues	 that	 the	 comments	 amount	 to	 prosecutorial	 misconduct.	 	 However,	 as	 we explained	 in State	 v.	 White ,	 2022	 ME	 54 ,	 ¶	 1 9 n . 9 , 285 A.3d 262 , a	 discussion	 of prosecutorial14 to	the	prosecutor’s	argument ,	w e	review the preserved	claim	o f	prosecutorial
error	 for	 harmless	 error. See Pillsbury ,	 2017	 ME	 92,	 ¶	 1 8 ,	 161	 A.3d	 690. “Harmful	error	is	error	that	affects	the	criminal	defendant’s	substantial	rights, meaning	that	the	error	was	sufficiently	prejudicial	to	have	affected	the	outcome
of the	proceeding.” Id. (quotation	marks	omitted)

. [¶ 22 ] We analyze claims	of	prosecutorial	error	“ in	the	overall	context	of
the	 trial.” State	v.	Ayotte ,	2019	ME	61,	¶	13,	207	A.3d	614	(quotation	marks omitted).	 	 “This	includes	 taking	into	account	 the	 statements,	 comments,	and strategy	of	the	defense,	especially	when	the	prosecutor’s	statements	are	made in	response	to	the	theory,	argument,	or	provocation of	the	defendant	or	defense
counsel.” State	v. Dolloff ,	2012	ME	130,	¶	44,	58	A.3d	1032. [¶ 23 ] A	 prosecutor’s	 statements	 cannot	 “invite	 the	 jury	 to	 make	 its decision	based	on	something	other	than	the	evidence.” Pillsbury ,	2017	ME	92, ¶	2 1 ,	161	A.3d	69 0. Because	jurors	“should	not	be	invited	to	arrive	at	a	verdict for	 any	 reason	 other	 than	 their	 evaluation	 of	 the	 evidence,”	 we	 have	 “long criticized	prosecutors’	appeals	to	public	perception	or	other	social	issues	that go	beyond	the	evidence	produced	at trial,” State	v.	Woodard ,	2013	ME	36,	¶	34,

misconduct	 focuses	on	 the	subjective	intent	of	 the	prosecutor,	while a	discussion	of prosecutorial error	focuses	on	the	impact	of	the	prosecutor’s	behavior	on	the	due	process	rights	of	the	defendant. Here,	O sborn	does	not	allege	that	the	prosecutor’s	statements	were	made	in	bad	faith	and	instead focuses	on	the	impact	the	prosecutor’s	statements	had	on	his	trial.15 68	A.3d	 1250,	and	 have	likewise	 concluded	 that	 the	 use	 of	 “the	authority	 or prestige	 of	 the	 prosecutor’s	 office	 to	 shore	 up	 the	 credibility	 of	 a	 witness,
sometimes	called ‘ vouching, ’ ”	constitutes	prosecutorial	er ror, Dolloff ,	2012	ME 130,	¶	42,	58	A.3d	1032. [¶ 24 ] Here,	the	prosecutor’s	statements may be viewed in	isolation as vouching	 and im proper ly appealing	 to	 social	 norms,	 which	 are	 facts	 not	 in
evidence. I n	the	context	of	the	entire	trial	and	in particular Osborn’s	defense strateg y ,	 the	 prosecutor’s	 comments	 appear	 targeted	 at	 rebutting	 Osborn’s theory	 that the	CI was	not	credible	and	could	have framed	him. See	State	v.
Wai Chan ,	2020	ME	91,	¶	25,	236	A.3d	471	(“A	prosecutor	is	.

. .	permitted	to comment	 on	 the	 plausibility	 of	 the	 defendant’s	 theory.”	 (quotation	 marks omitted)). The	 comments	 were	 responsive	 to defense	 counsel’s

cross - examination of	a	witness , during	which	he suggest ed that CIs	are	“moles,” “rats,”	 “drug	addicts,”	and	 “felons.” T he comments	were also isolated	 to	one
instance	in the prosecutor’s closing argument

. See State	v. White , 2022	ME 54 , ¶ 40 , 285 A.3d 262 (hold ing that prosecutorial	 errors called	 for	 vacating a conviction in	part	because the	errors “were	not	isolated but framed	 the	 trial from	its	beginning	to its closing”).16 [¶ 25 ] Finally, the	 court	 instructed	 the	 jury	 both	 before	 and	 after	 the presentation	 of	 evidence	 that the	 attorneys’ opening statement s and	 closing argument s were	not	testimony	for	the	jury	to	consider	in	determining	the	facts, and	 it	 provided	 instruction	 on	 the	 burden	 of proof	 and	 the	 presumption	 of
innocence

. S ee State	v. Begin ,	2015	ME	86,	¶	28,	120	A.3d	97	(concluding	that the	trial	court	remedied	any	prejudice	resulting	from	prosecutorial error when it	instructed	the	jury	on	its	role,	the	presumption	of	innocence,	and	the	State’s burden	of	proof); Pillsbury ,	2017	ME	92,	¶ ¶ 1 9

- 21 ,	161	A.3d	690	(concluding
that there	was	no	invitation	to	make	a	decision	based	on	facts	not	in	evidence and	noting	that	the	court	had	instructed	the	jury	that	opening statements and closing arguments were	not	facts	in	evidence).		Thus,	given	the entir e	context of	 the	 trial, we conclude that any	prosecutorial	error did	not	affect	Osborn’s substantial	rights.
C. In	 the particular circumstances	 of	 this	 case,	 the	 allegation in	 the indictment of “ o ne continuing	 s cheme	 or c ourse	 of c onduct” was s urplusage
. [¶ 26 ] Osborn	 raises	 several	 arguments	 stemming	 from	 the	 court ’s

treat ing as	su r plusage the phrase	“one continuing scheme	or	course	of	conduct”
in Count 1	of the superseding indictment ,	including	that	the	court	should	have instructed	the	jury	that	the	language	was	an	element	of	the	underlying	offense17 and that the	phrase	is	unconstitutionally	vague. We	agree	with	the trial court that	the	allegation	in	Count	1	that	Osborn	trafficked	in	f entanyl	“[p]ursuant	to one	continuing scheme	or	course	of	conduct”	is	surplusage	on	the specific facts of	this	case

. [¶ 27 ] Language in	 an	 indictment is	 surplusage	 if	 it	 neither	 adds	 nor detracts	 from	 the	 sufficiency	 of	 the	 indictment	 and,	 accordingly,	 may	 be disregarded	or	stricken without affecting the	legal	substance	of	the	count

. See
State	v.	Grant ,	266	A.2d	232,	234

- 35	( Me. 1970) ; see	also State v.	Mihill ,	299	A.2d 557,	 558	 (Me.	 1973) (holding	 that	if	an “ allegation may	 be struck out	 of the indictment	 without	 injury	 to	 the	 charge ,	 it	 may	 be treated	 as	 surplusage” (quotation	marks	omitted) ). “The	test for determining	whether an indictment
is	sufficient	is whether	an	accused	of	reasonable	and	normal	intelligence	would, by	the	language	of	the	indictment,	be	adequately	informed	of	the	crime	charged and	the	nature	thereof,	so	that t he accused could	properly	prepare	his	defense
and	b e	protected	against	a	subsequent	prosecution	for	the	same	cause.” State v . Gauthier ,	 2007	ME	 156,	¶	 17,	 939	A.2d	 77 (alterations	and	 quotation	marks omitted); see	also Me.	Const.	art.	I,	§	6. F urther, “ o ne	must	look	not	only	to	the language	of	the indictment	itself	but	to	the	accompanying	Bill	of	Particulars

.	.	.18 to	elucidate	ambiguities	appearing	in	the	indictment.” State v.	Toppi ,	275	A.2d 805,	808	(Me.	1971). [¶ 28 ] Here,	Count	1	of	 the	superseding	indictment is	legally	sufficient
because	it includes	all	of	the	elements	of	a charge	of	aggravated	trafficking	in
violation	of 17

- A	M.R.S. §	1105

- A(1)

. Count	1 allege s that,	on	 three	separate dates,	 Osborn	 “did	 intentionally	 or	 knowingly	 traffick	 in	 what	 he	 knew	 or believed	to	be	a	scheduled	drug, which	was	in	fact	fentanyl	powder,”	and	that he	furthermore	had	a	prior	conviction	in federal	court	in Connecticut	for	similar
conduct. T hese	 allegations	 assert	 the	 essential	 facts	 constituting	 a	 Class A offense	 under	 17

- A	 M.R. S.	 §	 1105

- A(1)(B)(1). The	 indictment	 therefore adequately	informed	Osborn	of	 the	charge	in	Count	1	and	 the	nature	of	 that crime	without	reference	to	the	language	derived	from	17

- A	M.R.S.	§	1106

- A

. 10 [¶ 29 ] Ordinarily,	 aggregation statutes	 are	 used to increase	 the sentencing classification,	so	that	the	aggregated	charge	has	a	higher	sentencing
classification	than would each	underlying	charge	prosecuted	individually

. Courts regularly encounter indictments that may aggregate, in one count of the indictment, several identical crimes committed

10 Though	we	have	never	formally	held	that to	prevail	on	appeal a	defendant	must	show	prejudice arising	 from	 surplus	language	in	an	indictment,	we	 note	 that	Osborn	 has	 failed	 to	 show	 how	 the inclusion	of	 the	surplusage	has	prejudiced	him. See State	v.	Mihill ,	299	A.2d	557,	558	 (Me.	1973) (affirming	a	conviction	while noting	 that	 the	defendant	had	 “demonstrated	no	prejudice	resulting from	th[e]	superfluous	allegation”). Even	so,	we	caution	that	the	inclusion	of	unnecessary	language in	a	charging	instrument	creates	a	potential	for	jury	confusion	and	does	not	reflect	goo d	practice.19 against one or more victims. Such charging practices are encountered most frequently when there are allegations of multiple drug transactions, multiple sex acts committed against a minor child, or multiple thefts and aggregation of the theft values enhances the seriousness of the cha rge. State	v.	Fortune ,	2011	ME	125,	¶	26,	34	A.3d	1115 ; s ee also State	v.	Fournier, 617 A.2d	 998,	 1001	 (Me.	 1992) ( Collins,	 J., dissenting)	 ( n oting	 that 17

- A	M.R.S. A. § 352(5)(E) ( 1983 ) , 11 a	statute	permitting	aggregation	of	theft	charges,	“allows the	State	to	aggregate	amounts	of	value	involved	in	related	thefts	to	achieve	a higher	sentencing	classification	than	if	each	theft	were	prosecuted	separately ”
and “ give [s] the	State	flexibility	i n	its	charging	decisions	in	theft	cases	to	ensure that	the	degree	of	the	offense	charged	is ‘ appropriate ’ and	bears	a	reasonable relationship	to	the	seriousness	of	the	defendant ’ s	conduct”)

. Here, each	alleged
transaction was	sufficient by	itself	to	support	a	conviction	of	Class A	aggravated trafficking	 because	 of	 Osborn’s	 prior	 conviction and	 the	 scheduled	 drug
involved .	 	 The	 quantity	 of	 fentanyl	 trafficked was irrelevant	 to	 the	 charged
crime	or the sentencing	class in	this	case

. 12 The number	of	transactions	did	not

11 Title	17

- A	M.R.S.A.	§	352(5)(E) (1983) has	since	been	amended,	though	the	amendments	are not	relevant in	the	present	case

. See P.L.	2001,	ch.	383,	§	32 (effective Jan .	1,	20 03 )	(codified	at	17

- A M.R.S.	§	352(5)(E)	(2022) )

.

12 As noted above, see supra ¶ 10 ,	 the	 trial	 court	 did	 not	 permit	 the S tate	 to use 17

- A	M.R.S. § 1106

- A(1) (2022) to	 aggregate	 the	 quantities of	 fentanyl seized	 on	 each	 of	 the	 three	 dates	 in Count 1 because	it	 c onstru ed 17

- A	M.R.S

. § 1101 (17)(F)	 as	 requiring	 tha t	 two	 or	more	 grams	 be possessed	at	one	point	in	time	in	order	to	take	advantage	of	that	definition .		We	need	not	decide	here whether, if	a	jury was tasked	with	aggregating	drug	quantities	pursuant	to	section	1106

- A,	the	jury20 change	the	sentencing	class. Moreover,	it	was	not	necessary	to	formally	strike the	surplus	language,	particularly	where	the	court	clearly	advised	the	parties in	advance	that	this	was	how	it	viewed	the	charge. [¶ 30 ] We also	note	that	17

- A	M.R.S.	§	1106

- A(1)	itself	provides	that	“ the

court may at any time order that a single aggregate count be considered as separate violations.” Here,	 although	 Osborn	 moved	 to	 sever	 Count	 1	 from Count	2	for	trial,	he	did	not	ask	that	the single	aggregate	count	be	considered as	 three	 separate	 violations

. See Fortune ,	2011	ME	125,	¶	27,	34	A.3d	1115 (“ [M] ost defendants might be loath to convert one count to several counts charging an identical crime, with the consequent consecutive sentenci ng possibilities. ”)

. [¶ 3 1] Accordingly, on	the	specific	facts	of	this	case,	when	coupled	with the	specific	unanimity	instruction	as	discussed	below, 13 the court did	not	err	in treating the “ one continuing scheme	 or course	 of	 conduct”	 language as surplusage

. We	therefore need	not	decide	whether	“one	scheme	or	course	of

would have	 to	 find	 that	each	i nstance	 of	 conduct	 that	is	 part	 of	 the	alleged	 “scheme	 or	 course	 of conduct” by	itself constituted	trafficking

.

13 In	construing	the	stalking	statute ,	17

- A	M.R.S.	§	210

- A(1)(A)	(2022) , which	includes a “course of	 conduct”	 as	 an	 element	 of	 the	 offense,	 we	 have	 held	 that	 only	 general	 unanimity	 is	 required; specific	unanimity	“among	the	jurors	is	not	required	.	.	.	as	to	each	act	that	makes	up	that	course	of conduct.” State	v.	Elliott, 2010	ME	3,	¶ 27 ,	987 A.2d	513

.21 conduct” is	a	discrete	element in	cases	where	it	is	not	surplusage

. 14 Likewise , the	court	did	not	err	in	failing	to	instruct	the	jury	on its	meaning

. Finally, w e need	not	address	Osborn’s	argument	that	the	phrase	“ one	scheme or	course	of
conduct”	in 17

- A	M.R.S. § 1106

- A(1)	is	unconstitutionally	vague	because	“ [w] e do	 not	 reach	 constitutional	 issues	 when	 it	 is	 unnecessary	 to	 do	 so.”
Widewaters Stillwater	Co. v.	Bangor	Area	Citizens	Organized	for	Responsible	Dev. , 2002	ME	27,	¶	11,	790	A.2d	597.
D. The	instruction	that	the	jury	must	unanimously	agree	on only one specific	incident	in	order	to	convict	Osborn	on	Count	1	was	correct in	the	circumstances	of	this	case. [¶ 32 ] Osborn	contends	that	the	court	erred	in instructing	the	jury	that it had	to	unan imously	agree	on only one	of	the three	instances	of alleged conduct
in	order	to	convict	Osborn	of	Count	1. We	disagree. [¶ 33 ] Unanimity	 in	 convictions	 is	 indispensable	 under	 the	 Maine Constitution,	and	“ [e]rrors	in criminal	cases	that	affect	constitutional	rights	are
reviewed	to	determine	that we	are satisfied,	beyond	a	reasonable	doubt,	that the	error	did	not	affect	substantial	rights	or	contribute	to	the	verdict

. ” Gauthier , 2007	ME	156,	¶	14,	939	A.2d	77 ; see	als o Me.	Const.	art.	I,	§	7.

14 See Buckwalter v. State , 23 P.3d 81, 85 (Alaska Ct. App. 2001) (Discussing	aggregation	of	thefts under	the	Model	Penal	Code	and	noting	that	other	jurisdictions	" have	explicitly	held	that	a	finding	of one	 course	 of	 conduct	 is	 an	 element	 of	 theft	 that	 must	 be	 included	 in	 the	 indictment	 when	 the government	relies	on	agg regation	to	determine	the	degree	of	theft").22 [¶ 34 ] “ A s pecific	unanimity	instruction	explains	to	jurors	that	they	are required	 to	 unanimously	 agree	 that	 a	 single	 incident	 of	 the	 alleged	 crime occurred	 that	supports	a	 finding	of	guilt	on	a	given	count.” State	v.		Rosario , 2022	ME	46,	¶	34,	280	A.3d	199	(quot at ion	marks	omitted) .		Thus,	if the	State alleges	 multiple	 instances	 of	 the	 charged	 offense,	 any	 one	 of	 which	 is independently	sufficient for	a	guilty	verdict	as	to	that	charge,	specific unanimity instructions	are	proper. See	Fortune, 2011	ME	125,	¶	31,	34 A.3d	1115	(“When separate,	similarly	situated	victims	or	similar	incidents	such	as	thefts	or	drug transactions	 are	 the	 evidence	 supporting	 a	 single	 charge,	 the	 jury	 must unanimously	find	that	one	specific	incident	occurred	.	.	.	in	order	to	convict.”). [¶ 3 5 ] Here, the instruction	on	specific	unanimity	w as appropriate	given the	allegations	against	Osborn	and	the	evidence	presented	in	this	case

. Because the	 “scheme	 or	 course	 of	 conduct”	 language w as	 surplusage, any	 one	 of the three	instances	of	drug	sales alleged	in	Count	1 w as sufficient	to	support	a	guilty
verdict on	that	count

. 15

15 W e	need	not	decide	today	whether	specific	unanimity instructions	are required when	the	State charges	a	defendant	with a	violation	of 17

- A	M.R.S.	§	1106

- A	and	seeks	to	aggregate	the	quantities	of drugs	sold	a cross	multiple	instances	of	alleged	conduct.23 III. CONCLUSION [¶ 36 ] The	court	did	not	err	in	allowing the	CI to	testify	about	his	prior history	of	drug	interactions	with	Osborn	because	the	testimony	was	limited	and
relevant	 to motive,	 intent,	 plan,	 and	 knowledge.	 	 With	 respect	 to	 the prosecutor’s	 closing	 argument,	 any	improper	 appeal	 to	 social	mores did	 not
affec t	Osborn’s	substantial	rights

. O n the specific facts	and	circumstances	of
this	case ,	t he allegation	in	the indictment	of	“one continuing scheme	or	course of	conduct”	was surplusage	and	not	an	element	of	 the	crime requiring	a jury
instruction. Finally,	b e cause	the	allegation	of	“one continuing scheme	or	course of	conduct”	was	surplusage and	a	single	alleged	 transaction	was	sufficient	 to support	Osborn’s	conviction	of	Class	A	aggravated	 trafficking	in	 fentanyl, t he court	 properly	 instructed	 the	 jury that sp ecific	 unanimity as	 to	 only	 one incident was	required to	convict	Osborn of	Count	1

.

The	entry	is: Judgment	affirmed .		The trial	court	is	directed	to amend	 the docket	 and	 the	 judgment	 and commitment	 to	correctly	reflect	 the concurrent term	of	the sentences	imposed.24

Timothy	E.	Zerillo,	Esq. (orally) ,	Zerillo	Law	Firm,	LLC,	Portland,	for	appellant Damien	Osborn Aaron	M.	Frey,	Attorney	General,	and	Jason	Horn,	Asst.	Atty.	Gen. (orally) ,	Office of	the	Attorney	General,	Augusta,	for	appellee State	of	Maine

Penobscot County Unified	Criminal	Docket	docket	number	CR

- 2019

- 4468 F OR C LERK R EFERENCE O NLY