MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME	19

Docket: Pen-21-362

Argued: October	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)	 (2022), and	 unlawful	 possession	 of	 scheduled	 drugs	

(Class C),	 17-A	 M.R.S.	 §	 1107-A(1)(B)(8)	 (2022),	 entered	 by	 the	 trial court	

(Penobscot	 County,	 Anderson,	 J.)	 following	 a	 jury	 trial.1	 	 Osborn	 argues	 on	

appeal	 that	the	 court	 erred	 in	(A)	 allowing	 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	 about	

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	 baggie	 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	officers	searched

Osborn incident	to	the arrest and	recovered	two	small	baggies;	one	contained	

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	Osborn 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),	id., for the	

controlled	buy	of	fentanyl on	September	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	supra	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	increased the	sentencing	class	for	each	offense.		

[¶7]	 	On	November	 25,	 2020,	 the	State	 filed	 a	 superseding	indictment	

charging	Osborn	with	three	counts:

• 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	 forfeiture,	 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.	 	 The	

superseding	 indictment	 essentially	 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)	

(2022), 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	allegations”	 of	Osborn’s	conduct	

having	 occurred	 “[p]ursuant	 to	 one	 continuing	 scheme	 or	 course	 of	 conduct	

beginning	on	or	about	August	22,	2019[,] and	continuing	through	December	5,	

2019.”		The	court	granted the	motion	in	an	order	dated June 16, 2021.		The	State	

filed	its	bill	of	particulars	 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	for	
6

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	aggregated	in Count	1	should	be	considered	or	tried	as	separate	

violations	 or	 counts.	 	 See 17-A	 M.R.S.	 §	 1106-A(1)	 (dictating	 that	 when	

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”).		In	an	order	dated	

June	18,	2021,	the	court	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.		

[¶10]		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	

quantities	seized	on	each	of	the	three	dates in Count	1 to	reach	a	quantity	of	

5 The 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, providing 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	 point	 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”—“determining the	class	or	grade	of	the	offense”—was	

“not	present	in	this	case,”	making	“one	continuing	scheme	or	course	of	conduct”	

mere	surplusage.

[¶11]		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	 purchases

happened	 “[p]retty	much	 the	 same	every	 time.”	 	The	State	introduced	audio	

recordings	 of	 the	 controlled	 buys	 as	 well	 as	 images	 of	 text	 conversations	

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 asks 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	personally	used	.2	grams	of	

fentanyl	on	10	occasions,	that	person	would	be	guilty	of	class	A	trafficking,	a	result	undoubtedly not	

contemplated by	the	legislature	in	creating	the	definition.”		Neither	the	State	nor	Osborn	argues	that	

the	court	erred	in	that	determination.
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	discuss	drugs	“is	from	the	fact	that	he	had	a	course	of	dealing	with	

this	defendant.”		

[¶12]		In	its	closing,	the	State	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	derogatory 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	that	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	State	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	provide	a	curative	instruction	 to	 the	jury,	

but	 the	 court	 instructed 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

[¶13]		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	 then	 instructed	 the	 jury	 that	 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,”	asserting 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,	although	the	charge	was	read	to	

the	 jury,	 the	 instructions did	 not	 provide	 any	 definition	 of	 “one	 continuing	

scheme	or	course	of	conduct.”	

[¶14]		The	jury	found	Osborn	guilty	of	Count	1,	trafficking	in	fentanyl;	the	

parties	stipulated	to	Osborn’s	prior	conviction	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	 scheduled	 drugs	
10

(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).	

[¶15]		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,	 the	 court	 sentenced	Osborn to	 four	

years’	imprisonment	concurrent	with	Count	1	and	a	noncumulative	$400	fine.

8

The	 court	 also	 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.

[¶16]		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.		Unlawful 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).		Pursuant	to	17-A	M.R.S.	§	13-A(3) (2022), an	instruction	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	nothing	specific	

in the	record	to	show	such	consent,	but	we	infer	it	given	that	neither	party	objected	to	the	instruction	

and	Osborn	referenced possession	in his	opening.		

8 Although	 neither	 the	 docket	 record	 nor	 the	 judgment	 and	 commitment	 form	 reflects 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	amendment	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.	

[¶17]		“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	particular	

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).

[¶18]		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	

Osborn	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	relevant	
12

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	

concluded	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).

[¶19]		Likewise,	the	court	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	danger	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)	 (concluding	 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.

[¶21]		Osborn	challenges	the	comments9 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,	 ¶	 19 n.9, 285 A.3d 262,	 a	 discussion	 of	 prosecutorial	
14

to	the	prosecutor’s	argument,	we	review	the preserved	claim	of	prosecutorial	

error	 for	 harmless	 error.	 	 See	 Pillsbury,	 2017	 ME	 92,	 ¶	 18,	 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,	

¶	21,	161	A.3d	690.		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,	Osborn	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	error,	Dolloff,	2012	ME	

130,	¶	42,	58	A.3d	1032.		

[¶24]		Here,	the	prosecutor’s	statements	may be viewed	in	isolation	as	

vouching	 and improperly appealing	 to	 social	 norms,	 which	 are	 facts	 not	 in	

evidence.		In	the	context	of	the	entire	trial	and	in	particular	Osborn’s	defense	

strategy,	 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	suggested that	CIs	are	“moles,”	

“rats,”	 “drug	addicts,”	and	 “felons.”	 The	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 (holding	 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	 statements and	 closing	

arguments 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. See	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,	¶¶ 19-21,	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	entire	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	“one	 continuing	 scheme	 or	 course	 of	 conduct”	 was	

surplusage.

[¶26]	 	 Osborn	 raises	 several	 arguments	 stemming	 from	 the	 court’s

treating as	surplusage	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	offense	
17

and	that	the	phrase	is	unconstitutionally	vague. We	agree	with	the	trial	court	

that	the	allegation	in	Count	1	that	Osborn	trafficked	in	fentanyl	“[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	the	accused	could	properly	prepare	his	defense	

and	be	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.		Further,	“one	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	alleges 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.	 These	 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	good	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 charge.

State	v.	Fortune,	2011	ME	125,	¶	26,	34	A.3d	1115;see also State	v.	Fournier, 617	

A.2d	 998,	 1001	 (Me.	 1992) (Collins,	 J., dissenting)	 (noting	 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	in	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,	2003)	(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	 State	 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	 construed 17-A	M.R.S.	§	1101(17)(F)	 as	 requiring	 that	 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	jury	
20

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 sentencing

possibilities.”).

[¶31]		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	instance	 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,	we

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	unanimously	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	also	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	aggregation	to	determine	the	degree	of	theft").
22

[¶34]	 “A specific	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	(quotation	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.”).

[¶35]		Here, the	instruction	on	specific	unanimity	was appropriate	given	

the	allegations	against	Osborn	and	the	evidence	presented	in	this	case.	Because	

the	 “scheme	 or	 course	 of	 conduct”	 language	was	 surplusage,	 any	 one	 of	the	

three	instances	of	drug	sales	alleged	in	Count	1	was sufficient	to	support	a	guilty	

verdict	on	that	count.

15

15 We	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	across	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	

affect	Osborn’s	substantial	rights.		On	the	specific	facts	and	circumstances	of	

this	case,	the	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,	because	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,	the	

court	 properly	 instructed	 the	 jury	 that	 specific	 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

FOR	CLERK	REFERENCE	ONLY