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Stae v. Davis
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 115
Docket: 	Cum-96-91
On Briefs:	 April 25, 1997
Decided:	May 27, 1997	




	[¶1]  Richard Davis appeals from the judgments entered in the
Superior Court (Cumberland County, Cole, C.J.) following jury verdicts
finding him guilty of two counts of aggravated trafficking or furnishing
scheduled drugs in violation of 17-A M.R.S.A. § 1105 (Supp. 1996).  On
appeal, Davis challenges the sufficiency of the evidence to support the
verdicts and the admission of certain evidence.  We affirm the judgments.
	[¶2]  In February 1994, the Maine Drug Enforcement Agency (MDEA)
instructed a confidential informant to enter Bubba's Sulky Lounge, located in
Portland, and attempt to get someone to sell him drugs.  Prior to entering
the bar, the informant met with Special Agents Shawn O'Leary and Scott
Durst.  O'Leary was working undercover posing as a friend of the informant
seeking to purchase drugs.  Durst was acting as a safety or backup and was
responsible for recording any conversations received from a body wire on
the informant.
	[¶3]  While the informant and O'Leary were in the bar, the informant
made contact with Davis.  Davis told the informant that he could get O'Leary
an eight-ball of cocaine for $200 and that he "expected to be taken care of." 
At Davis's direction, the threesome drove to two Portland residences but
were unsuccessful in locating the cocaine.
	[¶4]  As they were returning to the bar, Davis saw Mark Johnson on
the street.  Davis and the informant got out of O'Leary's car and approached
Johnson.  Davis told Johnson that O'Leary was looking for an eight-ball and
that Davis needed Johnson's assistance.  Johnson stated that he could
provide the cocaine and that although he no longer needed Davis's
assistance, he would take care of Davis later.  Johnson, O'Leary, and the
informant then proceeded to a Portland residence where Johnson sold
them an eight-ball of cocaine for $200.  Subsequent to the transaction, the
substance was tested and confirmed to be cocaine.
	[¶5] In May 1994, the informant met with Agent Durst for the purpose
of purchasing heroin in a transaction that the informant had set up with
Davis.  The informant met with Davis who offered to sell him three or four
bags of heroin for $30 to $40 per bag.  The informant drove Davis to Davis's
residence, gave him the money, and received the packages in return.  The
substance in the packages was subsequently identified as heroin.
	[¶6]  Davis was charged in a two-count indictment with aggravated
trafficking or furnishing scheduled drugs in violation of 17-A M.R.S.A. §
1105.  Davis filed this appeal following a jury trial at which he was found
guilty as to both counts.
	[¶7]  Davis contends that because there was no evidence that he
received any "consideration" for his alleged role in the cocaine transaction,
insufficient evidence existed to find him guilty beyond a reasonable doubt of
aggravated trafficking in schedule W drugs (Class A).{1}  When reviewing
challenges to the sufficiency of the evidence, we review the evidence in the
light most favorable to the State to determine whether a factfinder
"rationally could find beyond a reasonable doubt every element of the offense
charged."  State v. Marden, 673 A.2d 1304, 1311 (Me. 1996) (quoting State
v. Taylor, 661 A.2d 665, 668 (Me. 1995)).
	[¶8]  Title 17-A of the Maine Revised Statutes Annotated section 1103
provides in relevant part:

1.	A person is guilty of unlawful trafficking in a scheduled
	drug if the person intentionally or knowingly trafficks in
	what the person knows or believes to be a scheduled drug
	and that is in fact a scheduled drug . . .

2.	Violation of this section is:

	A.	A Class B crime if the drug is a schedule W drug . . . .

17-A M.R.S.A. § 1103 (Supp. 1996).  A person is guilty of aggravated
trafficking or furnishing scheduled drugs pursuant to section 1105(1)(B) if
the person violates section 1103, and at the time of the alleged offense, the
person has been convicted of any offense under the chapter punishable by a
term of imprisonment of more than one year.  17-A M.R.S.A. § 1105(1)(B)
(Supp. 1996).{2}  Trafficking is defined as "[t]o sell, barter, trade, exchange or
otherwise furnish for consideration."  17-A M.R.S.A. § 1101(17) (C) (1983).
	[¶9]  Pursuant to the accomplice liability statute set forth in 17-A
M.R.S.A. § 57(2)(C), (3)(A) (1983), a defendant is legally accountable for the
conduct of another when the defendant aids such other person in
committing the crime with the intent of facilitating the crime.  State v.
Mansir, 440 A.2d 6, 7 (Me. 1982).
	[¶10]  We reject Davis's contention that there is insufficient evidence
to find him guilty of trafficking because he did not receive any consideration. 
To be held liable as an accomplice, Davis need not receive any consideration
if consideration was received by someone and the elements of the crime are
proven.{3}  In State v. Cote, 444 A.2d 34, 37 (Me. 1982), we noted that a
defendant who phoned a supplier and ordered ten pounds of marijuana and
some cocaine could be found guilty of trafficking in cocaine even when he
did not take money or ultimately deliver the drugs.  See also State v. Ayers,
433 A.2d 356, 364 (Me. 1981) (a person need not be present at scene of
crime to be legally accountable as an accomplice).  The record in this case
demonstrates that the jury could have found the following facts: (1) Davis
took the informant and O'Leary to two locations to find cocaine; (2) Davis
knew Johnson and approached him to facilitate the sale; (3) Davis
introduced the informant to Johnson; and (4) Johnson received $200 from
O'Leary in exchange for the cocaine.  This evidence was sufficient to convict
Davis of aggravated trafficking of a scheduled drug on an accomplice theory
of liability.
	[¶11] Davis also contends that the court erred by allowing in evidence
certain statements made by Johnson pursuant to the co-conspirator
exception to the hearsay rule and by allowing the MDEA agents to testify,
over his relevancy objection, regarding their involvement in drug
transactions, and the nature of drug transcations generally.  After reviewing
the record, we are convinced that the court did not err in admitting those
	The entry is:
Judgments affirmed.
Attorneys for State: Andrew Ketterer, Attorney General Lea-Anne Jameson, Asst. Atty. Gen. MDEA, Suite 300 565 Congress Street Portland, ME 04101-3315 Attorney for defendant: Henry W. Griffin, Esq. 53 Exchange Street, Suite 301 Portland, ME 04101
FOOTNOTES******************************** {1} Davis has not challenged the sufficiency of the evidence with regard to the count charging him with aggravated trafficking in heroin. Moreover, there was ample evidence before the jury on this count to support its verdict. {2} The indictment alleged that Davis had been convicted of unlawful trafficking in cocaine (Class B) (CR 91-274) and conspiracy to traffick in cocaine (Class C) (CR 90-1525), for which he was sentenced to three years imprisonment. Davis does not challenge that aspect of the convictions. {3} We have repeatedly held that an individual need not be indicted as an accomplice to be convicted as a principal. See State v. Allison, 427 A.2d 471, 474 (Me. 1981); State v. Collins, 392 A.2d 1078, 1080 n.2 (Me. 1978). In fact, the comon law in Maine has always condoned charging an accessory in the indictment as if he were a principal. See State v. Ricker, 29 Me. 84 (1848).