State v. Anderson, Docket: Ken–15–619

Decision Date22 December 2016
Docket NumberDocket: Ken–15–619
Citation152 A.3d 623
Parties STATE of Maine v. Eric ANDERSON
CourtMaine Supreme Court

Darrick X. Banda, Esq. (orally), Law Offices of Ronald W. Bourget, Augusta, for appellant Eric Anderson

Janet T. Mills, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

JABAR, J.

[¶ 1] Eric Anderson appeals from a conviction entered by the trial court (Kennebec County, Mullen, J. ) of two counts of unlawful trafficking in schedule W drugs (Class B), 17–A M.R.S. § 1103(1–A)(A) (2015), following a jury trial. He contends that the court erred in allowing the jury to consider evidence of prior bad acts, and improperly instructed the jury on accomplice liability and constructive possession. He also contends that the evidence was insufficient to convict him of the two counts as charged. We affirm.

I. BACKGROUND

[¶ 2] "Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt." State v. Haag , 2012 ME 94, ¶ 2, 48 A.3d 207.

[¶ 3] On February 11, 2015, a special agent of the Maine Drug Enforcement Agency (MDEA) and a confidential informant (CI) fitted with an electronic monitoring device went to Anderson's home at 88 Second Avenue1 in Augusta, with the purpose of targeting Anderson and another individual, Kathy Tupper, in a drug-purchasing sting. When they arrived at Anderson's home, the special agent and the CI entered the garage, and Anderson let them into a kitchen area through a door inside the garage. Other unidentified individuals were also present.

[¶ 4] After their arrival, Anderson made a phone call to "Mama Love," Tupper's alias. The CI asked Anderson whether Tupper had "ups" and "downs," common slang for cocaine and heroin, and Anderson responded affirmatively. While waiting for Tupper to arrive, Anderson discussed "cooking" cocaine in the special agent's presence.

[¶ 5] After Tupper arrived at Anderson's home, the special agent and the CI used recorded bills to purchase what the special agent believed to be three folds of heroin and three crack rocks for $60 and $100, respectively. Anderson was "hovering" during the transaction, asking the special agent and the CI "what do you want, what do you want."

[¶ 6] On February 20, 2015, several MDEA agents returned to Anderson's home as part of a team to execute a search warrant. The agents knocked and announced themselves, rang the doorbell, and after receiving no response, used a battering ram to break open the locked door leading from the garage into the house. Two individuals who had not been present at the home on February 11 were found attempting to flush drugs, which a chemist later identified as heroin and cocaine, down the toilet. On a table close to the door, agents found a plate with white powder and a razor blade, wax paper, cash, two scales with residue later identified as cocaine, and paper folds containing powder later identified as heroin.

[¶ 7] Anderson was found upstairs, alone and asleep. The MDEA agents did not find any drugs or illicit material on Anderson's person or on the second floor. None of the agents knew how long he had been asleep, or how long he had been at the house prior to execution of the search warrant.

[¶ 8] Anderson was indicted by a grand jury on four counts of unlawful trafficking in schedule W drugs (Class B), 17–A M.R.S. § 1103(1–A)(A) (2015): Counts 1 and 2 charged trafficking in heroin and cocaine, respectively, on February 11, 2015; and Counts 3 and 4 charged trafficking in cocaine and heroin, respectively, on February 20, 2015. He pleaded not guilty to all four counts.

[¶ 9] A jury trial was held on October 26 and 27, 2015. Because the State failed to provide the defendant with copies of chemical analyses of the alleged drugs purchased by the special agent and the CI on February 11, 2015, the court sanctioned the State by ruling that the chemical analysis of those substances could not be admitted in evidence. The court subsequently granted Anderson's motion for judgment of acquittal as to Counts 1 and 2, concluding that there was not sufficient evidence for the jury to find beyond a reasonable doubt that Anderson had trafficked in drugs on that date. The court denied Anderson's motion for judgment of acquittal as to Counts 3 and 4.

[¶ 10] The court instructed the jury on both constructive possession and accomplice liability over Anderson's objection. The jury returned a unanimous guilty verdict, and the court imposed concurrent sentences of four years imprisonment with all but one year suspended and two years of probation. Anderson's motion for a new trial was denied. He now timely appeals from the judgment entered on the jury verdict. See M.R. App. P. 2(b)(2)(A).

II. DISCUSSION

[¶ 11] Anderson raises three issues on appeal: (1) whether he was deprived of a fair trial by the State's closing argument that referred to his prior bad acts of February 11, (2) whether the trial court erred by failing to properly instruct the jury regarding constructive possession and accomplice liability, and (3) whether the evidence was sufficient to support his conviction.

A. Evidence of Prior Bad Acts
1. The State's References to Evidence from February 11, 2015

[¶ 12] The State's presentation of evidence relating to the CI's and special agent's alleged drug purchases on February 11, 2015, was proper, because when the State presented that evidence, Counts 1 and 2 had not yet been dismissed by the court. The question presented is whether the State's references to the evidence from February 11 during closing argument improperly suggested, in violation of Maine Rule of Evidence 404(b), that Anderson had a propensity to commit drug crimes. Anderson contends that Rule 404(b) prohibited the State from referencing the events of February 11. Because Anderson did not object to the State's argument that referred to those events at trial, we review for obvious error. State v. Robinson , 2016 ME 24, ¶ 25, 134 A.3d 828. To prevail on his challenge under this standard, Anderson must show that the State's references to the events of February 11 in its closing argument constitute a plain error that "affects substantial rights" and "seriously affects the fairness and integrity or public reputation of judicial proceedings." State v. Westgate , 2016 ME 145, ¶ 15, 148 A.3d 716 (quotation marks omitted). Anderson fails to meet this burden.

[¶ 13] "Evidence of [prior bad acts] 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). Evidence of prior bad acts is admissible, however, if offered to prove identity, intent, knowledge, motive, opportunity, plan, preparation, or absence of mistake. State v. Poulos , 1998 ME 43, ¶ 4, 707 A.2d 1307 ; State v. Roman , 622 A.2d 96, 98 (Me. 1993).

[¶ 14] Here, the State limited its use of the evidence from the events of February 11 to permissible uses, specifically, Anderson's motive, knowledge, and intent. In its closing argument, the State summarized the evidence concerning February 11, then stated "that information is highly important to what happened only nine days later in Mr. Anderson's house." The State went on to tell the jury that "[t]he totality of the evidence indicates he knew just what was going on" in his home on February 20, and asked the jury to draw reasonable inferences from the events of both days. During its rebuttal argument, the State contended that "[w]hat happened on the 11th is highly relevant to what happened on the 20th, and [the jury] should consider that information in regards to Mr. Anderson's motive and intent on the 20th."

[¶ 15] At no point did the State argue that because of Anderson's involvement in the sale of alleged drugs on February 11 he was more likely to have engaged in the sale of drugs on the 20th. Instead, the State emphasized that Anderson's acts on February 11 were probative of whether he knew that individuals were present in his home and trafficking drugs on February 20, and whether he intended to aid them in that endeavor. See State v. Olmo , 2014 ME 138, ¶ 15, 106 A.3d 396 (stating that evidence found on a defendant's person on a date later than the date of offenses charged would have been admissible pursuant to M.R. Evid. 404(b) because the events were "connected by details that [were] probative of a common scheme of trafficking in specific types of controlled substances"). This constitutes a permissible use of evidence of prior bad acts pursuant to Rule 404(b).

2. Limiting Instructions

[¶ 16] In addition to arguing that the trial court erred by admitting the evidence concerning the February 11, 2015, events, Anderson argues that the trial court erred by allowing the State to reference the February 11 events during its closing argument without issuing a limiting instruction. Because Anderson did not request a limiting instruction, we again review for obvious error. See Robinson , 2016 ME 24, ¶ 25, 134 A.3d 828.

[¶ 17] Where a defendant does not request a limiting instruction after evidence of a defendant's prior bad acts is admitted, we "assume that counsel concluded that a limiting instruction would have overemphasized the importance of the evidence and decided to forego the request for strategic reasons." State v. Rogers , 389 A.2d 36, 38 (Me. 1978) ; see State v. Shuman , 622 A.2d 716, 718 (Me. 1993). Here, because the State limited its use of the evidence to argue that Anderson had the motive, knowledge, or intent to aid others in drug trafficking on February 20, the lack of a limiting instruction does not rise to a level affecting Anderson's substantial rights or affecting the fairness and integrity of the trial. Without a request from counsel, the absence of a limiting instruction is not...

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