State v. Huntley

• Citation: 473 A.2d 859
• Parties: STATE of Maine v. Ira B. HUNTLEY, Jr.
• Decision Date: 06 March 1984
• Court: Supreme Judicial Court of Maine (US)

Page 859

473 A.2d 859

STATE of Maine v. Ira B. HUNTLEY, Jr.

Supreme Judicial Court of Maine.

Argued Nov. 22, 1983.

Decided March 6, 1984.

David M. Cox, Dist. Atty., Michael Roberts (orally), Gary F. Thorne, Asst. Dist. Attys., Bangor, for plaintiff.

Twitchell, Linscott & Badger, P.A., Orman G. Twitchell (orally), Bangor, for defendant.

Before McKUSICK, C.J., NICHOLS, VIOLETTE, GLASSMAN, and SCOLNIK, JJ., and DUFRESNE, A.R.J.

VIOLETTE, Justice.

Appellant, State of Maine, pursuant to M.R.Crim.P. 37 and 15 M.R.S.A. § 2115-A(2) (1980), appeals a decision rendered by the Superior Court, Penobscot County, reversing appellee's convictions obtained in the District Court, Division of Southern Penobscot, of two counts of furnishing or trafficking in drug paraphernalia in violation of subsection (5) of the Maine Drug Paraphernalia Act. 17-A M.R.S.A. § 1111-A (1983). The Superior Court justice found that the complaint was defective as to both counts because neither count alleged an essential element of the crime charged that the items sold or possessed by appellee were used or intended by appellee to be used in connection with scheduled drugs. ¹ We affirm.

I.

Appellee owned and operated a store named the Looking Glass in Bangor. The store offered various items for sale such as rolling papers, tobacco, "roach clips," "cocaine folders," mirrors, pipe bowls and assorted pipes. During the early afternoon of April 30, 1982, appellee sold a new soapstone pipe to an undercover police officer. Later that afternoon, the officer returned to the store with other officers from the Bangor Police Department and arrested appellee for the sale of drug paraphernalia. The officers also seized the store's inventory.

On May 6, 1982, appellee pleaded not guilty to the original one count complaint charging him with trafficking in or furnishing drug paraphernalia. After appellee filed several pre-trial motions, the State was granted leave to file an amended complaint, which it did on July 8, 1982. The amended complaint consisted of two counts and charged as follows:

[Count I] [T]hat on or about April 30, 1982, in the city of Bangor, Penobscot County, Maine, the [Defendant Ira B. Huntley, Jr.] did: traffick in or furnish drug paraphernalia, to wit, did sell a soapstone pipe to Bruce Buchanan, knowing, or under circumstances where he reasonably should have known that it would be used to plant, propagate, cultivate grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of Chapter 45, Title 17-A M.R.S.A. or Title 22 Section 2383.

Count II--[T]hat on or about April 30, 1982, in the County of Penobscot, State of Maine, IRA B. HUNTLEY, JR. did traffick in or furnish drug paraphernalia, to wit, did possess with the intent to sell, barter, trade, exchange or otherwise furnish for consideration, drug paraphernalia as defined in 17-A M.R.S.A., 1111-A 1 (A-KII-13) [sic], knowing or under circumstances where he reasonably should have known that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of Chapter 45, Title 17-A M.R.S.A. or Title 22, Section 2383.

Prior to trial, appellee motioned the District Court to dismiss the amended complaint on the ground that neither count properly apprised him of the charges lodged against him. The court denied appellee's motion to dismiss and, after trial, found him guilty on both counts. Appellee appealed the convictions to the Superior Court pursuant to M.D.C.Crim.R. 37. The Superior Court found both counts of the complaint deficient, reversed the convictions and remanded to the District Court for proper entry of judgment. The State timely appealed this decision.

II.

In a criminal prosecution in Maine, a defendant has the right to be advised in writing of the nature and the cause of the accusation against him. Me. Const. art. I, § 6. We have indicated repeatedly that a charging instrument must set out on its face every essential element of the crime charged. State v. Pierce, 438 A.2d 247, 250, 255 (Me.1981); State v. Blais, 391 A.2d 1198, 1201 (Me.1978); State v. Smith, 277 A.2d 481, 484 (Me.1971); State v. Ward, 156 Me. 59, 62, 158 A.2d 869, 871 (1960); State v. Beckwith, 135 Me. 423, 426, 198 A. 739, 741 (1938); State v. Crouse, 117 Me. 363, 364, 104 A. 525, 526 (1918). The omission of one element of the offense from the charging instrument renders the instrument void, "taints any judicial action thereon with inherent nullity [and] deprives the court of jurisdiction to proceed with the prosecution, [to] effect a valid conviction or [to] impose a lawful sentence." Blais, 391 A.2d at 1201; State v. Davenport, 326 A.2d 1, 9 (Me.1974). A charging instrument also must contain such plain, concise and definite allegations of the essential facts as will apprise a defendant of reasonable and normal intelligence of the charges against him so that he can prepare a defense and protect himself from twice being put in jeopardy for the same offense. State v. Snow, 464 A.2d 958, 961 (Me.1983); State v. Coleman, 452 A.2d 397, 399 (Me.1982); M.R.Crim.P. 7(c); M.D.C.Crim.R. 3(a).

In the instant case, appellee was convicted of two counts of trafficking in or furnishing drug paraphernalia in violation of 17-A M.R.S.A. § 1111-A(5) (1983). ² Count I concerned appellee's sale of the soapstone pipe to the undercover police officer. Count II concerned appellee's possession of the items seized from his store. The elements of the crimes charged in each count consist of the following:

(1) The trafficking ³ in or furnishing ⁴ of

(2) equipment, products and materials of any kind

(3) used or intended for use ⁵ in connection with scheduled drugs ⁶

(4) knowing, or under circumstances where one reasonably should know that the drug paraphernalia will be used in connection with scheduled drugs.

The State does not dispute that the essential elements of both counts include appellee's intent that the items he possessed and sold be used in connection with scheduled drugs and appellee's knowledge or reason to know that the items would be used with illegal drugs. Indeed, it is the intent and knowledge of a person such as appellee as to the use or intended use that distinguishes trafficking or furnishing drug paraphernalia from legally selling innocuous materials for personal use. See cases cited at note 5, supra.

III.

To obtain a conviction on Count I, the State was required to prove beyond a reasonable doubt, as to appellee's state of mind, that he sold the soapstone pipe to the undercover police officer with the intent that it be used in connection with scheduled drugs and that appellee knew or reasonably should have known that the pipe would be used with illegal drugs. Count I, however, alleges only that appellee knew or reasonably should have known of future illegal use of the pipe. It failed to allege that appellee intended the pipe to be used in an illegal manner. As such, Count I failed to allege all the essential elements of the crime charged and was, therefore, void. Blais, 391 A.2d at 1201; Davenport, 326 A.2d at 9. The Superior Court properly reversed appellee's conviction on this count.

To obtain a conviction on Count II, the State was required to prove beyond a reasonable doubt, as to appellee's state of mind, that he possessed the seized items with the intent to sell them, that he intended the seized items be used with scheduled drugs and that he knew or reasonably should have known that the items would be used in connection with illegal drugs.

Count II clearly alleges that appellee possessed items with the intent to sell them and that he knew or reasonably should have known that the items would be used in connection with scheduled drugs. Count II does not allege that appellee intended the items he possessed be used in connection with such drugs. Count II does allege, however, that appellee trafficked in or furnished "drug paraphernalia as defined in 17-A M.R.S.A., § 1111-A 1(A-KII-13) [sic]." As stated in 17-A M.R.S.A. § 1111-A(1), the definition of "drug paraphernalia" includes those items a seller or possessor intends to be used in connection with illegal drugs. See notes 5 and 6, supra, and cases cited therein. The question then becomes whether the reference in the complaint to the section of the Maine statutes that provides an essential element of the crime charged in Count II meets the constitutional requirement that appellee be advised on the face of the complaint, of each element of the crime of trafficking in or furnishing drug paraphernalia. ⁷ Pierce, 438 A.2d at 255. We hold that it does not.

IV.

We reject any argument that it is proper in a complaint for the State to plead an element of a charged offense merely by citing the statute that provides the missing element. We perceive this ruling to be consistent with the rights guaranteed a criminal defendant by article I, § 6 of the Maine Constitution. ⁸ "Carried to its logical conclusion, [this] argument would suggest that no essential element of an offense need be alleged in an indictment as long as the statute is cited." United States v. Wabaunsee, 528 F.2d 1, 4 (7th Cir.1975) (emphasis in original). ⁹ If the mere citation to the statute were sufficient, the constitutional requirement that a charging instrument contain all the elements of the offense charged, would be vitiated. Moreover, in view of M.R.Crim.P. 7(c) and M.D.C.Crim.R. 3(a), which state that an error in citation to a statute contained in a charging instrument is not per se reversible error when the sufficiency of the instrument is challenged, we believe that it would be unfair to require defendants to rely on...