State v. Huntley

473 A.2d 859, 1984 Me. LEXIS 621

• Court: Supreme Judicial Court of Maine
• Decided: March 6, 1984
• Status: Published

Opinions

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 Penob-scot, 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 ap-pellee 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] [Tjhat 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 traf-fick 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.G.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 trafficking³ in or furnishing⁴ of

(2) equipment, products and materials of any kind

(3) used or intended for use⁵ in connection with scheduled drugs⁶

(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 appel-lee’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 ap-pellee 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(l), 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 a statutory citation to supply them with an essential element of the crime charged. Accord State v. Tuua, 649 P.2d 1180, 1187 (Hawaii Ct.App.1982).

The entry must be:

Judgment affirmed.

NICHOLS and GLASSMAN, JJ., and DUFRESNE, A.R.J., concurring.

1 . “Scheduled drugs” are those drugs listed in 17-A M.R.S.A. § 1102 (1983), and assigned to different schedules under section 1102 for the purposes of defining drug-related crimes and the penalties therefor.

2 . 17-A M.R.S.A. § 111 1-A(5) (1983) states:

It is unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will 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 this chapter or Title 22, section 2383.

Violation of subsection (5) as charged in the present case is a Class E crime. 17-A M.R. S.A. § 111 1-A(8) (1983).

3 . 17-A M.R.S.A. § 1101(17) (1983) defines “traffick” as follows:

“Traffick:”

A. To make, create, manufacture;

B. To grow or cultivate, except with respect to marihuana;

C. To sell, barter, trade, exchange or otherwise furnish for consideration; or

D. To possess with the intent to do any act mentioned in Paragraph C, except that possession of 2 pounds or less of marijuana with such intent shall be deemed furnishing.

4 . 17-A M.R.S.A. § 1101(18) (1983) defines “furnish” as follows:

“Furnish:”

A. To furnish, give, dispense, administer, prescribe, deliver or otherwise transfer to another;

B. To possess with the intent to do any act mentioned in Paragraph A.

5 . The “intent” relevant to this element of the crime charged is the intent of the defendant owner or seller of the equipment, products or materials of any kind. Stoianoff v. Montana, 695 F.2d 1214, 1220 (9th Cir.1983); New England Accessories Trade Association, Inc. v. Tierney, 691 F.2d 35, 36 (1st Cir.1982); Levas and Levas v. Village of Antioch, 684 F.2d 446, 452-53 (7th Cir.1982); Tobacco Accessories and Novelty Craftsman Merchants Association of Louisiana v. Treen, 681 F.2d 378, 383 (5th Cir.1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir.1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1366-67 (10th Cir.1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-29 (6th Cir.1980), vacated, 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 292-93 (D.Del.1980); Opinion of the Justices, 121 N.H. 542, 545, 431 A.2d 152, 154 (1981); State v. Murphy, 674 P.2d 1220, at 1223 (Utah 1983).

6 . Elements (2) and (3), as they are designated here, of the crimes charged in both Count I and Count II comprise the statutory definition of “drug paraphernalia.” Under the statute, “drug paraphernalia” means

all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a scheduled drug in violation of this chapter or Title 22, section 2383.

17-A M.R.S.A. § llll-A(l) (1983) (emphasis added). By statute, 17-A M.R.S.A. § 1111— A(3) (1983), a court should consider the following factors, in addition to all other logically relevant factors, in determining whether an item is drug paraphernalia, i.e., whether it is used or intended for use with scheduled drugs:

A. Statements by an owner or by anyone in control of the object concerning its use;

B. Prior convictions, if any, of an owner or of anyone in control of the object, under any state or federal law relating to any scheduled drug;

C. The proximity of the object, in time and space, to a direct violation of this chapter;

D. The proximity of the object to scheduled drugs;

E. The existence of any residue of scheduled drugs on the object;

F. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia;

G. Instructions, oral or written, provided with the object concerning its use;

H. Descriptive materials accompanying the object which explain or depict its use;

I. National and local advertising concerning its use;

J. The manner in which the object is displayed for sale;

K. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; ■

L. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;

M. The existence and scope of legitimate uses for the object in the community; and

N. Expert testimony concerning its use.

7 . We note that the citation in Count II to the statute in which “drug paraphernalia” is defined, is stated incorrectly. This fact, however, in and of itself does not dictate the result in the present case since an improper statutory reference in a complaint does not render the complaint invalid unless it misleads a defendant to his prejudice. State v. Bryce, 243 A.2d 726, 732 (Me. 1968); M.R.Crim.P. 7(c); M.D.C. Crim.R. 3(a).

8 . We also consider this view to be consistent with a majority of the courts that have ruled on this issue. United States v. Jones, 647 F.2d 696, 699 (6th Cir.1981); United States v. Camp, 541 F.2d 737, 740-41 (8th Cir.1976); United States v. Wabaunsee, 528 F.2d 1, 4 (7th Cir.1975); United States v. Berlin, 472 F.2d 1002, 1008 (2d Cir.), cert. denied, 412 U.S. 949, 93 S.Ct. 3007, 37 L.Ed.2d 1001 (1973); United States v. Roach, 321 F.2d 1, 3 (3d Cir.1963); Robinson v. United States, 263 F.2d 911, 912 (10th Cir.1959); Ayre v. State, 291 Md. 155, 167-68, 433 A.2d 1150, 1158 (1981); State v. Cook, 272 N.C. 728, 731, 158 S.E.2d 820, 822 (1968); Wilder v. Commonwealth, 217 Va. 145, 148, 225 S.E.2d 411, 413 (1976); State v. Tuua, 649 P.2d 1180, 1187 (Hawaii Ct.App.1982); People v. Miles, 96 Ill.App.3d 721, 726, 52 111. Dec. 324, 328, 422 N.E.2d 5, 9 (1981); Commonwealth v: Walters, 250 Pa.Super. 392, 394, 378 A.2d 993, 994 (1977). We acknowledge the view expressed by the dissenting opinion that some courts have held that a statutory reference in a charging instrument necessarily carries with it all the elements of the charged offense for the purpose of protecting a criminal defendant’s right to be fairly apprised of the charge against him, Government of the Canal Zone v. Hodges, 589 F.2d 207, 209 (5th Cir.1979); Smith v. United States, 466 A.2d 429, 432 (D.C.1983); State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980); State exrel. Bell v. County Court for Columbia County, 82 Wis.2d 401, 408, 263 N.W.2d 162, 166 (1978); People v. Phelan, 99 Ill.App.3d 925, 930-31, 55 Ill.Dec. 600, 604, 426 N.E.2d 925, 929 (1981), but we reject such a rule as being inconsistent with the rights of a criminal defendant in Maine.

9 . Accord United States v. Camp, 541 F.2d 737, 740 (8th Cir.1976) (“Surely no one could assert that an indictment that merely charged that a defendant violated a cited statute would suffice as an indictment.”); Ayre v. State, 291 Md. 155, 168, 433 A.2d 1150, 1158 (1981) (“It takes little imagination to foresee that the State’s contention, if accepted, would obviate the necessity of alleging any material element of the offense, for any distinction which might be drawn between supplying a crucial element by citation of the statute and supplying all essential allegations in this manner is so fine as to be well-nigh invisible”) (emphasis in original).