MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	183	
Docket:	   Ken-15-619	
Argued:	   October	25,	2016	
Decided:	  December	22,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                   ERIC	ANDERSON	
	
	
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.			
2	

         [¶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.”			

     1		Throughout	the	trial,	Anderson’s	address	was	referred	to	as	“88	Second	Street,”	but	the	State’s	

exhibits	 3A	 and	 3B,	 records	 from	 the	 Kennebec	 County	 Registry	 of	 Deeds,	 list	 Anderson’s	 street	
address	as	88	Second	Avenue.			
                                                                                       3	

      [¶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	
4	

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).		
                                                                                           5	

                                     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	
6	

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,	 ---	 A.3d	 ---	 (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	
                                                                                      7	

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	
8	

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	reversible	error.		See	Shuman,	622	A.2d	at	718.			

B.	   Jury	Instructions	

	     [¶18]		Anderson	next	argues	that	the	trial	court	erroneously	instructed	

the	 jury	 regarding	 accomplice	 liability	 and	 constructive	 possession.	 	 We	

address	 each	 claim	 in	 turn,	 reviewing	 the	 “jury	 instructions	 as	 a	 whole	 for	

prejudicial	 error,	 and	 to	 ensure	 that	 they	 informed	 the	 jury	 correctly	 and	
                                                                                      9	

fairly	in	all	necessary	respects	of	the	governing	law.”		State	v.	Tucker,	2015	ME	

68,	 ¶	 11,	 117	 A.3d	 595	 (quotation	 marks	 omitted).	 	 Because	 Anderson	

preserved	his	objection	to	the	inclusion	of	accomplice	liability	instructions	as	

well	 as	 the	 exclusion	 of	 his	 recommended	 constructive	 possession	

instructions,	 we	 will	 vacate	 his	 judgment	 of	 conviction	 “if	 the	 erroneous	

instruction[s]	 resulted	 in	 prejudice.”	 	 Caruso	 v.	 Jackson	 Lab.,	 2014	 ME	 101,	

¶	12,	98	A.3d	221;	see	also	M.R.U.	Crim.	P.	30(b).		

      1.	    Accomplice	Liability	

      [¶19]		Over	Anderson’s	objection,	the	court	instructed	the	jury	that	

     [a]	person	may	be	guilty	of	a	crime	if	they	personally	do	the	acts	
     which	 constitute	 the	 crime,	 or	 if	 they	 are	 an	 accomplice	 of	 the	
     person	or	persons	who	actually	commit	the	crime.		A	person	may	
     be	 found	 guilty	 of	 a	 crime	 as	 an	 accomplice	 if	 the	 State	 proves	
     beyond	 a	 reasonable	 doubt	 that,	 with	 the	 intent	 of	 promoting	 or	
     facilitating	the	commission	of	a	crime,	that	person	solicits,	or	aids,	
     or	agrees	to	aid,	or	attempts	to	aid	another	person	who	commits	a	
     crime	in	the	planning	or	commission	of	that	crime.		Mere	presence	
     at	the	scene	of	a	crime	without	more	does	not	prove	that	a	person	
     is	an	accomplice	to	a	crime.	
            	
Anderson	 contends	 that	 the	 court	 should	 not	 have	 instructed	 the	 jury	 as	 to	

accomplice	 liability	 at	 all	 because	 the	 evidence	 from	 the	 February	 20,	 2015,	

search	 warrant	 execution	 does	 not	 support	 the	 conclusion	 that	 Anderson	

performed	any	act	to	facilitate	or	promote	drug	trafficking.			
10	

       [¶20]	 	 A	 person	 is	 guilty	 as	 an	 accomplice	 of	 a	 crime	 committed	 by	

another	person	if	he	or	she	“aids	or	agrees	to	aid	or	attempts	to	aid	such	other	

person	in	planning	or	committing	the	crime,”	and	has	the	“intent	of	promoting	

or	 facilitating	 the	 commission	 of	 the	 crime.”	 	 17-A	 M.R.S.	 §	 57(3)(A)	 (2015).		

The	 State	 must	 prove	 something	 more	 than	 the	 defendant’s	 mere	 presence,	

but	 need	 not	 prove	 an	 overt	 act	 of	 physical	 assistance.	 	 State	 v.	 Pheng,	

2002	ME	 40,	 ¶	 9,	 791	 A.2d	 925.	 	 “[O]nce	 presence	 is	 proven,	 accomplice	

liability	 may	 attach	 upon	 the	 State’s	 proof	 of	 any	 conduct	 promoting	 or	

facilitating,	however	slightly,	the	commission	of	the	crime.”		Id.	

	      [¶21]	 	 For	 example,	 we	 held	 in	 State	 v.	 Nason	 that	 a	 defendant’s	

presence	at	the	scene	during	the	commission	of	a	crime,	in	conjunction	with	

other	 factors,	 was	 sufficient	 for	 a	 jury	 to	 find	 her	 guilty	 as	 an	 accomplice	 to	

unlawful	drug	trafficking.		498	A.2d	252,	255-56	(Me.	1985).		In	Nason,	police	

officers	 executed	 a	 search	 warrant	 at	 the	 house	 where	 the	 defendant	 lived	

with	her	husband,	seizing	cocaine	and	marijuana	from	various	locations	in	the	

home,	cash	from	the	defendant’s	purse,	and	plastic	baggies	and	a	set	of	scales	

from	 her	 shared	 bedroom.	 	 Id.	 at	 253-54.	 	 We	 reasoned	 that	 based	 on	 those	

facts,	 the	 jury	 heard	 sufficient	 circumstantial	 evidence	 by	 which	 it	 rationally	

could	have	found	that	the	defendant	was	an	accomplice	to	her	husband’s	drug	
                                                                                         11	

dealing.		Id.	at	256;	see	also	State	v.	Gervais,	394	A.2d	1183,	1185	(Me.	1978)	

(holding	that	a	defendant’s	“presence	as	a	friend”	in	a	car	“could	be	taken	as	a	

circumstance	 suggesting	 encouragement”	 for	 the	 purposes	 of	 accomplice	

liability);	United	States	v.	Ortiz,	966	F.2d	707,	712	(1st	Cir.	1992)	(“[T]he	line	

that	 separates	 mere	 presence	 from	 culpable	 presence	 is	 a	 thin	 one,	 often	

difficult	to	plot.”).			

	      [¶22]		The	circumstances	here	are	similar	to	those	in	Nason.		On	the	day	

that	the	search	warrant	was	executed,	drugs	packaged	as	if	for	sale,	additional	

packaging,	and	scales	with	drug	residue	were	found	inside	Anderson’s	home,	

although	not	on	his	person.		Additionally,	two	individuals	were	apprehended	

that	day	attempting	to	flush	heroin	and	cocaine	down	Anderson’s	toilet.		If	the	

jury	accepted	as	true	the	State’s	theory	of	the	case,	that	on	February	11,	2015,	

Anderson	called	Tupper	to	come	to	his	house	in	order	to	facilitate	the	sale	of	

drugs	 to	 the	 special	 agent	 and	 the	 CI,	 it	 would	 be	 reasonable	 for	 the	 jury	 to	

infer	 that	 less	 than	 two	 weeks	 later,	 on	 February	 20,	 Anderson	 knew	 of	 the	

presence	 of	 the	 drugs	 in	 his	 home	 and	 had	 either	 (1)	 invited	 the	 other	

individuals	there	with	the	purpose	and	knowledge	that	they	would	package	or	

sell	drugs	in	his	home,	or	(2)	knew	that	the	individuals	were	present	for	the	
12	

purpose	 of	 packaging	 and	 selling	 drugs	 and	 allowed	 them	 to	 remain	 despite	

their	activities.	

       [¶23]		Because	the	circumstantial	evidence	supported	the	inference	that	

Anderson	 acted	 as	 an	 accomplice	 to	 the	 trafficking	 of	 cocaine	 and	 heroin	 on	

February	20,	2015,	and	because	the	trial	court	correctly	instructed	the	jury	as	

to	the	law	of	accomplice	liability	in	Maine,	the	court	did	not	err.	

	      2.	    Constructive	Possession		

       [¶24]	 	 Anderson	 also	 objected	 to	 the	 court’s	 instructions	 regarding	

constructive	possession,	which	consisted	of	the	following:	

       A	person	can	also	have	constructive	possession	of	something[.	T]o	
       have	constructive	possession	of	something	means	that	although	a	
       person	does	not	have	actual	physical	control	of	an	item	they	have	
       a	 relationship	 with	 that	 item	 such	 that	 one	 could	 conclude	 that	
       they	 have	 dominion,	 authority	 or	 control	 over	 the	 item	 either	
       alone,	 by	 themselves	 or	 jointly	 with	 others.	 	 Before	 you	 may	
       decide	 someone	 to	 have	 control	 over	 an	 item,	 you	 must	 find	
       beyond	 a	 reasonable	 doubt	 that	 the	 person	 has	 a	 relationship	 to	
       that	property	that	would	enable	them	to	exercise	a	power,	that	is	
       dominion,	authority	or	control	over	the	property	so	as	to	being	in	
       a	 relationship	 with	 the	 item	 that	 would	 allow	 them	 to	 gain	
       physical	custody	or	control	over	the	item.	
       	
       You	should	understand	that	a	person[’]s	mere	presence	in	a	place	
       where	the	item	is	located	does	not	by	itself	establish	dominion	or	
       control	over	the	item.		You	should	also	understand	that	a	person	
       does	not	have	to	be	the	owner	of	an	item	in	order	to	have	actual	
       or	constructive	possession	of	the	item.	
              	
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Anderson	argues	that	the	court	committed	prejudicial	error	by	omitting	from	

its	constructive	possession	instruction	language	requiring	that,	for	the	jury	to	

find	 him	 guilty	 under	 a	 theory	 of	 constructive	 possession,	 the	 State	 must	

prove	 beyond	 a	 reasonable	 doubt	 that	 Anderson	 had	 knowledge	 of	 the	

presence	 of	 drugs	 in	 his	 home	 as	 well	 as	 an	 intention	 and	 ability	 to	 gain	

physical	control	of	the	drugs.			

      [¶25]	 	 We	 have	 long	 held	 that	 a	 defendant	 charged	 with	 unlawful	

trafficking	may	be	found	guilty	if	the	State	proves	beyond	a	reasonable	doubt	

that	 the	 drugs	 were	 within	 the	 defendant’s	 constructive	 possession.	 	 State	 v.	

Ellis,	502	A.2d	1037,	1040	(Me.	1985)	(citing	State	v.	Lambert,	363	A.2d	707,	

711	(Me.	1976)).		Constructive	possession	is	established	by	showing	that	the	

defendant	 had	 “dominion	 and	 control”	 over	 particular	 property	 or	 goods.		

State	v.	Ketchum,	1997	ME	93,	¶	13,	694	A.2d	916	(quotation	marks	omitted).		

Constructive	possession	also	“may	be	joint	with	one	or	more	persons.”		State	v.	

Gellers,	282	A.2d	173,	179	(Me.	1971).	

	     [¶26]	 	 For	 example,	 in	 State	 v.	 Lambert	 we	 held	 that	 a	 jury	 could	

determine	 that	 a	 defendant	 had	 constructive	 possession	 of	 the	 drugs	

contained	 in	 a	 briefcase	 and	 a	 strong	 box	 found	 on	 the	 ground	 below	 his	

bedroom	window.		363	A.2d	at	710-11.		The	jury	could	have	inferred	that	the	
14	

defendant	had	thrown	those	items	out	the	window	himself,	and	thus	both	the	

briefcase	and	strongbox	were	within	his	dominion	and	control.		Id.	at	711.		By	

contrast,	 the	 defendant	 had	 actual	 possession	 of	 “paraphernalia	 connected	

with	 the	 use	 and	 packaging	 of	 contraband	 drugs”	 that	 were	 found	 inside	 his	

house.		Id.			

	      [¶27]		In	another	case,	when	a	search	warrant	was	executed	and	police	

found	marijuana	in	a	defendant’s	house,	we	held	that	although	the	defendant	

was	not	home	when	the	warrant	was	executed,	the	evidence	was	sufficient	to	

support	a	conviction	of	unlawful	trafficking	of	a	scheduled	drug	based	on	the	

defendant’s	constructive	possession	of	the	drugs	found	there.		Ellis,	502	A.2d	

at	1040.		We	relied	on	an	inference	the	jury	could	have	made—that	the	room	

in	 which	 the	 drugs	 were	 found	 was	 the	 defendant’s	 bedroom—to	 conclude	

that	 the	 jury	 had	 sufficient	 evidence	 to	 find	 that	 the	 “drugs	 involved	 were	

subject	to	the	defendant’s	dominion	and	control.”		Id.;	see	also	State	v.	Deering,	

1998	ME	23,	¶¶	3,	13-14,	706	A.2d	582	(upholding	a	defendant’s	conviction	of	

aggravated	 furnishing	 of	 drugs	 where	 marijuana	 discovered	 in	 a	 hidden	

compartment	in	the	defendant’s	car	was	subject	to	his	dominion	and	control,	

but	without	discussion	of	his	knowledge	or	intent	concerning	the	marijuana).	
                                                                                               15	

	      [¶28]	 	 Here,	 in	 defining	 “voluntary	 conduct,”	 another	 element	 the	 jury	

was	instructed	to	find	in	order	to	convict	Anderson,	the	court	instructed	the	

jury	 to	 consider	 whether	 Anderson	 “knowingly	 procure[d]	 or	 receive[d]	 the	

thing	 possessed.”	 	 The	 court	 also	 instructed	 the	 jury	 that	 “a	 person	 acts	

knowingly	if	he	is	aware	that	it	is	practically	certain	[his]	conduct	will	cause	a	

result,”	 and	 that	 “the	 State	 must	 prove	 beyond	 a	 reasonable	 doubt	 that	 the	

defendant	was	aware	that	it	was	practically	certain	that	he	was	trafficking	in	

cocaine	 .	 .	 .	 and	 .	 .	 .	 heroin.”	 	 Further,	 the	 court	 instructed	 the	 jury	 regarding	

intent	that	“in	the	context	of	acting	intentionally,	the	State	must	prove	beyond	

a	 reasonable	 doubt	 that	 it	 was	 the	 defendant’s	 conscious	 object	 to	 traffic	 in	

cocaine	.	.	.	and	.	.	.	heroin.”		

       [¶29]	 	 The	 jury	 was	 therefore	 tasked	 not	 merely	 with	 finding	 whether	

the	drugs	were	under	Anderson’s	dominion	and	control,	but	also	whether	he	

acted	 voluntarily,	 knowingly,	 and	 intentionally.	 	 The	 elements	 of	 knowledge	

and	intent	that	Anderson	now	claims	were	absent	from	the	jury	instructions	

regarding	constructive	possession	were	implicit	within	a	finding	of	“dominion	

and	control”	because	the	jury	had	to	find,	on	the	whole,	that	Anderson	acted	

knowingly	 and	 intentionally	 in	 order	 to	 convict	 him	 of	 Counts	 3	 and	 4.	 	 See	

17-A	 M.R.S.	 §	 1103(1-A);	 see	 also	 17-A	 M.R.S.	 §	 35(1),	 (2)	 (2015)	 (defining	
16	

“intentionally”	 and	 “knowingly”).	 	 Although	 the	 court’s	 instructions	 may	 not	

have	 reflected	 the	 exact	 wording	 that	 Anderson	 would	 prefer,	 his	 requested	

language	 was	 in	 fact	 included	 in	 the	 instructions.	 	 Looking	 at	 the	 jury	

instructions	as	a	whole	for	prejudicial	error,	we	conclude	that	the	trial	court	

correctly	and	fairly	instructed	the	jury.2	

C.	     Sufficiency	of	the	Evidence	

	       [¶30]	 	 Finally,	 Anderson	 asserts	 that	 the	 evidence	 was	 insufficient	 for	

the	 jury	 to	 convict	 him	 of	 either	 constructive	 possession	 or	 accomplice	

liability	as	to	Counts	3	and	4.		“When	a	defendant	challenges	the	sufficiency	of	

the	evidence	supporting	a	conviction,	we	determine,	viewing	the	evidence	in	

the	 light	 most	 favorable	 to	 the	 State,	 whether	 a	 trier	 of	 fact	 rationally	 could	

find	beyond	a	reasonable	doubt	every	element	of	the	offense	charged.”		State	

v.	Dorweiler,	2016	ME	73,	¶	6,	143	A.3d	114	(quotation	marks	omitted).		The	

jury	may	draw	all	reasonable	inferences	from	the	evidence	presented	at	trial.		

State	v.	McBreairty,	2016	ME	61,	¶	14,	137	A.3d	1012.	

	       [¶31]	 	 To	 convict	 Anderson	 of	 Counts	 3	 and	 4,	 the	 jury	 needed	 to	 find	

beyond	 a	 reasonable	 doubt	 that	 Anderson	 either	 (1)	 intentionally	 or	


   2		We	note,	however,	that	it	may	be	a	better	practice	to	incorporate	the	definition	of	knowledge	

and	 intent	 within	 the	 specific	 instruction	 for	 constructive	 possession	 to	 clarify	 that	 a	 defendant’s	
knowledge	 and	 intent	 concerning	 the	 item	 constructively	 possessed	 must	 be	 proved	 beyond	 a	
reasonable	doubt.	
                                                                                     17	

knowingly	possessed—whether	actually	or	constructively—what	he	knew	or	

believed	to	be	heroin	and	cocaine	and	was	in	fact	heroin	and	cocaine,	and	had	

the	intent	to	sell	the	heroin	and	cocaine;	or	(2)	with	the	intent	of	promoting	or	

facilitating	 the	 sale	 of	 heroin	 and	 cocaine,	 was	 accomplice	 to—by	 aiding	 or	

agreeing	 to	 aid—others	 in	 the	 sale	 of	 heroin	 and	 cocaine,	 or	 in	 their	

possession	with	the	intent	to	sell	heroin	and	cocaine.		17-A	M.R.S.	§§	57(3)(A),	

1101(17),	 1103(1-A)(A).	 	 The	 jury	 could	 therefore	 find	 him	 guilty	 either	

because	 he	 was	 an	 accomplice	 to	 the	 sale	 or	 possession	 with	 intent	 to	 sell	

heroin	and	cocaine,	or	because	he	himself	actually	or	constructively	possessed	

the	drugs	with	the	intent	of	selling	them.		Id.			

	     [¶32]	 	 Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State,	

including	all	reasonable	inferences,	there	was	sufficient	evidence	presented	at	

trial	from	which	the	jury	rationally	could	have	found	each	element	of	Counts	3	

and	 4	 beyond	 a	 reasonable	 doubt	 based	 on	 the	 State’s	 theory	 of	 accomplice	

liability	 or	 constructive	 possession.	 	 See	 McBreairty,	 2016	 ME	 61,	 ¶	 14,	

137	A.3d	1012.	

	     [¶33]		Specifically,	the	jury	could	have	found	that	on	February	11,	2015,	

Anderson	 opened	 the	 door	 to	 his	 house	 to	 the	 special	 agent	 and	 the	 CI,	 and	

called	Tupper	on	the	phone,	inviting	her	to	his	house	and	confirming	for	the	CI	
18	

that	 she	 had	 “ups”	 and	 “downs”—common	 slang	 for	 cocaine	 and	 heroin.		

Before	Tupper	arrived,	Anderson	discussed	“cooking”	cocaine	in	the	presence	

of	 the	 special	 agent.	 	 After	 Tupper	 arrived,	 he	 “hovered”	 over	 the	 special	

agent’s	purchase	of	alleged	heroin	and	the	CI’s	purchase	of	alleged	crack	rocks	

from	Tupper.			

	     [¶34]		On	February	20,	2015,	Anderson	was	found	asleep	upstairs	in	his	

house,	 while	 downstairs	 several	 individuals	 were	 discovered	 attempting	 to	

dispose	of	heroin	and	cocaine.		Also	found	in	the	house	on	February	20	were	

two	 scales	 with	 cocaine	 residue,	 folds	 of	 heroin	 appearing	 identical	 to	 the	

alleged	heroin	folds	purchased	on	February	11,	wax	paper,	and	cash.			

	     [¶35]		Based	on	his	behavior	on	February	11,	the	jury	could	reasonably	

have	 inferred	 that	 Anderson	 either	 allowed	 individuals	 into	 his	 home	 on	

February	20	intending	that	they	package	for	sale	or	sell	heroin	and	cocaine,	or	

that	he	knew	that	they	were	there	and	that	packaging	for	sale	or	selling	heroin	

and	 cocaine	 was	 the	 purpose	 of	 their	 presence.	 	 These	 inferences	 would	

permit	a	jury	to	rationally	find	beyond	a	reasonable	doubt	that	Anderson	was	

an	accomplice	to	unlawful	trafficking	of,	or	constructively	possessed	with	the	

intent	to	sell,	heroin	and	cocaine	on	February	20,	2015.	
                                                                                  19	

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	       	      	      	    	
	
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	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2015-187	
FOR	CLERK	REFERENCE	ONLY	
