MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2014 ME 29
Docket:   Yor-13-250
Argued:   January 15, 2014
Decided:  February 25, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.


                                      STATE OF MAINE

                                                 v.

                                    AARON S. LOWDEN

ALEXANDER, J.

         [¶1] Aaron S. Lowden appeals from a judgment of conviction of aggravated

trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) (2013),

entered by the Superior Court (York County, O’Neil, J.) following a jury trial.1

         [¶2] Lowden argues that the evidence presented at trial was insufficient to

support the jury’s guilty verdict and, accordingly, that the court erred in denying

his motion for a judgment of acquittal pursuant to M.R. Crim. P. 29. Specifically,

Lowden argues that the State failed to introduce evidence that he successfully

manufactured methamphetamine. See 17-A M.R.S. § 1101(4) (2013). Because the

record does not include sufficient evidence from which a jury could rationally


   1
      Lowden and the State stipulated to Lowden’s prior convictions for drug related offenses, which
elevated the charge of unlawful trafficking in schedule W drugs (Class B), 17-A M.R.S. § 1103(1-A)(A)
(2013), to aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) (2013).
2

conclude, beyond a reasonable doubt, that the defendant completed the

manufacture of methamphetamine, a necessary element of unlawful trafficking in

schedule W drugs via the manufacture of the drug, see 17-A M.R.S. §§ 1101(4),

(17)(A), 1103(1-A)(A) (2013), we vacate the judgment of conviction against

Lowden for aggravated trafficking of scheduled drugs and remand the matter to the

trial court for entry of a judgment of acquittal.

                                 I. CASE HISTORY

      [¶3] Viewing the evidence in the light most favorable to the State and the

jury’s verdict, the evidence could rationally support finding the following facts.

See State v. Carey, 2013 ME 83, ¶ 3, 77 A.3d 471.

      [¶4] In January of 2012, a woman rented a room on the second floor of her

home in Lebanon to Lowden. On January 14, 2012, Lowden began making regular

trips from his room on the second floor to the basement, where, as far as the

homeowner knew, Lowden had no belongings stored.           When the homeowner

opened the basement door to investigate Lowden’s activities, she smelled a strange

odor and called the police.

      [¶5] A York County Sheriff’s Deputy responded to the call. Upon arriving

at the residence, he found that the basement door had been barricaded with a trash

can. He yelled down to the basement and requested that Lowden come up, but
                                                                                                3

Lowden instead asked the deputy to come down. The deputy removed the trashcan

and entered the basement.

       [¶6] Once in the basement, the deputy observed Lowden standing in front of

an inactive wood stove with a Coleman cooking stove placed on top of it. On the

Coleman stove were two glass containers, one of which contained a boiling

substance.     Lowden was tending to the stove and the boiling substance was

emitting fumes. The deputy turned off the Coleman stove; evacuated the home;

and contacted the fire department, the rescue unit, and the Maine Drug

Enforcement Agency (MDEA).

       [¶7] The Clandestine Lab Response Team, part of the MDEA, responded to

the residence.      After conducting a safety sweep of the residence, the team

conducted and filmed a pre-search walk-through during which they discovered

various chemicals in the bedroom Lowden was renting. The team later searched

Lowden’s bedroom and found a book known as “Uncle Fester’s Synthetic Manual”

as well as various chemicals and glassware. 2                 The team then searched the

basement where Lowden had been apprehended. There, they found additional

chemicals and laboratory equipment. The team took samples of the substances

found in the basement, which were then tested in a laboratory.

   2
      “Uncle Fester’s Synthetic Manual” is a book entitled “Advanced Techniques of Clandestine
Psychedelic & Amphetamine Manufacture.” Testimony at trial described it as a “how to” cookbook for
the manufacture of illicit drugs.
4

        [¶8] “Uncle Fester’s Synthetic Manual,” the book recovered in Lowden’s

bedroom, contained a detailed method of how to convert phenylalanine into

methamphetamine. The chemicals found at the scene constituted some of the “key

components sufficient for the manufacture of methamphetamine” through the

method described in the book. However, no methamphetamine was found, nor was

there    evidence   that   any   of   the   syntheses   necessary   to   manufacture

methamphetamine had occurred. Furthermore, and as the trial court found in

ruling on a post-judgment motion, Lowden did not have all of the ingredients

necessary to complete the manufacture of methamphetamine.

        [¶9] On June 5, 2012, Lowden was indicted by a grand jury for aggravated

trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1). A jury

trial was held beginning on April 22, 2013. At the close of the trial, the court,

without objection by Lowden or the State, instructed the jury correctly on both

unlawful trafficking in schedule W drugs, 17-A M.R.S. § 1103(1-A)(A), and

attempted trafficking in schedule W drugs, 17-A M.R.S. §§ 152(1)(B),

1103(1-A)(A) (2013).       The instruction on the trafficking charge indicated,

consistent with the trafficking statute, that Lowden could be convicted if the jury

found beyond a reasonable doubt that he engaged in intentional or knowing

conduct.
                                                                                   5

      [¶10] On April 26, 2013, the jury returned a guilty verdict on the charge of

unlawful trafficking in schedule W drugs. The jury, having returned a guilty

verdict on the more serious charge, was not asked to return a verdict on the lesser

offense of attempted trafficking, and the State did not request that the jury give

further consideration to the attempt charge.

      [¶11]    Lowden moved for a judgment of acquittal pursuant to M.R.

Crim. P. 29 on the grounds that no reasonable jury could have concluded, based on

the evidence presented at trial, that he unlawfully trafficked in methamphetamine.

The court denied Lowden’s motion, despite issuing findings of fact stating that it

was “apparent that [Lowden] did not have in his possession all [of the] ingredients

necessary to complete [the manufacture of] methamphetamine.”              The court

sentenced Lowden to seven years in prison.

      [¶12] Lowden timely appealed his conviction pursuant to 15 M.R.S. § 2115

(2013) and M.R. App. P. 2. He argues that there was insufficient evidence from

which a jury could rationally conclude that he unlawfully trafficked in a

schedule W drug via the manufacture of methamphetamine. See 17-A M.R.S.

§§ 1101(4), 1103(1-A)(A). Specifically, he argues that in order to be convicted of

unlawful trafficking in scheduled drugs via the manufacture of methamphetamine,

the State must prove that he completed the manufacture of methamphetamine,

which the State failed to establish in this case. He further argues that to interpret
6

the term “[m]anufacture” within the meaning of 17-A M.R.S. § 1101(4), to require

preparation or processing without the completed product, runs afoul of the rules of

statutory construction by rendering the criminal attempt statute, 17-A M.R.S.

§ 152, surplusage.

                              II. LEGAL ANALYSIS

A.    Standard of Review

      [¶13] We review the denial of a motion for a judgment of acquittal under

the same standard as a challenge to the sufficiency of the evidence, that is, by

“viewing the evidence in the light most favorable to the State to determine whether

the trier of fact rationally could have found beyond a reasonable doubt every

element of the offense charged.” State v. Severy, 2010 ME 126, ¶ 8, 8 A.3d 715

(alteration omitted). “If statutory interpretation is necessary, that interpretation is

conducted de novo.” Id.

      [¶14] When interpreting a statute, we look first to the plain meaning in

order to discern legislative intent, viewing the relevant provision in the context of

the entire statutory scheme to generate a harmonious result. Id. ¶ 9. Words are to

be construed according to their common meaning. Id. “Nothing in a statute may

be treated as surplusage if a reasonable construction applying meaning and force is

otherwise possible.” State v. Harris, 1999 ME 80, ¶ 3, 730 A.2d 1249 (alteration

omitted).
                                                                                                        7

         [¶15]     When interpreting a criminal statute, we are guided by two

interrelated rules of statutory construction: the rule of lenity, see State v. Stevens,

2007 ME 5, ¶ 16, 912 A.2d 1229; and the rule of strict construction, see State v.

Nastvogel, 2002 ME 97, ¶ 6, 798 A.2d 1114. Pursuant to each of these rules, any

ambiguity left unresolved by a strict construction of the statute must be resolved in

the defendant’s favor. Stevens, 2007 ME 5, ¶¶ 16, 18, 912 A.2d 1229 (“[T]he rule

of lenity is founded on the tenderness of the law for the rights of individuals; and

on the plain principle that the power of punishment is vested in the legislature, not

in the judicial department.” (citing United States v. Wiltberger, 18 U.S. (5 Wheat.)

76, 95 (1820))); State v. Shepley, 2003 ME 70, ¶ 15, 822 A.2d 1147.

B.       Statutory Definition of Manufacture

         [¶16] A person is guilty of aggravated trafficking of scheduled drugs if the

person violates 17-A M.R.S. § 1103(1-A), and, at the time of the offense, the

person has one or more prior convictions for any Class A, B, or C drug offense.3

17-A M.R.S. § 1105-A(1)(B).                A person is guilty of unlawful trafficking in

schedule W drugs pursuant to 17-A M.R.S. § 1103(1-A)(A) if the person

(1) intentionally or knowingly (2) trafficks in (3) what the person knows or


     3
      Because of the aggravating factor, Lowden’s conviction was agreed to by stipulation and not left for
the jury to decide, see 17-A M.R.S. § 1105-A(1)(B), and Lowden’s challenge on appeal deals exclusively
with the statutory interpretation of unlawful trafficking in schedule W drugs, see 17-A M.R.S.
§ 1103(1-A)(A), we refer to the elements of unlawful trafficking in schedule W drugs when evaluating
the sufficiency of the evidence to support Lowden’s conviction.
8

believes to be a scheduled drug, which (4) is in fact a scheduled drug and (5) the

drug is a schedule W drug. To “[t]raffick,” in this context, means “[t]o make,

create, manufacture.” 17-A M.R.S. § 1101(17)(A). To “[m]anufacture” means “to

produce, prepare, propagate, compound, convert or process, either directly or

indirectly by extraction from substances of natural origin, or independently by

means of chemical synthesis.” 17-A M.R.S. § 1101(4).

      [¶17] Although the definition of “[m]anufacture” could appear to suggest

that mere preparation or processing of chemicals may be sufficient, when the

language is read in the context of the crime of unlawful trafficking in scheduled

drugs, it is clear that preparation and processing, without more, is insufficient.

Unlawful trafficking in scheduled drugs mandates not only that a person “trafficks”

in a drug, but that the drug “is in fact a scheduled drug.”           17-A M.R.S.

§ 1103(1-A). One cannot “prepare” or “process,” and therefore traffick in, a drug

that “is in fact a scheduled drug” without a scheduled drug ultimately being

produced. 17-A M.R.S. §§ 1101(4), 1103(1-A); see Shepley, 2003 ME 70, ¶ 15,

822 A.2d 1147 (stating that courts must not construe statutory language “in a

manner that creates an absurd, illogical, or inconsistent result”).

      [¶18]    This interpretation is corroborated by an examination of the

relationship between unlawful trafficking in scheduled drugs via manufacture and

the criminal attempt statute, which provides
                                                                                      9

             1. A person is guilty of criminal attempt if, acting with the kind
      of culpability required for the commission of the crime, and with the
      intent to complete the commission of the crime, the person engages in
      conduct that in fact constitutes a substantial step toward its
      commission and the crime is:

      ....

                B. A Class A crime. Violation of this paragraph is a Class B
                   crime;

      ....

      A substantial step is any conduct that goes beyond mere preparation
      and is strongly corroborative of the firmness of the actor’s intent to
      complete the commission of the crime.

17-A M.R.S. § 152 (1) (emphasis added). To interpret “[m]anufacture” pursuant to

17-A M.R.S. § 1101(4) to require only “mere preparation” and processing of

ingredients, without more, would allow defendants to be convicted of attempted

unlawful trafficking or unlawful trafficking based on the same actions. This runs

afoul of the rules of construction by making the crime of criminal attempt

redundant, yet carrying a lesser penalty. See State v. White, 2001 ME 65, ¶ 4,

769 A.2d 827 (stating that statutes will be interpreted as being free of “unnecessary

and superfluous language”).

      [¶19]    We will attempt to harmonize inconsistent provisions within a

statutory scheme if at all possible in order to give effect to the Legislature’s intent.

Id. The most appropriate way to harmonize the definition of manufacture with the
10

criminal attempt statute is to require that a scheduled drug actually be produced.

There is nothing in the text of 17-A M.R.S. § 1101(4) or 17-A M.R.S. § 1103 that

suggests that the Legislature intended to duplicate criminal attempt in this context,

and we will not infer such an intention.

      [¶20] We have previously addressed what type of evidence is required to

support a conviction for unlawful trafficking in schedule W drugs via the

manufacture of methamphetamine. In State v. Woo, we affirmed a conviction for

unlawful trafficking in schedule W drugs where, like in this case, no

methamphetamine was found in the defendant’s possession. 2007 ME 151, ¶¶ 15,

23, 938 A.2d 13.      Likewise, the defendant in Woo did not have all of the

ingredients to manufacture methamphetamine in his possession at that time he was

apprehended. Id. ¶ 21. There was, however, “substantial circumstantial evidence

that Woo successfully made methamphetamine. ” Id. ¶ 20. Based upon that

evidence, we concluded that a rational jury could have found beyond a reasonable

doubt that the defendant unlawfully trafficked in methamphetamine. Id. ¶ 21.

      [¶21]    Here, unlike in Woo, there is no evidence, either direct or

circumstantial, from which the jury could infer that Lowden successfully created

methamphetamine or that methamphetamine had been created on or brought to the

premises. No methamphetamine was found, Lowden lacked some of the chemicals

necessary to create it, and the State did not present evidence—direct or
                                                                                  11

circumstantial—from which a jury could have rationally inferred that Lowden

successfully manufactured or possessed methamphetamine. Therefore, we must

vacate his conviction for aggravated trafficking of scheduled drugs.

C.    Lesser Offense Consideration

      [¶22]   With the underlying conviction vacated, we must next consider

whether Lowden can be convicted of a lesser included offense of attempted

trafficking in scheduled drugs. Reducing a conviction for a principal offense to a

lesser included offense, after determining that the evidence did not support

conviction for the principal offense, but would support a finding of attempt to

commit the principal offense, is a practice that is constitutionally acceptable. See

Rutledge v. United States, 517 U.S. 292, 306 (1996) (noting that appellate courts

have “uniformly concluded that they may direct the entry of judgment for a lesser

included offense when a conviction for a greater offense is reversed on grounds

that affect only the greater offense”); Morris v. Mathews, 475 U.S. 237, 246-47

(1986) (upholding the process of reducing an erroneous judgment of conviction on

a greater offense to a lesser included offense unless the defendant can demonstrate

a reasonable probability that he would not have been convicted of the lesser

offense absent the presence of the greater offense).

      [¶23] Modification of a judgment of conviction for a principal offense to

that of a lesser offense is only available, however, when the lesser included offense
12

is necessarily committed when the greater offense is committed. 17-A M.R.S.

§ 13-A(2)(A) (2013); State v. Gantnier, 2012 ME 123, ¶¶ 9-10, 55 A.3d 404.

Thus, it is necessary to determine whether attempted trafficking of scheduled

drugs, 17-A M.R.S. §§ 152, 1103(1-A), is a lesser included offense of trafficking

of scheduled drugs, 17-A M.R.S. § 1103(1-A).

      [¶24] A person may be convicted of trafficking if, as the court instructed the

jury here, a person engages in conduct that is intentional or knowing. 17-A M.R.S.

§§ 152, 1103(1-A); see 17-A M.R.S. § 35(1)-(2) (2013). However, a person may

be convicted of attempt, 17-A M.R.S. § 152(1), only if the person is proved to have

“the intent to complete the commission of the crime.” Because Lowden could

have been convicted of trafficking based on the jury’s finding that he engaged in

knowing, but not intentional, conduct, the crime of attempted trafficking was not

necessarily committed when the crime of trafficking was committed.            Thus,

attempted trafficking is not a lesser included offense of the crime of trafficking.

See State v. Huff, 469 A.2d 1251, 1252-54 (Me. 1984) (discussing the

attempt-intent issue generally in the context of an attempted murder case).

Because attempted trafficking is not a lesser included offense of trafficking, and

the evidence does not support the trafficking conviction, we must remand for the

entry of a judgment of acquittal.
                                                                            13

        The entry is:

                           Judgment vacated. Remand to the Superior Court
                           for the entry of a judgment of acquittal.

____________________________________________

On the briefs:

        Thomas J. Connolly, Esq., Portland, for appellant Aaron
        Lowden

        Janet T. Mills, Attorney General, and Jonathan Sahrbeck, Asst.
        Atty. Gen., Office of Attorney General, Augusta, for appellee
        State of Maine


At oral argument:

        Thomas J. Connolly, Esq., for appellant Aaron Lowden

        Jonathan Sahrbeck, Asst. Atty. Gen., for appellee State of
        Maine



York County Superior Court docket number CR-2012-555
FOR CLERK REFERENCE ONLY
