PORTLAND — Maine’s highest court vacated the sentence of a Lewiston man who was sentenced in 2017 to spend eight years in prison on drug charges.
David Brown of Lewiston is seated in Androscoggin County Superior Court in Auburn in 2017 with his trial attorney, Allan Lobozzo.
David Tyree Brown, 29, of 116 Horton St. was convicted of four counts of aggravated drug trafficking after a three-day trial.
He later appealed his sentencing in Androscoggin County Superior Court in Auburn to the Maine Supreme Judicial Court.
Writing for the high court, Justice Joseph Jabar said “the state did not present evidence from which a jury could rationally conclude beyond a reasonable doubt that Brown trafficked within 1,000 feet of a school.”
That factor had elevated the four counts of trafficking in scheduled drugs to four counts of aggravated trafficking, each count punishable by up to 30 years in prison rather than 10 years in prison.
The high court reasoned that lawmakers intended the criminal statute to mean the distance between a school and the person who was selling illegal drugs, not the property on which that drug dealer was located.
“The government inexplicably offered evidence not of the distance from a school to the point in the house where (Brown) possessed the drugs, but only … to a point five feet up the walkway to (Brown’s) house,” according to the Supreme Court opinion, published Thursday. “The state must prove beyond a reasonable doubt that the distance between the real property of the school and the location of the alleged drug trafficker at the time of the offense is within 1,000 feet.”
Agents had used a measuring wheel to determine the distance, but didn’t take into account differences in elevation, which add distance to the calculation.
The high court justices concluded that extra distance should have been counted.
Brown lived on the second floor of an apartment building on Walnut Street.
Drug agents used a confidential informant to make crack cocaine buys from Brown, whose home was in the area of Longley Elementary School on Birch Street.
According to an affidavit by a federal Drug Enforcement Agency task force agent, three controlled buys of crack cocaine were made using confidential informants between Dec. 23, 2016, and Feb. 10, 2017. The sources returned from his building each time with powder that later tested positive for the presence of crack cocaine.
The fourth count stems from 27 grams of crack cocaine recovered by drug agents in Brown’s bedroom after they executed a search warrant at his home after the controlled purchases.
The Walnut Street apartment building was 865 feet from the Longley Elementary School zone, according to calculations on an internet website, the MDEA agent wrote in his affidavit.
Androscoggin County Superior Court Justice Thomas E. Delahanty II said he didn’t consider the proximity of the drug transaction to the school to be a “significant aggravating factor” for the purposes of sentencing because the transactions were carried out in a home, not during school hours and not involving students or school personnel.
According to prosecutors, the drug sales occurred late morning on school days.
“The only consideration here is geography and distance,” Delahanty had explained before sentencing Brown.
The high court sent the case back down to Androscoggin County Superior Court for sentencing on the drug offenses.
cwilliams@sunjoural.com
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