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State v. Raymond Roussel
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 185
Docket:	Pis-99-663
Submitted	
on Briefs:	October 6, 2000
Decided:	October 27, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

								

STATE OF MAINE

v.

RAYMOND A. ROUSSEL

ALEXANDER, J.

	[¶1]  Raymond Roussel appeals from a judgment of the Superior
Court (Piscataquis County, Mills, J.) following a jury conviction for unlawful
trafficking in schedule Z drugs, a Class C crime, in violation of 17-A M.R.S.A.
§ 1103(2)(B) (1983 & Supp. 1999).{1}  On appeal, Roussel contends that the
jury's determination that he participated in growing or cultivating 100 or
more marijuana plants is not supported by the evidence, that it was obvious
error to admit evidence regarding a marijuana growing operation in which,
he asserts, he did not participate, and that the judgment and commitment
form incorrectly states that he was convicted of aggravated trafficking, as he
was originally charged, when the jury convicted him of the lesser included
offense of Class C trafficking in marijuana.  We affirm the judgment, but
remand for correction of the judgment and commitment form and the
docket entries.

I.  CASE HISTORY

	[¶2]  The record supports the following facts:  Raymond Roussel and
Timothy Farrar were acquaintances.  In 1998, Farrar maintained a
substantial marijuana growing operation at his residence in the Brownville
area and in the adjacent woods.  Farrar asked Roussel to assist him in
tending the marijuana plants growing at various locations in the woods by
carrying soil, assisting with watering, and providing other assistance in
planting and tending the marijuana plants.  Roussel undertook to provide
that assistance.  
	[¶3]  In May 1998, officers from the Brownville Police and the
Piscataquis County Sheriff's Office executed a search warrant at Timothy
Farrar's residence and discovered a total of 224 marijuana plants in the
grow operation at the residence.  Searching the woods, the officers
encountered Roussel and Farrar, carrying buckets, emerging from a path
that led to 24 marijuana plants growing in cutoff plastic milk jugs.  The
officers then discovered an additional 40 marijuana plants growing in a
clearing in the woods near the Bangor and Aroostook railroad tracks. 
Earlier in the day, the officers had harvested 45 or 48 plants from a plot
located across the Pleasant River from Farrar's residence.  This discovery
had led to the search warrant resulting in the search of Farrar's residence.  
	[¶4]  Because Farrar's residence was believed to be within 1000 feet
of a school, Roussel was indicted for aggravated trafficking in marijuana
(Class B) based on his alleged participation in growing or cultivating 100 or
more marijuana plants within 1000 feet of a school. See 17-A M.R.S.A.
§§ 1103(2)(B), 1105(1)(E) (Supp. 1999).  
	[¶5]  At trial, Farrar testified for the State that, at his request,
Roussel had assisted him in tending the marijuana plants in the woods
which, according to Farrar's testimony, included 24 plants in jugs, 40 plants
in an area near the railroad tracks, and 48 plants across the Pleasant River. 
Roussel's assistance to Farrar was confirmed by the officers' observation of
Roussel and Farrar emerging with buckets from the area where the 24
marijuana plants were located.  
	[¶6]  The trial record included no evidence that Roussel assisted in
any way in the grow operation at Farrar's residence.  Before Farrar testified,
however, the State, without objection from defense, had introduced
evidence regarding the 224 plants found at Farrar's residence.  The State
also presented evidence of the distance between the Farrar residence and a
school.  
	[¶7]  The jury was appropriately instructed on the indicted charge of
aggravated trafficking in marijuana (Class B) by growing or cultivating 100 or
more marijuana plants within 1000 feet of a school and several lesser
included offenses.  The jury convicted Roussel of growing or cultivating 100
or more marijuana plants but not within 1000 feet of a school.  Roussel was
sentenced in accordance with that conviction.  However, the judgment and
commitment form reflects a conviction and sentence for "aggravated"
trafficking in schedule Z drugs, although with the Class C designation.  The
same error is reflected in the docket entries regarding the conviction and
sentence.  The docket entries include an incorrect statutory citation to 17-A
M.R.S.A. § 1105(1)(A) which aggravates an offense when it involves a child
under 18 years of age, a matter not at issue in this case.  After entry of
judgment, Roussel brought this appeal.

II.  DISCUSSION

	[¶8]  When reviewing the sufficiency of the evidence supporting a
conviction, we review the evidence in the light most favorable to the jury's
verdict to determine whether a jury rationally could find beyond a
reasonable doubt each element of the offense charged.  See State v. Gray,
2000 ME 145, ¶ 25, 755 A.2d 540, 546; State v. Brown, 2000 ME 25, ¶ 7,
757 A.2d 768, 770-71.  
	[¶9]  In this case, the evidence is sufficient to support the jury's
conclusion that Roussel assisted Farrar in growing and cultivating the
marijuana plants in the woods as a principal or as an accomplice{2} by
participating in carrying soil, watering the plants, and otherwise tending the
plants as requested by Farrar.  Roussel asserts that there is insufficient
evidence to support a finding that Roussel assisted in tending 100 or more
marijuana plants.  However, Farrar's testimony is sufficient to support a
conclusion that Roussel assisted in tending 48 marijuana plants across the
Pleasant River, 40 plants near the Bangor and Aroostook tracks,{3} and 24
plants in plastic jugs in the woods.  This evidence of Roussel's participating
as a principal or an accomplice in tending 112 plants is sufficient to support
the jury's finding of trafficking by growing or cultivating 100 or more
marijuana plants.  
	[¶10]  Roussel also contends that it was error for the court to admit
evidence regarding the 224 plants in the grow operation at Farrar's home. 
Because that evidence was not objected to at trial, we only review admission
of that evidence for obvious error affecting substantial rights.  See M.R. Crim.
P. 52(b); State v. Kelly, 2000 ME 107, ¶ 21, 752 A.2d 188, 192-93.  It is
difficult to see how allowing this evidence was obvious error affecting
substantial rights.  The jury convicted Roussel of a lesser alternative that did
not involve the aggravating factor of criminal activity within 1000 feet of a
school, which was one of the reasons the evidence was offered.  Further,
Roussel's trial counsel's examination of Farrar elicited the fact that Farrar
was involved in a substantial grow operation at his residence.  This evidence
was less specific, but essentially similar to the evidence to which Roussel
objects.  
	[¶11]  In addition, the examination of Farrar by Roussel's counsel
suggested that Farrar may have implicated Roussel more deeply in the
residential marijuana growing operation in prior statements to the police
that were not reflected in the statements Farrar made under oath at trial. 
Evidence is not rendered improper on the obvious error standard when that
evidence is relevant to the offense charged but the defendant is not
connected to that evidence due to unanticipated changes in evidence
subsequently presented at trial.  
	[¶12]  In the circumstances of this case as suggested, at least by
implication, in Roussel's trial counsel's examination of Farrar, admission of
the evidence regarding the grow operation at Farrar's home was not error,
let alone obvious error.  
	[¶13]  As his final point on appeal, Roussel raises the clerical error
in the judgment and commitment form indicating that he was convicted of
"aggravated" trafficking in a schedule Z drug.  While not raised on appeal,
review of the record demonstrates that this erroneous reference to a
conviction for "aggravated" trafficking was repeated in the docket entries
with an incorrect statutory citation.  The effort to correct a clerical error is
an inappropriate subject for an appeal unless an attempt to secure
correction of the clerical error by invocation of M.R. Crim. P. 50 fails. 
M.R. Crim. P. 50 states:  

Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative
or on the motion of any party and after such notice as the
court orders.  During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed
in the appellate court, and thereafter, while the appeal is
pending may be so corrected with leave of the appellate
court.

  	[¶14]  In this case, it does not appear that Roussel made any effort to
correct the mistaken reference to "aggravated" trafficking by a motion to
correct a clerical error.  The result of Roussel's choice to use the direct
appeal method to correct that clerical error is that the clerical error has
remained on the docket and part of Roussel's record for an extended and
unnecessary period of time.  Parties should avoid unnecessarily invoking the
appeal process for matters that can be more appropriately resolved by a
motion to the court to correct what, in this case, was an obvious clerical
error.

	The entry is:
Remanded to the Superior Court to
correct the judgment and commitment
form and the docket entries to properly
reflect the crime for which Roussel was
convicted.  As corrected, judgment
affirmed.                                                                                           

Attorneys for State:

Andrew Ketterer, Attorney General
Matthew S. Erickson, Asst. Attorney General
P O Box 2460
Bangor, ME 04402-2460

Attorney for defendant:

Stuart W. Tisdale, Esq.
Tisdale & Davis, P.A.
P O Box 572
Portland, ME 04112