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State v. Ullring, part 2



II. SUFFICIENCY OF THE EVIDENCE
	[¶28]  When reviewing challenges to the sufficiency of the evidence we
review the evidence in the light most favorable to the State to determine
whether a factfinder "'rationally could find beyond a reasonable doubt every
element of the offense charged.'"  State v. Marden, 673 A.2d 1304, 1311
(Me. 1996) (quoting State v. Taylor, 661 A.2d 665, 668 (Me. 1995)).  A
person is guilty of "trafficking" a drug under 17-A M.R.S.A. § 1101(17)
(1983 & Supp. 1998), if one does the following with that drug:
	A. 	To make, create, or manufacture;
	B. 	To grow or cultivate;
	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.
	[¶29]  The only witness in this case was MDEA agent David St. Pierre. 
St. Pierre testified to his experience investigating drug cases as an MDEA
agent and police officer.  He testified that marijuana is usually sold in small
quantities, such as one-eighth of an ounce, in baggies.  He testified that
triple beam scales are expensive and commonly used by marijuana
traffickers to accurately weigh the small quantities to be sold.  When St.
Pierre and the other agents searched Ullring's home on December 5,
pursuant to the search warrant, they found a triple beam scale, plastic
sandwich bags, and thirteen ounces of marijuana located together on a tray. 
St. Pierre testified that several empty one-pound ziplock bags were found
next to the marijuana and the scales, and each of them emitted a strong
odor of marijuana and contained marijuana residue.
	[¶30]  From this evidence a jury could rationally conclude that Ullring
obtained or stored marijuana in the larger ziplock bags, and that he took
marijuana from the larger bags and placed small quantities in the smaller
bags, which he weighed with the triple beam scales.  From that the jury
could reach the rational inference that the purpose of weighing the smaller
quantities was to ready them for sale.  The jury could have found rationally
beyond a reasonable doubt that Ullring possessed the marijuana with the
purpose of selling it.  Therefore, we will not disturb the jury's verdict.
	The entry is:

			Judgment affirmed.
             

Attorneys for State: 
 
Norman E. Croteau, District Attorney
David W. Fisher, Asst. Atty. General (orally)
2 Turner Street
Auburn, ME 04210

Attorney for defendant:

Walter Hanstein III, Esq. (orally)
Joyce, Dumas, David & Hanstein, P.A.
P O Box 31
Farmington, ME 04938-0031
FOOTNOTES******************************** {1} . Ullring was sentenced to six months in jail with all but 20 days suspended. {2} . There is no evidence that Ullring attempted to revoke his agreement to the random search condition or that he sought, from the court, a review of the bail condition. {3} . § 1026(4) states: 4. Factors to be considered in release decision. In setting bail, the judicial officer shall, on the basis of an interview with the defendant, information provided by the defendant's attorney and information provided by the attorney for the State or an informed law enforcement officer if the attorney for the State is not available and other reliable information that can be obtained, take into account the available information concerning the following: A. The nature and circumstances of the crime charged; B. The nature of the evidence against the defendant; and C. The history and characteristics of the defendant, including, but not limited to: (1) The defendant's character and physical and mental condition; (2) The defendant's family ties in the State; (3) The defendant's employment history in the State; (4) The defendant's financial resources; (5) The defendant's length of residence in the community and the defendant's community ties; (6) The defendant's past conduct, including any history relating to drug or alcohol abuse; (7) The defendant's criminal history, if any; (8) The defendant's record concerning appearances at court proceedings; (9) Whether, at the time of the current offense or arrest, the defendant was on probation, parole or other release pending trial, sentencing, appeal or completion of a sentence for an offense in this jurisdiction or another; (10) Any evidence that the defendant has obstructed or attempted to obstruct justice by threatening, injuring or intimidating a victim or a prospective witness, juror, attorney for the State, judge, justice or other officer of the court; and (11) Whether the defendant has previously violated conditions of release, probation or other court orders, including, but not limited to, violating protection from abuse orders pursuant to Title 19, section 769 or Title 19-A, section 4011. {4} . There is no indication in this record that Ullring sought judicial review of the conditions imposed by the bail commissioner. Ullring did not appear in court until January 14, 1998, and he did not have an attorney until one was appointed for him on January 14. The court has wide discretion to amend bail conditions upon motion of either party or at the defendant's first appearance in court. See § 1026(3)(C) and (6). {5} . The Oliver court also relied upon the inherent power of the courts stating, "[A]ll courts, absent some specific statutory denial of power, possess ancillary powers to effectuate their jurisdiction . . . [and] do all things that are reasonably necessary for the administration of justice within the scope of its judgments and mandates." Oliver, 682 A.2d at 189 (citation omitted). {6} . York was a consolidated appeal of several habeas corpus petitions, the petitioners all being pretrial arrestees upon whom the conditions of warrantless search and random drug testing were imposed. The conditions were imposed routinely as a matter of policy on persons arrested for drug-related felonies. See York, 892 P.2d at 806. The court of appeals held that the conditions were permissible only after a judge or magistrate made an individualized determination as to the reasonableness of the condition based upon the circumstances, and the court of appeals vacated the conditions for those petitioners who had not received the individualized determinations. The State did not seek review of that portion of the decision of the court of appeals, and the California Supreme Court declined to address it. Id. at 806-807 n.3. The court also expressly declined to reach the question of whether the challenged conditions could be imposed in misdemeanor cases since all of the petitioners were charged with felonies. Id. at 806 n.2. {7} . Ullring also argues that the bail condition violates article 1, section 5 of the Maine Constitution. We have refused to adopt a different or more stringent standard for searches under the Maine Constitution than is provided under the Fourth Amendment to the United States Constitution. In State v. Patten, 457 A.2d 806, 811 (Me. 1983) and State v. Bouchles, 457 A.2d 798, 801-02 (Me. 1983) we refused to hold that the Maine Constitution mandated a result different from that required by the Fourth Amendment for the search of closed containers in a vehicle. In State v. Wallace, 333 A.2d 72, 74 (Me. 1975) the defendant argued that we should not permit consent as an exception to the warrant requirement, but we disagreed and said: "We are not persuaded, in cases involving consent searches, that we should adopt more rigid Fourth Amendment standards than those acceptable to the United Sates Supreme Court." See also State v. Heald, 314 A.2d 820, 829 (Me. 1973) (holding that Me. Const. art. I, § 5, does not require the State to prove probable cause for a search beyond a reasonable doubt). We are not persuaded that the prohibition against unreasonable searches in the Maine Constitution should be broader than the Fourth Amendment in this situation. {8} . Neither Oliver nor York involve the precise situation in this case. Oliver involved only drug testing and not random searches of a residence. The statute allowed conditions "to protect public safety," Oliver, 692 A.2d at 188, and the court concluded that testing was a minimal intrusion when weighed against public safety, id. at 190. York was not an appeal from a conviction, but it was a habeas corpus petition seeking to vacate the bail condition. The court interpreted the California statute as permitting bail conditions that relate to public safety. York, 892 P.2d at 810. {9} . The Wisconsin Supreme Court ruled that the tip from the police constituted reasonable grounds under the regulation. The Supreme Court said that it was bound by the state court's interpretation of the state regulation. Griffin, 483 U.S. at 875.
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