NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial by jury, Maria Fundora, the defendant, was convicted of possession of a class B substance, to wit, oxycodone, possession with the intent to distribute a class B substance, to wit, cocaine, and commission of a drug offense within one hundred feet of a public park. She argues on appeal that the Commonwealth's evidence was insufficient to support the two possessory convictions. We affirm.
Background. This case stems from the execution of a search warrant at a two-bedroom apartment at 111 Charles Street in Waltham. Over the prior weeks, police had conducted an undercover investigation and had probable cause to believe that the defendant's son was selling narcotics from the apartment. Police obtained a search warrant and the defendant and her boyfriend were present when the warrant was executed. The defendant was found in her bedroom and the police asked her to wait in the kitchen during the search. The defendant denied any knowledge of drugs in the residence, but attempted to return to her bedroom multiple times during the search.
In a large dresser in the defendant's bedroom, the detectives found a scale, packaging materials, a bottle with a cutting agent, insurance paperwork belonging to the defendant, and a prescription bottle bearing the defendant's name with two oxycodone pills inside. In a smaller dresser in the defendant's room, police found a plate with white powder residue, a credit card, paystubs belonging to her boyfriend, a box of sandwich bags, and men's clothes. Detectives also found a locked safe in the defendant's closet containing paperwork belonging to the defendant, jewelry, and a small box with $1,739 in cash. The safe also held another prescription bottle bearing the defendant's name that contained seven small individually packaged bags of cocaine. Inside a nightstand next to the bed, police found a cell phone, keys to the safe, paperwork belonging to the defendant, and a notebook with numbers written in the margin. Police testified that these notations appeared to be "cuff notes," used to track drug sales.
Testimony showed that the drugs were packaged as "cornered bags," whereby drugs are packed into the corner of a plastic bag and tightly knotted off.
Detective Kevin Branley of the Cambridge Police Department special investigations unit testified that he had participated in several hundred drug-related investigations as a narcotics detective and several hundred drug-related arrests. He had received specialized training regarding illegal narcotics, drug transactions, distribution, and the packaging of narcotics for distribution.
The defendant was charged with (1) possession of a class B substance, to wit, cocaine, with intent to distribute, in violation of G. L. c. 94C, § 32A (a), (2) possession of a class B substance, to wit, oxycodone, in violation of G. L. c. 94C, § 34, and (3) possession of a class E substance, to wit, Dilaudid, in violation of G. L. c. 94C, § 34. The Commonwealth also charged the defendant with committing a drug offense within one hundred feet of a public park, in violation of G. L. c. 94C, § 32J. At trial, the defendant argued that her son was solely responsible for the items found in her bedroom, and called him to testify to that effect. The jury returned a verdict of guilty on all counts.
The charge for possession of Dilaudid was dismissed before trial.
Discussion. On appeal, the defendant argues that the Commonwealth's evidence was insufficient to prove that she possessed the oxycodone, and that she possessed and intended to distribute the cocaine. We are not persuaded. For sufficiency questions, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). A defendant is said to have constructively possessed a controlled substance if he or she knows of its presence and both intends and has the ability to exercise dominion and control over it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom" (citation omitted). Id. A defendant's intent to distribute a controlled substance is a matter of fact and may be proven by reasonable inferences based on all the facts and circumstances developed at trial. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014). "When contraband is found in a dwelling shared by a defendant and one or more other persons, a finder of fact may properly infer that the defendant is in possession of the contraband (not necessarily exclusive possession) from evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, such as a bedroom or closet, to which other evidence indicates the defendant has a particular relationship." Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986).
Here, the evidence was sufficient to support the elements of both charges. To begin, we note that all of the drugs for which the defendant was charged were discovered in her bedroom. The oxycodone pills were discovered in a pill bottle in the defendant's name, located alongside insurance paperwork, also in her name, in a dresser in her bedroom. See Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 542-543 (2012). Additionally, she tried to return to the bedroom multiple times during the search, which allowed an inference of consciousness of guilt. See Brzezinski, 405 Mass. at 410. Regarding the possession of cocaine with intent to distribute conviction, much of the same holds true. The cocaine was also found in a pill bottle bearing the defendant's name, and was kept in a locked safe in the defendant's closet along with jewelry and paperwork belonging to the defendant. Compare Rarick, 23 Mass. App. Ct. at 913. The key to that safe, alongside more of the defendant's personal papers, was found in the defendant's night stand. Additionally, the cocaine was packaged in a fashion that is consistent with distribution. This evidence, coupled with the "cuff notes" and the multitude of other drug-related items, located in an apartment known by police to be the location of illegal drug transactions, was sufficient to support the jury's verdict. Certainly a rational trier of fact could find each element of the defendant's convictions beyond a reasonable doubt.
The panelists are listed in order of seniority. --------
Clerk Entered: December 31, 2019.