Commonwealth v. Wanstader Previlon. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-964
COMMONWEALTH
vs.
WANSTADER PREVILON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Wanstader Previlon, was convicted on June
12, 2018, after a two-day jury trial in District Court, of
distribution of a class B substance, G. L. c. 94C, § 32A (a),
and of distribution of a controlled substance near a public
park, G. L. c. 94C, § 32J.1,2 On appeal, he focuses his
arguments solely on count one and asserts that (1) there was
insufficient evidence to convict him of distribution of a class
B substance, (2) a new trial should have been ordered because
1 The defendant's conviction for a controlled substance violation
near a public park was later vacated after the Supreme Judicial
Court's ruling in Commonwealth v. Boger, 486 Mass 358, 363
(2020) (Commonwealth failed to prove distribution near public
park because it did not present evidence park was owned or
maintained by government).
2 The defendant was also charged with conspiracy to violate a
drug law, G. L. c. 94C, § 40. That charge was later dismissed
at the request of the Commonwealth.
the judge failed to properly instruct the jury regarding aiding
and abetting, and (3) the judge abused his discretion by
limiting testimony that could have developed his theory of
sentencing entrapment and by failing to provide an entrapment
jury instruction. Discerning no error, we affirm.
Background. With respect to our analysis of the
defendant's argument pertaining to the sufficiency of the
evidence, we summarize the evidence in the light most favorable
to the Commonwealth, reserving some facts for discussion of the
specific issues. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979).
In the summer of 2016, Manchester-by-the-Sea Detective
Christopher Locke placed an advertisement in the "casual
encounters" section of Craigslist.3 The advertisement used
slang4 to suggest that Detective Locke, acting in his undercover
capacity, was interested in obtaining cocaine. The
advertisement also referenced a location in Manchester-by-the-
Sea called Cathedral of the Pines, which is "a large recreation
area" containing "several thousand acres of hiking trails," as a
3 Craigslist is a classified advertisements website. See Boger,
486 Mass. at 359 n.2.
4 The advertisement read in part, "[l]ooking to SKI with Mr.
Right Now . . . If you have party favors, you go the front of
the line!" Detective Locke testified that "ski" referred to
cocaine and that "[p]arty favors is slang for drugs."
2
meeting spot. Cathedral of the Pines was chosen because the
police had received "hundreds upon hundreds upon hundreds of
calls of suspicious activity in the area."
On July 12, Detective Locke received a response, also via
Craigslist, inquiring as to whether he was "looking for ski,"
and after responding in the affirmative, received a phone number
to contact. He began exchanging text messages with that phone
number and negotiated the purchase of 10.5 grams5 of cocaine for
$750, plus an additional $40 to pay a driver to bring the seller
to the detective's location in Manchester-by-the-Sea.
Having arranged the sale, Detective Locke organized other
detectives to assist him with conducting the undercover purchase
of cocaine. Detective Locke, along with a detective from
Beverly, positioned themselves in an unmarked vehicle in the
parking lot where he had agreed to meet the suspect with whom he
had communicated via text. Two other unmarked police cars were
positioned nearby, and two marked police cars were positioned
down the street, "tucked in behind [a] farm stand."
After a period of waiting, a vehicle matching the
description provided by the party with whom Detective Locke was
5 Detective Locke initially testified that he had arranged to
purchase 10.5 grams of cocaine but then corrected the figure to
10 grams after being prompted to do so by the Commonwealth. The
text messages in evidence clearly show that the negotiated
quantity was 10.5 grams.
3
communicating, a blue Honda, pulled into the parking lot and
stopped directly in front of Detective Locke's undercover
vehicle. Codefendant Hetson Leneus was driving the Honda, while
codefendant Indiah Boger was riding in one of the rear passenger
seats. The defendant was seated in the front passenger seat.
Detective Locke approached the vehicle, and, as he did, Leneus
rolled down the defendant's window. Leneus told Detective Locke
to get in the car, but he declined, saying, "my buddy will freak
out if I get in the car." The defendant asked him if there were
"any cops in the area," and after responding, "[n]o, we're all
good," Detective Locke handed the defendant $790 in marked
bills.6 After doing so, the driver directed his attention to
Boger, sitting in the back seat. Boger proceeded to hand
Detective Locke a "small glassine bag," through the right rear
passenger window, which the detective believed, based on
training and experience, contained cocaine.
After accepting the bag from Boger, Detective Locke gave a
discrete signal to the other detectives. They pulled over the
vehicle in which the defendant was riding approximately 200
yards down the road as it drove away. All three occupants were
placed under arrest. Upon looking in the vehicle, Boger's cell
6 Detective Locke testified that "[w]e photocopy the specific
bills that we're using for the buy money" and that "[w]e make
sure to include the serial number of each bill."
4
phone, which had been used to coordinate the sale with Detective
Locke, was observed and recovered from the front-passenger seat,
where the defendant had been sitting.7 The defendant, as well as
Leneus and Boger, were subsequently charged with distribution of
a class B substance, G. L. c. 94C, § 32A (a), distribution of a
controlled substance near a public park, G. L. c. 94C, § 32J,
and conspiracy to violate a drug law, G. L. c. 94C, § 40.
At trial, the Commonwealth called two witnesses, Detective
Locke and State police crime laboratory forensic scientist Nevin
Vigneault. Detective Locke testified to the way in which he
created the Craigslist advertisement, communicated with the
defendants, and coordinated the undercover purchase and
subsequent arrest. During his testimony, counsel for Boger
attempted to question Detective Locke as to his motivation for
choosing an alleged public park as the purchase location,
asking, "you're aware that any sales that occur in this area
would increase any penalty under the law, isn't that correct?"
The Commonwealth objected and the judge sustained the
Commonwealth's objection, observing that "sentencing entrapment
is not a recognized defense."
7 Detective Locke testified that, when he initially observed the
cell phone, "[o]n the screen of the phone was [sic] the text
messages that I had been exchanging with that phone."
5
The defendant moved for a required finding of not guilty at
the close of the Commonwealth's case-in-chief and again at the
close of all evidence. Both motions were denied. During a
discussion regarding jury instructions, the defendant sought a
specific, self-crafted instruction related to aiding and
abetting; there was also an extended discussion regarding a park
zone instruction. The judge denied the request as to aiding and
abetting and instead issued an aiding and abetting instruction
pursuant to the model jury instructions. See Criminal Model
Jury Instructions for Use in the District Court 4.200 (2011).
The judge also declined to use language requested by the
defendant when providing a park zone instruction. The
defendant's objections were noted.
The jury returned guilty verdicts on distribution of a
class B substance and controlled substance violation near a
public park for the defendant and Boger; it returned not-guilty
verdicts on the same charges for Leneus. The charge for
conspiracy was dismissed at the request of the Commonwealth
after the verdicts were delivered. The defendant was sentenced
to two years and one day in the House of Corrections and this
appeal followed.
Discussion. 1. Sufficiency of the evidence. The
defendant first argues that there was insufficient evidence to
prove that he actually or constructively distributed or
6
delivered the cocaine to Detective Locke. He relatedly argues
that the jury was required to engage in speculation to conclude
that he did. We disagree.
"In determining the validity of a claim challenging the
sufficiency of the Commonwealth's evidence at trial, we review
the evidence in the light most favorable to the Commonwealth to
determine whether 'any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting
Latimore, 378 Mass. at 677. "The inferences that support a
conviction 'need only be reasonable and possible; [they] need
not be necessary or inescapable.'" Commonwealth v. Waller, 90
Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods,
466 Mass. 707, 713 (2014). The question is whether the evidence
would permit a jury to find the defendant guilty, not whether it
requires it. See Commonwealth v. Guy, 441 Mass. 96, 101 (2004),
quoting Commonwealth v. Fisher, 433 Mass. 340, 342-343 (2001).
To prove that the defendant distributed a class B
substance, the Commonwealth must show that he acted "knowingly
or intentionally" in distributing the class B substance.8 G. L.
c. 94C, § 32A (a). "Distribute" is defined as "to deliver other
8 The Commonwealth called a forensic scientist to testify that
the white powder recovered from the vehicle in which the
defendant was riding was a class B substance, and that testimony
is not challenged here.
7
than by administering or dispensing a controlled substance," and
"deliver" is defined as "to transfer, whether by actual or
constructive transfer, a controlled substance from one person to
another, whether or not there is an agency relationship." G. L.
c. 94C, § 1.
The Commonwealth proceeded upon the theory that the
defendant engaged in distribution by aiding and abetting. To
prove that the defendant aided and abetted in the distribution
of a class B substance, the Commonwealth must "prove 'beyond a
reasonable doubt that the defendant knowingly participated in
the commission of the crime charged, with the intent required to
commit the crime.'" Commonwealth v. Johnson, 92 Mass. App. Ct.
538, 543 (2017), quoting Commonwealth v. Zanetti, 454 Mass. 449,
467 (2009).
Here, the Commonwealth provided ample evidence to allow a
rational trier of fact to conclude that the defendant knowingly
participated in the distribution of a class B substance.
Detective Locke testified that he coordinated the purchase of
10.5 grams of cocaine via text message from a person who said
they would arrive at the site of the sale in "[a] blue Honda,"
driven by the driver for whom additional compensation was
required. The defendant subsequently arrived at the
aforementioned location in a vehicle matching that description.
When Detective Locke approached the vehicle, the defendant, who
8
was seated in the front passenger seat, "asked [him] if there
was [sic] any cops in the area." After responding, "[n]o, we're
all good," Detective Locke handed the defendant the prearranged
sum of $790, which the defendant accepted. Thereafter, Boger,
through the right rear passenger window, handed him a glassine
bag containing cocaine.
These facts are consistent with a multi-person narcotics
sale and were sufficient to permit a rational trier of fact to
conclude that the defendant knowingly participated in the
commission of the distribution of the class B substance. See
Commonwealth v. Mgaresh, 83 Mass. App. Ct. 276, 278 (2013)
(sufficient evidence of joint venture where, inter alia,
defendant arranged narcotics sale and possessed cell phone used
to negotiate sale). See also Commonwealth v. Roman, 74 Mass.
App. Ct. 251, 254-255 (2009) (sufficient facts to support joint
venture where defendant attempted to conceal transfer of
narcotics by another). Additionally, the defendant's question
regarding the presence of police in the area was sufficient to
allow a reasonable trier of fact to conclude that he was aware
illegal activity was afoot. See Commonwealth v. Miranda, 441
Mass. 783, 791-792 (2004) (defendant convicted of distribution
after, inter alia, serving as lookout during narcotics sale).
See also Commonwealth v. Ward, 45 Mass. App. Ct. 901, 902
(1998). Further still, the way in which Boger handed the
9
cocaine to Detective Locke after the defendant accepted the
money was also sufficient for a reasonable trier of fact to
conclude that Boger and the defendant were coordinating in their
conduct of the sale; one accepted payment while the other
delivered the narcotics. See Commonwealth v. Fernandes, 46
Mass. App. Ct. 455, 461-462 (1999). See also Commonwealth v.
Robinson, 43 Mass. App. Ct. 257, 259-260 (1997) (describing
multi-person drug-distribution procedure). Furthermore, the
fact that the cell phone used to negotiate the sale was
recovered, unlocked, and in the seat where the defendant was
sitting reasonably supports the conclusion that he was the one
who communicated with Detective Locke when arranging the sale.
Taken together, this testimony was sufficient to permit the jury
to conclude that the defendant knowingly participated in the
distribution of the cocaine.9 The judge did not err in denying
the defendant's motion for a required finding. See Latimore,
9 The defendant further argues that there was insufficient
evidence to show that he engaged in constructive distribution of
the narcotics. We need not address the contention.
Constructive distribution and distribution by aiding and
abetting are two different legal theories. See Commonwealth v.
Robinson, 43 Mass. App. Ct. 257, 261 (1997) ("The theories of
constructive possession and joint venture are[] alternative
theories with which to connect an accused to the crime"). See
also Zanetti, 454 Mass. at 467 (adopting language of aiding and
abetting in lieu of joint venture). Assuming without deciding
that the Commonwealth failed to prove constructive distribution,
such a failure would not impact its case with respect to aiding
and abetting distribution.
10
378 Mass. at 677-678, citing Jackson v. Virginia, 443 U.S. 307,
318-319 (1979) ("[T]o sustain the denial of a directed verdict,
. . . [the appellate court] must find that there was enough
evidence that could have satisfied a rational trier of fact of
each such element beyond a reasonable doubt").
2. Jury instructions. The defendant further asserts that
the judge's jury instruction with respect to aiding and abetting
was in error because it failed to comply with the standard set
forth in Zanetti, 454 Mass. at 467-468, and because it ran the
risk of confusing the jury. We are not persuaded.
"Where, as here, a defendant raises a timely objection to a
judge's instruction to the jury, we review the claim for
prejudicial error." Commonwealth v. Kelly, 470 Mass. 682, 687
(2015). "Appellate courts conduct a two-part test: whether the
instructions were legally erroneous, and (if so) whether that
error was prejudicial" (quotations omitted). Id. at 688.
"Trial judges have 'considerable discretion in framing jury
instructions, both in determining the precise phraseology used
and the appropriate degree of elaboration.'" Id. at 688,
quoting Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131
(2002).
"When there is evidence that more than one person may have
participated in the commission of the crime, judges are to
instruct the jury that the defendant is guilty if the
11
Commonwealth has proved beyond a reasonable doubt that the
defendant knowingly participated in the commission of the crime
charged, alone or with others, with the intent required for that
offense." Zanetti, 454 Mass. at 467-468.
Here, it is undisputed the codefendants were all in the car
together at the time the alleged distribution occurred and that
they were arrested together shortly thereafter. The
Commonwealth proceeded on the theory of aiding and abetting, and
it is undisputed that the judge provided the District Court
model jury instruction for that offense to the jury. As is
required under Zanetti, this instruction properly informed the
jury of the two elements of aiding and abetting. The judge told
the jury, in part, "[f]irst, . . . the Commonwealth must prove
that each Defendant knowingly and intentionally participated in
some meaningful way in the commission of the alleged offense,
either alone or with others. Second, that he or she did so with
the intent required for the offense." This model instruction
made clear to the jury that the elements of aiding and abetting
did not constitute a separate crime from distribution of a class
B substance, but rather, were a prerequisite to proof of that
crime by way of the theory of aiding and abetting. There was no
error.
3. Entrapment. Finally, the defendant argues that the
judge erred by limiting his codefendant's line of questioning
12
with respect to the theory of entrapment and because, he
contends, the judge should have issued an entrapment jury
instruction.10 Accordingly, we recite additional facts that the
defendant argues support an entrapment defense. See
Commonwealth v. Encarnacion, 38 Mass. App. Ct. 972, 973 (1995),
quoting Commonwealth v. Tracey, 416 Mass. 528, 536 (1993). The
party11 with whom Detective Locke negotiated the narcotics
exchange identified themselves as "coming from Dorchester."
Detective Locke asked if they could meet him in Manchester-by-
the-Sea. After clarifying that Manchester-by-the-Sea was in
Massachusetts, the unknown party agreed to do so in exchange for
an additional forty dollars to pay a driver to transport him to
that location. The unknown party clarified in which town the
meeting was to occur one additional time before arrival. In
spite of these arguments, we conclude that the judge did not err
10We note at the outset that the defendant appears to conflate
the concepts of entrapment and sentencing entrapment, which are
two separate legal theories. See Commonwealth v. Garcia, 421
Mass. 686, 687 (1996). This distinction is discussed infra.
11Although the defendant argues that he was not the party with
whom Detective Locke communicated, the jury was free to
discredit that assertion and reasonably infer that he was based
on the discovery of the cell phone used to negotiate the sale,
open to the text message exchange, in the seat where the
defendant had been sitting. Commonwealth v. Waller, 90 Mass.
App. Ct. 295, 303 (2016), citing Commonwealth v. Woods, 466
Mass. 707, 713 (2014).
13
in cutting off this portion of the testimony or in failing to
issue an instruction on entrapment.
"Whether evidence is relevant and whether its probative
value is substantially outweighed by its prejudicial effect are
matters entrusted to the trial judge's broad discretion and are
not disturbed absent palpable error." Commonwealth v.
Podgurski, 81 Mass. App. Ct. 175, 183 (2012), quoting
Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).
"An entrapment instruction is required when there is
evidence of a government agent's intentional, persistent, and
repeated conduct that goes beyond mere solicitation or request
that the defendant participate in a criminal act." Commonwealth
v. Lawrence, 69 Mass. App. Ct. 596, 601 (2007), citing
Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 703 (2001).
"The threshold for a defendant to raise the entrapment issue is
low, but the defendant must show more than mere solicitation."
Encarnacion, 38 Mass. App. Ct. at 973, quoting Tracey, 416 Mass.
at 536. Sentencing entrapment, in contrast, is an argument in
which the defendant asserts that law enforcement has structured
its investigation "in order to obtain convictions of more
serious trafficking charges and the imposition of higher
mandatory minimum sentences." Commonwealth v. Garcia, 421 Mass.
686, 687 (1996) (arguing law enforcement entrapped defendant to
sell larger quantity of cocaine). See Commonwealth v. Labitue,
14
49 Mass. App. Ct. 913, 914-915 (2000) (arguing police waited to
conduct search until defendant was near school). Sentencing
entrapment is not a recognized defense in the Commonwealth. See
Labitue, 49 Mass. App. Ct. at 915.
Here, the attorney for Boger attempted to question
Detective Locke as to the increased penalty under the law for
distribution of narcotics in the vicinity of an alleged park.
The Commonwealth objected, and, at sidebar, the judge correctly
observed that "sentencing entrapment is not a recognized
defense." See Commonwealth v. Cruz, 430 Mass. 838, 846-847
(2000). The judge was correct, therefore, to disallow
additional questions as to sentencing enhancements related to
the location of the sale. The judge did permit the attorney for
Boger to question Detective Locke regarding why he selected the
particular location and invited the attorney to return to
sidebar if he wished to pursue this line of questioning further.
The attorney for Boger could have exercised this opportunity to
develop additional testimony regarding a permissible entrapment
defense. However, he did not.12 No testimony pertaining to
entrapment was obtained thereafter. Without more, we cannot
12After Detective Locke answered that he selected the location
due to the large number of complaints of criminal activity
related to it, the attorney for Boger pursued a different line
of questioning without ever returning to sidebar.
15
conclude that the judge's failure to provide an entrapment
instruction was an abuse of discretion or error of law.13 See
Commonwealth v. Saletino, 449 Mass. 657, 658 n.1 (2007)
(describing difference between traditional entrapment and
sentencing entrapment).
Judgment affirmed.
By the Court (Wolohojian,
Blake & Desmond, JJ.14),
Clerk
Entered: February 22, 2023.
13Even assuming without deciding that the defendant was entitled
to an entrapment defense or instruction with respect to the
charge of distribution near a public park, "[t]he dismissal of
the charges 'render[s] moot any defects in the underlying
proceedings.'" Commonwealth v. Estrada, 69 Mass. App. Ct. 514,
517 (2007), quoting Burns v. Commonwealth, 430 Mass. 444, 447
(1999).
14 The panelists are listed in order of seniority.
16