Commonwealth v. Robert White, Third. ( 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
22-P-905
COMMONWEALTH
vs.
ROBERT WHITE, Third.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of possession with intent to
distribute and trafficking cocaine 1 following a Superior Court
jury trial. Counsel failed to file a notice of appeal, and the
defendant thereafter filed a motion for a new trial. See White
v. Commonwealth, 479 Mass. 1023, 1024 (2018). The judge denied
his motion but vacated the possession with intent conviction as
duplicative. 2 The defendant timely appeals from that denial,
arguing that his motion for a required finding of not guilty
should have been allowed because the evidence was insufficient
to sustain the trafficking conviction. We affirm.
1 The defendant was convicted of trafficking between thirty-six
and one hundred grams of cocaine.
2 The Commonwealth does not challenge that finding on appeal.
Background. Because the defendant challenges the
sufficiency of the evidence, we recite the facts in the light
most favorable to the Commonwealth, together with the reasonable
inferences that could be drawn from them. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979).
On April 27, 2018, members of the Southeastern
Massachusetts Gang Task Force ("officers") surveilled 18 Stanley
Avenue in Taunton in preparation for the execution of a search
warrant. 3 After observing the defendant and his cousin, the
targets of the investigation, outside of the property, the
officers approached and detained them. An officer recovered a
plastic bag containing four smaller bags of crack cocaine from
the defendant's underwear, and $393 from his pocket. Once
inside the apartment, the officers observed a glass jar
containing several bags of what appeared to be crack cocaine,
three digital scales, "a Pyrex [container] with a gold strainer
inside" containing an "off-white, pasty residue," and a box of
sandwich baggies, all of which were in plain view in the
kitchen. During the ensuing search of the apartment, the
officers recovered six large bags of cocaine, two medium bags of
crack cocaine, and a key to a Lexus registered to the defendant
from a safe located in one of two bedrooms. While searching the
3 The defendant does not challenge the validity of the warrant.
2
second bedroom, the officers discovered approximately $2,000
from inside a jacket pocket, a prescription bottle labeled with
the defendant's name, and three letters addressed to the
defendant. The defendant told the troopers the jacket and the
cash found in its pocket belonged to him.
The Commonwealth's drug expert witness testified, in
response to the prosecutor's hypothetical factual scenarios
bearing close resemblance to the evidence presented at trial,
that the presence of cocaine, scales, strainers, packaging
materials, and currency in an apartment was consistent with
cocaine distribution. The expert further opined that the amount
and packaging of the drugs recovered from the defendant's person
was consistent with distribution. Finally, a forensic scientist
with the Massachusetts State Police testified that, in total,
the cocaine recovered from the apartment and the defendant
weighed approximately seventy-seven grams.
Discussion. The defendant argues that there was
insufficient evidence to prove beyond a reasonable doubt his
constructive possession of, and intent to distribute the cocaine
in the apartment, as required to support the trafficking
conviction. In assessing the sufficiency of the evidence, we
must decide "whether the evidence, in its light most favorable
to the Commonwealth . . . is sufficient . . . to permit the jury
to infer the existence of the essential elements of the crime
3
charged." Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 392
(2009), quoting Latimore, 378 Mass. at 676-677. Although a
conviction may be based entirely on circumstantial evidence, and
the inferences drawn need only be reasonable, not inescapable,
see Commonwealth v. Rakes, 478 Mass. 22, 45 (2017), "a
conviction may not rest on the piling of inference upon
inference or on conjecture and speculation" (quotations and
citation omitted). Commonwealth v. Ronchi, 491 Mass. 284, 297–
298 (2023).
"Constructive possession requires proof of knowledge
coupled with the ability and intention to exercise dominion and
control" (quotations and citation omitted). Commonwealth v.
Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). The Commonwealth
is not required to show that the defendant's possession was
exclusive; constructive possession may be exercised jointly.
See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 834 (2018).
Here, the layout of the "extremely small" apartment and the
conspicuous cocaine together with items used for drug
distribution found in the kitchen "suggest that all of those
present were involved in the activity, not simply aware of it." 4
4 The Commonwealth suggests the apartment was a stash house such
that the defendant's intent to distribute can be inferred from
his presence there. However, this case is unlike those cases
where we have found that "a reasonable inference of guilt may be
made from the defendant's presence in a sparsely furnished,
4
See Commonwealth v. Gonzalez, 452 Mass. 142, 148 (2008).
Contrast Dagraca-Teixeira, supra (no constructive possession
where guns were found in attic accessible to ten occupants of
apartment and search of "common living areas uncovered nothing
establishing the defendants' connection to the weapons"). In
fact, we have specifically found that "scales and packaging
materials on the kitchen table . . . . in plain view is [a]
factor that may support an inference of constructive possession
of a stash of a controlled substance." Commonwealth v.
Delarosa, 50 Mass. App. Ct. 623, 627-628 (2000). See
Commonwealth v. Woods, 94 Mass. App. Ct. 761, 766 (2019) (expert
testimony that cut-corner bags and scale indicated distribution
supported sufficiency).
Of course, "[p]resence alone cannot show the requisite
knowledge, power, or intention to exercise control over the
[drugs], but presence, supplemented by other incriminating
evidence, will serve to tip the scale in favor of sufficiency"
(quotations and citation omitted). Dagraca-Teixeira, 471 Mass.
at 1004. The defendant's various belongings linked him to the
apartment and directly to the safe where the largest quantity of
fortified apartment where drugs and drug packaging were found."
See Commonwealth v. Antonio, 45 Mass. App. Ct. 937, 938 (1998).
Here, the evidence tended to suggest not only that multiple
adults lived in the apartment, but also that a child lived
there. In any event, our decision does not rely on the stash
house characterization.
5
cocaine was found. Citing Commonwealth v. Ramos, 51 Mass. App.
Ct. 901 (2001), the defendant makes much of the fact that the
letters addressed to him found in the bedroom drawer had a
different address than that of the apartment. However, in
Ramos, no personal belongings of the defendant besides the
letters were found; instead, the items seized suggested that two
other occupants were living there. 51 Mass. App. Ct. at 903.
Here, the presence of the defendant's jacket containing $2,000,
prescription bottle, and mail in a bedroom served as "evidence
that the defendant rented, occupied, spent a great deal of time
at or exercised control over the apartment or its contents."
Id., quoting Commonwealth v. Caterino, 31 Mass. App. Ct. 685,
689 (1991). The presence of the key to the defendant's vehicle
in the safe next to the cocaine further substantiated his
connection to the largest quantity of drugs.
Finally, several factors beyond the presence of the
defendant and his belongings in the apartment demonstrate that
the defendant was directly involved in the distribution
operation. For one, the Commonwealth presented evidence that
the cocaine found on the defendant's person was packaged in a
manner consistent with the intent to distribute, and
inconsistent with personal use. See Commonwealth v. Sepheus,
468 Mass. 160, 165 (2014) ("[p]ackaging indeed may provide such
support [of distribution]" where drugs are "bundled or packaged
6
in a manner that suggests they were the remains of a larger
inventory"). See also Commonwealth v. Wilson, 441 Mass. 390,
400-401 (2004) ("We have consistently upheld the use of
narcotics investigators as experts" to testify that manner in
which drugs were packaged is "consistent with an intent for
'street distribution' rather than personal use"). The
defendant's link to the distribution of the larger quantities
could be further inferred from the fact that the crack cocaine
recovered from his pocket was consistent with the larger cache
of crack cocaine located in the safe and in the kitchen as well
as with the evidence of instruments typically used for
converting powder cocaine to crack cocaine found in the kitchen.
See Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 597
(2001), and cases cited ("A defendant who admits possession of a
small quantity of drugs may be linked to a larger quantity by
similarities in the drug's consistency").
Furthermore, the amount of cash found in the pocket of the
defendant's jacket and on his person directly supports a
reasonable inference that he was involved in the distribution of
the drugs recovered from the target apartment. See Gonzalez,
452 Mass. at 148. To the extent that the defendant attempts to
explain its source as "tips" from his job as a TGI Friday's
restaurant cleaner, neither the jury nor the judge who denied
the new trial motion were required to credit that rationale.
7
See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("it is for
the jury to determine where the truth lies, for the weight and
credibility of the evidence is wholly within their province").
See, e.g., Gonzalez, supra at 144, 148 n.4 (factfinder "free to
consider [defendant's] possession of [$2,604] as evidence of his
involvement in illegal drug activity" despite his testimony that
it was from the sale of his vehicle and his job at a garage).
In conclusion, the totality of the evidence and the
inferences that could be reasonably drawn therefrom were
sufficient to establish the elements of possession and intent to
distribute cocaine, the quantity of which supported the
trafficking conviction.
8
Accordingly, we affirm the order denying the defendant's motion
for new trial.
So ordered.
By the Court (Wolohojian,
Neyman & Smyth, JJ. 5),
Clerk
Entered: August 14, 2023.
5 The panelists are listed in order of seniority.
9