Commonwealth v. Darren Hughes. ( 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
18-P-1717
COMMONWEALTH
vs.
DARREN HUGHES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Darren Hughes, was convicted following a
jury trial in Middlesex County Superior Court of one count of
trafficking of a person for sexual servitude, G. L. c. 265, § 50
(a), one count of distribution of a class D substance, G. L.
c. 94C, § 32C (b), and one count of possession of a class D
substance with intent to distribute, G. L. c. 94C, § 32C (a).
In his appeal, the defendant challenges the denial of his motion
to suppress, the failure to excuse two jurors for cause, the
admission of various trial exhibits, the sufficiency of the
evidence, and various jury instructions. We affirm.
Background. 1. Facts. As we will first address the
motion to suppress, we summarize the facts found by the motion
judge, supplemented by uncontested testimony from the motion to
suppress hearing. Commonwealth v. Ortiz, 478 Mass. 820, 821
(2018). Additional facts adduced at trial will be included
below in the sections regarding trial errors as necessary.
In February of 2015, as part of an undercover
investigation, an officer with the Massachusetts Bay
Transportation Authority (MBTA) transit police, Lieutenant
Detective Richard Sullivan, met with the defendant at the Woburn
Mall to conduct a controlled buy of so-called "butane honey oil"
(BHO), which is derived from marijuana. The defendant sold
Lieutenant Sullivan the BHO, and during the sale he asked if
Lieutenant Sullivan "liked pussy." The defendant explained that
he was staying in a hotel nearby, and had "girls close by" in
which the Lieutenant might be interested. As they exited the
mall, Lieutenant Sullivan signaled to officers from the Woburn
Police Department to arrest the defendant for the drug offenses.
Detective Sergeant Brian McManus of the Woburn Police
Department searched the defendant incident to his arrest. The
search uncovered, among other things, a hotel room key card with
the logo from the Red Roof Inn. McManus was familiar with the
Red Roof Inn located near the Woburn Mall as he previously
conducted investigations of prostitution there. After learning
from Lieutenant Sullivan about the defendant's statements
suggesting possible prostitution, Sergeant McManus proceeded to
the Red Roof Inn.
2
Sergeant McManus presented the key card seized from the
defendant to the front desk clerk, who stated that the room
associated with the key was room 216, and that the room had been
rented to the defendant, Darren Hughes. When officers knocked
on the door of room 216, a woman (the victim) answered and
invited the officers into the room. On entering, the officers
could see a digital scale with what appeared to be a small
amount of BHO on it. They also found more BHO inside the
refrigerator in the room.
Once the officers were inside the hotel room, the victim
explained her involvement with the defendant. The victim told
Sergeant McManus that she had responded to the defendant's
advertisement on Backpage.com, which she showed Sergeant
McManus. After meeting the defendant, the victim was thereafter
employed by the defendant as a prostitute. The defendant paid
for the room at the Red Roof Inn, and both the defendant and the
victim stayed there.
2. Procedural history. a. Motion to suppress. In a
motion to suppress, the defendant argued that the warrantless
seizure of the Red Roof Inn key card was unlawful, and therefore
that the key card could not be used for investigative purposes.
In the alternative, the defendant argued that the victim did not
have the authority to consent to the officers' search of the
hotel room, and even if she did, her consent was not free and
3
voluntary. The defendant moved to suppress the evidence
obtained in room 216 and the statements the victim made to the
police officers in that room.
The motion judge denied the motion to suppress.
Specifically, the judge ruled that the police discovered the
hotel room key card pursuant to a lawful search incident to
arrest. The court held that the seizure of the room key card
and its use for further investigative purposes was permissible
because of the defendant's statements to Lieutenant Sullivan
suggesting that he was involved in prostitution and Sergeant
McManus' experience with that particular hotel. The court also
found that the victim had actual authority to consent to the
warrantless search of the room. As the court found that the
search was permissible and that the victim voluntarily spoke
with the officers, the court denied the defendant's motion to
suppress the evidence and statements obtained in room 216.
b. Jury trial. During voir dire, the defendant's trial
counsel challenged two jurors for cause, juror number five
(juror 5) and juror number seventy-two (juror 72). The trial
judge found both to stand indifferent. The defense exercised a
peremptory challenge to strike juror 5 from the jury but had
exhausted its peremptory challenges before reaching juror 72,
and the trial judge denied the defense's request for additional
peremptory challenges. Juror 72 was then seated on the jury.
4
After the evidence was presented, the trial judge denied
defense counsel's motion for a required finding of not guilty of
the count of trafficking of a person for sexual servitude. The
jury then deliberated, after which it delivered a verdict
finding the defendant guilty of trafficking of a person for
sexual servitude, distribution of a class D substance, and
possession of a class D substance with intent to distribute.
Discussion. 1. Denial of motion to suppress. The
defendant argues that the motion judge erred in denying the
motion to suppress the evidence found in room 216 and the
victim's statements therein. In reviewing a ruling on a motion
to suppress evidence, we accept the judge's findings of fact
absent clear error and defer to the judge's assessment of the
credibility of the testimony taken at the evidentiary hearing.
Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We review de
novo the application of constitutional principles to the facts
as found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
a. Key card. The defendant contends that, even if the
search of his person after his arrest and the discovery of the
Red Roof Inn key card was lawful, the seizure and subsequent
investigative use of the key card was not. Our caselaw holds
that an object discovered in a search incident to a lawful
arrest can be seized and used for investigatory purposes if it
is related to the offense for which the defendant was arrested,
5
Commonwealth v. Blevines, 438 Mass. 604, 607-608 (2003), or if
it is related to an offense in which law enforcement officers
have a reasonable suspicion that the defendant is involved.
Commonwealth v. Barbosa, 92 Mass. App. Ct. 587, 592 (2018). In
this case, the police could reasonably have inferred from
conversation with the defendant that he may have been keeping a
woman or women at the nearby Red Roof Inn for the purposes of
prostitution. In this case, the information known to the police
thus provided reasonable suspicion that the Red Roof Inn key
card was related to the crime of human trafficking. Its use for
investigatory purposes thus was permissible.
b. Consent to enter room 216. The defendant also alleges
that police unlawfully entered room 216, leading to the
discovery of physical evidence in the room (the scale with
residue of BHO and the BHO in the refrigerator) and the
discovery of the victim, who then made statements to the police
officers. The defendant argues that this warrantless entry was
unlawful because, although the victim allowed the officers into
the room, she did not have the authority to consent to the
officers' entry, nor was the mere act of letting the officers
into the room sufficient to constitute consent. We disagree.
Entry into a hotel room is a search for purposes of both
the Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights. Commonwealth v.
6
Lopez, 458 Mass. 383, 389 (2010). Because it is deemed their
"home," an occupant of a hotel room has a reasonable expectation
of privacy in that room, Commonwealth v. Molina, 459 Mass. 819,
825 (2011), and thus is protected from warrantless entries into
the room unless there is probable cause and an exception to the
warrant requirement. See Commonwealth v. Rogers, 444 Mass. 234,
236 (2005). In addition, where there is consent, there is no
need for probable cause or a warrant. Lopez, supra at 391.
Even if the primary occupant does not consent to a search, a
third party may provide consent. This can happen if the third
party has "actual authority" or "apparent authority." Actual
authority is possessed not only by the property owner, but by a
"third party possessing 'common authority over or other
sufficient relationship to the premises or effects sought to be
inspected.' United States v. Matlock, 415 U.S. 164, 171 (1974).
See Commonwealth v. Porter P., 456 Mass. 254, 262 (2010), and
cases cited. Common authority is 'mutual use of the property by
persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own
right and that the others have assumed the risk that one of
their number might permit the common area to be searched.'
United States v. Matlock, supra at 171 n.7." Lopez, supra at
392.
7
In this case, because the victim, despite not being listed
on the room registration, was staying with the defendant in room
216, as the evidence credited by the motion judge demonstrated,
she was a coinhabitant with actual authority to consent to the
officers' entry into the room.
The defendant argues that the officers did not know that
the victim was a coinhabitant until after they had entered the
room, and so should have inquired before entry as to the
victim's ability to consent. The defendant misstates the law.
Diligent inquiry into the individual's authority is a
requirement in cases of an individual having only apparent
authority to consent. See Porter P., 456 Mass. at 271-272. But
it is not required when an individual has actual authority to
consent. See id. If, for example, I consent to an entry into
my own house, it is not unlawful because the police only
discover later that I am, in fact, the owner and resident of the
house. If I had authority to consent, the consent is valid.
That is the case here.
Finally, the defendant argues that even if the victim had
the authority to consent to the officers' entry, she did not
explicitly and voluntarily consent. To justify a warrantless
search based on consent, the Commonwealth "has the burden of
proving that the consent was, in fact, freely and voluntarily
given" (citation omitted). Commonwealth v. Rogers, 444 Mass. at
8
237. Consent may be communicated through "words or conduct,"
and may also be "implicit." Id. at 237-238. "Because a finding
of voluntariness is a question of fact, it should not be
reversed absent clear error by the judge." Commonwealth v.
Carr, 458 Mass. 295, 303 (2010).
The defendant is correct that none of the officers asked
the victim to sign a consent to search form, but that is not
necessary for voluntary consent. Indeed, consent has been found
to be voluntarily given when an occupant of an apartment, who
knew that the individuals at the door were police officers,
"freely stepped aside allowing them to enter." Commonwealth v.
Hill, 57 Mass. App. Ct. 240, 244 (2003). In this case, the
victim knew she was speaking to police officers, as she could
see their police badges and they identified themselves as
police. The officers then asked for permission to enter the
room, and the victim invited the officers in. The facts
presented in the record show the victim's voluntary consent to
the officers' entry into the hotel room. As the entry into the
hotel room was lawful, that entry provides no basis for a
conclusion that the evidence obtained from the room or the
statements to the officers were unlawfully acquired. The
defendant makes no separate argument that the victim lacked
authority or failed to consent to the search of the refrigerator
in the room.
9
2. Jury selection. The defendant claims next that his
constitutional right to an impartial jury was violated when the
trial judge denied his for-cause challenges to two jurors. The
defendant is entitled to a trial by an impartial jury. See
Commonwealth v. Williams, 481 Mass. 443, 447 (2019). This right
means that if even one juror is not impartial, the convictions
must be reversed. Commonwealth v. Long, 419 Mass. 798, 802,
804-805 (1995). A judge may rely on a prospective juror's
representation that the juror is impartial unless there is
"solid evidence of a distinct bias." Commonwealth v. Bryant,
447 Mass. 494, 500 (2006), quoting Commonwealth v. Leahy, 445
Mass. 481, 499 (2005). We review the judge's decision regarding
a determination that a juror stands indifferent for abuse of
discretion, and that determination "will not be disturbed except
where juror prejudice is manifest." Commonwealth v. Clark, 446
Mass. 620, 629-630 (2006).
The defendant argues that the trial judge's failure to
strike juror 5 for cause was error, in light of statements made
by the juror during voir dire. Because the judge denied the
motion to strike juror 5 for cause, the defendant exercised a
peremptory strike, and she was excused.
Juror 5 indicated that she had experienced multiple
assaults in the past, which resulted in at least one criminal
prosecution, and that she continued to have symptoms related to
10
those experiences. When asked if she had "an opinion as to
whether the court system is fair to women who have been in some
way involved in" cases of a sexual nature, the juror responded,
"Historically, no, they haven't." When asked to explain, she
stated, "the way the law over the years have [sic] treated women
who report rape or sexual assault it's completely unfair. I
mean, they accuse the victim, there's victim blaming, it's the
way society's set up."
The trial judge properly asked juror 5 further questions,
seeking to clarify whether the juror would be able to be
impartial in deciding this case. See Clark, 446 Mass. at 630(ambiguous response requires further questioning). Pursuant to
these questions, juror 5 stated that neither her prior
experiences of assault nor her beliefs about the criminal
justice system's historical treatment of sexual assault
allegations would impact her ability to be fair and impartial in
deciding this case. Although the juror had implied that her
answer might be different if the case involved violence, the
judge found that the juror's distinction between sexual matters
and violent matters rendered her indifferent as to this case,
because the facts of this case did not involve any allegations
of force. The juror also stated herself that this was "not a
case of violence," so she did not "think it [was] going to be a
problem."
11
The judge found that she stood indifferent. The defendant
moved to strike her for cause on the basis of her assaults and
her answers about the fairness of the court system. The judge,
who then engaged in further voir dire with the juror, denied the
motion.
On appeal, the defendant argues that the failure to strike
the juror for cause was error. In light of his inquiry of the
prospective juror, the judge's conclusion that she stood
indifferent was not error, and his denial of the motion was not
an abuse of discretion.
For the first time on appeal, the defendant argues that
another answer of the prospective juror required she be struck
for cause. Defense counsel also asked the juror if she had
"ever had any experience with an African-American person that
left [her] feeling uncomfortable," and she replied, "In an
assault, yes." She had previously testified that it would make
no difference to her in evaluating credibility whether a witness
was white or African-American.
This statement by the juror that she was left to feel
uncomfortable by an African-American man who had assaulted her
requires close scrutiny. Given the precise question asked, this
statement provided no information about potential racial bias.
The question did not ask whether the "discomfort" was race-
based. Nor was she asked anything about whether the experience
12
had affected her view of African-American people generally. She
was apparently assaulted more than once, and one assault
involved an African-American man. One can be assaulted by a
person of any race, and one does not automatically become racist
against people of that race. In the absence of any evidence
that she drew some negative inference about African-Americans
due to this incident, the judge was not required sua sponte to
strike the prospective juror.
The defendant also argues that juror 72 should have been
struck for cause, as she expressed a belief that a person who
has been arrested is more likely than not guilty. Once again,
the trial judge intervened to clarify, informing the juror that
she was not permitted to draw an inference from the fact of an
arrest, and that the Commonwealth bears the burden of proving
the charges beyond a reasonable doubt. The juror then stated
that she would be able to "follow the law in that regard," and
that it would not be difficult for her to do so. Because the
juror indicated unequivocally that she could follow the law, the
judge did not err in finding her indifferent.
When the judge did not strike juror 72 for cause, the
defendant requested an additional peremptory challenge, as he
did not have any more available. While a judge "may, as a
matter of discretion, allow motions for additional challenges,"
Commonwealth v. McCoy, 456 Mass. 838, 841 (2010), the judge was
13
not required to grant the defendant additional peremptory
challenges at his request. The defendant claims that the judge
denied the request because extra jurors were not being seated.
Although the judge did state, in her denial of the defendant's
request, that she was not seating extra jurors, a judge is not
required to provide extra peremptory challenges where the
defendant has not demonstrated "a concrete need for additional
challenges." Id. Furthermore, "prejudice generally is shown by
the use of a peremptory challenge to remove the juror who
allegedly should have been excused for cause together with
evidence that the defendant later was forced to accept a juror
he would have challenged peremptorily but was unable to because
his peremptory challenges had been exhausted." Id. at 842. As
we have found that the judge was not required to strike juror 5
for cause, we see no abuse of discretion in her refusing the
defendant's request for additional peremptory challenges.
3. Trial exhibits. The defendant next contends that
several exhibits were improperly admitted. He claims that
exhibits 1 and 20-30 were improperly authenticated; exhibits 25,
27, and 28 constituted impermissible hearsay; and exhibit 27A
was never submitted to the jury. Trial counsel objected to the
introduction of exhibits 1 and 30, but did not object to the
authentication of exhibits 20-29. We review the defendant's
preserved claims for prejudicial error to determine whether such
14
error, if any, "did not influence the jury, or had but a very
slight effect" (citation omitted). Commonwealth v. Tate, 486
Mass. 663, 669 (2021). We review the defendant's unpreserved
claims for a substantial risk of a miscarriage of justice.
Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 757 n.6 (2016).
We do not find any reversible error regarding the admission of
the trial exhibits.
a. Authentication. "Before a communication may be
admitted in evidence, the judge must make a determination
regarding its authenticity; that is, the judge must determine
whether there exists sufficient evidence that, if believed, a
reasonable jury could find by a preponderance of the evidence
that the communication in question is what it is purported to
be." Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). The
judge does not determine that the evidence is what it is claimed
to be, but rather only determines whether there is sufficient
evidence to support a finding by the trier of fact that the
evidence is what is claimed.
The defendant challenges the authentication of exhibits 1
and 20-30, arguing that the Commonwealth did not present a
certification or keeper of the records affidavit, or offer the
testimony of anyone with personal knowledge as to the creation
of the records. Regarding exhibit 1, the victim testified that
it was the advertisement to which she responded and through
15
which she met the defendant, and Sergeant McManus testified that
it was an advertisement from Backpage.com that he saw while in
the hotel room with the victim. We find that the victim's and
Sergeant McManus' testimony were sufficient to support a finding
by a preponderance of the evidence that exhibit 1 was in fact a
Backpage.com advertisement posted by the defendant to which the
victim responded. Exhibits 20-30 all came from the defendant's
phone or phone company, and Sergeant McManus testified to how
each was obtained and how they related to the defendant's phone.
We find that a jury could reasonably have believed his testimony
that the phone records were taken from the defendant's phone and
phone company. In any event, there was certainly not a
substantial risk of a miscarriage of justice from their
admission.
b. Hearsay. The defendant argues that exhibits 25, 27,
and 28 constituted inadmissible hearsay. Exhibit 25 contains a
text message log from the defendant's phone, which includes text
messages sent between the defendant's phone and a phone number
that the victim testified was hers. The text message log itself
is a computer-generated record from the extraction of the
defendant's cell phone and is therefore not hearsay.
Commonwealth v. Woollam, 478 Mass. 493, 498 (2017), cert.
denied, 138 S. Ct. 1579 (2018) ("call logs constitute computer-
generated records . . . which are generated solely by electrical
16
or mechanical operation of computer," and so "do not contain a
statement from a person, and therefore, . . . do not raise
hearsay concerns"). The messages contained in the log that were
sent from the defendant's phone were properly admitted as
admissions of a party opponent, but the defendant objected at
trial to the admission of the messages purportedly sent by the
victim. The Commonwealth argued, and the trial judge concluded,
that the messages were not presented for the truth of the matter
asserted. Rather, the Commonwealth stated that the messages
were presented merely to show that the victim and the defendant
communicated in a way consistent with her testimony, as the
victim had testified that when she was in the hotel room with a
customer, the defendant would wait outside the room and
communicate with her through text messages. The trial judge did
redact certain messages, the hearsay content of which she
determined the jury would not be able to ignore, and she offered
to provide a limiting instruction. We agree with the trial
judge's ruling that the messages from the victim that were
admitted as evidence were not hearsay as they were not offered
to prove the truth of the matter asserted. Additionally, the
messages were important to provide context to the messages sent
from the defendant's phone. Commonwealth v. Kozubal, 488 Mass.
575, 585 (2021) (text messages from defendant admissible as
statements of party opponent; text messages from victim
17
admissible "to provide important context for the defendant's
text messages").
The defendant also challenges the admission of exhibits 27
and 28, which consist, respectively, of a message sent through
the "Kik Messenger" cell phone application, purportedly sent
from the defendant's phone, and an image attached to that
message. The defendant argues that Sergeant McManus was not
qualified to opine as to whether they were in fact sent from the
defendant's phone, so they are hearsay. Sergeant McManus
testified that, when data was downloaded from the defendant's
phone, he was able to view what accounts were associated with
the applications on the phone. He testified that the message
shown in exhibit 27 was obtained from the defendant's phone, and
that exhibit 27A shows that the message was sent from the Kik
username associated with the defendant's phone. We do not find
that the trial judge abused her discretion in finding that the
message and attached photograph were sent by the defendant, and
therefore not hearsay.
c. Failure to submit. The defendant next notes that
although Sergeant McManus testified regarding exhibit 27A, the
exhibit itself was never actually submitted to the jury. The
defendant moved for a mistrial when this was discovered, which
the trial judge denied, stating that "Exhibit 27A was merely
corroborative of testimony that was introduced through the
18
witness directly," and pointing out that exhibit 27A was not
exculpatory. We agree with the trial judge's conclusion.
Sergeant McManus testified accurately regarding the contents of
exhibit 27A, which showed that the Kik message from exhibit 27
was sent from the Kik username associated with the defendant's
phone, consistent with the user account information from exhibit
26. The defendant argues that because exhibit 27A was never
submitted, the jury had to accept Sergeant McManus' testimony.
Assuming that is true, however, because exhibit 27A would have
revealed that Sergeant McManus' testimony was accurate as to its
contents, any error in failing to submit the exhibit was
harmless.
4. Sufficiency of the evidence. The defendant argues that
the evidence presented by the Commonwealth was insufficient to
support the jury's verdict convicting him of the drug offenses
and the trafficking offense. In reviewing a sufficiency of the
evidence claim, we must view the evidence in the light most
favorable to the Commonwealth and consider whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). We find that a trier of fact could
have found the defendant guilty of all three offenses.
a. Drug offenses. The defendant was found guilty of
distribution of a class D substance and possession of a class D
19
substance with intent to distribute. The defendant argues that
for a conviction of those offenses to be permissible, the
Commonwealth was required to show what the substances
specifically were, in this case, BHO. However, there is no
statute criminalizing possession or distribution of "butane
honey oil"; rather, G. L. c. 94C, § 31, includes marijuana and
substances containing marijuana within the category of class D
controlled substances. According to the testimony of a forensic
scientist with the Massachusetts State Police Crime Laboratory,
the substance the defendant sold to Lieutenant Sullivan and the
substance found in the refrigerator in room 216 at the Red Roof
Inn both contained the resin of marijuana, which is a class D
substance. 1 Based on this evidence, viewed in the light most
favorable to the Commonwealth, we find that the evidence was
sufficient for a rational trier of fact to find that the
defendant possessed and distributed a class D substance.
The defendant also argues that, because the defendant
possessed and distributed BHO, not "typically possessed
marijuana plant buds," he could not properly be convicted of
possession and distribution of a class D substance, as BHO
1 The transcript from the trial shows that the forensic scientist
testified that the resin of marijuana is a "class B controlled
substance." However, the Commonwealth submitted, and the
defendant assented to, a motion to correct the transcript, as
the recording of the trial reflected that the testimony actually
referred to class D, not class B.
20
contains tetrahydrocannabinol (THC), which is a class C
substance. G. L. c. 94C, § 31. According to the forensic
scientist's testimony, both of the substances were a resin of
marijuana, and THC was present in both. General Laws c. 94C,
§ 1, defines "tetrahydrocannabinol" to include marijuana with a
concentration of delta-9 tetrahydrocannabinol of more than two
and one-half percent. As such, it is possible for a controlled
substance to fall into both class C and class D categories. See
Hensley v. Attorney Gen., 474 Mass. 651, 662 (2017). For that
reason, the defendant's argument that BHO is a class C, but not
class D, substance is unavailing.
b. Trafficking of a person for sexual servitude. The
defendant argues that he could not properly be convicted of
trafficking of a person for sexual servitude because, according
to him, the only properly-admitted evidence was the victim's
testimony, which was given pursuant to a grant of immunity and
thus required corroboration. G. L. c. 233, § 20I. At trial,
the victim testified that she had responded to an advertisement
on Backpage.com, through which she scheduled a meeting with a
person who turned out to be the defendant. The victim's
understanding was that she would work for the defendant and go
on "dates" with customers. The defendant brought her to the Red
Roof Inn, paid for a room, and, once in the room, took
photographs of her body. The defendant then posted the
21
photographs on Backpage.com as an advertisement. The victim
stayed at the hotel for several nights, during which time she
had sexual intercourse with at least four customers. When the
victim was in the room with a customer, the defendant would wait
outside the room, communicating with her through text messages.
After a customer paid her and left, the victim gave the money to
the defendant.
As discussed above, the exhibits challenged by the
defendant were properly admitted, so the victim's testimony was
properly corroborated, and therefore there was sufficient
evidence to convict him of the trafficking offense.
5. Jury instructions. The defendant challenges several of
the jury instructions. However, the defendant's trial counsel
did not timely object to any of the instructions now challenged,
so we review for a substantial risk of a miscarriage of justice,
Commonwealth v. Kelly, 470 Mass. 682, 697 (2015), which we do
not find.
a. Drug offenses. First, the defendant challenges the
judge's instruction that, in determining the element of intent
to distribute, the jury should consider several factors,
including what the defendant's financial resources were. We do
not find that this jury instruction resulted in a substantial
risk of a miscarriage of justice where the factor was included
in a list of several other factors and there was strong evidence
22
the defendant had also distributed the substance to an
undercover police officer.
Second, the defendant contends that the judge erred in not
instructing the jury that the Commonwealth was required to prove
beyond a reasonable doubt that the substances found were BHO.
As discussed above, there is no such requirement, as the
Commonwealth had only to prove that the substances found were
class D substances. See G. L. c. 94C, §§ 31, 32C.
Third, the defendant claims that the judge erred in
instructing the jury that, as a matter of law, the category of
class D substances includes any substance that contains
marijuana because, according to the defendant, BHO is not a
class D substance. As discussed above, the Commonwealth
presented testimony that the substances seized from the
defendant were resin of marijuana, which falls within the class
D category. G. L. c. 94C, § 31.
Fourth, the defendant argues that the judge should have
instructed the jury about another statute which prohibits
prosecution or punishment for the transfer of less than one
ounce of marijuana to a person over the age of twenty-one, as
long as the transfer was not for remuneration and was not
advertised to the public. G. L. c. 94G, § 7 (a) (4). The
defendant did not request any such instruction, and as all the
evidence in this case indicates that this was not a
23
noncommercial and unadvertised transfer of marijuana, we see no
substantial risk of a miscarriage of justice in the failure to
give any instruction regarding this statute.
b. Trafficking of a person for sexual servitude. The
defendant next challenges the judge's instruction regarding the
elements of the trafficking offense, arguing that the judge did
not clearly convey that the jury would have to find that the
victim actually engaged in commercial sexual activity in order
to find the defendant guilty. The defendant is correct that, to
find someone guilty of the offense of trafficking of a person
for sexual servitude, the Commonwealth must prove that "a
defendant (1) knowingly (2) 'enabled or caused,' by one of the
statutorily enumerated means, (3) another person (4) to engage
in commercial sexual activity." Commonwealth v. Fan, 490 Mass.
433, 448 (2022), citing Commonwealth v. McGhee, 472 Mass. 405,
418 (2015). While the judge's instruction 2 could be interpreted
to mean that the defendant could be found guilty even if the
victim did not engage in commercial sexual activity, it could
2 The judge instructed the jury as follows: "In order to prove
the defendant guilty of this offense, the Commonwealth must
prove . . . beyond a reasonable doubt . . . that the defendant
subjected, recruited, enticed, harbored, transported, provided
or obtained by any means another person -- in this case, [the
victim] -- to engage in commercial sexual activity, or that the
defendant benefitted financially or by receiving anything of
value as a result of said activity, and that the defendant did
so knowingly."
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also be interpreted to mean, correctly, that the victim must
have actually engaged in commercial sexual activity in order for
the defendant to be found guilty. Given the evidence submitted
to the jury, we do not find that there exists a substantial risk
of miscarriage of justice that the jury misinterpreted this one
facet of the jury instructions (the risk that the defendant was
convicted for "subject[ing], recruit[ing], entic[ing],
harbor[ing], transport[ing], provid[ing] or obtain[ing] by any
means [the victim] to engage in commercial sexual activity,"
which then never took place).
The defendant's final challenge relates to evidence
admitted as business records. To the extent that any of the
admissible hearsay was admitted under the business records
exception, the defendant argues that, where such evidence is the
sole basis for a conviction, that evidence must be found by the
jury beyond a reasonable doubt to be within the business records
exception rather than, as the jury were instructed without
objection, by a preponderance of the evidence. Since there is,
of course, a great deal of additional evidence supporting the
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defendant's convictions, on its merits, this argument is
insubstantial.
Judgments affirmed.
By the Court (Rubin, Neyman &
Walsh, JJ. 3),
Clerk
Entered: December 22, 2023.
3 The panelists are listed in order of seniority.
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