Commonwealth v. Woods

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17-P-1127 Appeals Court
COMMONWEALTH vs. ANDREW WOODS.
No. 17-P-1127.
Worcester. November 8, 2018. - February 7, 2019.
Present: Green, C.J., Meade, & Sacks, JJ.
Firearms. Controlled Substances. Evidence, Constructive
possession. Armed Home Invasion. Malicious Injury to
Property. Malice. Practice, Criminal, Required finding.
Indictments found and returned in the Superior Court
Department on March 20, 2015.
The cases were tried before Richard T. Tucker, J.
Deborah Bates Riordan for the defendant.
Michelle R. King, Assistant District Attorney, for the
Commonwealth.
GREEN, C.J. The defendant appeals from his convictions of
various charges arising from the discovery of a loaded firearm
and drugs in a closet in the apartment in which he was arrested.1
1 The defendant was convicted of: (i) armed home invasion,
G. L. c. 265, § 18C; (ii) trafficking in cocaine between thirty-
six and one hundred grams, G. L. c. 94C, § 32E (b); (iii)
2
Among his claims on appeal, the defendant contends that (1) the
evidence was insufficient to establish that he constructively
possessed the loaded firearm and drugs; (2) his conviction of
possession of a loaded firearm must be reversed, because the
jury were not instructed that they must find that the defendant
knew that the firearm was loaded; (3) his conviction of
possession of ammunition is duplicative of his conviction of
possession of a loaded firearm; (4) the evidence was
insufficient to establish the use of force or threat element of
the charge of armed home invasion; and (5) the evidence was
insufficient to support his conviction of malicious destruction
of property over $250, both because it did not establish that he
acted with malice and because there was no evidence that the
property damage was more than $250.
We agree with the Commonwealth's concession that the
defendant's conviction of possession of ammunition is
duplicative of his conviction of possession of a loaded firearm,
and we also agree that the evidence was insufficient to support
possession of a firearm in a felony, G. L. c. 265, § 18B; (iv)
carrying a firearm without a license, G. L. c. 269, § 10 (a);
(v) carrying a loaded firearm without a license, G. L. c. 269,
§ 10 (n); (vi) possession of ammunition without an FID card,
G. L. c. 269, § 10 (h) (1); (vii) possession of a class A
substance with intent to distribute, G. L. c. 94C, § 32 (a);
(viii) malicious destruction of property over $250, G. L.
c. 266, § 127; and (ix) resisting arrest, G. L. c. 268, § 32B.
3
his conviction of malicious destruction of property over $250.
Accordingly, on the charge of unlawful possession of ammunition,
the judgment is vacated, the verdict is set aside, and the
indictment is to be dismissed. On the charge of malicious
destruction of property over $250, the judgment is reversed, the
verdict is set aside, and judgment shall enter for the defendant
on that count. We otherwise discern in the defendant's various
arguments no cause for relief, and affirm the remaining
judgments of conviction.
Background. On the morning of December 23, 2014, a team
from the Massachusetts fugitive apprehension task force went to
190 Blossom Street in Fitchburg to serve an arrest warrant on an
individual they understood to be living in apartment 3 at that
address (the only apartment unit on the third floor).2 The team
entered the building through the unlocked front door and began
climbing the stairs; as they reached the second floor landing
they noticed an open apartment door on their left, and then
heard a loud bang -- followed by a woman's screams for help --
coming from the third floor. The team raced up the stairs to
the third floor, arriving ten to fifteen seconds after hearing
the loud bang. When they arrived, they found the apartment door
off its hinges and lying on the kitchen floor, and the door
2 The building is a three-story apartment building.
4
frame damaged; a hole in the door suggested it had been kicked
in.
Lauren Wiener was the tenant of the third floor apartment,
where she and her husband had moved about three months earlier.
Neither she nor her husband was the target of the arrest warrant
the task force had come to serve.3 She had been sleeping in her
bedroom at around 9:00 A.M. when she was awakened by a crash.
She began screaming. At the time, the apartment was dark, with
the lights off and the shades pulled. After hearing the crash,
Wiener saw a "dark figure" in her bedroom doorway, putting his
finger to his lips while saying, "shhh." Wiener was "afraid for
[her] life," and continued screaming for help. Wiener then saw
the person move from her bedroom doorway into the living room.
As Trooper Amy Waterman approached the entrance to Wiener's
apartment, she saw an individual moving quickly in the back of
the living room, coming toward her. The man, later identified
as the defendant, initially stopped and was cooperative;
however, he quickly "threw an elbow to resist . . . attempts to
arrest him, and then attempted to run out the way that
[everyone] had come in, past the broken door." Several members
of the task force physically wrestled with the defendant for
3Wiener's husband was not home at the time the team
arrived. There is no indication in the evidence that the target
of the arrest warrant was a resident of the apartment.
5
several minutes in an effort to place him in handcuffs. A
search of the defendant yielded $2,293 in cash, three one
hundred dollar bills that were "smudged and off-center," and a
"rock in a sock" makeshift weapon comprised of a sock containing
heavy metal objects. On the floor, near the defendant, were
three cellular telephones (cell phones) that the defendant
acknowledged as his.
While Trooper Waterman went into the bedroom to speak with
Wiener, who had been screaming and crying and was obviously
frightened, another trooper stayed with the defendant, and other
task force members conducted a protective sweep of the
apartment. There were four doors in the living room: two
closet doors, one door to the attic, and an exit door to the
outside. When Worcester police Officer Robert Johnson looked in
one of the closets, he observed a bag of empty soda bottles on
the floor and a child's blue kick ball, slit open, sitting on a
wire rack above.4 Officer Johnson could see the handle of a
firearm inside the kick ball; as soon as he saw the weapon he
alerted other members of the task force. The firearm was loaded
with a bullet in the chamber and a clip holding additional
rounds of ammunition.
4 The other closet contained Wiener's pea coat, scarves, and
her husband's work reflector vests.
6
After Officer Johnson alerted the team to the discovery of
the firearm, police brought Wiener into the living room to look
at the items in the closet. While standing in the living room,
Wiener heard the defendant say repeatedly, "that's not mine,"
though she did not know to what he was referring. Wiener was
then asked to look inside the closet. Inside the closet, she
saw a blue ball that had not been in the closet when she last
looked into it the previous night. Inside the blue ball, Wiener
was able to see two smaller balls (a basketball and a tennis
ball), a handgun, and what appeared to be drugs inside the
smaller balls. Wiener had never seen the blue ball or its
contents before that moment, and the ball and its contents did
not belong to her or any other member of her household.
As the defendant was led out of the building, he asked
Massachusetts State Trooper Darlene DeCaire to close the second-
floor door to his apartment, which she did. Task force members
attempted to secure the defendant’s apartment while other
members applied for a search warrant. However, while the task
force members were waiting, the defendant's girlfriend, Alicia
Ortiz, entered the apartment through an unknown door that she
then locked, and would not let the task force members inside.
At some point before the warrant was obtained, Ms. Ortiz left
the apartment; she was not pat frisked or searched as she left.
7
Once the search warrant was obtained, task force members
searched the defendant's apartment. Inside they found a digital
scale in a bedroom drawer. In a kitchen cabinet, they found a
box of sandwich bags, one of which had a corner ripped off, and
an empty gun holster. The gun found inside the blue ball "fit
pretty well" into the holster found in the defendant's
apartment.
When police later examined the blue ball at the Leominster
State police barracks, they determined that the gun was a 380-
caliber handgun, loaded with six rounds of ammunition. There
was a smaller brown basketball inside the blue ball that was cut
open, and the basketball contained a small purple tennis ball,
also cut open. There were small plastic bags inside the
basketball and tennis ball, some containing a "white-powder
substance" and other bags holding a "tan powder substance."
Five bags of white powder tested positive for cocaine, with a
total weight of 94.36 grams. Two packages were positive for
methylone, commonly referred to as "bath salts," and the tan
powder tested positive for heroin.
Discussion. 1. Constructive possession. The defendant
contends that the evidence was insufficient to establish that he
possessed the blue ball (and the other items it contained) found
in the closet of Wiener's apartment. In assessing the
sufficiency of the evidence, we must decide "whether the
8
evidence, in its light most favorable to the Commonwealth,
notwithstanding the contrary evidence presented by the
defendant, is sufficient . . . to permit the jury to infer the
existence of the essential elements of the crime charged . . ."
Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 392 (2009),
quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Because the defendant did not have actual physical possession of
the blue ball when he was apprehended, the Commonwealth's case
rested on the theory of constructive possession. "'Constructive
possession' requires proof that the defendant had 'knowledge
coupled with the ability and intention to exercise dominion and
control.'" Commonwealth v. Than, 442 Mass. 748, 751 (2004),
quoting Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).
"Proof of possession of [contraband] may be established by
circumstantial evidence, and the inferences that can be drawn
therefrom." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426
(1985). "The defendant's mere presence in the area where
contraband is found is insufficient to show 'the requisite
knowledge, power, or intention to exercise control over the
[contraband], but presence, supplemented by other incriminating
evidence will serve to tip the scale in favor of sufficiency.'"
Commonwealth v. Schmeider, 58 Mass. App. Ct. 300, 303 (2003),
quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). In
the present case, several pieces of incriminating evidence
9
suffice to tie the defendant to the blue ball found in Wiener's
apartment closet.
To begin with, the open door to the defendant's apartment
immediately downstairs from Wiener's, coupled with evidence of a
forced entry into Wiener's apartment, and the defendant's
efforts to quiet Wiener's screams (by holding his finger to his
lips and whispering "shhh") suggest an urgent and spontaneous
series of actions by the defendant to flee from his apartment
(and to hide in Wiener's) when the task force entered the
apartment building. Wiener and her husband had no children, and
no children's toys (other than the blue ball with the basketball
and the tennis ball stored inside it) were found in Wiener's
apartment. Wiener testified that she did not see the blue ball
in the closet the evening before its discovery by the task
force, and adamantly denied that it belonged to her or her
husband.5
In addition, police found a gun holster in the defendant's
apartment into which the handgun found in the blue ball fit
"pretty well." They also found in the defendant's apartment
plastic baggies including one with a cut corner, and a digital
5 Though the defendant also denied that the ball was his
when he was apprehended at the scene, the jury were free to
credit Wiener's denial and discredit the defendant's.
10
scale; both items were described in expert testimony as
indicative of the drug trade.6
Finally, though Wiener and her husband had no children, the
defendant and his girlfriend each had a child. The defendant's
girlfriend's child lived in their apartment and the defendant's
child visited on weekends. Children's toys were seen by task
force members in the defendant's apartment, permitting an
inference that the defendant had converted three balls
previously used as children's toys into storage compartments for
the drugs and handgun found in Wiener's closet.
2. Armed home invasion. There is likewise no merit in the
defendant's challenge to the sufficiency of the evidence on the
charge of armed home invasion. In order to convict the
defendant of that charge, the Commonwealth was required to
establish that:
"[T]he defendant (1) 'knowingly enter[ed] the dwelling
place of another'; (2) 'knowing or having reason to know
that one or more persons are present within' (or entered
without such knowledge but then remained in the dwelling
place after acquiring or having reason to acquire such
knowledge); (3) 'while armed with a dangerous weapon'; and
(4) 'use[d] force or threaten[ed] the imminent use of force
upon any person within such dwelling place whether or not
injury occur[red], or intentionally cause[d] any injury to
any person within such dwelling place.'"
6 Expert testimony also described the presence of multiple
cell phones (such as the three found next to the defendant at
the time of his arrest) as associated with the drug trade.
11
Commonwealth v. Smith, 458 Mass. 1012, 1013 (2010), quoting
Commonwealth v. Doucette, 430 Mass. 461, 465-466 (1999).
In the present case, the Commonwealth proceeded on two
separate theories: that the defendant threatened Wiener with
the imminent use of force after he forcibly entered her
apartment and directed her to be silent, and that he used actual
force against the task force members who thereafter entered
Wiener's apartment.7 We are persuaded that the evidence sufficed
to support a guilty verdict on either theory.
Following the defendant's forcible, violent entry into her
apartment while she was asleep, by her account Wiener was
frightened for her life (and her fear was objectively
reasonable).8 In such circumstances, a rational finder of fact
could construe the defendant's directive to Wiener that she be
silent as an implicit threat of violence against her if she did
not comply. In any event, there is no serious dispute that the
defendant used actual force against the task force members as
they attempted to take him into custody.9 That the task force
7 The defendant challenges only the sufficiency of the
evidence on the element of threat or use of force.
8 We note that the Commonwealth was not required to show
that Wiener was actually placed in fear. See Commonwealth v.
Dunn, 43 Mass. App. Ct. 58, 62 (1997).
9 For the first time on appeal, the defendant contends that,
because the task force members were not listed as victims on the
indictment for armed home invasion, the Commonwealth could not
12
members were not in the apartment when the defendant entered it
is of no consequence. See Commonwealth v. Martinez, 85 Mass.
App. Ct. 288, 291 (2014).
3. Loaded firearm. As the Commonwealth acknowledges, the
jury instruction on the charge of possession of a loaded firearm
was deficient, insofar as it did not instruct the jury that, to
return a verdict of guilty, they must find that the defendant
knew that the firearm was loaded. See Commonwealth v. Brown,
479 Mass. 600, 608 (2018).10 Though the defendant did not object
to the instruction, the absence of instruction on an element of
the charged offense can often give rise to a substantial risk of
a miscarriage of justice. See, e.g., Commonwealth v. Redmond,
53 Mass. App. Ct. 1, 8 (2001). In the circumstances of the
present case, "[h]aving reviewed the charge and the evidence as
a whole," id., we discern no such risk.
pursue that theory at trial. To the contrary, "'[i]n a criminal
case, any . . . objection based upon defects . . . in the
complaint or indictment, other than a failure to show
jurisdiction in the court or to charge an offense, shall only be
raised prior to trial . . . .' Failing to object to such a
defect prior to trial ordinarily waives any argument pertaining
to that defect." Commonwealth v. Lamont L., 438 Mass. 842, 845
(2003), quoting G. L. c. 277, § 47A. The defendant was on
notice of the Commonwealth's alternative theory before trial
began and raised no objection. The claim is accordingly waived.
10We note that the trial judge and the parties did not have
the benefit of the Brown decision at the time of trial.
13
In particular, we observe that the defendant was convicted
of the charge of possession of ammunition. On that charge, the
jury were instructed clearly that a required element for a
verdict of guilty was that the "defendant knew that he possessed
that ammunition." As the defendant acknowledges, the only
ammunition for which he was charged was that located within the
firearm. Because the jury found that the defendant knowingly
possessed the ammunition within the firearm, the failure to
instruct the jury that they were required to find that he knew
the handgun was loaded with ammunition in order to return a
verdict of guilty on the charge of possession of a loaded
firearm was of no significance.11
4. Malicious destruction of property. We agree with the
defendant that the evidence was insufficient to satisfy the
element of malice on the charge of malicious destruction of
property. "To prove a violation of G. L. c. 266, § 127, as
11As the Commonwealth concedes, the defendant's conviction
on the lesser included offense of possession of ammunition is
duplicative of his conviction of possession of loaded firearm,
in the circumstances of this case, where the only ammunition at
issue was that within the firearm. See Commonwealth v. Johnson,
461 Mass. 44, 54 (2011). Accordingly, on the indictment
charging unlawful possession of ammunition under G. L. c. 269,
§ 10 (h), the judgment is vacated, the verdict is set aside, and
the indictment is to be dismissed. Because the defendant's
sentence on this conviction did not increase the amount of time
of the defendant's incarceration, we do not remand for
resentencing.
14
amended by St. 1994, c. 168, § 4, the Commonwealth must prove
that the [defendant] 'destroy[ed] or injure[d] the personal
property, dwelling house or building of another . . . .' If the
destruction or injury is 'wilful and malicious,' the permissible
penalty is greater than if it is merely 'wanton,' which is a
separate crime requiring different proof. See Commonwealth v.
Schuchardt, 408 Mass. 347, 352 (1990)." Commonwealth v. Morris
M., 70 Mass. App. Ct. 688, 691 (2007). The terms "wilful" and
"malicious" represent two distinct elements of the crime, both
of which must be proved beyond a reasonable doubt. See Redmond,
53 Mass. App. Ct. at 4. "The word 'wilful' means intentional
and by design in contrast to that which is thoughtless or
accidental. Malice, on the other hand, refers to a state of
mind of cruelty, hostility or revenge." Nolan & Santoro,
Criminal Law § 427, at 438 (2001).
In the present case, the evidence clearly sufficed to show
that the defendant acted wilfully (that is to say,
intentionally) when he broke down the door to Wiener's apartment
to gain entry. However, the wilful commission of an unlawful or
even destructive act does not, by itself, suffice to prove
malice under G. L. c. 266, § 127. See Redmond, 53 Mass. App.
Ct. at 4. In the circumstances of the present case, the
evidence establishes instead that the defendant's acts in
breaking down the door were wanton -- that he acted "heedlessly
15
and in reckless disregard of the rights of others." Morris M.,
70 Mass. App. Ct at 692, quoting Nolan & Santoro, supra at 440.
There is no evidence that the defendant was motivated by animus
or hostility toward Wiener; instead, his destruction of her door
was by all appearances an incidental consequence of his
ultimately fruitless efforts to evade the approaching task
force. And though the defendant's actions were wanton, he was
not charged with wanton destruction of personal property, and it
is not a lesser included offense of malicious destruction of
property. See Schuchardt, 408 Mass. at 352; Redmond, supra at
5.
Commonwealth v. Cimino, 34 Mass. App. Ct. 925 (1993), on
which the Commonwealth relies, is not to the contrary. In that
case, the defendant was convicted of malicious destruction of
property based on his destruction of car windows by shooting
through them with a BB gun. What made the shootings malicious
rather than wanton is that destruction of the windows was the
defendant's principal purpose in shooting at them. See id. at
927. Compare Redmond, 53 Mass. App. Ct. at 4-5 (evidence of
malicious destruction was insufficient where destruction of
property was not designed to intimidate or overpower its owner,
16
but rather was incidental means to carry out defendant's goal of
theft).12
Conclusion. On the charge of unlawful possession of
ammunition, the judgment is vacated, the verdict is set aside,
and the indictment is to be dismissed. On the charge of
malicious destruction of property over $250, the judgment is
reversed, the verdict is set aside, and judgment shall enter for
the defendant on that count. The remaining judgments are
affirmed.
So ordered.
12Our conclusion that the evidence was insufficient to
satisfy the element of malice obviates any need to address the
defendant's contention that the evidence was insufficient to
establish that the amount of damage exceeded $250.