Commonwealth v. Sepheus

Trainor, J.

The Commonwealth charged the defendant, Carl Sepheus, with possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A(c). At the close of the Commonwealth’s case in a jury-waived trial, Sepheus filed a motion for a required finding of not guilty, which the judge denied. The defendant was convicted, and now argues in a timely appeal that the evidence was not sufficient to support a finding that he intended to distribute the three, separately wrapped rocks of “crack” cocaine that were found in his possession.

We conclude that there was sufficient evidence for a reasonable fact finder to have found the essential elements of the crime beyond a reasonable doubt, and the judge therefore correctly denied the motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 678 (1978). We therefore affirm the conviction.

Background. With the evidence viewed in a light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. at 677-678, the trial judge could have found the following facts: On September 30, 2009, Springfield police Officer William Lopes, an experienced narcotics investigator, received information¹ that the defendant, who was wanted on an outstanding warrant, was in the general area of 585 Wilbraham Road in Springfield.² After receiving this information at the start of his 4:00 p.m. to 12:00 a.m. shift, Lopes drove to the area in an unmarked police cruiser.³ Lopes initially drove to the intersection of Bristol Street and Wilbraham Road, then expanded his search to include the Daily Mart convenience store and gasoline station at the intersection of Alden Street and Wilbraham Road a short distance away. He arrived at that location at or around 5:00 p.m. After circling around the parking lots of the Daily Mart and gasoline station, Lopes, with the aid of a photograph, observed the defendant standing with a small group of three to five males outside the Daily Mart. Lopes radioed for backup to assist him with the arrest. As Lopes waited for other officers to arrive, an individual who was not the defendant suddenly left the group and conducted what Lopes observed to be a drug transaction through the window of a vehicle, in plain view of the group of men and Lopes. This individual then walked back to the group. The group, including the defendant, then walked together into the Daily Mart. Officer Lopes, and seven to ten other officers who had responded to his call, entered the store and placed the defendant under arrest.⁴

Springfield police Officer John Wadlegger, who had responded to the scene in an unmarked police cruiser, transported the defendant to the police station. Before driving to the station, and based on the defendant’s movements while in the backseat of the cruiser, Wadlegger searched the defendant. Inside the center pocket of the defendant’s gray hooded sweatshirt, Wad-legger found three rocks of what appeared to be crack cocaine, each inside a small plastic baggie twisted off near the comer. A chemist later testified that one of the rocks was weighed and tested positive for cocaine. Wadlegger also found $312 in the defendant’s pants pocket.

Wadlegger, like Lopes, was an experienced narcotics investigator. He testified that he found no smoking apparatus on the defendant, and that, in his experience stopping users of either cocaine or heroin, he usually found something on their person to ingest the drug. Wadlegger testified that not every user was arrested with a smoking apparatus but stated that such a circumstance was the exception to the very general rule. He testified that the packaging of the drugs found on the defendant was consistent with the street-level sale of narcotics, and that the total street value of the drugs was around sixty dollars. Wadlegger testified that the absence of any device to ingest the drag, the packaging of the cocaine, and the nature of the area where the defendant was arrested were consistent with possession with the intent to distribute the drags.

Discussion. In considering whether a denial of a motion for a required finding of not guilty is proper, “[w]e 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’ ” (emphasis original). Commonwealth v. Little, 453 Mass. 766, 771 (2009) (Little), quoting from Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (Wilson).

“The two basic elements for conviction of possession with the intent to distribute cocaine are (1) knowingly possessing the drug and (2) intending to transfer it physically to another person.” Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 355 (2010). The defendant does not challenge the sufficiency of the evidence on the possession element, but argues that evidence of the essential element of his intent to distribute was lacking. In this case, the defendant’s intent to distribute “is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances . . . .” Commonwealth v. Keefner, 461 Mass. 507, 517 (2012) (Keefner), quoting from Commonwealth v. Rivera, 425 Mass. 633, 648 (1997).

Here the defendant was found to possess three small individually wrapped rocks of crack cocaine, with a total weight of approximately .4 grams. In Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731 (1992) {Gonzales), we ruled that although the defendant was arrested with only .32 grams of heroin, “[t]he fact that the amount of drugs seized was small does not, by itself, require a finding of not guilty to so much of the indictment as states ‘intent to distribute.’ A dealer’s inventory of drugs may have been reduced before his arrest to a small amount by a number of sales.”

In Gonzales, the conviction of possession with intent to distribute was affirmed based on factors that included the packaging of the .32 grams of heroin in ten glossine packets, which according to expert testimony was “consistent with distribution rather than personal use,” the presence of a “scorpion” mark on each of the bags that was indicative of a dealer’s brand name, and the defendant’s possession of $167 in cash, despite being unemployed. Ibid. In this case, as in Gonzales, although the approximately .4 grams Sepheus possessed would not alone support a finding of intent to distribute, sufficient additional evidence was presented at trial that ultimately supports such a finding.

Additional evidence. Several factors have been acknowledged by this court and the Supreme Judicial Court to be probative, while not individually dispositive, of a defendant’s intent to distribute. These include, inter alla, the manner in which the drugs were packaged, the amount of cash the defendant had on his person when arrested, and the absence of smoking para-phemalia. See Commonwealth v. Gollman, 436 Mass. 111, 113, 116-117 (2002) (Gollman) (2.71 grams of crack cocaine and no smoking paraphernalia held to be sufficient evidence to uphold conviction); Wilson, 441 Mass. at 400-402 (one-half ounce of marijuana in twenty bags packaged for sale, no smoking paraphernalia, and $476 cash held to be sufficient evidence to uphold conviction); and Little, 453 Mass. at 768, 771-772 (fifteen bags of marijuana packaged for sale, $254 cash, and no smoking paraphernalia held to be sufficient evidence to uphold denial of motion for required finding).

In the present case the defendant possessed three rocks of crack cocaine, with a total weight of approximately .4 grams, packaged individually in small sandwich bags, twisted off near the corner, in a manner that Officer Wadlegger testified was “consistent with street level sale.” The defendant also possessed no device with which to smoke or otherwise ingest the rocks of cocaine, and was arrested with $312 in cash on his person.⁵ Furthermore, Officer Lopes testified that the area around the Daily Mart was “a high crime area” that has seen “numerous violations and arrests for narcotics, shootings, stabbings, [and] other violent offenses.” Although the amount of contraband possessed by the defendant differs in each case, similar “plus factors” have contributed to the upholding of several past convictions for possession with intent to distribute. See Gonzales, supra; Gollman, supra, Wilson, supra.

Furthermore, the circumstances in which the police encountered Sepheus and his conduct prior to his arrest could have properly been considered by the judge as additional evidence supporting an inference of intent to distribute. See Commonwealth v. Burke, 44 Mass. App. Ct. 76, 79-80 (1997); Commonwealth v. Dessour-ces, 74 Mass. App. Ct. 232, 238 (2009) (where marijuana packaged for sale was found on defendant, conviction of possession with intent to distribute was affirmed in part because arresting officer “observed three other individuals seated near the defendant passing a pipe commonly used to smoke marijuana”). Here, the defendant was observed standing with a group of men that included an individual whom Officer Lopes observed conduct a “drug transaction” through the window of a vehicle. Sepheus was subsequently seen walking with that same group of men into the Daily Mart. The judge also could have properly inferred that Sepheus had been located in the general area of his arrest⁶ from at least about 4:00 p.m., the time the officers received the information regarding his whereabouts, to approximately 5:00 p.m., the time of his arrest.⁷ The judge could have reasonably concluded that a user would not likely remain at the point of purchase for such an extended period of time.⁸

The dissent states that the Commonwealth’s evidence here is equally probative of innocence as it is of guilt. More specifically, it argues that the evidence supports an inference that Sepheus was a drug buyer as much as it supports an inference that he was a drug seller, and that to conclude the latter requires an impermissible speculative leap.⁹ We do not agree. Considering, as we must, “all the facts and circumstances,” Keefner, 461 Mass. at 517, and the proper inferences to be drawn from such facts and circumstances, we conclude that an individual arrested in possession of crack cocaine packaged for sale, with an amount of cash in excess of $300 in his pocket, in possession of no apparatus to ingest the drug, who was first observed standing in an area known for narcotics trafficking in a group that included an individual whom an arresting officer observed make a drug transaction, is more likely to be a seller than a buyer of crack cocaine. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007), S.C., 460 Mass. 12 (2011) (“If, from the evidence, conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [the fact finder’s] province”).

Additionally, this conclusion is supported by Officer Wadlegger’s expert testimony at trial. Wadlegger’s testimony was germane, because the ability to distinguish between drugs possessed for the purpose of distribution and those for personal use “is not a matter within the common experience of [fact finders].” Little, 453 Mass. at 769, quoting from Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457 (2006). As a result, judges have allowed police officers with experience in narcotics investigation to give their expert opinion as to whether the facts of the case were more consistent with distribution or with personal use. See Gollman, 436 Mass. at 115-116; Wilson, 441 Mass. at 400-401; Little, 453 Mass. at 768-770. In this case, Officer Wadlegger testified that the crack cocaine found on Sepheus suggested that he was a distributor as opposed to a buyer of drugs, and the officer based this opinion on, inter alla, the manner in which the drugs were packaged, the absence of smoking paraphernalia, and the high incidence of crime in the area where Sepheus was arrested.¹⁰’¹¹,¹² The judge could have properly considered Wadlegger’s testimony to support an inference of an intent to distribute. See Wilson, 441 Mass. at 401-402; Little, 453 Mass. at 769.

Conclusion. In this case, the defendant was found with three individually wrapped rocks of crack cocaine, had $312 in cash in his pocket, and carried no paraphernalia for ingesting the drugs. A police expert testified that several of these facts suggested that the defendant intended to distribute the drugs he possessed. Further, the judge could have inferred that the defendant had been located in an area known for drug sales for at least an hour, and was in the company of an individual who conducted a drug transaction in his presence. The inference of an intent to distribute based on these facts and circumstances is both “reasonable and possible,” Commonwealth v. Montecalvo, 367 Mass. 46, 54 (1975), and amounts to more than mere “conjecture and speculation.” Commonwealth v. White, 452 Mass. 133, 136 (2008), quoting from Commonwealth v. Armand, 411 Mass. 167, 170 (1991). The judgment is affirmed.

So ordered.

1 The record does not reveal the source of this information or any indication of its reliability.

2 Lopes testified that this was a high crime area where numerous arrests for firearm violations and drugs had been made.

3 This evidence was admitted without objection on direct examination and was referenced repeatedly by defense counsel on cross-examination. Other testimony concerning the contents of the informant’s tip (that the defendant was armed and selling cocaine in that area) was excluded and is therefore not necessary nor appropriate to recite for any purpose here.

4 In addition to the defendant, the only other person arrested by the police was Dwayne Griffith, the man who was observed to have made a drug sale outside the Daily Mart.

5 The presence of cash on the defendant’s person has in some past cases been paired with evidence of the defendant’s unemployment to indicate that the defendant was more likely to have obtained the cash from drug sales. See Commonwealth v. Rivera, 6 Mass. App. Ct. 947, 947 (1978); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758-759 (1984). Although such evidence here would have bolstered the Commonwealth’s case, in several cases the denial of a motion for a required finding has been upheld where cash was deemed probative of possession with intent to distribute, without any evidence of the defendant’s employment status. See, e.g., Wilson, 441 Mass. at 401-402 ($476 cash without any evidence of unemployment). See also Little, 453 Mass. at 768, 771-772 ($254 cash without any evidence of unemployment); Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 265-266 (2010) ($56 cash without any evidence of unemployment).

6 Officer Lopes was directed to the Bristol Street and Wilbraham Road area, which Officer Wadlegger described as being in the “general area” of where the defendant was ultimately found, at the intersection of Alden Street and Wilbraham Road.

7 The police observed Sepheus only for as long as was necessary to identify him, because they were not conducting a drug investigation, but were at the scene to execute an arrest warrant. Only later did Sepheus’s extended presence in the general area of his arrest become relevant and probative of his intent to distribute. All relevant times and locations were admitted in evidence without objection and are therefore available for their full probative value.

8 The dissent invokes the “mere presence” doctrine to discount entirely the defendant’s proximity to the drug transaction. However, on the facts of this case the doctrine is misapplied. The “mere presence” cases discourage the practice of finding either (1) constructive possession of contraband or (2) evidence of joint venture solely from a defendant’s physical proximity to contraband or a possessor of contraband. See Commonwealth v. Gonzalez, 452 Mass. 142, 147 (2008) (“mere presence in the apartment with knowledge that drugs are present is not enough to show constructive possession”); Commonwealth v. Deane, 458 Mass. 43, 50 (2010) (“Mere presence is insufficient to establish joint venture liability”). This case, however, is neither a constructive possession case nor a joint venture case. Rather, the defendant was apprehended while in actual possession of three rocks of cocaine and more than $300 in cash. The only element that was inferred in part from his proximity to a drug deal was his intent to distribute the drugs he already actually possessed, not those possessed by the other dealer. Contrast Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (“presence with knowledge of the planned act is insufficient alone to be the basis of a conviction of a person for the acts of another” [emphasis supplied]); Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 330 (2010) (“[E]vidence that a defendant associated with persons who committed the crime does not lead to an inference that he also participated in the crime” [emphasis supplied]). Here, the defendant was charged with intending to distribute the drugs on his person at the time of his arrest, and the “facts and circumstances” at the time of his arrest help support the judge’s reasonable inference that he had the intent to do so. Cf. Keefner, 461 Mass. at 517 (probable cause on motion to suppress).

9 For this proposition the dissent cites to a line of cases beginning with Commonwealth v. Croft, 345 Mass. 143, 145 (1962).

10 The judge did not make a specific finding that Wadlegger was qualified to act as an expert witness. However, a judge is not required to do so in the absence of a request by the defendant. See Little, 453 Mass. at 770 n.3.

11 Wadlegger testified that when he “stop[s] somebody that’s a user of either cocaine or crack cocaine or heroin, they usually have something on their person normally, to ingest that drug.” Although he later conceded, on cross-examination, that not every user ever arrested was found to possess a crack pipe at the time, his testimony nonetheless was that the absence of such paraphernalia was the exception to the general rule, and was more indicative of selling than buying drugs.

12 The fact that some of Wadlegger’s opinion was based on the inadmissible content of the informant’s tip goes to the weight, not the admissibility of the remainder of his expert opinion. Consequently, although some of Wadlegger’s testimony was struck, his identification of the factors mentioned above as probative of an intent to distribute was not and therefore was properly before the judge. Compare Commonwealth v. Pena, 455 Mass. 1, 22 (2009).