DocketNumber: 16–P–1448
Citation Numbers: 95 N.E.3d 299, 92 Mass. App. Ct. 1117
Filed Date: 12/7/2017
Status: Precedential
Modified Date: 7/24/2022
A Superior Court jury convicted the defendant of (1) trafficking in a class B substance (cocaine), (2) possession of a class B substance (oxycodone) with intent to distribute, and (3) unlawful possession of ammunition. On appeal, he claims that the Commonwealth's evidence was legally insufficient in certain ways. He additionally argues that the judge's use of certain hypotheticals in responding to jury questions amounted to reversible error. We affirm.
1. Sufficiency. The defendant argues that the Commonwealth's evidence was insufficient in two respects. First, he claims that there was insufficient evidence that he constructively possessed the drugs and ammunition. Second, he claims that there was insufficient evidence of his intent to distribute the drugs. In a challenge to the sufficiency of the evidence, we examine whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore,
a. Constructive possession. The cocaine, oxycodone pills, and ammunition were all discovered during the execution of a search warrant for the apartment where the defendant lived.
b. Intent to distribute. Similarly, there was ample evidence from which the jurors reasonably could have inferred that the defendant intended to distribute the drugs that he possessed. See generally Commonwealth v. Montalvo,
2. Use of hypotheticals. During their deliberations, the jury requested further instruction regarding constructive possession. In his response to the questions, the judge offered several hypothetical examples of constructive possession. One involved car keys in the pocket of the judge's coat hanging in his chambers. The other involved a borrowed fishing rod. The third one involved items in the judge's bank safe deposit box. Because the defendant lodged no objection to these hypotheticals, our review is limited to whether an error caused a substantial risk of a miscarriage of justice. Commonwealth v. Drummond,
The defendant claims that in providing the hypotheticals, the judge "gave confusing examples that likely misl[e]d the jury." However, the defendant's arguments to that effect are conclusory and abstract. He has not shown how any hypothetical used by the judge was erroneous, much less how it could have confused or misled the jury. No substantial risk of a miscarriage of justice has been shown.
Judgments affirmed.
The jury were free to accept testimony that the defendant admitted to police that he lived at the apartment. At trial, the defendant denied that he told this to police and, together with his mother, testified that he lived elsewhere. The jury were not required to accept such testimony. See Commonwealth v. Dubois,