DocketNumber: 18-P-810
Citation Numbers: 122 N.E.3d 1099, 94 Mass. App. Ct. 1116
Filed Date: 1/14/2019
Status: Precedential
Modified Date: 7/24/2022
On June 15, 2016, the defendant was indicted for possession of cocaine with intent to distribute. The defendant's motion to dismiss the indictment was denied and the defendant was later found guilty at trial. On appeal the defendant seeks reversal of the conviction on the ground that the evidence before the grand jury was insufficient to establish probable cause, in particular because the grand jury received insufficient evidence that the defendant possessed the cocaine that was found in her bedroom. We affirm.
Background. We summarize the facts presented to the grand jury. On March 16, 2016, the Boston police drug control unit executed a search warrant targeting an apartment in the Dorchester section of Boston and also targeting an individual, one Alberto Perez. Upon entering a bedroom in the apartment the officers witnessed the defendant standing to the left of the bed and moving towards a nearby dresser. Beneath a pillow on the left side of the bed the officers found a coin purse with seventeen bags of cocaine in tightly wrapped plastic, tied in a knot, and packaged in distinct sizes.
Perez was not found in the bedroom; he was discovered sleeping in the basement. He stated to the officers that he was dating the defendant and generally sleeps with her in the bedroom, but that the two had had a fight the night before. He also made a statement to the effect that the drugs found in the bedroom were his drugs.
Prior to trial the defendant moved to dismiss the indictment. That motion was denied. At trial the defendant was found guilty and sentenced to two and one-half years in State prison.
Discussion. The defendant argues that her conviction must be vacated because the Commonwealth failed to present sufficient evidence before the grand jury that she knowingly possessed the cocaine at issue. We disagree.
Under our case law, a conviction after trial may be overturned because there was insufficient evidence presented to the grand jury to justify indictment. To sustain an indictment, "the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest [her]." Commonwealth v. O'Dell,
The defendant contends that the evidence before the grand jury only established her proximity to the drugs, and that showing proximity alone is insufficient to establish either possession of the drugs or intent to distribute them. It is true that proximity to contraband alone is insufficient to establish constructive possession, but proximity coupled with other facts can be sufficient. See Commonwealth v. Ortega,
Constructive possession is established through evidence supporting reasonable inferences that the defendant knew of the contraband and had "the ability and [the] intention to exercise dominion and control over it." Ortega,
All of these facts together supplied the "plus factor[s]," beyond mere proximity, to support a finding of constructive possession. Commonwealth v. Velasquez,
Judgment affirmed.
The substance was confirmed to be cocaine after a lab test. The results of this test were presented to the grand jury. The defendant does not contest that the substance was in fact cocaine.
Officer Nichols testified before the grand jury that he didn't know the exact amount of cash seized but that it was several thousand dollars.
The Commonwealth does not argue that there was actual possession, and the evidence does not support such a finding.