Opinion
18-P-1141
03-22-2019
COMMONWEALTH v. NERKI BENITEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Nerki Benitez, of trafficking heroin, possession of cocaine with the intent to distribute, and possession of fentanyl with the intent to distribute. G. L. c. 94C, §§ 32 (a), 32A, 32E (c). On appeal, he argues that the Commonwealth did not adduce sufficient evidence of his constructive possession of the drugs at issue. Because we conclude that the Commonwealth did not establish that the defendant knew about the drugs secreted underneath two floor boards and an area rug in a room where the government's evidence showed, at most, that he was an overnight guest, we reverse.
In reviewing a challenge to the sufficiency of the Commonwealth's evidence, we determine "whether, 'after 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. Penn, 472 Mass. 610, 618 (2015), quoting Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). An essential element of both trafficking and possession with intent to distribute is possession of the drugs at issue. See Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) (possession with intent to distribute); Commonwealth v. Sabetti, 411 Mass. 770, 777 (1992) (trafficking).
Because the defendant moved for required findings of not guilty at the close of the Commonwealth's case-in-chief, we limit our review to the evidence before the jury at that time. Commonwealth v. Stewart, 450 Mass. 25, 33 (2007).
The Commonwealth proceeded on a theory of constructive possession, requiring that it prove "that the defendant had both knowledge of the contraband and the ability and intention to exercise dominion and control over it." Ortega, 441 Mass. at 174. "[P]roof may be accomplished by circumstantial evidence and 'the reasonable -- not inescapable -- inferences to be drawn from it.'" Id., quoting Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999). Mere presence near drugs is insufficient to support an inference of possession, but presence and "other incriminating evidence" may support such an inference. Ortega, supra.
Here, police discovered a large amount of drugs hidden under an area rug and two floor boards of a bedroom from where, when they broke through the rear door in the early morning hours, they observed the defendant run shirtless. Viewing the evidence, as we must, in the light most favorable to the Commonwealth, the jury could reasonably infer only that the defendant spent the night in that bedroom. Cf. Commonwealth v. Araujo, 38 Mass. App. Ct. 960, 961 (1995) (defendant sleeping in room with his wallet in dresser and shotgun in closet insufficient to support inference of constructive possession of shotgun). Without more, the jury could not infer that the defendant resided there. Aside from the evidence of his emerging from the room shirtless at approximately 7 A.M., there is no evidence that the police discovered any clothing, identification, or other personal effects of the defendant in the bedroom or anywhere else in the apartment. Contrast Commonwealth v. Madera, 76 Mass. App. Ct. 154, 165 (2010) (sufficient evidence of constructive possession where defendant had joint control over bedroom where drugs seized, slept there, and kept personal effects there).
Nevertheless, the Commonwealth asserts that the convictions are supported by the existence of two plus factors -- the defendant's flight from the bedroom and the obvious appearance of the apartment as a stash house. We address each.
The Commonwealth's claim of consciousness of guilt is unavailing. There is no evidence that the defendant fled from the police but rather that he ran out of the bedroom upon hearing the police's forced entry into the apartment. We also are not persuaded that the evidence established that it would be obvious to anyone that the apartment was a stash house. The Commonwealth's own expert testified that most of the items one would expect to find in a stash house -- e.g., presses, scales, cutting agents, and plastic bags -- were hidden beneath the floor boards alongside the drugs and, thus, also outside the defendant's view. There was also no indication that the apartment was sparsely furnished; indeed, there was evidence indicating that others -- not the defendant -- lived in the apartment. Contrast Commonwealth v. Watson, 36 Mass. App. Ct. 252, 259-260 (1994) ("The sparse furnishings of the apartment indicated that it was a stash house, used solely for storing and selling drugs").
The Commonwealth points to evidence that the front door was barricaded, as is the case in many stash houses, in support of its claim that the defendant would have known the apartment was used to secrete drugs. We disagree. There was no description of the door's barricade, and the mere existence of a door barricade without more is insufficient to establish that an apartment is an obvious stash house. See Velasquez, 48 Mass. App. Ct. at 150 (both heavy foot traffic to apartment's rear door and barricade upon it suggested apartment's use as stash house). Accordingly, we conclude that the Commonwealth failed to establish that the defendant knew of and exercised dominion and control over the drugs discovered beneath the floor boards of the bedroom from which he emerged.
Judgments reversed.
Verdicts set aside.
Judgments to enter for the defendant.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 22, 2019.