Opinion
11-P-42
12-14-2011
COMMONWEALTH v. MICHAEL W. JULES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant argues that the evidence was insufficient to allow the judge at the defendant's probation revocation hearing to conclude by a preponderance of the evidence that the defendant had committed the new offenses. As to the first offense, possession with intent to distribute under G. L. c. 94C, § 32A(a), the police officer who testified had sufficient experience with crack cocaine to render an opinion at the probation revocation hearing that the rocks contained in the bags taken from the defendant were indeed crack cocaine. The defendant is certainly correct that such evidence would, standing alone, be insufficient under Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), to support a finding of guilt of the offense beyond a reasonable doubt. The defendant has not however met his burden as appellant of demonstrating that this evidence is insufficient to support a finding by a preponderance of the evidence that the defendant committed the offense, which is all that is required at a probation revocation hearing. See Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).
As to the second offense, the judge's written findings indicate that the defendant was found to have committed not only the crime described above but also trespass under G. L. c. 266, § 120. With respect to this second offense the Commonwealth concedes that there was insufficient evidence to support a finding of guilt even under the preponderance of the evidence standard applicable in a probation revocation proceeding.
Because the trial court's determination to revoke the defendant's probation was necessarily based on the finding of the violation of both statutes, it is impossible to determine whether the judge would have revoked the defendant's probation had he found the defendant had committed only the offense of possession with intent to distribute. Consequently, the case must be remanded to the trial court for a determination of that question in the first instance. We emphasize that we do not mean to suggest that revocation on the basis of the finding of the violation of the possession statute alone would have been impermissible. The order of revocation will be vacated, but vacation of the order will be stayed pending the judge's determination on remand whether, despite the absence of sufficient evidence to demonstrate trespass, revocation was appropriately ordered. The judge shall schedule a hearing within thirty days of entry of the judgment following rescript pursuant to Mass.R.A.P. 28, as amended, 378 Mass. 925 (1979).
So ordered.
By the Court (Cypher, Vuono & Rubin, JJ.),