Opinion
10-P-1229
11-18-2011
COMMONWEALTH v. JOHN LOMAX.
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
A Superior Court jury convicted the defendant of possession of a class D substance with intent to distribute, in violation of G. L. c. 94C, § 32C. On appeal, he argues the trial judge erred in admitting a drug certificate of the type described in G. L. c. 111, § 13, and in denying his motion for a required finding of not guilty. For the reasons set forth, infra, we affirm.
Admission of drug certificate. At trial, the Commonwealth introduced a drug certificate through a chemist who testified that the certificate reflected her conclusion that eighteen small bags found in the defendant's possession contained marijuana. Sixteen of the bags were found on June 11, 2008, in a red box. Two more were found on the defendant's person on the following day. At the time of testing, the chemist did not differentiate between these two 'sets' of bags. During testing, the chemist visually inspected all eighteen bags. In accordance with her customary practice, she performed additional microscopic and chemical analysis of the contents of two of the bags she chose at random.
It appears that the two sets were mixed together, though it is unclear exactly when the mixing occurred.
The defendant argues that the chemical analysis of the contents of two of the bags was insufficient to support the finding that all eighteen contained marijuana. But extrapolation from tests on a random sample is accepted practice. As we said in Commonwealth v. Shea, 28 Mass. App. Ct. 28, 33 (1989), '[w]here numerous suspected bags or other units are received for official analysis, all with substances evidently alike -- as to color, consistency, packaging, smell, etc. . . . [i]t is enough to make representative tests.' See Commonwealth v. Johnson, 410 Mass. 199, 200-201 (1991) (composition and net weight of seventy-one bags of cocaine determined through Department of Public Health's random sample of nine bags); Commonwealth v. Coplin, 34 Mass. App. Ct. 478, 485 (1993) (accepting chemist's determination of net weight of cocaine in 174 bags based on random sampling of twenty packets).
The defendant argues that extrapolation of the type described in the cited cases is impermissible where, as here, the bags were confiscated in two distinct sets that were not separated during testing. His contention is unpersuasive.
Unlike an 'extract or preparation' such as cocaine, marijuana is subject to visual identification, for it 'consist[s] of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance.' Commonwealth v. MacDonald, 459 Mass. 148, 156-157 (2011), quoting from State v. Maupin, 42 Ohio St. 2d 473, 480 (1975). In this case, the chemist testified that she made a visual identification of the contents of all eighteen bags. Contrast Commonwealth v. Nelson, 460 Mass. 564, 576-577 (2011) (drug certificate improperly admitted without chemist's in-court appearance where no expert was called to visually identify substance as marijuana).
Moreover, there was sufficient evidence for the jury to determine beyond a reasonable doubt that all eighteen bags actually originated from a single source. Among other things, the defendant admitted that all eighteen bags contained marijuana and belonged to him. The chemist testified that the substance in all eighteen bags appeared to be the same. Additionally, the two bags found on the defendant's person had the same blue packaging as those found in the red box. See Commonwealth v. Ramirez, 57 Mass. App. Ct. 475, 477-478 (2003) (rational trier of fact could infer that untested bags of white powder seen in defendant's possession were cocaine based on test results of five other bags which came from same black box and were of same weight, color, and packaging). The trial judge's admission of the certificate was not an abuse of discretion.
Motion for required finding of not guilty. The defendant next argues that there was insufficient evidence to prove intent to distribute. 'Sufficient evidence exists when, viewed in the light most favorable to the Commonwealth, a rational fact finder could find all material elements of the offense established beyond a reasonable doubt.' Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 245 (2011). As addressed, supra, the drug certificate provided prima facie evidence that the defendant possessed eighteen bags of marijuana. See G. L. c. 111, § 13. The police search also yielded a digital scale and, in a duffle bag full of men's clothing, 'drug packaging material consistent' with the bags of marijuana.
Finally, Detective Lefebre gave expert testimony that the packaged bags of marijuana, digital scale, and empty packaging were consistent with distribution of marijuana. Based on this evidence, a rational trier of fact could find beyond a reasonable doubt that the defendant intended to distribute the marijuana the eighteen bags contained.
Judgment affirmed.
By the Court (Rapoza, C.J., McHugh & Cohen, JJ.),