Opinion
15-P-1620
04-21-2017
COMMONWEALTH v. Khidhr MOULTRIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted on four indictments for possession of controlled substances with intent to distribute in violation of G. L. c. 94C (two indictments related to cocaine, one to buprenorphine, and one to marijuana). On appeal, the defendant challenges the sufficiency of the evidence regarding his possession of the controlled substances. We affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On February 28, 2014, police officers executed a search warrant for controlled substances and related evidence at 36 Fort Pleasant Avenue in Springfield. There were a number of people inside the residence at the time. The defendant and three others were located in a rear first floor room where they were observed packaging marijuana and crack cocaine. Packaged and unpackaged marijuana and cocaine were seized from a table in the rear room along with three scales. Police seized two small pieces of crack cocaine in plain view on the kitchen table, approximately twenty feet from the rear room where the defendant was arrested. The living room revealed a monitor connected to surveillance cameras positioned to view the front and side doors. Seized from the living room were bags of heroin, some bearing the logo "Maserati" and others bearing a black horse insignia.
After securing the first floor, officers entered the basement and encountered four pit bull dogs. In an unlocked cabinet, officers found 177 bags of heroin, also marked with the black horse insignia, and a smaller quantity of suboxone, also known as buprenorphine. On a nearby workbench, officers observed packaging material, a sifter and a scale. Officers entered a locked room on the second floor using a key located in the defendant's jacket. From that room they seized additional packaging material, a scale, and personal papers belonging to the defendant.
The defendant had $501 on his person. Under examination with ultraviolet light, the defendant's hands revealed the presence of fluorescent powder from the "buy money" used by an undercover officer to purchase controlled substances from one of the other men arrested. At booking, six of the eleven people arrested at the house, including the defendant, listed 36 Fort Pleasant Avenue as their address.
Discussion. 1. Sufficiency of the evidence. When reviewing the sufficiency of the evidence, "we ask whether, viewing the evidence in a light most favorable to the Commonwealth, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Cohen, 456 Mass. 94, 120 (2010), quoting from Latimore, supra at 677. "Our inquiry centers upon ‘whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.’ " Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 798 (2011), cert. denied 565 U.S. 1159 (2012), quoting from Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
The Commonwealth was obligated to prove beyond a reasonable doubt that the defendant (1) possessed the controlled substances, (2) knowingly or intentionally, (3) with the intent to distribute them. Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 425 (1985). Here, the defendant does not challenge the chemical composition of the seized substances, or that they were possessed with the intent to distribute. Rather, he claims that the evidence was insufficient to prove that he possessed the controlled substances, particularly those seized from the basement and the kitchen, which he describes as common areas. We disagree.
"Possession implies control and power, ... exclusive or joint ..., or, in the case of constructive possession, knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) (quotations omitted), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). "Proof of possession of a controlled substance may be established by circumstantial evidence and the inferences that can be drawn therefrom." Ibid., quoting from LaPerle, supra at 426. "While presence in an area where contraband is found ‘alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.’ " Brzezinski, supra at 409-410 (quotation omitted), quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977).
Regarding the cocaine and marijuana seized from the rear room, where the defendant was observed packaging those substances, there was direct evidence from which the jury could reasonably conclude that that the defendant was in actual possession of those substances. As to the controlled substances seized from the kitchen and the basement, there were "plus" factors beyond the defendant's mere presence that tip the scale in favor of sufficiency. See Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 149 (1999). The jury heard expert testimony that the barricaded door, the surveillance system, the pit bulls, the currency in the defendant's possession, and the presence of packaging material, scales and sifters, were all indicia that 36 Fort Pleasant Avenue was a "drug house." See Commonwealth v. Arias, 29 Mass. App. Ct. 613, 616-617, 619 (1990) (defendant's presence in a sparsely furnished, heavily barricaded apartment in possession of a large amount of cash was potent evidence of an intent to exercise dominion and control of the premises and its contents).
While we agree that the evidence in this case as to the drugs found in the kitchen and the basement was not overwhelming, "[p]ossession need not be exclusive," Commonwealth v. Watson, 36 Mass. App. Ct. 252, 259 (1994), and the question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, supra, quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). We are satisfied that the standard was met in this case.
Judgments affirmed.