Opinion
13-P-1407
09-18-2015
COMMONWEALTH v. JUAN PACHECO.
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
On appeal the defendant, Juan Pacheco, challenges a Juvenile Court judge's findings, after an evidentiary hearing, that he violated two conditions of his probation. First, the judge found that he committed a criminal act in that he had possession of marijuana with the intent to distribute, in violation of G. L. c. 94C, § 32C. Second, the judge found that the defendant violated a probationary condition that ordered him to "[r]efrain from any and all gang activity or associating w[ith] any known gang members." The judge's order revoked the defendant's probation and imposed his suspended sentences to State prison. The defendant argues that the Commonwealth did not present sufficient evidence to support the findings. We agree and vacate the order.
Background. The essential facts are not in dispute. In January, 2013, the defendant was on parole, and also on probation with suspended sentences for two underlying youthful offender convictions. The defendant was under GPS monitoring. The defendant had permission to be at his mother's home during the day when he was not working, but he was under a curfew which required him to sleep at his sister's apartment located in a house on a different street. The defendant's brother, Joseph Pacheco, also was on probation, under GPS monitoring, and residing at the mother's home. Law enforcement authorities were aware that Joseph Pacheco was a gang member, and did not object to the brothers associating together during the daytime.
On January 24, 2013, at approximately 11:30 A.M., the defendant's parole officer, accompanied by two Fall River police officers, made an unannounced visit to the home of the defendant's mother. The defendant was found in a front room in the company of his brother Joseph and a third person later identified as March Yee. The defendant's mother was in the kitchen. There was an odor of "burnt marijuana," and a burnt "marijuana roach" lay on the counter in the front room. The defendant submitted to a urine test, but the result was inconclusive. One officer led the defendant to his brother Joseph's bedroom. The officer was going to have the defendant sit on the bed, so he first conducted a "[cursory] check of the bed for officer safety." The officer discovered two loaded firearms hidden under the bed. As a result, the defendant, his brother Joseph, and Yee were arrested. Thereafter, a search warrant was obtained. The police seized a number of additional items from inside a bureau drawer in Joseph's bedroom, including eight plastic bags of marijuana, a digital scale, and other drug paraphernalia. Another digital scale was discovered on Yee's person. The only object of evidentiary value in plain view that day was the marijuana roach found in the front room.
The test was conducted by the defendant's parole officer in another room of the mother's home using a field kit. The results were positive, but "faint." After consulting with his supervisor, the defendant's parole officer concluded that he could not say that the defendant had smoked or ingested marijuana because based on the results, the positive response was as likely due to the defendant's presence in a room where others were smoking marijuana as to the defendant having smoked marijuana himself.
One of the police officers who was involved in the home visit was a member of the department's gang unit. Yee told this officer that he was a member of the "Asian Boyz" gang. Yee also raised his T-shirt and showed the officer his "Asian Boyz" tattoo, which was located in the area of his shoulder. This officer also testified that there were several tattoos on the defendant's torso and that some of them "had gang-related significance."
Discussion. 1. Standard of review. We review to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001) (citation omitted). Specifically, we consider whether the evidence was sufficient to "support a finding by a preponderance of the evidence that [the defendant] violated his probation." Commonwealth v. Patton, 458 Mass. 119, 130 (2010).
2. New criminal violation. Because there was no evidence that the defendant had actual possession of the marijuana hidden in his brother Joseph's bureau drawer, the theory that might support the judge's finding is constructive possession. See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323 (2010). Constructive possession requires proof that the defendant was aware of the contraband's location, and that he had the ability and intent to exercise control over it. See Commonwealth v. Boria, 440 Mass. 416, 418 (2003). The Commonwealth relies on several facts -- that the defendant and Joseph were brothers, that the defendant was often in his mother's home during the daytime, that marijuana was being smoked in the home, and that the defendant had acquired a gang-related tattoo -- to support the inference that the defendant knew of the presence of the bags of marijuana in Joseph's room. While these factors contribute to a strong suspicion that the defendant was involved in his brother's criminal activity, they do not permit an inference to be drawn that the defendant was aware of the marijuana hidden in the bureau drawer. See id. at 419-421. There is no evidence that the defendant shared or frequented his brother's bedroom, or that otherwise connected the defendant and the bedroom used by his brother. See Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). Here, unlike in cases such as Commonwealth v. Pratt, 407 Mass. 647, 652 (1990), none of the paraphernalia associated with drug distribution was in plain view.
3. Failure to refrain from gang activity. The judge also stated that he found the defendant was in violation of his probation because the defendant failed to "refrain from gang activity." Once again, the evidence supports a strong suspicion that the defendant was involved in gang activity, but is not sufficient to permit an inference to that effect to be drawn. Although there was evidence that the defendant associated on a regular basis with his brother Joseph who was a gang member, this was known to and approved by the defendant's probation and parole officers. There is no evidence that the defendant was aware that Yee was a gang member, and no evidence that the defendant was regularly in Yee's presence. Finally, the evidence that some of the defendant's tattoos had "[g]ang-related significance" is too general to support an inference that the defendant was engaged in any associational activity with gang members or unlawful gang activity, which is what was contemplated by the condition of probation in question.
The defendant does not argue and so we have no occasion to consider whether the condition of probation ordering him to "[r]efrain from any and all gang activity or associating w[ith] any known gang members" is unconstitutionally vague. See Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006) ("[P]robation conditions must provide reasonable guidance with respect to what activities are prohibited").
It is unnecessary for us to consider the defendant's further argument that it was error to revoke his probation based on a finding that he constructively possessed marijuana with the intent to distribute when the notice of probation violation referred only to unlawful possession of marijuana. Any discrepancy in this regard benefited the defendant. Also, it is unnecessary to consider the defendant's argument that his attorney was ineffective for not filing a motion to suppress the contraband in the probation violation case.
Conclusion. For the reasons stated, the evidence does not support the judge's two findings that the defendant had constructive possession of the marijuana found hidden in a bureau drawer in his brother's bedroom and that the defendant did not refrain from gang activity. Accordingly, the order revoking the defendant's probation and imposing the committed sentences is vacated.
"The success of probation as a correctional tool" is largely a product of its "flexibility." Buckley v. Quincy Div. of the Dist. Ct. Dept., 395 Mass. 815, 818 (1985) (citation omitted). Whenever there has been a material change in circumstances, a judge has authority to modify conditions of probation to benefit the defendant as well as the community. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 843-844 (2007). Modified conditions of probation may impose additional restrictions on the probationer's liberty so long as they do not amount to the imposition of a punishment that was not part of the original sentence. Ibid. On remand, the sentencing judge or the judge assigned to this case may have an opportunity to consider whether the conditions of the defendant's probation should be modified in view of the evidence presented at the violation hearing or additional evidence.
So ordered.
By the Court (Berry, Wolohojian & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 18, 2015.