Opinion
20-P-11
01-06-2022
COMMONWEALTH v. Phuc TRUONG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of various firearms and ammunition-related offenses and of possessing marijuana with intent to distribute. In this direct appeal, he argues that (1) his motion to suppress the fruits of the search of his apartment should have been allowed and (2) the evidence of constructive possession was insufficient. We affirm.
The defendant was convicted of carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ) ; carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n ) ; two counts of possessing a large capacity firearm, in violation of G. L. c. 269, § 10 (m ) ; three counts of possession of a rifle or shotgun without an firearm identification card ("FID"), in violation of G. L. c. 269, § 10 (h ) (1) ; three counts of possessing a firearm without an FID card, in violation of G. L. c. 269, § 10 (h ) (1) ; possession of ammunition without an FID card, in violation of G. L. c. 269, § 10 (h ) (1) ; and possession of a class D substance (marijuana) with the intent to distribute, in violation of G. L. c. 94C, § 32C (a ).
Discussion. 1. Probable cause. The defendant argues that the affidavit in support of the application for a search warrant did not establish probable cause to search because it failed to show a nexus between 15 Camp Street, apartment 3 (the defendant's apartment) and the crime under investigation. We review the issuance of the search warrant de novo, asking whether the affidavit provided "a substantial basis for concluding that evidence connected to the crime" would be found at the apartment. Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In this review, we consider the affidavit, as a whole, and any reasonable inferences that can be drawn from its facts. See Donahue, supra, and cases cited.
The affidavit established the following: on March 1, 2017, three gunshots were reported fired on a street in Worcester. Police officers responded to the location of the reported shots and encountered the defendant, who appeared nervous and out of breath. The defendant told the officers that he was "walking back from the store, "heard two gunshots, and saw someone running away from the area. Officers searched the area and found two shell casings and a package of Newport cigarettes; they retrieved video footage of the incident.
That footage shows the defendant firing a handgun, and handing one to his codefendant, Hung Nguyen. A video from a nearby store shortly before the shooting shows the men together; Nguyen buys a package of Newport cigarettes. The package of Newport cigarettes found on the shooting scene had Nguyen's fingerprints on it.
The next day (March 2), police officers stopped the defendant and asked him to go to the police station. At various points during his encounter with the police, the defendant identified 15 Camp Street, apartment 3 as his address, said he was currently on his way there, and said that he had gone there after the shooting. The same day, police officers watched Nguyen leave 15 Camp Street.
These facts provide a substantial basis for concluding that evidence of the shooting would be found in the apartment because it is reasonable to think someone would hide or store a firearm at his residence particularly where, as here, he went there immediately after the shooting. See Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 827 (2012) (reasonable that defendant would seek to hide firearms and ammunition at his residence). See also Commonwealth v. James, 424 Mass. 770, 778 (1997) (inference that defendant will hide at his home items that are "durable, [and] of continuing utility to [him]."). Both Nguyen and Truong lived at the address, and both had held a firearm during the shooting the day before the search of their apartment.
2. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence that he constructively possessed (i) the marijuana found in a padlocked closet of the apartment, and (ii) the marijuana, firearms, and ammunition found in the trunk of the car. We review this claim under the familiar Latimore standard. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Proving constructive possession requires proof beyond a reasonable doubt of "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019), quoting Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). "This proof ‘may be established by circumstantial evidence, and the inferences that can be drawn therefrom.’ " Commonwealth v. Dagraca-Teixeira, supra, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).
There was sufficient evidence from which a rational jury could find beyond a reasonable doubt that the defendant constructively possessed the individually packaged marijuana found in a padlocked bedroom closet. To begin with, the defendant's driver's license was also found in the closet. In addition, the bedroom itself held a bill addressed to the defendant. These facts, together with the defendant's mother's testimony that the defendant had moved to the Worcester area shortly before the search, and that she went to the apartment after his arrest in order to collect his belongings, permitted the jury to conclude that the padlocked closet was in the defendant's bedroom and that he knew the contents of the closet. This satisfied the knowledge prong of constructive possession. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 417 (1996) (proof of defendant's knowledge may be made by showing that his personal effects were found in the same area as the contraband, since these "point to a defendant's familiarity and knowledge of contents" in that area). Contrast Commonwealth v. Humphries, 76 Mass. App. Ct. 702, 704-705 (2010) (identification belonging to defendant and drugs found together in a room was not enough to prove defendant constructively possessed the drugs when there was no evidence he rented, occupied, or spent a great deal of time at apartment).
These same facts bore on whether the defendant had the ability and intent to control the marijuana. The jury could fairly infer from the presence of the defendant's license that the defendant had the ability and intent to control the contents of the padlocked closet. See Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997) (ability to exercise control is apparent from the defendant's right of access). Buttressing this conclusion, the drugs' packaging and proximity to almost $4,000 in cash allow a jury to conclude that the defendant was involved in drug dealing, and therefore planned to sell the drugs (exercising dominion and control). See Gonzalez, supra at 237-238 (intent to control drugs by selling them inferred from evidence of drug dealing). See also Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999) (inferring intent to distribute from packaging and general circumstances).
The evidence also supports the jury's finding that the defendant constructively possessed the marijuana, firearms, and ammunition found in the trunk of the car. Although it is true, as the defendant argues, that he did not own the car, the evidence tied him to the contraband in the trunk: his palm-print was on a bag that held ammunition, and his fingerprint was on an empty vacuum-sealed bag found in a large shopping bag with a similar, marijuana-filled bag. Together with the evidence found inside the car, (pieces of his mail, his bill and package, and his prescription bottle in the car's interior), this was enough to prove he knew what the trunk contained and had the ability to control it. See Sanchez, 40 Mass. App. Ct. at 417 (personal papers and bill in car support inference defendant is acquainted with contents). See also Commonwealth v. Boria, 440 Mass. 416, 420 (2003), quoting Commonwealth v. Pratt, 407 Mass. 647, 652 (1990) ("Contraband found in proximity to a defendant's personal effects may provide a link between a defendant and the contraband, if other evidence shows that ‘the defendant has a particular relationship' to that location"). Furthermore, the marijuana packaging was similar to that of the marijuana in the defendant's closet. See Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 541-542 (2012) (similar appearance of drugs actually possessed and drugs found in pocketbook, along with defendant's ties to drug trade in the apartment, supports inference that defendant possessed drugs found in pocketbook). As to the weapons and ammunition, the jury could reasonably infer intent to control them from the fact that, the day before the search, the defendant had recently shot a gun and handed a gun to his codefendant, who owned the car. See Commonwealth v. Sadberry, 44 Mass. App, Ct. 934, 936 (1998) (defendant's intent was demonstrated by his recent use of the firearm and evidence of the shooting). Further connecting the defendant to the weapons and ammunition, shell casings from .40-caliber Smith and Wesson bullets were found at the shooting scene, and one of the boxes of ammunition found in the trunk of the car was labeled "40 S. & W."
Judgments affirmed.