Opinion
No. 12–P–1107.
2013-11-7
COMMONWEALTH v. Reinaldo RIOPEDRE.
The defendant, Reinaldo Riopedre, appeals his conviction of possession of a class B substance on the ground that the trial judge did not instruct the jury on constructive possession. The defendant, however, requested that the trial judge omit the instruction on constructive possession, arguing that this was a case involving only actual possession. The defendant also argued to the jury that he should be acquitted because the Commonwealth did not prove actual possession (the drugs were found on the ground next to cash police officers saw the defendant drop). The remainder of the instructions tracked the model jury instructions on possession of a controlled substance. We conclude that the instructions as a whole were sufficient as the term “actual possession is self-explanatory” and does not require additional explanation. Commonwealth v. Mojica, 59 Mass.App.Ct. 925, 926 (2003). We also conclude that the defendant benefited from the omission of the constructive possession instruction, as his trial counsel understood. In these circumstances there was no error creating a substantial risk of a miscarriage of justice. Judgment affirmed.