Opinion
No. 16–P–31.
12-01-2016
COMMONWEALTH v. Tyler E. TRINIDAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of two counts of distribution of a class B substance in violation of G.L. c. 94C, § 32A. On appeal, the defendant argues that there was insufficient evidence to support the convictions and that the judge improperly admitted expert testimony on the ultimate issue of the defendant's guilt. We affirm, concluding both that the evidence was sufficient and that the judge did not err in admitting the objected-to expert testimony.
Two counts of conspiracy to violate the controlled substances laws, G.L. c. 94C, § 40, were dismissed before trial.
"When reviewing the denial of a motion for a required finding of not guilty, we inquire ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "Under the standard set out in Latimore, circumstantial evidence is a permissible basis upon which to premise a conviction." Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 434 (2006). However, "[i]f a rational jury necessarily would have had to employ conjecture in choosing among the possible inferences from the evidence presented, the evidence is insufficient to sustain the Commonwealth's burden of proving guilt beyond a reasonable doubt ." Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010) (quotation omitted).
With these principles in mind, we recite the Commonwealth's evidence together with the reasonable inferences to be drawn from it. Police observed the defendant as he exited a residential building and directly walked to meet a man who had been "texting" and looking about, evidently waiting for the defendant. An extremely brief interaction then took place, lasting no more than fifteen to twenty seconds, during which the defendant and the other man stood "shoulder to shoulder" with "their arms [ ] moving towards each other." The defendant then immediately returned to the same residential building. Police followed and stopped the other man, who had cocaine in his pocket.
Soon thereafter, the defendant again left the house. This time he was observed to put something in his mouth while waiting outside. A car soon pulled up, and the defendant got in. The car went roughly in a circle for about two city blocks. The defendant then got out. Police followed and stopped the car, and found four bags of cocaine packaged similarly to the cocaine found in the first man's pocket. The drugs were admitted, and the jury were able to assess the similarity of the packaging. An expert witness testified that each of the encounters was consistent with a drug sale.
Although we have not inspected the exhibits, the prosecutor noted the similarity of the packaging in his closing argument, and the defendant does not contend or suggest otherwise.
Our cases support the conclusion that the facts were sufficient to prove distribution beyond a reasonable doubt. The police witnessed two very brief, prearranged encounters between the defendant and men who both had similarly packaged cocaine immediately afterwards. Compare Commonwealth v. Soto, 45 Mass.App.Ct. 109, 111–112 (1998) ; Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 178–179 (2009). The fact that the defendant left from the same house for both transactions and returned to it after the first one permitted the inference that it was his base of operations, as the expert testified. The apparent lack of transportation-related purpose to the ride in the car, which essentially drove in a circle, supported an inference that the defendant had arranged to get in the car for some reason other than transportation. The jury were also entitled to consider the briefness of the two encounters and their apparent lack of social purpose. The fact that the other participants were found with similarly packaged cocaine leads to the inference that they came from the same source, in this case the defendant.
This is not a situation in which the defendant could as likely have been a drug purchaser as a drug seller. Contrast Commonwealth v. Rodriguez, 456 Mass. at 582–585 ; Commonwealth v. Senati, 3 Mass.App.Ct. 304, 305–306 (1975). When viewed in the light most favorable to the Commonwealth, the facts (especially the similarity of the packaging) permitted the inference that the defendant acted as the seller, not the purchaser.
We disagree with the defendant's argument that the expert was permitted to invade the province of the jury by testifying on the ultimate issue of guilt. The expert did not express a definitive opinion on the legality of the defendant's conduct, instead stating only that the conduct was "consistent with" a drug sale. "[O]ur courts repeatedly have held that a properly qualified expert witness is permitted to opine based on a hypothetical that is grounded in facts in evidence, as being ‘consistent with’ a drug transaction." Commonwealth v. MacDonald, 459 Mass. 148, 162 (2011). Accordingly, the expert did not impermissibly invade the province of the jury.
Judgments affirmed.