Opinion
19-P-233
03-13-2020
COMMONWEALTH v. David ANTONETTY-ALMESTICA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of possession of cocaine with intent to distribute. On appeal the defendant argues that there was insufficient evidence to support his conviction and that the judge erred by admitting the testimony of the Commonwealth's narcotics expert. We affirm.
Background. In September 2017 several police officers were dispatched to a Walmart store and began investigating a shoplifting incident. One of the officers pulled over a car that he suspected was involved. The officer observed that the driver, identified at trial as the defendant, was the sole occupant. The defendant gave his name and date of birth but could not produce identification. The officers arrested the defendant after they determined that he was unlicensed.
Two officers then conducted an inventory search of the car and found ninety dollars in denominations of twenty, ten, and one dollar bills, in a "black zipper-type pouch bag in the center console." Three cell phones were also found in the car and rang "continuously" while the officers were on scene. Additionally, a green pill bottle with black tape around it was found between the driver's seat and the glove compartment, "directly in front of" where the seatbelt would buckle into. Inside the bottle were "twenty-two clear baggies" containing a "rock-like powdery substance." There was no user paraphernalia in the car.
The defendant's brief suggests that the pill bottle was located inside the center console, but the testimony establishes that it was outside.
At trial the Commonwealth's chemist testified that the powder inside one of the bags weighed .16 grams and tested positive for cocaine. The Commonwealth's narcotics expert testified that a bag of crack cocaine weighing .16 grams has a street value of about $20. The weight of the remaining twenty-one bags, including packaging material, was 4.67 grams.
Discussion. 1. Sufficiency of the evidence. We review the defendant's sufficiency challenge to determine "whether, after viewing the evidence in the 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. Ayala, 481 Mass. 46, 51 (2018). To convict a defendant of possession with intent to distribute cocaine, the Commonwealth must prove that the defendant "(1) knowingly possess[ed] the drug and (2) intend[ed] to transfer it physically to another person." Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 355 (2010). See G. L. c. 94C, § 32A.
"Possession may be actual or constructive," Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003), and can be "established by circumstantial evidence[ ] and the inferences that can be drawn therefrom." Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). To prove constructive possession, the Commonwealth must show "knowledge coupled with the ability and intention to exercise dominion and control." Brzezinski, supra, quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). See Commonwealth v. Escalera, 462 Mass. 636, 649 (2012).
Based on the evidence presented, the jury could have found that the defendant constructively possessed the cocaine. The defendant was the driver and sole occupant of the car in which the cocaine was found. See Commonwealth v. Clark, 446 Mass. 620, 624 (2006). The cocaine was near the seatbelt buckle, inferably in plain view and within the defendant's reach and immediate control. See Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 634 (2005) ("gray duct-taped ball" containing cocaine found "between the driver's seat and the gear shift in the console area" was in plain view). The jury could also have inferred that the three ringing cell phones belonged to the defendant and were "instrument[s] of deals and delivery." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013). Taken together, this evidence supported a finding of knowledge and intent to control.
In addition, the jury could have found that the defendant had the intent to transfer the cocaine to another person. The packaging of the bags was consistent with distribution, according to the Commonwealth's expert. The expert further testified that possessing twenty-two of the bags "would be consistent with someone [who is] selling twenty bags on a ... street level." See Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392 (1999) (eighteen individually packaged "dime bags" supported intent to distribute). Moreover, the defendant did not have user paraphernalia with him, see Commonwealth v. Gollman, 436 Mass. 111, 116 (2002), and, as the expert testified, the presence of cash in varying denominations and the use of multiple cell phones are indicia of distribution. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009). In these circumstances the jury could have found the requisite intent to distribute.
2. Expert testimony. "It is settled law that trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases." Commonwealth v. Miranda, 441 Mass. 783, 793 (2004). Here, viewing the entirety of the expert's testimony, we conclude that it was properly admitted as "it was limited to an opinion that the hypothetical facts were consistent with possession of [cocaine] with the intent to distribute." Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). Contrary to the defendant's argument, it was proper for the Commonwealth to base the hypothetical on the facts of the case. See Commonwealth v. Little, 453 Mass. 766, 769-771 (2009) ; Wilson, supra, at 400-401. The expert was not a percipient witness, and he did not testify that the defendant committed any particular offense. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 163 (2010). We discern no abuse of the judge's broad discretion.
We perceive the defendant to be challenging the expert's testimony generally, rather than any specific part of the testimony.
--------
Judgment affirmed.