Opinion
15-P-188
02-08-2016
COMMONWEALTH v. WILLIAM BLIGE.
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 from his convictions of possession with intent to distribute a class D substance (marijuana) and committing a drug offense near a park, the defendant argues that the evidence was insufficient to support the convictions, and also contends that certain physical evidence was erroneously admitted. We discern no cause to disturb the judgments, and affirm.
The defendant also was convicted of violating an abuse prevention order but makes no argument on appeal regarding this judgment.
The defendant raises three separate challenges to the sufficiency of the evidence. Upon review, we "view[] the evidence in the light most favorable to the prosecution," and ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted). First, the defendant claims the evidence was insufficient to prove that the substance found in his possession was marijuana. However, the jury were permitted to credit the testimony of the police officer, who testified that, based on his experience, training, and familiarity, he believed the substance was marijuana. See Commonwealth v. MacDonald, 459 Mass. 148, 153 (2011) (proof that substance is a certain drug "may be made by circumstantial evidence, including the testimony of experienced police officers. An individual's familiarity with the properties of marijuana through past experience coupled with 'present observation' of the substance at issue is sufficient to establish its identity" [citations omitted]). Therefore, the evidence was sufficient to prove the nature of the substance; any remaining questions raised by the defendant pertain to the weight the jury assigned the evidence, not its sufficiency.
Second, the defendant argues there was insufficient evidence to prove he had the intent to distribute marijuana. The physical evidence found on the defendant included five small baggies of marijuana, a scale, sixty-six dollars in cash, and a cellular telephone. The officer testified that in his experience, he had only encountered sellers, not buyers, carrying digital scales. Taken together, this evidence was sufficient for the jury to infer that the defendant intended to distribute the bags of marijuana. See Commonwealth v. Keefner, 461 Mass. 507, 517 (2012) (intent to distribute "may not be susceptible of proof by direct evidence," therefore, it may be proved "by inference from all the facts and circumstances" [citation omitted]).
Lastly, the defendant contends there was insufficient evidence to prove he was arrested within 100 feet of a public park. However, two officers testified that the defendant was apprehended on the curb next to the park, and a third officer testified that the site of the arrest was 4.1 feet from the park. The jury were permitted to credit this testimony, which could suffice to establish that the defendant was well within the prohibited 100-foot zone. See Commonwealth v. Johnson, 53 Mass. App. Ct. 732, 734-735 (2002) (precise measurements not required where witnesses have personal knowledge).
Finally, the defendant objects to the admission of some of the physical evidence, arguing that it lacked a foundation and that there was inadequate evidence concerning the chain of custody. At trial, physical evidence was introduced through the testimony of an officer who was present when the defendant was booked (though not while the booking search was conducted). The officer subsequently placed the drugs in a drug envelope and filled out a label included with the package; that envelope was stored in the evidence control unit. The defendant did not object to the admission of this evidence at trial, and there is no substantial risk of a miscarriage of justice in the judge's decision to admit the evidence. See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977) (evidence can be authenticated through witness identification or circumstantial proof); Commonwealth v. Vasquez, 456 Mass. 350, 355-356 (2010) (substantial risk standard). See also Commonwealth v. Rogers, 459 Mass. 249, 267 (2011). Furthermore, the evidence was sufficient to establish a chain of custody, and any remaining concerns about the chain pertain to the weight of the evidence, not its admissibility. Commonwealth v. Herring, 66 Mass. App. Ct. 360, 366 (2006).
Judgments affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority.
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/s/
Clerk
Entered: February 8, 2016.