Opinion
No. 15–P–1553.
10-21-2016
COMMONWEALTH v. Nasean BOWENS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Nasean Bowens, was convicted of one count of possession of a class B controlled substance with intent to distribute, and one count of possession of a controlled substance with intent to distribute within a school or park zone. On appeal, he contends that the evidence at trial was insufficient to prove that (1) he possessed a class B substance, and (2) he intended to distribute a class B substance. We affirm.
Background. We summarize the facts as the jury could have found them, reserving certain details for our analysis of the issues raised on appeal. Commonwealth v. Companonio, 445 Mass. 39, 42 (2005). On the afternoon of October 10, 2013, Lieutenant Charles Cook and other officers of the Springfield police department engaged in surveillance of the area of the One Stop Plaza in Springfield. The police had received “a lot of drug complaints from that area.” It was classified as a “high-crime area,” and known for incidents of drug dealing, violence, and shootings. At approximately 1:45 P.M., Lieutenant Cook observed the defendant “walk from the One Stop parking lot, kind of hurriedly, across Hickory Street, towards the [Elias Brookings] playground.” The defendant “was looking around in all directions. He had both hands tucked into his sweatshirt.... He stopped, looked around ... cut through the fence area and into the park.” Lieutenant Cook saw the defendant walk toward a playground area, stop, and pick up a small white milk carton. The defendant then “took a white covered item out of his sweatshirt pocket, put it into the carton, top of the carton. He walked over by the playground, and there was a white trash barrel, and he placed the milk carton on top—into the trash barrel, on top of the other trash that was in there.” The defendant then “turned around and walked back the same way he came, back to the fence, through the fence, and across Hickory Street, back towards the One Stop Plaza.”
That same day, a Springfield police detective conducting surveillance in the same area observed a drug deal, unrelated to the instant case, and made an arrest for a drug-related crime.
Immediately following his observations of the defendant delineated supra, Lieutenant Cook walked to the trash barrel and recovered the milk carton he had seen the defendant place therein. The milk carton “was on the top of the trash can.” He opened the milk carton and “recovered a white like tissue item, and inside that, there were 11 ... in plastic, off-white rock substances in—wrapped in plastic.” The eleven rocks were each “individually packaged” in a plastic baggie, “knotted at the end.” The rock substance subsequently tested positive for cocaine.
Lieutenant Cook provided a description of the defendant to his fellow officers, who stopped the defendant in the One Stop parking lot. They searched the defendant and found $180 in ten and twenty dollar bills. They did not find any paraphernalia for personal use of drugs on the defendant.
At trial, the defense claimed that the police mistakenly concluded that the defendant placed the crack cocaine in the barrel. The defendant testified, inter alia, that he threw a plastic cigar wrapper into the trash barrel, there was no milk carton, and he neither possessed nor sold any crack cocaine.
Discussion. The defendant claims that the Commonwealth failed to present sufficient evidence to support the elements of possession and intent to distribute. We review to determine “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. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). For the reasons discussed below, the claim is unavailing.
The defendant styles the possession argument as a “sufficiency of the evidence” claim, and the intent to distribute argument as a “rule 25(b)(2)” claim. See Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The parties agree that the Latimore standard governs both arguments. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
Here, Lieutenant Cook, a thirty-three year veteran police officer with twenty-three years of experience as a member of the narcotics vice control bureau, observed the defendant enter the Elias Brookings playground, pick up a white milk carton, take a white covered item from his sweatshirt, place the white item inside the milk carton, and place the milk carton inside a trash barrel on top of other trash. Asked “how clearly” he could see the item the defendant took from his pocket, Lieutenant Cook testified, “I could see it was a white item like wrapped up.” Lieutenant Cook approached the trash barrel and retrieved the milk carton, which contained crack cocaine. This testimony was more than sufficient to establish the element of possession. See, e.g., Commonwealth v. Lara, 58 Mass.App.Ct. 915, 915–916 (2003).
The defendant counters that (1) Lieutenant Cook conceded that he did not examine the trash barrel prior to surveilling the area; (2) there were other items including milk cartons in the trash; and (3) when the defendant placed the milk carton into the barrel, Lieutenant Cook lost sight of the item. The arguments are unpersuasive. First, after Lieutenant Cook observed the defendant place the milk carton in the trash barrel, he continued to watch it until his arrival thereto. He also confirmed that he did not see anyone else in the area of the barrel. Moreover, the mere existence of alternative theoretical explanations for the presence of the drugs does not impact a sufficiency analysis. As the Supreme Judicial Court has consistently held, “The proper inquiry is ‘whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.’ “ Commonwealth v. Platt, 440 Mass. 396, 401 (2003), quoting from Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). See Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (an inference drawn from circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable”).
As to the intent to distribute element, the evidence viewed in the light most favorable to the Commonwealth was sufficient to deny the defendant's motions for a required finding of not guilty. The defendant was surveilled in a high crime area known for recent drug activity; possessed eleven individually wrapped bags of crack cocaine; had $180 in cash on his person; possessed no paraphernalia to ingest the drugs; and placed the drugs into a trash barrel which, according to expert testimony, was common practice to hide or “stash” the supply for sale. Lieutenant Cook testified that in his experience persons do not usually purchase crack cocaine in the amount at issue for personal use.
The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and at the close of all of the evidence. See Mass.R.Crim.P. 25.
An expert for the Commonwealth similarly testified that the amount of crack cocaine involved in this case was inconsistent with personal use. He further opined that the totality of the evidence, including the amount of drugs, the lack of “instrumentation” for personal use, the cash on the defendant's person, and the stashing of the drugs in the barrel, was more consistent with the sale of crack cocaine than the personal use of crack cocaine. The combination of evidence and expert testimony delineated, supra, was sufficient to prove intent to distribute beyond a reasonable doubt. Accordingly, the judge properly denied the defendant's motion for a required finding of not guilty. See Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731 (1992) ; Commonwealth v. Martin, 48 Mass.App.Ct. 391, 392–393 (1999) ; Lara, 58 Mass.App.Ct. at 915–916 ; Commonwealth v. Bush, 71 Mass.App.Ct. 130, 136–137 (2008) ; Commonwealth v. Lobo, 82 Mass.App.Ct. 803, 811 (2012).
On appeal, the defendant does not challenge the admissibility of the Commonwealth's expert testimony.