Opinion
15-P-1748
05-30-2017
COMMONWEALTH v. Cesar JIMENEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of illegal possession of a firearm, improper storage of a firearm, illegal possession of ammunition, and possession of a class B substance with intent to distribute. He argues that the Commonwealth failed to prove constructive possession and that the trial judge erred in denying his request for certain jury instructions on that issue. We affirm.
The defendant also claims error in the trial judge's failure to make written findings in denying his posttrial motion for required findings of not guilty or, in the alternative, for a new trial. Because the defendant filed no notice of appeal pertaining to that postjudgment ruling, it is not before us. In any event, our decision on his appeal of the judgments of conviction suffices to show why there was no error in the denial of the posttrial motion.
Background. Viewed in the light most favorable to the Commonwealth, the evidence presented to the jury was as follows. At approximately 6:30 a.m. on May 16, 2013, Officers Benjamin Chez and Alvin Wolfe of the Lynn police department were dispatched to a convenience store in Wyoma Square. The store clerk had requested a well-being check for a person asleep inside a vehicle that was parked in a handicapped spot outside the store. The sunroof was open and the officers noticed a strong odor of marijuana inside the vehicle along with an open bottle of tequila. The defendant was lying asleep in the back seat, facing the rear of the car, with his head behind the driver's seat.
The officers were able to wake the defendant by yelling into the car, knocking on the vehicle's windows, and opening the unlocked driver's side door. The defendant was "a bit groggy" and "out of it," and he had an odor of alcohol. He told the officers that he had been with friends celebrating his birthday the night before. The defendant produced identification and the officers discovered that his driver's license had been revoked. He said that the vehicle, which was registered to another individual, had been lent to him by a friend. Because he could not drive, and the car's battery was dead and it was illegally parked, the officers informed the defendant that it would be towed and that he needed to find another way home.
The defendant responded that he was going to grab his cellular telephone (cell phone), which he said was in the front seat. The officers noticed several cell phones "thrown about in the car," including on the front seat, back seat, and the floor. The defendant opened the vehicle's front passenger door and reached inside. From his vantage point behind the defendant, Officer Chez immediately observed a black and silver handgun tucked between the door frame and the front passenger seat. As a result, Officer Chez grabbed the defendant and threw him away from the vehicle. Officer Wolfe secured the weapon, a fully-loaded .380 caliber semiautomatic pistol, and the defendant was placed inside the police cruiser. He admitted that he did not have a firearm identification card.
Officer Chez testified that Officer Wolfe opened the door for the defendant.
On cross-examination, both officers clarified that they did not see the defendant's hand reaching specifically for the gun, only that the defendant was reaching into the car.
A forensic examination of the pistol revealed no usable fingerprints.
The officers searched the vehicle and discovered a loose nine millimeter round on the floor of the front passenger seat and a loaded nine millimeter magazine inside the pocket of the door. Near where the defendant had been sleeping, inside an armrest folded up into the back seat, they discovered twenty-nine individually packaged "twists" of crack cocaine inside a larger bag. In total, seven cell phones were retrieved from the vehicle. Officers recovered marijuana and $2,730 in United States currency from the defendant's pants pockets. The keys to the vehicle were found inside the car, but Officer Chez had no memory of their precise location.
Because the nine millimeter ammunition could not be used in a .380 pistol, the officers suspected that another firearm might be present in the vehicle. After a search of the locked trunk, they discovered a Glock nine millimeter handgun with no magazine. The defendant was charged with two counts relating to the Glock handgun: improper storage of a firearm and illegal possession of a firearm. The judge later allowed a motion for a required finding of not guilty on the improper storage charge, and the jury acquitted the defendant of the illegal possession charge.
A police expert testified that one-half gram of crack cocaine is commonly sold for forty dollars. In this case, each twist weighed 0.3 grams, for a total weight of 8.7 grams and a total value of $696. On cross-examination a chemist agreed with defense counsel's suggestion that the total weight was probably between seven and eight grams. Using those weights, the cocaine discovered was worth between $560 and $640.
At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty, which was denied as to the counts challenged on appeal. Defense counsel requested supplemental jury instructions relative to the law of constructive possession. The judge charged the jury in accordance with the model jury instruction on constructive possession and declined to supplement the instructions as requested. See Criminal Model Jury Instructions for Use in the District Court 3.220 (2009).
Several other counts were resolved prior to trial by either dismissal or nolle prosequi.
As pertinent on appeal, the defendant requested that the judge charge the jury with the supplemental instruction on personal knowledge of the defendant:
"As I have indicated, you may look at all the circumstances to help you draw reasonable inferences about what the defendant knew and what he intended. However, I emphasize to you that, in the end, you must determine, not what a reasonable person would have known, but what this particular defendant, CESAR JIMENEZ, actually did or did not know at the time."
See Criminal Model Jury Instructions for Use in the District Court 3.140 (supplemental instruction No. 2) (2009).
During deliberations, the jury sent a note to the judge requesting that she clarify the definition of the term "possession." Defense counsel again moved that the judge give his requested supplemental instructions. The judge declined, repeating the same model jury instructions. The jury returned verdicts of guilty of four counts: illegal possession of a firearm and improper storage of a firearm (both relating to the .380 caliber pistol); illegal possession of ammunition; and possession with intent to distribute cocaine. The defendant appeals.
The judge dismissed one count of possession of marijuana with intent to distribute after the jury returned a guilty verdict only of the lesser included offense of possession and the judge concluded that the amount involved was below the statutory threshold for a criminal conviction. See G. L. c. 94C, § 32L. The defendant was also found not responsible for an open container violation. We do not consider any evidence pertaining to these charges in our constructive possession analysis.
Constructive possession. Because none of the contraband was found on the defendant's person, the Commonwealth proceeded on a theory of constructive possession. This required proof beyond a reasonable doubt that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the .380 handgun, ammunition, and cocaine. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) (quotation omitted). While possession may be established by reasonable inferences drawn from circumstantial evidence, see Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985), the defendant's "[p]resence alone cannot show the requisite knowledge, power, or intention to exercise control" over the contraband. Commonwealth v. Albano, 373 Mass. 132, 134 (1977). In the constructive possession context, as elsewhere, "[w]hether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense." Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) (quotation omitted).
Here, the items were all accessible to anyone in the passenger compartment of the vehicle, and because the defendant was alone in the car, it was reasonable to infer that he had the ability or power to control them. We also think it reasonable to infer his knowledge of their presence, because the defendant told police that his cell phone was in the front seat, implying that he was recently in close proximity to the .380 pistol and ammunition found in the area of the front passenger seat. So too for the cocaine in the armrest, which was found immediately adjacent to where he was sleeping. Most importantly, to believe that the defendant lacked knowledge of the items' presence is to believe that another person entrusted him with a vehicle that, unbeknownst to the defendant, contained a firearm, ammunition, and roughly $600 worth of cocaine—all easily accessible items of value that the defendant could readily have discovered and then stolen from that individual or used for nefarious purposes. That proposition strains credulity; much more reasonable is the inference that the defendant either owned the items or was explicitly entrusted with them by their owner(s).
That same inference supports the finding of the defendant's intention to exercise control over the contraband, as do the other circumstances taken as a whole. We first note that the defendant's reliance on cases involving multiple individuals present in a vehicle is inapt, as he was the vehicle's sole occupant. Contrast Commonwealth v. Brown, 401 Mass. 745, 746 (1988) ; Commonwealth v. Romero, 464 Mass. 648, 654 (2013) ; Commonwealth v. Hill, 15 Mass. App. Ct. 93, 94 (1983). Here the defendant's presence in the vehicle was "augmented by additional inculpatory evidence." Romero, 464 Mass. at 654. The presence of multiple cell phones can be indicative of participation in a drug enterprise, see Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 177-178 (2009), as can be large amounts of cash, see Gonzalez, 452 Mass. at 147. Finally, the loaded firearm wedged between the front passenger seat and the door further supports the finding that the defendant intended to control all of the contraband, as "[b]eing armed in this fashion was consistent with a perceived need to guard the valuable quantity of cocaine and cash in the car." Commonwealth v. Sinforoso, 434 Mass. 320, 329 (2001). Such an inference is warranted by "experience and common sense." Gonzalez, 452 Mass. at 146 (quotation omitted). That the cash was found on the defendant's person strengthens the nexus between him and the cocaine, firearm, and ammunition. All of these circumstances allowed a rational jury to find beyond a reasonable doubt that the defendant possessed them.
Although seven cell phones is an unusually large number, it does not negate a reasonable and possible inference that they were suggestive of drug activity.
A police expert testified that street-level drug dealers usually keep multiple folds of cash corresponding to common amounts of a deal, such as forty or eighty dollars. The defendant argues on appeal that an inference of drug activity was unwarranted here, because the $2,730 found on his person was sorted by bill denomination. The jury, however, were not required to interpret the expert's testimony as precluding an inference of drug dealing in these circumstances. The expert did not testify that drug dealers never sort their money by denomination; even if he had, the jury would not have been required to credit that testimony.
--------
Jury instructions. The defendant's exception to the judge's instructions on the knowledge element of constructive possession is unavailing. We consider the instructions as a whole in evaluating "the interpretation a reasonable juror would place on the judge's words." Commonwealth v. Belcher, 446 Mass. 693, 696 (2006) (quotation omitted). The substance of the supplemental instructions he requested merely emphasized a concept already included in the instructions given by the judge, namely, that the knowledge element requires proof of the defendant's subjective, personal knowledge and may not be satisfied by the objective reasonable person standard. See Commonwealth v. Anderson, 396 Mass. 306, 316 (1985) (judge not required to give particular instruction where charge as a whole adequately covers issue). The judge in her initial charge told the jury twice that "[t]he Commonwealth must prove beyond a reasonable doubt ... that at the time of the offense the defendant knew that he was in possession of the contraband" (emphasis added). She further instructed that they must determine whether "the defendant acted with the knowledge that he was in possession" and must consider "the extent of the defendant's knowledge" (emphasis added). All of these statements were repeated when the judge reinstructed the jury on possession. The instructions accurately and adequately conveyed to the jury the law of constructive possession and the knowledge element in particular.
Judgments affirmed.