Opinion
19-P-914
05-28-2020
COMMONWEALTH v. FRANK ROSARIO.
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
Following a jury-waived trial in the Superior Court, the defendant, Frank Rosario, was convicted of possession of cocaine with intent to distribute, see G. L. c. 94C, § 32A (c). On appeal, he argues that the evidence with respect to the elements of possession and intent to distribute was insufficient to support his conviction. We affirm.
The defendant also was indicted for trafficking fentanyl, G. L. c. 94C, § 32E (c 1/2). Prior to trial, that charge was dismissed at the Commonwealth's request.
Background. We recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the process of executing a search warrant, Boston police officers entered a five-bedroom apartment. The officers breached a closed bedroom door and found the defendant, in shorts and a T-shirt, lying on a bed. The bedroom appeared "lived in" and contained a nightstand, a television, and personal effects.
On top of the nightstand directly next to the bed was a tied plastic bag containing .44 grams of cocaine, along with a watch, lotion, a box of cigarettes, food, a fifty dollar bill, and a one dollar bill. Inside the top drawer of the nightstand, the police found a second tied plastic bag with 2.9 grams of cocaine, as well as jewelry and some personal hygiene items. Inside a different nightstand drawer, the police recovered a third bag containing nine grams of cocaine, along with a digital scale, plastic baggies, a roll of plastic bags, and a cell phone.
Discussion. The defendant contends that the Commonwealth failed to prove that he possessed or intended to distribute the cocaine recovered from the nightstand, and that the trial judge therefore erred in denying his motion for a required finding of not guilty made at the close of the Commonwealth's case-in-chief and his renewed motion made after the verdict.
"In reviewing the denial of a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth in order to determine whether the evidence was sufficient to satisfy a rational trier of fact of each element of the offense beyond a reasonable doubt." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
Absent evidence of actual possession, the Commonwealth must prove that the defendant had constructive possession of the cocaine. See Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 505 (1998). To do so, the Commonwealth must present sufficient evidence to permit the fact finder to infer the defendant's knowledge of the contraband, as well as the defendant's ability and intention to exercise dominion and control over it. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018). The defendant's mere presence in an area where drugs are found is insufficient. See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323 (2010). Rather, the Commonwealth must demonstrate "[a] 'particular link' of the defendant to the contraband, or at least to the area where the contraband is found." Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013), quoting Commonwealth v. Boria, 440 Mass. 416, 420 (2003). "Where contraband is found in a home or apartment, this may be accomplished in one of two ways: by linking the defendant to the contraband via 'other incriminating evidence,' . . . or by linking the defendant to the particular area of the dwelling in which the contraband was found" (citation omitted). Proia, supra at 831.
Here, ample evidence beyond the defendant's presence near the cocaine permitted a finding of constructive possession. The evidence linked the defendant to the area where the contraband was found. He was the sole occupant of the bedroom, behind a closed door, where he remained even after the police knocked, announced their presence, and entered the apartment. See Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 683 n.13 (2006) (defendant's presence at scene coupled with behavior, including proximity to contraband in plain view or hidden, supports inference of possession). Cf. Clarke, 44 Mass. App. Ct. at 505 (police's observation of defendant running from bedroom supported inference that he occupied bedroom and constructively possessed contraband located therein). The defendant was dressed in casual clothing, and the bedroom appeared "lived in," given the presence of bedroom furniture, clothing, and other personal effects, including a cell phone. See Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556-557 (1991) (reasonable inference that defendant possessed drugs in bedroom where men's and women's clothes were found, despite her testimony that she was casual visitor at boyfriend's apartment).
The trial judge did not specify whether his finding of possession was premised on actual or constructive possession. Because the evidence of constructive possession is sufficient, we need not reach the Commonwealth's argument on appeal that the defendant was also in actual possession of the cocaine found on top of the nightstand. See Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 532 (2000) ("constructive possession and actual possession are not different theories . . . . Rather, they are simply two possible ways of defining the same legal principle").
Moreover, the evidence linked the defendant to the contraband itself, as a bag of cocaine was visible on top of the nightstand directly next to the bed where the defendant was found, the drugs in that bag and the bag found in the top drawer contained the same cutting agent, and all three bags were in similar packaging. See Commonwealth v. Ortega, 441 Mass. 170, 175 (2004) (contraband in plain view supports finding of constructive possession); Commonwealth v. Pratt, 407 Mass. 647, 652-653 (1990) (based on defendant's possession of drugs found in cottage, it was reasonable to infer possession of drugs found in nearby woods where they were similar in type and packaging); Hamilton, 83 Mass. App. Ct. at 411 (reasonable inference of defendant's knowledge of cocaine on cluttered table in front of her). Taken together, this evidence supports a finding of constructive possession. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 165 (2010) ("defendant's presence in the apartment, and the presence of the incriminating items in the room in which he slept and where his license and some of his clothes were found, provided sufficient evidence of the defendant's constructive possession of the contraband").
We are not persuaded by the defendant's argument that he was only an overnight guest. While the defendant notes the absence of definitive evidence that he owned the personal items inside the bedroom or treated the apartment as his residence, the judge nonetheless could have reasonably drawn an inference that the bedroom belonged to the defendant and that he possessed the items therein, given his sole occupancy of the room, the appearance that he lived there, and his proximity to the items. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) ("Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom" [citation omitted]). Contrast Commonwealth v. Araujo, 38 Mass. App. Ct. 960, 961-962 (1995) (insufficient evidence linking defendant to shotgun in bedroom closet where, although defendant was sleeping in bedroom, bedroom held items belonging to another man known to police). The fact that the defendant was not previously observed by police during surveillance and was not the target of the investigation is not dispositive on the issue of possession where the defendant was present in the bedroom with a substantial amount of cocaine when the search warrant was executed. See Commonwealth v. Fennell, 13 Mass. App. Ct. 910, 910-911 (1982).
The evidence was also sufficient to demonstrate intent to distribute based on the quantity of the cocaine, the expert testimony regarding drug distribution, and the presence of plastic bags and a digital scale. See Hamilton, 83 Mass. App. Ct. at 413.
Judgment affirmed.
By the Court (Meade, Massing & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 28, 2020.