Commonwealth v. Juan Carlos Felix.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-290

COMMONWEALTH

vs.

JUAN CARLOS FELIX.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of possession

of a class A substance (heroin) in violation of

G. L. c. 94C, § 34. On appeal, the defendant challenges the

sufficiency of the evidence of constructive possession. We

reverse.

Discussion. When reviewing the denial of a motion for a

required finding of not guilty we consider "whether, after

reviewing 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"

(quotation omitted). Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). "The inferences that support a conviction need only

be reasonable and possible; [they] need not be necessary or
inescapable" (quotation omitted). Commonwealth v. Faherty, 93

Mass. App. Ct. 129, 133 (2018).

The Commonwealth's theory at trial was that the defendant

was in constructive possession of drugs found in an apartment

searched by police. "In order to prove that a defendant

constructively possessed contraband, the evidence must be

sufficient to permit the jury to infer that the defendant had

knowledge of the contraband, as well as the ability and

intention to exercise dominion and control over it."

Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018).

"Proof of possession of a controlled substance may be

established by circumstantial evidence, and the inferences that

can be drawn" from that evidence. Commonwealth v. Montalvo, 76

Mass. App. Ct. 319, 323 (2010) (quotation omitted).

In the light most favorable to the Commonwealth, the jury

could have found the following pertinent facts. On September

20, 2018, police executed a search warrant at an apartment.

When the police arrived, they saw the defendant outside the

apartment building with two other people. The defendant briefly

ran until the plainclothes police officers told him to stop.

Once inside the two-bedroom apartment, the police found a

plastic bag containing nearly five grams of heroin in the top

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drawer of a desk in the bedroom.1 Police also found a receipt

bearing the defendant's name and the apartment's address for the

one-month lease of a Samsung tablet but were unable to recall

where in the apartment it was located. The lease was dated July

3, 2018.2

To prove constructive possession, "[a] particular link of

the defendant to the contraband, or at least to the area where

the contraband is found, must be established" (quotation

omitted). Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411

(2013). Here, the receipt and the defendant's presence outside

the apartment were his only links to the bag of heroin or the

searched apartment. The receipt was dated more than two months

prior to the search, and no Samsung tablet was found in the

apartment. The Commonwealth presented "no evidence concerning

who leased the apartment and paid the bills." Commonwealth v.

Boria, 440 Mass. 416, 420 n.5 (2003). We are therefore

unpersuaded by the Commonwealth's contention that the evidence

demonstrated the defendant's residence at the apartment and thus

his ability and intention to exercise control over the heroin.

1 Although there was conflicting testimony regarding whether the
desk containing the bag of heroin was in the bedroom or one of
the "spare" rooms, we recite the evidence in the light most
favorable to the Commonwealth.
2 Police also found a letter addressed to a woman at the same

address. This woman was present outside of the apartment with
the defendant at the time of the search.

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To the contrary, we conclude that there was insufficient

evidence of his residence, his knowledge of the heroin, or his

ability and intent to control it. See Boria, supra at 417-418

(insufficient evidence where drugs were found in same room as

governmental assistance application bearing defendant's name and

apartment's address). See also Commonwealth v. James, 30 Mass.

App. Ct. 490, 500 (1991) (insufficient evidence where drugs were

found in bedroom and defendant's unspecified personal papers

were found in unknown location in apartment). Cf. Commonwealth

v. Dagraca-Teixeira, 471 Mass. 1002, 1003 (2015) (sufficient

evidence where defendants were present and drugs were found in

close proximity to defendants' birth and baptismal

certificates); Commonwealth v. Brzezinski, 405 Mass. 401, 409-

410 (1989) (sufficient evidence where defendant rented apartment

containing drugs and was present with incriminating

paraphernalia); Commonwealth v. Clarke, 44 Mass. App. Ct. 502,

505-506 (1998) (sufficient evidence where defendant possessed

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keys to apartment door and police found contraband in same room

as his birth certificate and social security card).

The judgment is reversed, the verdict is set aside, and

judgment shall enter for the defendant.

So ordered.

By the Court (Wolohojian,3
Englander & Brennan, JJ.4),

Assistant Clerk

Entered: March 5, 2024.

3 Justice Wolohojian participated in the deliberation on this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
4 The panelists are listed in order of seniority.

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