Commonwealth v. Chanhda Onesyvieng.

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

24-P-1154

COMMONWEALTH

vs.

CHANHDA ONESYVIENG.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court in 2009, the

defendant was found guilty of conspiracy to traffic in cocaine

(G. L. c. 94C, § 40). He appealed his conviction and, while

that appeal was pending, he filed a motion for a new trial. In

2012, a panel of this court affirmed the defendant's conviction

and the denial of his motion for a new trial in an unpublished

decision. See Commonwealth v. Onesyvieng, 81 Mass. App. Ct.

1120 (2012).

Twelve years later, on January 23, 2024, the defendant

filed a second motion for a new trial in which he alleged that

the evidence was insufficient to support the conviction of

conspiracy and that his prior appellate counsel was ineffective
for not challenging the sufficiency of the evidence of

conspiracy in his direct appeal. The motion judge, who was not

the trial judge, denied the motion without a hearing on August

26, 2024. This appeal ensued. We conclude that the evidence

was sufficient to sustain a conviction of conspiracy. Given

this conclusion, it follows that the defendant did not meet his

burden of proof under Commonwealth v. Saferian, 366 Mass. 89

(1974). Accordingly, the second new trial motion was properly

denied.

Background. We recite the facts the jury could have found,

viewed in the light most favorable to the Commonwealth.

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On

January 4, 2007, Sergeant Thomas Daly of the Lowell police

department and Special Agent Michael Willis of the Federal

Bureau of Investigation met with a named informant who, in the

presence of the officers, made arrangements for a delivery of

cocaine. The informant reported the details of the delivery to

Daly. Daly testified that the delivery would be made by two

Asian males named Chanhda (the defendant's first name) and

Dewey. The two men would arrive in a white Subaru with Rhode

Island license plates. Daly then relayed those details to

fellow officers in the Lowell police department's vice and

narcotics units. A surveillance team was assembled and sent to

the area of the expected delivery.

2
When a white Subaru pulled into a parking lot, Officer

William Samaras followed in an unmarked vehicle, parked, and

then approached the Subaru. As Samaras got close, the driver,

later identified as Dewey, began to open his door, illuminating

the interior. Samaras saw a large item he suspected was cocaine

in the "rear floor area" in "plain view" behind the driver's

seat.1 Samaras believed that the item, described as a "plastic

Ziploc bag containing four rock-like substances approximately

the size of a baseball or a tennis ball," was cocaine. Both

Dewey and the defendant, who was a passenger, were arrested. A

subsequent analysis of the contents of the bag retrieved from

the car confirmed that it contained 444.8 grams of cocaine,

which had a street value of over $50,000.

Discussion. A motion for new trial should be granted only

if "it appears that justice may not have been done." Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "Where,

as here, the motion judge was not the trial judge, did not

conduct an evidentiary hearing, and instead relied on the trial

transcripts . . . and other documentary evidence, we review de

novo the denial of a motion for a new trial." Commonwealth v.

Pope, 489 Mass. 790, 793-794 (2022).

1 When asked by defense counsel on cross examination if the
item was in plain view on the floor behind the driver's seat,
Samaras responded, "That's correct."

3
"A defendant has a heavy burden to establish ineffective

assistance of counsel sufficient to warrant a new trial."

Commonwealth v. Lao, 450 Mass. 215, 221 (2007). The defendant

must show not only that counsel's behavior fell "measurably

below that which might be expected from an ordinary fallible

lawyer," but also that the attorney's conduct "likely deprived

the defendant of an otherwise available, substantial ground of

defence." Saferian, 366 Mass. at 96. See Commonwealth v.

Sowell, 34 Mass. App. Ct. 229, 231-232 (1993) (same standard

applies for ineffective assistance of both trial and appellate

counsel).

"The review of such contentions has been described as
requiring a determination 'whether the issues which [the
defendant] claims appellate counsel failed to raise, would
have been clearly more likely to result in reversal or an
order for a new trial, and were so obvious from the trial
record that the failure to present such issues amounted to
ineffective assistance of appellate counsel.'"

Id. at 232, quoting Gray v. Greer, 800 F.2d 644, 647 (7th Cir.

1985).

On appeal, the defendant challenges the motion judge's

conclusion that the Commonwealth presented sufficient evidence

to establish that he conspired to traffic in cocaine. To

convict the defendant, the Commonwealth was required to prove

beyond a reasonable doubt that the defendant joined in an

agreement with another person to traffic in cocaine. See

Commonwealth v. Albert, 51 Mass. App. Ct. 377, 384 (2001). As

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noted, we review the evidence in the light most favorable to the

Commonwealth to determine whether any rational trier of fact

could have found beyond a reasonable doubt that the defendant

conspired to traffic in cocaine in violation of the controlled

substances law. Latimore, 378 Mass. at 677.

The defendant asserts that the Commonwealth failed to meet

its burden because there was no direct evidence of an agreement

to traffic in cocaine. Specifically, he points to the fact that

the Commonwealth provided "no evidence that Mr. Onesyvieng

himself had been in communication with anyone directed towards

the accomplishment of possessing with intent to distribute the

cocaine" (quotations omitted) and the police did not find any

inculpatory evidence on his person when he was searched.

However, the Commonwealth need not introduce direct evidence of

a crime to meet its burden of proof. "Circumstantial evidence

is competent to establish guilt beyond a reasonable doubt," and

the "reasonable inferences drawn from such evidence need not be

necessary or inescapable, only reasonable and probable."

Commonwealth v. MacCormack, 491 Mass. 848, 854 (2023)

(quotations omitted). See Commonwealth v. Joyner, 467 Mass.

176, 179-180 (2014) ("The inferences drawn by the jury need only

be reasonable and possible and need not be necessary or

inescapable" [quotation omitted]). While we recognize the

absence of direct evidence that the defendant entered into an

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agreement to traffic cocaine, viewing the evidence in the light

most favorable to the Commonwealth, the jury reasonably could

have found that the defendant agreed to deliver the cocaine.

The following facts support such an inference: (1) the

informant contacted "her supplier" in the presence of the

officers to arrange a cocaine delivery later that evening;

(2) two Asian males were to make the delivery; (3) they would be

arriving in a white Subaru with Rhode Island plates; (4) the men

were identified by name, "Chanhda" and "Dewey," and, indeed, the

defendant's first name is "Chanhda"; (5) a white Subaru arrived

at the planned location with two Asian occupants, including the

defendant; and (6) a plastic bag containing 444.8 grams of

cocaine was on the floor of the back seat in plain view.

The defendant argues, however, that the facts described

above prove only that he had knowledge of the cocaine in the car

and that he intended to be present, which falls short of being

sufficient to find him guilty of conspiracy to traffic in

cocaine. See Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 569

(1980). We disagree. As previously noted, the evidence

supported a reasonable inference that the defendant, who had

traveled from Rhode Island to Massachusetts with a large amount

of cocaine and had been identified as one of the two people who

would arrive in a white Subaru with the drugs, would have more

than mere knowledge of the crime of trafficking.

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We acknowledge that the evidence of conspiracy was not

overwhelming, but we conclude nonetheless that the facts in the

light most favorable to the Commonwealth are sufficient for a

reasonable jury to find that the defendant was involved in a

conspiracy to traffic in cocaine.2 Given our conclusion that the

evidence was sufficient, there was no error and the defendant

was not deprived of effective assistance of appellate counsel.

Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 875-876 (2010).

Order denying second motion
for new trial affirmed.

By the Court (Vuono, Henry &
Wood, JJ.3),

Clerk

Entered: August 19, 2025.

2 In the defendant's reply brief, he relies on Commonwealth
v. Bennefield, 373 Mass. 452 (1977), to support the assertion
that the police finding contraband in the back of a car is not
sufficient to prove a front-seat passenger's awareness of the
item. See id. at 453. The Bennefield decision is
distinguishable because there, during a routine police stop, the
officer happened upon the contraband, id., whereas here the
officer found the contraband during a drug surveillance
operation where the contraband, suppliers, and vehicle were
previously identified by an informant.

3 The panelists are listed in order of seniority.

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