Commonwealth v. Artem Vasilevich.

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-902

COMMONWEALTH

vs.

ARTEM VASILEVICH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the

defendant, Artem Vasilevich, was convicted of possession with

intent to distribute a class A substance.1 On appeal, he argues

that (1) the judge erred in denying his motion for a required

finding of not guilty because the Commonwealth presented

insufficient evidence to prove constructive possession, and

(2) the Commonwealth's references to the defendant as the

1The defendant was charged with trafficking in a controlled
substance, heroin, but convicted of the lesser included offense
of possession with intent to distribute a class A substance.
The defendant was found not guilty of trafficking in a
controlled substance, cocaine, and unlawful distribution of a
class A substance.
"target" of the investigation constituted error that created a

substantial risk of a miscarriage of justice. We affirm.

Background. We summarize the facts the trial judge could

have found, viewing the evidence in the light most favorable to

the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979). In November 2018, Springfield police officers

were investigating drug-related activity at an apartment on

Genesee Street in Springfield. The target of the investigation

was the defendant. During surveillance of the apartment,

officers saw people approaching and entering the apartment and

leaving soon (one to two minutes on average) after arrival. On

November 30, 2018, officers obtained a warrant to search the

apartment.

On December 5, 2018, at approximately 12:30 P.M., prior to

executing the search warrant, an officer surveilling the

apartment saw a turquoise truck arrive at the apartment. A male

passenger got out of the truck, made a brief telephone call,

entered the apartment, left the apartment one to two minutes

later, reentered the truck, and left the area. Soon thereafter,

a separate team of officers stopped the truck and recovered nine

bags of heroin, all bearing a stamp with the word "fire," from

the passenger.

That same day, at approximately 12:45 P.M., the same

officer surveilling the apartment saw a Hispanic woman leave the

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apartment while "carrying a blue and black soft nylon lunch box

or lunch bag." The woman entered a gray Nissan Altima and drove

away. Officers then stopped the vehicle and as they approached

and asked her to step out of the vehicle, the driver,

subsequently identified as Shirley Pena, immediately stated

"It's not mine. It's his." The officers arrested Pena, and a

search of the lunch bag revealed a large amount of heroin and

cocaine, a scale, packaging materials, jars, and a "grinder."

The many bags of heroin all had a stamp bearing the word "fire."

A search of Pena also led to the recovery of keys to the

surveilled apartment.

At approximately 1 P.M., officers executed the search

warrant and entered the apartment. While in the entryway,

officers noted a wood plank, referred to as a "New York style

lock," which can be used to prevent entry.2 Inside the

apartment, officers found the defendant and a woman named Wanda

Perez in bed in the front bedroom.3 Therein, the officers found

male and female clothing, a Columbia gas bill addressed to the

defendant, a scale in the nightstand, a black purse containing a

2 The Commonwealth introduced testimony from a narcotics
distribution expert who explained that a "New York"-style lock
is often used in "drug houses" to reinforce the door to prevent
police or persons trying to rob the occupants from entering.

3 Perez was tried as a codefendant and likewise convicted
only of the lesser included offense of possession with intent to
distribute a class A substance.

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cutting agent, a brown purse containing bags of heroin stamped

with the word "fire," $40 in cash, and a key to the rear door of

the apartment. In a different bedroom, officers found a green

backpack containing cash in the amount of $1,562. In the living

room and kitchen areas, an officer found another Columbia gas

bill addressed to the defendant, three scales in a pantry, and

plastic "blowout bags" used to package narcotics. Each of the

1,560 bags of heroin had the stamp bearing the word "fire."

Discussion. 1. Denial of required finding. The defendant

argues that the Commonwealth failed to present sufficient

evidence that the defendant knew about or had the intent to

exercise dominion and control over the drugs and thus failed to

prove the element of constructive possession. We are not

persuaded.

We review the sufficiency of the evidence to determine

"whether after viewing the evidence in the light most favorable

to the [Commonwealth], any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt" (emphasis and citation omitted). Latimore, 378 Mass. at

677. "If, from the evidence, conflicting inferences are

possible, it is for the [factfinder] to determine where the

truth lies, for the weight and credibility of the evidence is

wholly within [her] province." Commonwealth v. Lao, 443 Mass.

770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12

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(2011). In addition, "[c]ircumstantial 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 possible"

(quotations and citation omitted). Commonwealth v. MacCormack,

491 Mass. 848, 854 (2023).

Here, the defendant challenges the element of possession.

Possession of a controlled substance may be established by

circumstantial evidence and reasonable inferences drawn from it.

See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). The

Commonwealth must present sufficient evidence to permit a

rational factfinder to infer the defendant's knowledge of the

contraband, and his ability and intention to exercise dominion

and control over it. See Commonwealth v. Proia, 92 Mass. App.

Ct. 824, 830 (2018). While mere presence alone is insufficient,

contraband found in proximity to the defendant's personal

effects, and the defendant's relationship to the location within

an apartment, may provide a sufficient nexus. See Commonwealth

v. Hamilton, 83 Mass. App. Ct. 406, 411-413 (2013); Brzezinski,

supra at 409-410.

Here, the circumstantial evidence and the reasonable

inferences drawn therefrom establish the defendant's

relationship to the bedroom and the apartment in which the drugs

and contraband were found. See Commonwealth v. Frongillo, 66

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Mass. App. Ct. 677, 683 n.13 (2006) ("[W]hen the defendant is

present at or near the scene where the contraband is found . . .

[his] behavior . . . generally provides a basis upon which the

court determines whether there was sufficient evidence relating

to possession, including . . . proximity to contraband in plain

view or hidden"). Our conclusion is bolstered by the presence

of utility bills in the defendant's name as well as Pena's

statement that the contraband was not hers, but "his," which the

factfinder could have inferred as a reference to the defendant.

Put simply, the totality of evidence and the inferences that

could be reasonably drawn therefrom were sufficient to establish

the defendant's knowledge and ability to exercise dominion and

control over the drugs.

2. Defendant as target of investigation. The defendant

next claims that the police testimony that the defendant was the

"target" of the investigation constituted impermissible

propensity evidence. Where the defendant did not object to this

evidence at trial our review is limited to whether there was any

error, and if so, whether that error created a substantial risk

of a miscarriage of justice. See Commonwealth v. Alphas, 430

Mass. 8, 13 (1999).

Here, the brief references, viewed in context, set the

stage and explained what impelled the officers to surveil and

investigate the apartment and persons therein. See, e.g.,

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Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). But even

assuming, arguendo, that the testimony was improper, it did not

create a substantial risk of a miscarriage of justice. In this

jury-waived trial, we presume that the judge correctly

instructed herself on the law, and there is nothing in the

present record that suggests she did not do so. See

Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005)

("judges in jury-waived trials are presumed to know and

correctly apply the law"). We further note that the judge

acquitted the defendant of two of the three charges and

convicted the defendant only of the lesser included offense of

possession with intent to distribute a class A substance, which

tends to negate any claim of prejudice. Cf. Commonwealth v.

Lassiter, 80 Mass. App. Ct. 125, 132 (2011); Commonwealth v.

Sosnowski, 43 Mass. App. Ct. 367, 372 (1997) ("difficult to find

that the admission of the evidence caused prejudice where [the

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defendant was acquitted] on two of the three indictments").

Accordingly, the defendant's claim is unavailing.4

Judgment affirmed.

By the Court (Meade, Neyman &
Walsh, JJ.5),

Clerk

Entered: November 6, 2025.

4 In his opening brief, the defendant also argued that the
trial judge relied on improper considerations at sentencing.
The defendant withdrew this argument as "moot" in his reply
brief.

5 The panelists are listed in order of seniority.

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