Commonwealth v. Wanstader Previlon.

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

21-P-964

COMMONWEALTH

vs.

WANSTADER PREVILON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Wanstader Previlon, was convicted on June

12, 2018, after a two-day jury trial in District Court, of

distribution of a class B substance, G. L. c. 94C, § 32A (a),

and of distribution of a controlled substance near a public

park, G. L. c. 94C, § 32J.1,2 On appeal, he focuses his

arguments solely on count one and asserts that (1) there was

insufficient evidence to convict him of distribution of a class

B substance, (2) a new trial should have been ordered because

1 The defendant's conviction for a controlled substance violation
near a public park was later vacated after the Supreme Judicial
Court's ruling in Commonwealth v. Boger, 486 Mass 358, 363
(2020) (Commonwealth failed to prove distribution near public
park because it did not present evidence park was owned or
maintained by government).

2 The defendant was also charged with conspiracy to violate a
drug law, G. L. c. 94C, § 40. That charge was later dismissed
at the request of the Commonwealth.
the judge failed to properly instruct the jury regarding aiding

and abetting, and (3) the judge abused his discretion by

limiting testimony that could have developed his theory of

sentencing entrapment and by failing to provide an entrapment

jury instruction. Discerning no error, we affirm.

Background. With respect to our analysis of the

defendant's argument pertaining to the sufficiency of the

evidence, we summarize the evidence in the light most favorable

to the Commonwealth, reserving some facts for discussion of the

specific issues. See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979).

In the summer of 2016, Manchester-by-the-Sea Detective

Christopher Locke placed an advertisement in the "casual

encounters" section of Craigslist.3 The advertisement used

slang4 to suggest that Detective Locke, acting in his undercover

capacity, was interested in obtaining cocaine. The

advertisement also referenced a location in Manchester-by-the-

Sea called Cathedral of the Pines, which is "a large recreation

area" containing "several thousand acres of hiking trails," as a

3 Craigslist is a classified advertisements website. See Boger,
486 Mass. at 359 n.2.

4 The advertisement read in part, "[l]ooking to SKI with Mr.
Right Now . . . If you have party favors, you go the front of
the line!" Detective Locke testified that "ski" referred to
cocaine and that "[p]arty favors is slang for drugs."

2
meeting spot. Cathedral of the Pines was chosen because the

police had received "hundreds upon hundreds upon hundreds of

calls of suspicious activity in the area."

On July 12, Detective Locke received a response, also via

Craigslist, inquiring as to whether he was "looking for ski,"

and after responding in the affirmative, received a phone number

to contact. He began exchanging text messages with that phone

number and negotiated the purchase of 10.5 grams5 of cocaine for

$750, plus an additional $40 to pay a driver to bring the seller

to the detective's location in Manchester-by-the-Sea.

Having arranged the sale, Detective Locke organized other

detectives to assist him with conducting the undercover purchase

of cocaine. Detective Locke, along with a detective from

Beverly, positioned themselves in an unmarked vehicle in the

parking lot where he had agreed to meet the suspect with whom he

had communicated via text. Two other unmarked police cars were

positioned nearby, and two marked police cars were positioned

down the street, "tucked in behind [a] farm stand."

After a period of waiting, a vehicle matching the

description provided by the party with whom Detective Locke was

5 Detective Locke initially testified that he had arranged to
purchase 10.5 grams of cocaine but then corrected the figure to
10 grams after being prompted to do so by the Commonwealth. The
text messages in evidence clearly show that the negotiated
quantity was 10.5 grams.

3
communicating, a blue Honda, pulled into the parking lot and

stopped directly in front of Detective Locke's undercover

vehicle. Codefendant Hetson Leneus was driving the Honda, while

codefendant Indiah Boger was riding in one of the rear passenger

seats. The defendant was seated in the front passenger seat.

Detective Locke approached the vehicle, and, as he did, Leneus

rolled down the defendant's window. Leneus told Detective Locke

to get in the car, but he declined, saying, "my buddy will freak

out if I get in the car." The defendant asked him if there were

"any cops in the area," and after responding, "[n]o, we're all

good," Detective Locke handed the defendant $790 in marked

bills.6 After doing so, the driver directed his attention to

Boger, sitting in the back seat. Boger proceeded to hand

Detective Locke a "small glassine bag," through the right rear

passenger window, which the detective believed, based on

training and experience, contained cocaine.

After accepting the bag from Boger, Detective Locke gave a

discrete signal to the other detectives. They pulled over the

vehicle in which the defendant was riding approximately 200

yards down the road as it drove away. All three occupants were

placed under arrest. Upon looking in the vehicle, Boger's cell

6 Detective Locke testified that "[w]e photocopy the specific
bills that we're using for the buy money" and that "[w]e make
sure to include the serial number of each bill."

4
phone, which had been used to coordinate the sale with Detective

Locke, was observed and recovered from the front-passenger seat,

where the defendant had been sitting.7 The defendant, as well as

Leneus and Boger, were subsequently charged with distribution of

a class B substance, G. L. c. 94C, § 32A (a), distribution of a

controlled substance near a public park, G. L. c. 94C, § 32J,

and conspiracy to violate a drug law, G. L. c. 94C, § 40.

At trial, the Commonwealth called two witnesses, Detective

Locke and State police crime laboratory forensic scientist Nevin

Vigneault. Detective Locke testified to the way in which he

created the Craigslist advertisement, communicated with the

defendants, and coordinated the undercover purchase and

subsequent arrest. During his testimony, counsel for Boger

attempted to question Detective Locke as to his motivation for

choosing an alleged public park as the purchase location,

asking, "you're aware that any sales that occur in this area

would increase any penalty under the law, isn't that correct?"

The Commonwealth objected and the judge sustained the

Commonwealth's objection, observing that "sentencing entrapment

is not a recognized defense."

7 Detective Locke testified that, when he initially observed the
cell phone, "[o]n the screen of the phone was [sic] the text
messages that I had been exchanging with that phone."

5
The defendant moved for a required finding of not guilty at

the close of the Commonwealth's case-in-chief and again at the

close of all evidence. Both motions were denied. During a

discussion regarding jury instructions, the defendant sought a

specific, self-crafted instruction related to aiding and

abetting; there was also an extended discussion regarding a park

zone instruction. The judge denied the request as to aiding and

abetting and instead issued an aiding and abetting instruction

pursuant to the model jury instructions. See Criminal Model

Jury Instructions for Use in the District Court 4.200 (2011).

The judge also declined to use language requested by the

defendant when providing a park zone instruction. The

defendant's objections were noted.

The jury returned guilty verdicts on distribution of a

class B substance and controlled substance violation near a

public park for the defendant and Boger; it returned not-guilty

verdicts on the same charges for Leneus. The charge for

conspiracy was dismissed at the request of the Commonwealth

after the verdicts were delivered. The defendant was sentenced

to two years and one day in the House of Corrections and this

appeal followed.

Discussion. 1. Sufficiency of the evidence. The

defendant first argues that there was insufficient evidence to

prove that he actually or constructively distributed or

6
delivered the cocaine to Detective Locke. He relatedly argues

that the jury was required to engage in speculation to conclude

that he did. We disagree.

"In determining the validity of a claim challenging the

sufficiency of the Commonwealth's evidence at trial, we review

the evidence in the light most favorable to the Commonwealth to

determine whether 'any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.'"

Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting

Latimore, 378 Mass. at 677. "The inferences that support a

conviction 'need only be reasonable and possible; [they] need

not be necessary or inescapable.'" Commonwealth v. Waller, 90

Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods,

466 Mass. 707, 713 (2014). The question is whether the evidence

would permit a jury to find the defendant guilty, not whether it

requires it. See Commonwealth v. Guy, 441 Mass. 96, 101 (2004),

quoting Commonwealth v. Fisher, 433 Mass. 340, 342-343 (2001).

To prove that the defendant distributed a class B

substance, the Commonwealth must show that he acted "knowingly

or intentionally" in distributing the class B substance.8 G. L.

c. 94C, § 32A (a). "Distribute" is defined as "to deliver other

8 The Commonwealth called a forensic scientist to testify that
the white powder recovered from the vehicle in which the
defendant was riding was a class B substance, and that testimony
is not challenged here.

7
than by administering or dispensing a controlled substance," and

"deliver" is defined as "to transfer, whether by actual or

constructive transfer, a controlled substance from one person to

another, whether or not there is an agency relationship." G. L.

c. 94C, § 1.

The Commonwealth proceeded upon the theory that the

defendant engaged in distribution by aiding and abetting. To

prove that the defendant aided and abetted in the distribution

of a class B substance, the Commonwealth must "prove 'beyond a

reasonable doubt that the defendant knowingly participated in

the commission of the crime charged, with the intent required to

commit the crime.'" Commonwealth v. Johnson, 92 Mass. App. Ct.

538, 543 (2017), quoting Commonwealth v. Zanetti, 454 Mass. 449,

467 (2009).

Here, the Commonwealth provided ample evidence to allow a

rational trier of fact to conclude that the defendant knowingly

participated in the distribution of a class B substance.

Detective Locke testified that he coordinated the purchase of

10.5 grams of cocaine via text message from a person who said

they would arrive at the site of the sale in "[a] blue Honda,"

driven by the driver for whom additional compensation was

required. The defendant subsequently arrived at the

aforementioned location in a vehicle matching that description.

When Detective Locke approached the vehicle, the defendant, who

8
was seated in the front passenger seat, "asked [him] if there

was [sic] any cops in the area." After responding, "[n]o, we're

all good," Detective Locke handed the defendant the prearranged

sum of $790, which the defendant accepted. Thereafter, Boger,

through the right rear passenger window, handed him a glassine

bag containing cocaine.

These facts are consistent with a multi-person narcotics

sale and were sufficient to permit a rational trier of fact to

conclude that the defendant knowingly participated in the

commission of the distribution of the class B substance. See

Commonwealth v. Mgaresh, 83 Mass. App. Ct. 276, 278 (2013)

(sufficient evidence of joint venture where, inter alia,

defendant arranged narcotics sale and possessed cell phone used

to negotiate sale). See also Commonwealth v. Roman, 74 Mass.

App. Ct. 251, 254-255 (2009) (sufficient facts to support joint

venture where defendant attempted to conceal transfer of

narcotics by another). Additionally, the defendant's question

regarding the presence of police in the area was sufficient to

allow a reasonable trier of fact to conclude that he was aware

illegal activity was afoot. See Commonwealth v. Miranda, 441

Mass. 783, 791-792 (2004) (defendant convicted of distribution

after, inter alia, serving as lookout during narcotics sale).

See also Commonwealth v. Ward, 45 Mass. App. Ct. 901, 902

(1998). Further still, the way in which Boger handed the

9
cocaine to Detective Locke after the defendant accepted the

money was also sufficient for a reasonable trier of fact to

conclude that Boger and the defendant were coordinating in their

conduct of the sale; one accepted payment while the other

delivered the narcotics. See Commonwealth v. Fernandes, 46

Mass. App. Ct. 455, 461-462 (1999). See also Commonwealth v.

Robinson, 43 Mass. App. Ct. 257, 259-260 (1997) (describing

multi-person drug-distribution procedure). Furthermore, the

fact that the cell phone used to negotiate the sale was

recovered, unlocked, and in the seat where the defendant was

sitting reasonably supports the conclusion that he was the one

who communicated with Detective Locke when arranging the sale.

Taken together, this testimony was sufficient to permit the jury

to conclude that the defendant knowingly participated in the

distribution of the cocaine.9 The judge did not err in denying

the defendant's motion for a required finding. See Latimore,

9 The defendant further argues that there was insufficient
evidence to show that he engaged in constructive distribution of
the narcotics. We need not address the contention.
Constructive distribution and distribution by aiding and
abetting are two different legal theories. See Commonwealth v.
Robinson, 43 Mass. App. Ct. 257, 261 (1997) ("The theories of
constructive possession and joint venture are[] alternative
theories with which to connect an accused to the crime"). See
also Zanetti, 454 Mass. at 467 (adopting language of aiding and
abetting in lieu of joint venture). Assuming without deciding
that the Commonwealth failed to prove constructive distribution,
such a failure would not impact its case with respect to aiding
and abetting distribution.

10
378 Mass. at 677-678, citing Jackson v. Virginia, 443 U.S. 307,

318-319 (1979) ("[T]o sustain the denial of a directed verdict,

. . . [the appellate court] must find that there was enough

evidence that could have satisfied a rational trier of fact of

each such element beyond a reasonable doubt").

2. Jury instructions. The defendant further asserts that

the judge's jury instruction with respect to aiding and abetting

was in error because it failed to comply with the standard set

forth in Zanetti, 454 Mass. at 467-468, and because it ran the

risk of confusing the jury. We are not persuaded.

"Where, as here, a defendant raises a timely objection to a

judge's instruction to the jury, we review the claim for

prejudicial error." Commonwealth v. Kelly, 470 Mass. 682, 687

(2015). "Appellate courts conduct a two-part test: whether the

instructions were legally erroneous, and (if so) whether that

error was prejudicial" (quotations omitted). Id. at 688.

"Trial judges have 'considerable discretion in framing jury

instructions, both in determining the precise phraseology used

and the appropriate degree of elaboration.'" Id. at 688,

quoting Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131

(2002).

"When there is evidence that more than one person may have

participated in the commission of the crime, judges are to

instruct the jury that the defendant is guilty if the

11
Commonwealth has proved beyond a reasonable doubt that the

defendant knowingly participated in the commission of the crime

charged, alone or with others, with the intent required for that

offense." Zanetti, 454 Mass. at 467-468.

Here, it is undisputed the codefendants were all in the car

together at the time the alleged distribution occurred and that

they were arrested together shortly thereafter. The

Commonwealth proceeded on the theory of aiding and abetting, and

it is undisputed that the judge provided the District Court

model jury instruction for that offense to the jury. As is

required under Zanetti, this instruction properly informed the

jury of the two elements of aiding and abetting. The judge told

the jury, in part, "[f]irst, . . . the Commonwealth must prove

that each Defendant knowingly and intentionally participated in

some meaningful way in the commission of the alleged offense,

either alone or with others. Second, that he or she did so with

the intent required for the offense." This model instruction

made clear to the jury that the elements of aiding and abetting

did not constitute a separate crime from distribution of a class

B substance, but rather, were a prerequisite to proof of that

crime by way of the theory of aiding and abetting. There was no

error.

3. Entrapment. Finally, the defendant argues that the

judge erred by limiting his codefendant's line of questioning

12
with respect to the theory of entrapment and because, he

contends, the judge should have issued an entrapment jury

instruction.10 Accordingly, we recite additional facts that the

defendant argues support an entrapment defense. See

Commonwealth v. Encarnacion, 38 Mass. App. Ct. 972, 973 (1995),

quoting Commonwealth v. Tracey, 416 Mass. 528, 536 (1993). The

party11 with whom Detective Locke negotiated the narcotics

exchange identified themselves as "coming from Dorchester."

Detective Locke asked if they could meet him in Manchester-by-

the-Sea. After clarifying that Manchester-by-the-Sea was in

Massachusetts, the unknown party agreed to do so in exchange for

an additional forty dollars to pay a driver to transport him to

that location. The unknown party clarified in which town the

meeting was to occur one additional time before arrival. In

spite of these arguments, we conclude that the judge did not err

10We note at the outset that the defendant appears to conflate
the concepts of entrapment and sentencing entrapment, which are
two separate legal theories. See Commonwealth v. Garcia, 421
Mass. 686, 687 (1996). This distinction is discussed infra.

11Although the defendant argues that he was not the party with
whom Detective Locke communicated, the jury was free to
discredit that assertion and reasonably infer that he was based
on the discovery of the cell phone used to negotiate the sale,
open to the text message exchange, in the seat where the
defendant had been sitting. Commonwealth v. Waller, 90 Mass.
App. Ct. 295, 303 (2016), citing Commonwealth v. Woods, 466
Mass. 707, 713 (2014).

13
in cutting off this portion of the testimony or in failing to

issue an instruction on entrapment.

"Whether evidence is relevant and whether its probative

value is substantially outweighed by its prejudicial effect are

matters entrusted to the trial judge's broad discretion and are

not disturbed absent palpable error." Commonwealth v.

Podgurski, 81 Mass. App. Ct. 175, 183 (2012), quoting

Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).

"An entrapment instruction is required when there is

evidence of a government agent's intentional, persistent, and

repeated conduct that goes beyond mere solicitation or request

that the defendant participate in a criminal act." Commonwealth

v. Lawrence, 69 Mass. App. Ct. 596, 601 (2007), citing

Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 703 (2001).

"The threshold for a defendant to raise the entrapment issue is

low, but the defendant must show more than mere solicitation."

Encarnacion, 38 Mass. App. Ct. at 973, quoting Tracey, 416 Mass.

at 536. Sentencing entrapment, in contrast, is an argument in

which the defendant asserts that law enforcement has structured

its investigation "in order to obtain convictions of more

serious trafficking charges and the imposition of higher

mandatory minimum sentences." Commonwealth v. Garcia, 421 Mass.

686, 687 (1996) (arguing law enforcement entrapped defendant to

sell larger quantity of cocaine). See Commonwealth v. Labitue,

14
49 Mass. App. Ct. 913, 914-915 (2000) (arguing police waited to

conduct search until defendant was near school). Sentencing

entrapment is not a recognized defense in the Commonwealth. See

Labitue, 49 Mass. App. Ct. at 915.

Here, the attorney for Boger attempted to question

Detective Locke as to the increased penalty under the law for

distribution of narcotics in the vicinity of an alleged park.

The Commonwealth objected, and, at sidebar, the judge correctly

observed that "sentencing entrapment is not a recognized

defense." See Commonwealth v. Cruz, 430 Mass. 838, 846-847

(2000). The judge was correct, therefore, to disallow

additional questions as to sentencing enhancements related to

the location of the sale. The judge did permit the attorney for

Boger to question Detective Locke regarding why he selected the

particular location and invited the attorney to return to

sidebar if he wished to pursue this line of questioning further.

The attorney for Boger could have exercised this opportunity to

develop additional testimony regarding a permissible entrapment

defense. However, he did not.12 No testimony pertaining to

entrapment was obtained thereafter. Without more, we cannot

12After Detective Locke answered that he selected the location
due to the large number of complaints of criminal activity
related to it, the attorney for Boger pursued a different line
of questioning without ever returning to sidebar.

15
conclude that the judge's failure to provide an entrapment

instruction was an abuse of discretion or error of law.13 See

Commonwealth v. Saletino, 449 Mass. 657, 658 n.1 (2007)

(describing difference between traditional entrapment and

sentencing entrapment).

Judgment affirmed.

By the Court (Wolohojian,
Blake & Desmond, JJ.14),

Clerk

Entered: February 22, 2023.

13Even assuming without deciding that the defendant was entitled
to an entrapment defense or instruction with respect to the
charge of distribution near a public park, "[t]he dismissal of
the charges 'render[s] moot any defects in the underlying
proceedings.'" Commonwealth v. Estrada, 69 Mass. App. Ct. 514,
517 (2007), quoting Burns v. Commonwealth, 430 Mass. 444, 447
(1999).

14 The panelists are listed in order of seniority.

16