Commonwealth v. Aaron Gasque.

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

22-P-843

COMMONWEALTH

vs.

AARON GASQUE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of

trafficking in methamphetamine, eighteen grams or more, in

violation of G. L. c. 94C, § 32E (b) (1), and possession of

marijuana with intent to distribute.1 In these consolidated

appeals,2 the defendant argues that his conviction of trafficking

in methamphetamine should be vacated because what the

Commonwealth attempted to prove at trial was that he distributed

MDMA -- 3,4-methylenedioxy methamphetamine, see G. L. c. 94C,

§ 31, Class B (a) (8) -- a substance that cannot be the basis of

1 The defendant later pleaded guilty to the second or subsequent
offense portion of the marijuana indictment.
2 After the defendant appealed from his convictions, he sought,

and was granted, a stay of appellate proceedings to pursue a
motion for reconsideration of the trial judge's denial of his
motion for a required finding of not guilty. The trial judge
denied the motion for reconsideration, and the defendant filed a
second notice of appeal. The appeals were then consolidated.
a conviction under G. L. c. 94C, § 32E (b) (1). He also argues

that there was insufficient evidence to prove that he possessed

any of the substances in question. We affirm.

Background. We summarize the evidence in the light most

favorable to the Commonwealth. See Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979). On June 13, 2019, Ware police

were conducting surveillance on a two-unit residential building,

in anticipation of executing a search warrant on the second-

floor unit. At about 5 or 6 P.M., they saw the defendant enter

the building and then leave on foot twenty to thirty minutes

later. About twenty minutes after that, the defendant returned

to the building by vehicle, accompanied by the tenant of the

second-floor unit, who was known to the police.

At about 8 P.M., officers approached the building to

execute the warrant. As Ware Police Sergeant Scott Lawrence

approached from the front, he saw the defendant standing inside

near the front door. The defendant stood at the door for three

to four seconds before retreating into the hallway. The hallway

had three egress points: the door through which Sergeant

Lawrence saw the defendant; stairs leading up to the second-

floor unit; and a door on the opposite end of the hallway with

stairs leading down to the basement. The defendant was in the

hallway alone and was arrested there by other officers.

2
Once the building was secured, Sergeant Lawrence went to

the door leading to the basement. On the landing near the door,

which was open, he saw a bag of marijuana about the size of a

golf ball. Upon shining his flashlight into the basement, he

saw at the bottom of the stairs two bags of similarly packaged

marijuana and a third bag containing pills of multiple colors.

Sergeant Lawrence spoke to the defendant in the kitchen of

the second-floor apartment, where all the occupants were being

detained. As officers were escorting the defendant to another

room to be searched, he stated, "I don't even know what's going

on. I just got here." When Sergeant Lawrence explained that

the police were executing a search warrant for illegal

narcotics, the defendant responded that "he doesn't deal illegal

narcotics, only . . . marijuana." The officers recovered from

the defendant's pocket $590 in different denominations.

A subsequent search of the apartment uncovered an Arby's

bag containing pills similar to those found in the basement and

a single crystal of methamphetamine. These substances were the

basis of a separate indictment charging the defendant with

trafficking in methamphetamine, over 200 grams, under G. L.

c. 94C, § 32E (b) (4). At the close of all evidence, the trial

judge allowed the defendant's motion for a required finding of

not guilty on that charge.

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Discussion. 1. Chemical composition of the pills. The

defendant raises a number of related arguments concerning the

chemical composition of the pills found in the basement, which

were the basis of his conviction of trafficking in

methamphetamine under G. L. c. 94C, § 32E (b) (1). According to

the defendant, the Commonwealth's theory at trial proceeded

along the following lines: the pills consisted of MDMA

(commonly known as Ecstasy); MDMA is a form of methamphetamine;

and so the pills could support a conviction of trafficking in

methamphetamine. In other words, the defendant claims that the

Commonwealth equated MDMA with methamphetamine for purposes of

proving the trafficking charge.

The defendant correctly observes that, if the pills were in

fact comprised solely of MDMA, they would fall within the ambit

of a different statute, G. L. c. 94C, § 32A (a), which generally

criminalizes the distribution of Class B substances.3 The

statute under which the defendant was convicted, G. L. c. 94C,

§ 32E (b) (1), criminalizes the trafficking of certain Class B

substances, including, as relevant here, those defined in G. L.

c. 94C, § 31, Class B (c) (2). Class B (c) (2) substances are

substances that "contain[] any quantity of methamphetamine,

including its salts, isomers and salts of isomers," "[u]nless

3 The Commonwealth originally brought an indictment under G. L.
c. 94C, § 32A (a), but nol prossed it prior to trial.

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specifically excepted or unless listed in another schedule."

G. L. c. 94C, § 31, Class B (c). MDMA is listed in another

schedule -- see G. L. c. 94C, § 31, Class B (a) (8) (listing

"3,4-methylene dioxy methamphetamine [MDMA]") -- so for at least

this reason it is not a Class B (c) (2) substance and cannot

support a conviction under G. L. c. 94C, § 32E (b) (1).4

Thus, in order to sustain the conviction, the Commonwealth

had to prove that the pills consisted of methamphetamine as

defined in G. L. c. 94C, § 31, Class B (c) (2). See

Commonwealth v. Vasquez, 456 Mass. 350, 361 (2010), quoting

Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511 (2009)

("In a case charging a narcotics offense, the Commonwealth must

prove beyond a reasonable doubt 'that a substance is a

particular drug' because such proof is an element of the crime

charged"). We conclude that the Commonwealth met this burden.

Contrary to the defendant's characterization, the Commonwealth's

case was not premised on equating MDMA with methamphetamine.

While several of the percipient officers and the Commonwealth's

drug-distribution expert, State Trooper Stephen Bushay, referred

4 A conviction under G. L. c. 94C, § 32E (b) (1), has a mandatory
minimum term of incarceration in State prison of two years and a
maximum term of fifteen years. In contrast, a conviction under
G. L. c. 94C, § 32A (a), is punishable by incarceration in State
prison for up to ten years or in a jail or house of correction
for up to two and one half years, by a fine of up to $10,000, or
by both.

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to the pills interchangeably as "MDMA," "Ecstasy," "Molly," and

"methamphetamine pills," a forensic scientist from the State

crime laboratory testified that the pills were tested and "found

to contain methamphetamine," along with caffeine. The drug

certificate, entered as an exhibit, reported the same result.

This evidence was sufficient to prove that the substance in

question was methamphetamine. See McGilvery, supra at 511

(Commonwealth can meet burden of proving that substance is

particular drug "by chemical analysis or by circumstantial

evidence").5

We disagree with the defendant's assertion that the

Commonwealth's "chemical and circumstantial proof" equally

supported two inconsistent propositions about the nature of the

substance. While Trooper Bushay's testimony -- which is the

circumstantial proof referred to by the defendant -- established

that the appearance of the pills was consistent with MDMA, this

did not put the evidence in equipoise as to the actual chemical

composition of the pills. The trial judge made no finding that

Trooper Bushay's experience would "permit him to give an opinion

as to what drug [the] particular substance was"; and, even had

5 Consistent with the chemical analysis, the prosecutor told the
jury in his opening statement that the police found "a bag of
methamphetamines" in the basement and that the methamphetamines
"appear[ed] to be little multicolored pills." And in his
closing argument, the prosecutor noted that the pills "all
tested positive for methamphetamine."

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there been such a finding, "the knowledge and competence of

[the] witness, and his lack of training in chemical analysis,

[would] bear on the weight to be given to his testimony."

Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). See Vazquez,

456 Mass. at 365-366. Simply put, as to the issue of the

chemical composition of the pills, the jury could choose to

credit the testimony of the forensic scientist over that of

Trooper Bushay. This is underscored by the ambiguity in Trooper

Bushay's testimony on the issue -- although he recognized the

pills to be consistent with the appearance of MDMA, he also

testified that MDMA "has methamphetamine inside it" and agreed

that the "root drug" of MDMA is methamphetamine.

For related reasons we reject the defendant's argument that

the evidence was at material variance with the allegations in

the indictment, in violation of art. 12 of the Declaration of

Rights. "The term 'variance' generally refers to a difference

between an indictment and the proof at trial." Commonwealth v.

Semedo, 456 Mass. 1, 17 (2010). Here, the indictment charged

the defendant with trafficking in methamphetamine, and that was

what the Commonwealth sought to prove at trial. We do not agree

with the defendant's characterization of the grand jury minutes

as showing that the indictment had to refer to "something other

than [the] pills found in the basement." Although Sergeant

Lawrence testified before the grand jury that he recognized the

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pills as "MDMA Ecstasy pills," he also testified that the pills

"showed a positive response for methamphetamines" during an on-

scene chemical analysis.6 In addition, after Sergeant Lawrence

gave the weight of the pills as 26.85 grams, the Commonwealth

explained that "the amount of it is certainly relevant" because

"[i]t's the trafficking of the methamphetamines that has the

specific gram weight that [the grand jury] need[ed] to be

worried about." The grand jury thus could have indicted the

defendant for trafficking in methamphetamine based on the

composition and weight of the pills. See Commonwealth v.

Clayton, 63 Mass. App. Ct. 608, 612 (2005) ("Commonwealth need

not present to the grand jury evidence of each theory under

which the defendant may be found guilty at trial of the crime

for which he is indicted," nor need "there be an exact match

between the evidence presented at trial and that presented to

the grand jury").

To the extent the defendant claims that he was not on fair

notice of the factual basis of the indictment, he could have

moved for a bill of particulars, but did not. See G. L. c. 277,

§ 47A ("any defense or objection based upon defects in the . . .

indictment . . . shall only be raised prior to trial");

Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994) (defendant

6 We acknowledge that the grand jury minutes remain impounded and
discuss them only as necessary to resolve this appeal.

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waived defense that indictments did not give fair notice of

charges by failing to raise the issue before trial). And in any

event, even assuming the claim is preserved, we see no merit to

it. The Commonwealth explained during pretrial discussions that

the indictment lined up with the "batch[] of methamphetamine"

that the defendant threw "down a stairwell when the search

warrant [was] executed." When the judge then asked defense

counsel if he wished to be heard, defense counsel responded, "No

. . . I'm clear on what we're doing." Thus, even had there been

a variance, the defendant has not shown prejudice. See G. L.

c. 277, § 35 ("A defendant shall not be acquitted on the ground

of variance between the allegations and proof if the essential

elements of the crime are correctly stated, unless he is thereby

prejudiced in his defence").

The defendant argues in the alternative that, even assuming

the pills were "a non-MDMA form of methamphetamine," the

evidence was insufficient to prove distribution. This argument

is premised on an inaccurate description of Trooper Bushay's

testimony. We do not see where he testified that all "non-MDMA

methamphetamine would be distributed in crystalized form," as

the defendant suggests. While Trooper Bushay opined that the

amount of crystal methamphetamine found in the Arby's bag was

consistent with distribution, he did not testify that

methamphetamine cannot be distributed in other forms. As to the

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pills, Trooper Bushay's opinion was that the amount, between

fifty and one hundred pills, "would last [a user] a very long

time" and was thus "more indicative of distribution" than

personal use, and that the pills were "more likely bought in

bulk to be resold for a profit." This was sufficient to prove

intent to distribute. See Commonwealth v. Lobo, 82 Mass. App.

Ct. 803, 811 (2012).

On this record therefore, and viewing the evidence in the

light most favorable to the Commonwealth, we conclude that the

Commonwealth sustained its burden of proving that the defendant

trafficked in methamphetamine in violation of G. L. c. 94C,

§ 32E (b) (1). In the event evidence is uncovered showing that

the pills were in fact comprised of MDMA, the defendant's remedy

is through a motion for a new trial.

2. Possession. The defendant next argues that the

evidence was insufficient to prove that he possessed the drugs

found in the basement. We disagree. When the police entered

the building, the defendant was in the first-floor hallway,

which had stairs leading to the basement. He was the only one

in the hallway, which Sergeant Lawrence described as "small,"

and there was no one in the basement. One bag of marijuana was

in plain view on the landing near the door to the basement, and

the other bags containing marijuana and pills were in plain view

at the bottom of the stairs, as though the bags had been thrown.

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Also, the defendant admitted that he sold marijuana, and his

statement that he "just got here" could be viewed as false,

suggesting consciousness of guilt. From this evidence the jury

could have found that the defendant threw the drugs into the

basement in an effort to hide them. While the defendant claims

that he did not have enough time to traverse the hallway before

the police entered, that was a factual question for the jury,

and we do not second guess their resolution of it. See

Commonwealth v. Ronchi, 491 Mass. 284, 294 (2023).

Judgments affirmed.

Order denying motion to
reconsider affirmed.

By the Court (Henry, Shin &
Hodgens, JJ.7),

Clerk

Entered: April 13, 2023.

7 The panelists are listed in order of seniority.

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