Commonwealth v. Robert White, Third.

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-905

COMMONWEALTH

vs.

ROBERT WHITE, Third.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted of possession with intent to

distribute and trafficking cocaine 1 following a Superior Court

jury trial. Counsel failed to file a notice of appeal, and the

defendant thereafter filed a motion for a new trial. See White

v. Commonwealth, 479 Mass. 1023, 1024 (2018). The judge denied

his motion but vacated the possession with intent conviction as

duplicative. 2 The defendant timely appeals from that denial,

arguing that his motion for a required finding of not guilty

should have been allowed because the evidence was insufficient

to sustain the trafficking conviction. We affirm.

1 The defendant was convicted of trafficking between thirty-six
and one hundred grams of cocaine.
2 The Commonwealth does not challenge that finding on appeal.
Background. Because the defendant challenges the

sufficiency of the evidence, we recite the facts in the light

most favorable to the Commonwealth, together with the reasonable

inferences that could be drawn from them. See Commonwealth v.

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

On April 27, 2018, members of the Southeastern

Massachusetts Gang Task Force ("officers") surveilled 18 Stanley

Avenue in Taunton in preparation for the execution of a search

warrant. 3 After observing the defendant and his cousin, the

targets of the investigation, outside of the property, the

officers approached and detained them. An officer recovered a

plastic bag containing four smaller bags of crack cocaine from

the defendant's underwear, and $393 from his pocket. Once

inside the apartment, the officers observed a glass jar

containing several bags of what appeared to be crack cocaine,

three digital scales, "a Pyrex [container] with a gold strainer

inside" containing an "off-white, pasty residue," and a box of

sandwich baggies, all of which were in plain view in the

kitchen. During the ensuing search of the apartment, the

officers recovered six large bags of cocaine, two medium bags of

crack cocaine, and a key to a Lexus registered to the defendant

from a safe located in one of two bedrooms. While searching the

3 The defendant does not challenge the validity of the warrant.

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second bedroom, the officers discovered approximately $2,000

from inside a jacket pocket, a prescription bottle labeled with

the defendant's name, and three letters addressed to the

defendant. The defendant told the troopers the jacket and the

cash found in its pocket belonged to him.

The Commonwealth's drug expert witness testified, in

response to the prosecutor's hypothetical factual scenarios

bearing close resemblance to the evidence presented at trial,

that the presence of cocaine, scales, strainers, packaging

materials, and currency in an apartment was consistent with

cocaine distribution. The expert further opined that the amount

and packaging of the drugs recovered from the defendant's person

was consistent with distribution. Finally, a forensic scientist

with the Massachusetts State Police testified that, in total,

the cocaine recovered from the apartment and the defendant

weighed approximately seventy-seven grams.

Discussion. The defendant argues that there was

insufficient evidence to prove beyond a reasonable doubt his

constructive possession of, and intent to distribute the cocaine

in the apartment, as required to support the trafficking

conviction. In assessing the sufficiency of the evidence, we

must decide "whether the evidence, in its light most favorable

to the Commonwealth . . . is sufficient . . . to permit the jury

to infer the existence of the essential elements of the crime

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charged." Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 392

(2009), quoting Latimore, 378 Mass. at 676-677. Although a

conviction may be based entirely on circumstantial evidence, and

the inferences drawn need only be reasonable, not inescapable,

see Commonwealth v. Rakes, 478 Mass. 22, 45 (2017), "a

conviction may not rest on the piling of inference upon

inference or on conjecture and speculation" (quotations and

citation omitted). Commonwealth v. Ronchi, 491 Mass. 284, 297–

298 (2023).

"Constructive possession requires proof of knowledge

coupled with the ability and intention to exercise dominion and

control" (quotations and citation omitted). Commonwealth v.

Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). The Commonwealth

is not required to show that the defendant's possession was

exclusive; constructive possession may be exercised jointly.

See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 834 (2018).

Here, the layout of the "extremely small" apartment and the

conspicuous cocaine together with items used for drug

distribution found in the kitchen "suggest that all of those

present were involved in the activity, not simply aware of it." 4

4 The Commonwealth suggests the apartment was a stash house such
that the defendant's intent to distribute can be inferred from
his presence there. However, this case is unlike those cases
where we have found that "a reasonable inference of guilt may be
made from the defendant's presence in a sparsely furnished,

4
See Commonwealth v. Gonzalez, 452 Mass. 142, 148 (2008).

Contrast Dagraca-Teixeira, supra (no constructive possession

where guns were found in attic accessible to ten occupants of

apartment and search of "common living areas uncovered nothing

establishing the defendants' connection to the weapons"). In

fact, we have specifically found that "scales and packaging

materials on the kitchen table . . . . in plain view is [a]

factor that may support an inference of constructive possession

of a stash of a controlled substance." Commonwealth v.

Delarosa, 50 Mass. App. Ct. 623, 627-628 (2000). See

Commonwealth v. Woods, 94 Mass. App. Ct. 761, 766 (2019) (expert

testimony that cut-corner bags and scale indicated distribution

supported sufficiency).

Of course, "[p]resence alone cannot show the requisite

knowledge, power, or intention to exercise control over the

[drugs], but presence, supplemented by other incriminating

evidence, will serve to tip the scale in favor of sufficiency"

(quotations and citation omitted). Dagraca-Teixeira, 471 Mass.

at 1004. The defendant's various belongings linked him to the

apartment and directly to the safe where the largest quantity of

fortified apartment where drugs and drug packaging were found."
See Commonwealth v. Antonio, 45 Mass. App. Ct. 937, 938 (1998).
Here, the evidence tended to suggest not only that multiple
adults lived in the apartment, but also that a child lived
there. In any event, our decision does not rely on the stash
house characterization.

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cocaine was found. Citing Commonwealth v. Ramos, 51 Mass. App.

Ct. 901 (2001), the defendant makes much of the fact that the

letters addressed to him found in the bedroom drawer had a

different address than that of the apartment. However, in

Ramos, no personal belongings of the defendant besides the

letters were found; instead, the items seized suggested that two

other occupants were living there. 51 Mass. App. Ct. at 903.

Here, the presence of the defendant's jacket containing $2,000,

prescription bottle, and mail in a bedroom served as "evidence

that the defendant rented, occupied, spent a great deal of time

at or exercised control over the apartment or its contents."

Id., quoting Commonwealth v. Caterino, 31 Mass. App. Ct. 685,

689 (1991). The presence of the key to the defendant's vehicle

in the safe next to the cocaine further substantiated his

connection to the largest quantity of drugs.

Finally, several factors beyond the presence of the

defendant and his belongings in the apartment demonstrate that

the defendant was directly involved in the distribution

operation. For one, the Commonwealth presented evidence that

the cocaine found on the defendant's person was packaged in a

manner consistent with the intent to distribute, and

inconsistent with personal use. See Commonwealth v. Sepheus,

468 Mass. 160, 165 (2014) ("[p]ackaging indeed may provide such

support [of distribution]" where drugs are "bundled or packaged

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in a manner that suggests they were the remains of a larger

inventory"). See also Commonwealth v. Wilson, 441 Mass. 390,

400-401 (2004) ("We have consistently upheld the use of

narcotics investigators as experts" to testify that manner in

which drugs were packaged is "consistent with an intent for

'street distribution' rather than personal use"). The

defendant's link to the distribution of the larger quantities

could be further inferred from the fact that the crack cocaine

recovered from his pocket was consistent with the larger cache

of crack cocaine located in the safe and in the kitchen as well

as with the evidence of instruments typically used for

converting powder cocaine to crack cocaine found in the kitchen.

See Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 597

(2001), and cases cited ("A defendant who admits possession of a

small quantity of drugs may be linked to a larger quantity by

similarities in the drug's consistency").

Furthermore, the amount of cash found in the pocket of the

defendant's jacket and on his person directly supports a

reasonable inference that he was involved in the distribution of

the drugs recovered from the target apartment. See Gonzalez,

452 Mass. at 148. To the extent that the defendant attempts to

explain its source as "tips" from his job as a TGI Friday's

restaurant cleaner, neither the jury nor the judge who denied

the new trial motion were required to credit that rationale.

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See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("it is for

the jury to determine where the truth lies, for the weight and

credibility of the evidence is wholly within their province").

See, e.g., Gonzalez, supra at 144, 148 n.4 (factfinder "free to

consider [defendant's] possession of [$2,604] as evidence of his

involvement in illegal drug activity" despite his testimony that

it was from the sale of his vehicle and his job at a garage).

In conclusion, the totality of the evidence and the

inferences that could be reasonably drawn therefrom were

sufficient to establish the elements of possession and intent to

distribute cocaine, the quantity of which supported the

trafficking conviction.

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Accordingly, we affirm the order denying the defendant's motion

for new trial.

So ordered.

By the Court (Wolohojian,
Neyman & Smyth, JJ. 5),

Clerk

Entered: August 14, 2023.

5 The panelists are listed in order of seniority.

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