Commonwealth v. Darren Hughes.

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

18-P-1717

COMMONWEALTH

vs.

DARREN HUGHES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Darren Hughes, was convicted following a

jury trial in Middlesex County Superior Court of one count of

trafficking of a person for sexual servitude, G. L. c. 265, § 50

(a), one count of distribution of a class D substance, G. L.

c. 94C, § 32C (b), and one count of possession of a class D

substance with intent to distribute, G. L. c. 94C, § 32C (a).

In his appeal, the defendant challenges the denial of his motion

to suppress, the failure to excuse two jurors for cause, the

admission of various trial exhibits, the sufficiency of the

evidence, and various jury instructions. We affirm.

Background. 1. Facts. As we will first address the

motion to suppress, we summarize the facts found by the motion

judge, supplemented by uncontested testimony from the motion to

suppress hearing. Commonwealth v. Ortiz, 478 Mass. 820, 821
(2018). Additional facts adduced at trial will be included

below in the sections regarding trial errors as necessary.

In February of 2015, as part of an undercover

investigation, an officer with the Massachusetts Bay

Transportation Authority (MBTA) transit police, Lieutenant

Detective Richard Sullivan, met with the defendant at the Woburn

Mall to conduct a controlled buy of so-called "butane honey oil"

(BHO), which is derived from marijuana. The defendant sold

Lieutenant Sullivan the BHO, and during the sale he asked if

Lieutenant Sullivan "liked pussy." The defendant explained that

he was staying in a hotel nearby, and had "girls close by" in

which the Lieutenant might be interested. As they exited the

mall, Lieutenant Sullivan signaled to officers from the Woburn

Police Department to arrest the defendant for the drug offenses.

Detective Sergeant Brian McManus of the Woburn Police

Department searched the defendant incident to his arrest. The

search uncovered, among other things, a hotel room key card with

the logo from the Red Roof Inn. McManus was familiar with the

Red Roof Inn located near the Woburn Mall as he previously

conducted investigations of prostitution there. After learning

from Lieutenant Sullivan about the defendant's statements

suggesting possible prostitution, Sergeant McManus proceeded to

the Red Roof Inn.

2
Sergeant McManus presented the key card seized from the

defendant to the front desk clerk, who stated that the room

associated with the key was room 216, and that the room had been

rented to the defendant, Darren Hughes. When officers knocked

on the door of room 216, a woman (the victim) answered and

invited the officers into the room. On entering, the officers

could see a digital scale with what appeared to be a small

amount of BHO on it. They also found more BHO inside the

refrigerator in the room.

Once the officers were inside the hotel room, the victim

explained her involvement with the defendant. The victim told

Sergeant McManus that she had responded to the defendant's

advertisement on Backpage.com, which she showed Sergeant

McManus. After meeting the defendant, the victim was thereafter

employed by the defendant as a prostitute. The defendant paid

for the room at the Red Roof Inn, and both the defendant and the

victim stayed there.

2. Procedural history. a. Motion to suppress. In a

motion to suppress, the defendant argued that the warrantless

seizure of the Red Roof Inn key card was unlawful, and therefore

that the key card could not be used for investigative purposes.

In the alternative, the defendant argued that the victim did not

have the authority to consent to the officers' search of the

hotel room, and even if she did, her consent was not free and

3
voluntary. The defendant moved to suppress the evidence

obtained in room 216 and the statements the victim made to the

police officers in that room.

The motion judge denied the motion to suppress.

Specifically, the judge ruled that the police discovered the

hotel room key card pursuant to a lawful search incident to

arrest. The court held that the seizure of the room key card

and its use for further investigative purposes was permissible

because of the defendant's statements to Lieutenant Sullivan

suggesting that he was involved in prostitution and Sergeant

McManus' experience with that particular hotel. The court also

found that the victim had actual authority to consent to the

warrantless search of the room. As the court found that the

search was permissible and that the victim voluntarily spoke

with the officers, the court denied the defendant's motion to

suppress the evidence and statements obtained in room 216.

b. Jury trial. During voir dire, the defendant's trial

counsel challenged two jurors for cause, juror number five

(juror 5) and juror number seventy-two (juror 72). The trial

judge found both to stand indifferent. The defense exercised a

peremptory challenge to strike juror 5 from the jury but had

exhausted its peremptory challenges before reaching juror 72,

and the trial judge denied the defense's request for additional

peremptory challenges. Juror 72 was then seated on the jury.

4
After the evidence was presented, the trial judge denied

defense counsel's motion for a required finding of not guilty of

the count of trafficking of a person for sexual servitude. The

jury then deliberated, after which it delivered a verdict

finding the defendant guilty of trafficking of a person for

sexual servitude, distribution of a class D substance, and

possession of a class D substance with intent to distribute.

Discussion. 1. Denial of motion to suppress. The

defendant argues that the motion judge erred in denying the

motion to suppress the evidence found in room 216 and the

victim's statements therein. In reviewing a ruling on a motion

to suppress evidence, we accept the judge's findings of fact

absent clear error and defer to the judge's assessment of the

credibility of the testimony taken at the evidentiary hearing.

Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We review de

novo the application of constitutional principles to the facts

as found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

a. Key card. The defendant contends that, even if the

search of his person after his arrest and the discovery of the

Red Roof Inn key card was lawful, the seizure and subsequent

investigative use of the key card was not. Our caselaw holds

that an object discovered in a search incident to a lawful

arrest can be seized and used for investigatory purposes if it

is related to the offense for which the defendant was arrested,

5
Commonwealth v. Blevines, 438 Mass. 604, 607-608 (2003), or if

it is related to an offense in which law enforcement officers

have a reasonable suspicion that the defendant is involved.

Commonwealth v. Barbosa, 92 Mass. App. Ct. 587, 592 (2018). In

this case, the police could reasonably have inferred from

conversation with the defendant that he may have been keeping a

woman or women at the nearby Red Roof Inn for the purposes of

prostitution. In this case, the information known to the police

thus provided reasonable suspicion that the Red Roof Inn key

card was related to the crime of human trafficking. Its use for

investigatory purposes thus was permissible.

b. Consent to enter room 216. The defendant also alleges

that police unlawfully entered room 216, leading to the

discovery of physical evidence in the room (the scale with

residue of BHO and the BHO in the refrigerator) and the

discovery of the victim, who then made statements to the police

officers. The defendant argues that this warrantless entry was

unlawful because, although the victim allowed the officers into

the room, she did not have the authority to consent to the

officers' entry, nor was the mere act of letting the officers

into the room sufficient to constitute consent. We disagree.

Entry into a hotel room is a search for purposes of both

the Fourth Amendment to the United States Constitution and art.

14 of the Massachusetts Declaration of Rights. Commonwealth v.

6
Lopez, 458 Mass. 383, 389 (2010). Because it is deemed their

"home," an occupant of a hotel room has a reasonable expectation

of privacy in that room, Commonwealth v. Molina, 459 Mass. 819,

825 (2011), and thus is protected from warrantless entries into

the room unless there is probable cause and an exception to the

warrant requirement. See Commonwealth v. Rogers, 444 Mass. 234,

236 (2005). In addition, where there is consent, there is no

need for probable cause or a warrant. Lopez, supra at 391.

Even if the primary occupant does not consent to a search, a

third party may provide consent. This can happen if the third

party has "actual authority" or "apparent authority." Actual

authority is possessed not only by the property owner, but by a

"third party possessing 'common authority over or other

sufficient relationship to the premises or effects sought to be

inspected.' United States v. Matlock, 415 U.S. 164, 171 (1974).

See Commonwealth v. Porter P., 456 Mass. 254, 262 (2010), and

cases cited. Common authority is 'mutual use of the property by

persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the

co-inhabitants has the right to permit the inspection in his own

right and that the others have assumed the risk that one of

their number might permit the common area to be searched.'

United States v. Matlock, supra at 171 n.7." Lopez, supra at

392.

7
In this case, because the victim, despite not being listed

on the room registration, was staying with the defendant in room

216, as the evidence credited by the motion judge demonstrated,

she was a coinhabitant with actual authority to consent to the

officers' entry into the room.

The defendant argues that the officers did not know that

the victim was a coinhabitant until after they had entered the

room, and so should have inquired before entry as to the

victim's ability to consent. The defendant misstates the law.

Diligent inquiry into the individual's authority is a

requirement in cases of an individual having only apparent

authority to consent. See Porter P., 456 Mass. at 271-272. But

it is not required when an individual has actual authority to

consent. See id. If, for example, I consent to an entry into

my own house, it is not unlawful because the police only

discover later that I am, in fact, the owner and resident of the

house. If I had authority to consent, the consent is valid.

That is the case here.

Finally, the defendant argues that even if the victim had

the authority to consent to the officers' entry, she did not

explicitly and voluntarily consent. To justify a warrantless

search based on consent, the Commonwealth "has the burden of

proving that the consent was, in fact, freely and voluntarily

given" (citation omitted). Commonwealth v. Rogers, 444 Mass. at

8
237. Consent may be communicated through "words or conduct,"

and may also be "implicit." Id. at 237-238. "Because a finding

of voluntariness is a question of fact, it should not be

reversed absent clear error by the judge." Commonwealth v.

Carr, 458 Mass. 295, 303 (2010).

The defendant is correct that none of the officers asked

the victim to sign a consent to search form, but that is not

necessary for voluntary consent. Indeed, consent has been found

to be voluntarily given when an occupant of an apartment, who

knew that the individuals at the door were police officers,

"freely stepped aside allowing them to enter." Commonwealth v.

Hill, 57 Mass. App. Ct. 240, 244 (2003). In this case, the

victim knew she was speaking to police officers, as she could

see their police badges and they identified themselves as

police. The officers then asked for permission to enter the

room, and the victim invited the officers in. The facts

presented in the record show the victim's voluntary consent to

the officers' entry into the hotel room. As the entry into the

hotel room was lawful, that entry provides no basis for a

conclusion that the evidence obtained from the room or the

statements to the officers were unlawfully acquired. The

defendant makes no separate argument that the victim lacked

authority or failed to consent to the search of the refrigerator

in the room.

9
2. Jury selection. The defendant claims next that his

constitutional right to an impartial jury was violated when the

trial judge denied his for-cause challenges to two jurors. The

defendant is entitled to a trial by an impartial jury. See

Commonwealth v. Williams, 481 Mass. 443, 447 (2019). This right

means that if even one juror is not impartial, the convictions

must be reversed. Commonwealth v. Long, 419 Mass. 798, 802,

804-805 (1995). A judge may rely on a prospective juror's

representation that the juror is impartial unless there is

"solid evidence of a distinct bias." Commonwealth v. Bryant,

447 Mass. 494, 500 (2006), quoting Commonwealth v. Leahy, 445

Mass. 481, 499 (2005). We review the judge's decision regarding

a determination that a juror stands indifferent for abuse of

discretion, and that determination "will not be disturbed except

where juror prejudice is manifest." Commonwealth v. Clark, 446

Mass. 620, 629-630 (2006).

The defendant argues that the trial judge's failure to

strike juror 5 for cause was error, in light of statements made

by the juror during voir dire. Because the judge denied the

motion to strike juror 5 for cause, the defendant exercised a

peremptory strike, and she was excused.

Juror 5 indicated that she had experienced multiple

assaults in the past, which resulted in at least one criminal

prosecution, and that she continued to have symptoms related to

10
those experiences. When asked if she had "an opinion as to

whether the court system is fair to women who have been in some

way involved in" cases of a sexual nature, the juror responded,

"Historically, no, they haven't." When asked to explain, she

stated, "the way the law over the years have [sic] treated women

who report rape or sexual assault it's completely unfair. I

mean, they accuse the victim, there's victim blaming, it's the

way society's set up."

The trial judge properly asked juror 5 further questions,

seeking to clarify whether the juror would be able to be

impartial in deciding this case. See Clark, 446 Mass. at 630

(ambiguous response requires further questioning). Pursuant to

these questions, juror 5 stated that neither her prior

experiences of assault nor her beliefs about the criminal

justice system's historical treatment of sexual assault

allegations would impact her ability to be fair and impartial in

deciding this case. Although the juror had implied that her

answer might be different if the case involved violence, the

judge found that the juror's distinction between sexual matters

and violent matters rendered her indifferent as to this case,

because the facts of this case did not involve any allegations

of force. The juror also stated herself that this was "not a

case of violence," so she did not "think it [was] going to be a

problem."

11
The judge found that she stood indifferent. The defendant

moved to strike her for cause on the basis of her assaults and

her answers about the fairness of the court system. The judge,

who then engaged in further voir dire with the juror, denied the

motion.

On appeal, the defendant argues that the failure to strike

the juror for cause was error. In light of his inquiry of the

prospective juror, the judge's conclusion that she stood

indifferent was not error, and his denial of the motion was not

an abuse of discretion.

For the first time on appeal, the defendant argues that

another answer of the prospective juror required she be struck

for cause. Defense counsel also asked the juror if she had

"ever had any experience with an African-American person that

left [her] feeling uncomfortable," and she replied, "In an

assault, yes." She had previously testified that it would make

no difference to her in evaluating credibility whether a witness

was white or African-American.

This statement by the juror that she was left to feel

uncomfortable by an African-American man who had assaulted her

requires close scrutiny. Given the precise question asked, this

statement provided no information about potential racial bias.

The question did not ask whether the "discomfort" was race-

based. Nor was she asked anything about whether the experience

12
had affected her view of African-American people generally. She

was apparently assaulted more than once, and one assault

involved an African-American man. One can be assaulted by a

person of any race, and one does not automatically become racist

against people of that race. In the absence of any evidence

that she drew some negative inference about African-Americans

due to this incident, the judge was not required sua sponte to

strike the prospective juror.

The defendant also argues that juror 72 should have been

struck for cause, as she expressed a belief that a person who

has been arrested is more likely than not guilty. Once again,

the trial judge intervened to clarify, informing the juror that

she was not permitted to draw an inference from the fact of an

arrest, and that the Commonwealth bears the burden of proving

the charges beyond a reasonable doubt. The juror then stated

that she would be able to "follow the law in that regard," and

that it would not be difficult for her to do so. Because the

juror indicated unequivocally that she could follow the law, the

judge did not err in finding her indifferent.

When the judge did not strike juror 72 for cause, the

defendant requested an additional peremptory challenge, as he

did not have any more available. While a judge "may, as a

matter of discretion, allow motions for additional challenges,"

Commonwealth v. McCoy, 456 Mass. 838, 841 (2010), the judge was

13
not required to grant the defendant additional peremptory

challenges at his request. The defendant claims that the judge

denied the request because extra jurors were not being seated.

Although the judge did state, in her denial of the defendant's

request, that she was not seating extra jurors, a judge is not

required to provide extra peremptory challenges where the

defendant has not demonstrated "a concrete need for additional

challenges." Id. Furthermore, "prejudice generally is shown by

the use of a peremptory challenge to remove the juror who

allegedly should have been excused for cause together with

evidence that the defendant later was forced to accept a juror

he would have challenged peremptorily but was unable to because

his peremptory challenges had been exhausted." Id. at 842. As

we have found that the judge was not required to strike juror 5

for cause, we see no abuse of discretion in her refusing the

defendant's request for additional peremptory challenges.

3. Trial exhibits. The defendant next contends that

several exhibits were improperly admitted. He claims that

exhibits 1 and 20-30 were improperly authenticated; exhibits 25,

27, and 28 constituted impermissible hearsay; and exhibit 27A

was never submitted to the jury. Trial counsel objected to the

introduction of exhibits 1 and 30, but did not object to the

authentication of exhibits 20-29. We review the defendant's

preserved claims for prejudicial error to determine whether such

14
error, if any, "did not influence the jury, or had but a very

slight effect" (citation omitted). Commonwealth v. Tate, 486

Mass. 663, 669 (2021). We review the defendant's unpreserved

claims for a substantial risk of a miscarriage of justice.

Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 757 n.6 (2016).

We do not find any reversible error regarding the admission of

the trial exhibits.

a. Authentication. "Before a communication may be

admitted in evidence, the judge must make a determination

regarding its authenticity; that is, the judge must determine

whether there exists sufficient evidence that, if believed, a

reasonable jury could find by a preponderance of the evidence

that the communication in question is what it is purported to

be." Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). The

judge does not determine that the evidence is what it is claimed

to be, but rather only determines whether there is sufficient

evidence to support a finding by the trier of fact that the

evidence is what is claimed.

The defendant challenges the authentication of exhibits 1

and 20-30, arguing that the Commonwealth did not present a

certification or keeper of the records affidavit, or offer the

testimony of anyone with personal knowledge as to the creation

of the records. Regarding exhibit 1, the victim testified that

it was the advertisement to which she responded and through

15
which she met the defendant, and Sergeant McManus testified that

it was an advertisement from Backpage.com that he saw while in

the hotel room with the victim. We find that the victim's and

Sergeant McManus' testimony were sufficient to support a finding

by a preponderance of the evidence that exhibit 1 was in fact a

Backpage.com advertisement posted by the defendant to which the

victim responded. Exhibits 20-30 all came from the defendant's

phone or phone company, and Sergeant McManus testified to how

each was obtained and how they related to the defendant's phone.

We find that a jury could reasonably have believed his testimony

that the phone records were taken from the defendant's phone and

phone company. In any event, there was certainly not a

substantial risk of a miscarriage of justice from their

admission.

b. Hearsay. The defendant argues that exhibits 25, 27,

and 28 constituted inadmissible hearsay. Exhibit 25 contains a

text message log from the defendant's phone, which includes text

messages sent between the defendant's phone and a phone number

that the victim testified was hers. The text message log itself

is a computer-generated record from the extraction of the

defendant's cell phone and is therefore not hearsay.

Commonwealth v. Woollam, 478 Mass. 493, 498 (2017), cert.

denied, 138 S. Ct. 1579 (2018) ("call logs constitute computer-

generated records . . . which are generated solely by electrical

16
or mechanical operation of computer," and so "do not contain a

statement from a person, and therefore, . . . do not raise

hearsay concerns"). The messages contained in the log that were

sent from the defendant's phone were properly admitted as

admissions of a party opponent, but the defendant objected at

trial to the admission of the messages purportedly sent by the

victim. The Commonwealth argued, and the trial judge concluded,

that the messages were not presented for the truth of the matter

asserted. Rather, the Commonwealth stated that the messages

were presented merely to show that the victim and the defendant

communicated in a way consistent with her testimony, as the

victim had testified that when she was in the hotel room with a

customer, the defendant would wait outside the room and

communicate with her through text messages. The trial judge did

redact certain messages, the hearsay content of which she

determined the jury would not be able to ignore, and she offered

to provide a limiting instruction. We agree with the trial

judge's ruling that the messages from the victim that were

admitted as evidence were not hearsay as they were not offered

to prove the truth of the matter asserted. Additionally, the

messages were important to provide context to the messages sent

from the defendant's phone. Commonwealth v. Kozubal, 488 Mass.

575, 585 (2021) (text messages from defendant admissible as

statements of party opponent; text messages from victim

17
admissible "to provide important context for the defendant's

text messages").

The defendant also challenges the admission of exhibits 27

and 28, which consist, respectively, of a message sent through

the "Kik Messenger" cell phone application, purportedly sent

from the defendant's phone, and an image attached to that

message. The defendant argues that Sergeant McManus was not

qualified to opine as to whether they were in fact sent from the

defendant's phone, so they are hearsay. Sergeant McManus

testified that, when data was downloaded from the defendant's

phone, he was able to view what accounts were associated with

the applications on the phone. He testified that the message

shown in exhibit 27 was obtained from the defendant's phone, and

that exhibit 27A shows that the message was sent from the Kik

username associated with the defendant's phone. We do not find

that the trial judge abused her discretion in finding that the

message and attached photograph were sent by the defendant, and

therefore not hearsay.

c. Failure to submit. The defendant next notes that

although Sergeant McManus testified regarding exhibit 27A, the

exhibit itself was never actually submitted to the jury. The

defendant moved for a mistrial when this was discovered, which

the trial judge denied, stating that "Exhibit 27A was merely

corroborative of testimony that was introduced through the

18
witness directly," and pointing out that exhibit 27A was not

exculpatory. We agree with the trial judge's conclusion.

Sergeant McManus testified accurately regarding the contents of

exhibit 27A, which showed that the Kik message from exhibit 27

was sent from the Kik username associated with the defendant's

phone, consistent with the user account information from exhibit

26. The defendant argues that because exhibit 27A was never

submitted, the jury had to accept Sergeant McManus' testimony.

Assuming that is true, however, because exhibit 27A would have

revealed that Sergeant McManus' testimony was accurate as to its

contents, any error in failing to submit the exhibit was

harmless.

4. Sufficiency of the evidence. The defendant argues that

the evidence presented by the Commonwealth was insufficient to

support the jury's verdict convicting him of the drug offenses

and the trafficking offense. In reviewing a sufficiency of the

evidence claim, we must view the evidence in the light most

favorable to the Commonwealth and consider whether any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). We find that a trier of fact could

have found the defendant guilty of all three offenses.

a. Drug offenses. The defendant was found guilty of

distribution of a class D substance and possession of a class D

19
substance with intent to distribute. The defendant argues that

for a conviction of those offenses to be permissible, the

Commonwealth was required to show what the substances

specifically were, in this case, BHO. However, there is no

statute criminalizing possession or distribution of "butane

honey oil"; rather, G. L. c. 94C, § 31, includes marijuana and

substances containing marijuana within the category of class D

controlled substances. According to the testimony of a forensic

scientist with the Massachusetts State Police Crime Laboratory,

the substance the defendant sold to Lieutenant Sullivan and the

substance found in the refrigerator in room 216 at the Red Roof

Inn both contained the resin of marijuana, which is a class D

substance. 1 Based on this evidence, viewed in the light most

favorable to the Commonwealth, we find that the evidence was

sufficient for a rational trier of fact to find that the

defendant possessed and distributed a class D substance.

The defendant also argues that, because the defendant

possessed and distributed BHO, not "typically possessed

marijuana plant buds," he could not properly be convicted of

possession and distribution of a class D substance, as BHO

1 The transcript from the trial shows that the forensic scientist
testified that the resin of marijuana is a "class B controlled
substance." However, the Commonwealth submitted, and the
defendant assented to, a motion to correct the transcript, as
the recording of the trial reflected that the testimony actually
referred to class D, not class B.

20
contains tetrahydrocannabinol (THC), which is a class C

substance. G. L. c. 94C, § 31. According to the forensic

scientist's testimony, both of the substances were a resin of

marijuana, and THC was present in both. General Laws c. 94C,

§ 1, defines "tetrahydrocannabinol" to include marijuana with a

concentration of delta-9 tetrahydrocannabinol of more than two

and one-half percent. As such, it is possible for a controlled

substance to fall into both class C and class D categories. See

Hensley v. Attorney Gen., 474 Mass. 651, 662 (2017). For that

reason, the defendant's argument that BHO is a class C, but not

class D, substance is unavailing.

b. Trafficking of a person for sexual servitude. The

defendant argues that he could not properly be convicted of

trafficking of a person for sexual servitude because, according

to him, the only properly-admitted evidence was the victim's

testimony, which was given pursuant to a grant of immunity and

thus required corroboration. G. L. c. 233, § 20I. At trial,

the victim testified that she had responded to an advertisement

on Backpage.com, through which she scheduled a meeting with a

person who turned out to be the defendant. The victim's

understanding was that she would work for the defendant and go

on "dates" with customers. The defendant brought her to the Red

Roof Inn, paid for a room, and, once in the room, took

photographs of her body. The defendant then posted the

21
photographs on Backpage.com as an advertisement. The victim

stayed at the hotel for several nights, during which time she

had sexual intercourse with at least four customers. When the

victim was in the room with a customer, the defendant would wait

outside the room, communicating with her through text messages.

After a customer paid her and left, the victim gave the money to

the defendant.

As discussed above, the exhibits challenged by the

defendant were properly admitted, so the victim's testimony was

properly corroborated, and therefore there was sufficient

evidence to convict him of the trafficking offense.

5. Jury instructions. The defendant challenges several of

the jury instructions. However, the defendant's trial counsel

did not timely object to any of the instructions now challenged,

so we review for a substantial risk of a miscarriage of justice,

Commonwealth v. Kelly, 470 Mass. 682, 697 (2015), which we do

not find.

a. Drug offenses. First, the defendant challenges the

judge's instruction that, in determining the element of intent

to distribute, the jury should consider several factors,

including what the defendant's financial resources were. We do

not find that this jury instruction resulted in a substantial

risk of a miscarriage of justice where the factor was included

in a list of several other factors and there was strong evidence

22
the defendant had also distributed the substance to an

undercover police officer.

Second, the defendant contends that the judge erred in not

instructing the jury that the Commonwealth was required to prove

beyond a reasonable doubt that the substances found were BHO.

As discussed above, there is no such requirement, as the

Commonwealth had only to prove that the substances found were

class D substances. See G. L. c. 94C, §§ 31, 32C.

Third, the defendant claims that the judge erred in

instructing the jury that, as a matter of law, the category of

class D substances includes any substance that contains

marijuana because, according to the defendant, BHO is not a

class D substance. As discussed above, the Commonwealth

presented testimony that the substances seized from the

defendant were resin of marijuana, which falls within the class

D category. G. L. c. 94C, § 31.

Fourth, the defendant argues that the judge should have

instructed the jury about another statute which prohibits

prosecution or punishment for the transfer of less than one

ounce of marijuana to a person over the age of twenty-one, as

long as the transfer was not for remuneration and was not

advertised to the public. G. L. c. 94G, § 7 (a) (4). The

defendant did not request any such instruction, and as all the

evidence in this case indicates that this was not a

23
noncommercial and unadvertised transfer of marijuana, we see no

substantial risk of a miscarriage of justice in the failure to

give any instruction regarding this statute.

b. Trafficking of a person for sexual servitude. The

defendant next challenges the judge's instruction regarding the

elements of the trafficking offense, arguing that the judge did

not clearly convey that the jury would have to find that the

victim actually engaged in commercial sexual activity in order

to find the defendant guilty. The defendant is correct that, to

find someone guilty of the offense of trafficking of a person

for sexual servitude, the Commonwealth must prove that "a

defendant (1) knowingly (2) 'enabled or caused,' by one of the

statutorily enumerated means, (3) another person (4) to engage

in commercial sexual activity." Commonwealth v. Fan, 490 Mass.

433, 448 (2022), citing Commonwealth v. McGhee, 472 Mass. 405,

418 (2015). While the judge's instruction 2 could be interpreted

to mean that the defendant could be found guilty even if the

victim did not engage in commercial sexual activity, it could

2 The judge instructed the jury as follows: "In order to prove
the defendant guilty of this offense, the Commonwealth must
prove . . . beyond a reasonable doubt . . . that the defendant
subjected, recruited, enticed, harbored, transported, provided
or obtained by any means another person -- in this case, [the
victim] -- to engage in commercial sexual activity, or that the
defendant benefitted financially or by receiving anything of
value as a result of said activity, and that the defendant did
so knowingly."

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also be interpreted to mean, correctly, that the victim must

have actually engaged in commercial sexual activity in order for

the defendant to be found guilty. Given the evidence submitted

to the jury, we do not find that there exists a substantial risk

of miscarriage of justice that the jury misinterpreted this one

facet of the jury instructions (the risk that the defendant was

convicted for "subject[ing], recruit[ing], entic[ing],

harbor[ing], transport[ing], provid[ing] or obtain[ing] by any

means [the victim] to engage in commercial sexual activity,"

which then never took place).

The defendant's final challenge relates to evidence

admitted as business records. To the extent that any of the

admissible hearsay was admitted under the business records

exception, the defendant argues that, where such evidence is the

sole basis for a conviction, that evidence must be found by the

jury beyond a reasonable doubt to be within the business records

exception rather than, as the jury were instructed without

objection, by a preponderance of the evidence. Since there is,

of course, a great deal of additional evidence supporting the

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defendant's convictions, on its merits, this argument is

insubstantial.

Judgments affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ. 3),

Clerk

Entered: December 22, 2023.

3 The panelists are listed in order of seniority.

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