Com. v. Gonzales
| Decision Date | 08 February 1993 |
| Docket Number | No. 91-P-1200,91-P-1200 |
| Citation | 33 Mass.App.Ct. 728,604 N.E.2d 1317 |
| Parties | COMMONWEALTH v. Ignacio GONZALES, Jr. |
| Court | Appeals Court of Massachusetts |
Eric Brandt, Committee for Public Counsel Services, Boston, for defendant.
Michael A. Uhlarik, Asst. Dist. Atty., for the Com.
Before BROWN, SMITH and GREENBERG, JJ.
A jury convicted the defendant on indictments charging him with unlawful possession of heroin with intent to distribute (G.L. c. 94C, § 32), and unlawful possession of heroin with intent to distribute while within 1,000 feet of real property comprising a public or private elementary, vocational, or secondary school (G.L. c. 94C, § 32J) (the school zone statute).
On appeal, the defendant claims that (1) the evidence was insufficient to permit a finding that the defendant violated the school zone statute because the Commonwealth made no showing that the school in question was within the scope of the statute, (2) the judge's instructions on the charge of possession in a school zone with intent to distribute inadequately defined the offense because they failed to require a finding that the school was within the scope of the statute, and (3) the evidence was insufficient to permit a finding that the defendant intended to distribute heroin.
1. The evidence concerning the alleged violation of the school zone statute. General Laws c. 94C, § 32J, as inserted by St.1989, c. 227, § 2, provides in relevant part as follows:
"Any person who violates the provisions of section thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F or thirty-two I while in or on, or within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school whether or not in session shall be punished by [penalties as specified]...."
The Commonwealth presented evidence that on January 27, 1990, while executing a search warrant, the police searched the defendant and found ten glassine packets containing heroin. The distance between the place where the defendant was arrested and a nearby school was 606 feet. That school was identified as "Worcester Academy." There was no evidence that the school was an "elementary, vocational, or secondary school."
The defendant filed a motion for a required finding of not guilty. Although in his motion the defendant did not argue that the school was not adequately defined, Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), provides that a judge "shall enter a finding of not guilty" on his own motion wherever "the evidence is insufficient as a matter of law." Further, insufficient evidence presents a situation which is "inherently serious enough to create a substantial risk of a miscarriage of justice." Commonwealth v. McGovern, 397 Mass. 863, 867-868, 494 N.E.2d 1298 (1986).
The language of the statute is unequivocal and, therefore, "the Legislature must be presumed to have intended to limit the application of the statute to the [types of schools] specifically enumerated." Commonwealth v. Domaingue, 397 Mass. 693, 697, 493 N.E.2d 841 (1986). See County of Middlesex v. Newton, 13 Mass.App.Ct. 538, 542, 434 N.E.2d 1297 (1982) (). See also 2A Singer, Sutherland Statutory Construction § 47.24, at 203 (Sands 4th ed. 1984) ( that the maxim is based on the premise that generally "when people say one thing they do not mean something else"). If one applies these guides to construction, the statute does not apply to all schools but only to "public or private elementary, vocational, or secondary school[s]." Therefore, in a prosecution pursuant to G.L. c. 94C, § 32J, the Commonwealth is required to produce sufficient evidence to establish that the school is one of the types enumerated in the statute. 1
Here, testimony only as to the name of the school ("Worcester Academy") does not give any indication whether the school falls within one of the statutory categories and, therefore, does not satisfy the Commonwealth's burden of proving this element beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). Accordingly, the defendant's conviction on the school zone charge is reversed, and judgment is to be entered for the defendant.
2. The sufficiency of the evidence concerning the possession with intent to distribute indictment. The defendant argues that the judge erred in denying his motion for a required finding of not guilty. He claims that the Commonwealth did not introduce sufficient evidence for a rational jury to find, beyond a reasonable doubt, that the defendant was guilty of possession of heroin with intent to distribute,...
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