Com. v. Pena, 94-P-2104
| Decision Date | 21 February 1996 |
| Docket Number | No. 94-P-2104,94-P-2104 |
| Citation | 661 N.E.2d 119,40 Mass.App.Ct. 905 |
| Parties | COMMONWEALTH v. Ulysses PENA. |
| Court | Appeals Court of Massachusetts |
Patrick J. Dougherty, for defendant.
Nicole M. Procida, Salem (Katherine E. McMahon, Assistant District Attorney, with her) for Com.
RESCRIPT.
A District Court jury found the defendant guilty of possession of a Class D substance (marihuana) with intent to distribute in violation of G.L. c. 94C, § 32C, and of possession of a Class D substance (marihuana) with intent to distribute within 1,000 feet of a school zone in violation of G.L. c. 94C, § 32J. On appeal, he claims that it was error to deny his motion for a required finding of not guilty because there was insufficient evidence of his intent to distribute. 1 We affirm the convictions.
Police saw the defendant, in a group of young men, holding a bag of what appeared to be a green, herb-like material. He hid the bag in his pants after seeing the police. When approached by the police, the defendant fled and threw down the bag which was later found to contain six smaller or "dime" bags of marihuana. A search of the defendant yielded $61.11 and a beeper. Police officers testified that the defendant's actions were consistent with drug distribution, that the packaging of the marihuana into "dime" bags was indicative of distribution, and that the area where the defendant was arrested had a high incidence of drug dealing.
This case is controlled in all material respects by Commonwealth v. Clermy, 421 Mass. 325, 656 N.E.2d 1253 (1995). In Clermy, the Supreme Judicial Court ruled that the Commonwealth had presented sufficient evidence of intent to distribute. Id. at 331, 656 N.E.2d 1253. There, as here, the defendant was arrested in an area where there had been a high incidence of drug dealing, id. at 330, 656 N.E.2d 1253, and Commonwealth v. Clermy, 421 Mass. at 331, 656 N.E.2d 1253,...
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