Com. v. Rivera

• Decision Date: 31 December 1991
• Docket Number: No. 90-P-1006,90-P-1006
• Citation: 581 N.E.2d 498,31 Mass.App.Ct. 554
• Parties: COMMONWEALTH v. Maria RIVERA.
• Court: Appeals Court of Massachusetts

Page 498

581 N.E.2d 498

31 Mass.App.Ct. 554

COMMONWEALTH v. Maria RIVERA.

No. 90-P-1006.

Appeals Court of Massachusetts Worcester.

Argued Oct. 8, 1991.

Decided Nov. 19, 1991.

Further Appellate Review

Denied Dec. 31, 1991.

James B. Krasnoo, Boston, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for Com.

Before BROWN, FINE and JACOBS, JJ.

FINE, Justice.

After a jury trial in the Superior Court, the defendant was convicted pursuant to G.L. c. 94C, § 32E(b )(1), of possessing, with intent to distribute, a quantity of cocaine (between fourteen and twenty-eight grams) sufficient to constitute the crime of trafficking. Her sole contention on appeal is that there was insufficient evidence of either her possession of the drugs or her intent to distribute them to sustain the verdict. As each such prosecution turns on its own singular facts, see Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984); Commonwealth v. Arias, 29 Mass.App.Ct. 613, 619, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991), we have examined the evidence closely, viewing it in a light most favorable to the Commonwealth, to determine whether a rational jury could find the requisite possession and intent beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). We conclude that there was sufficient evidence to support a finding that the defendant possessed a small quantity of cocaine (.5 gram) with intent to distribute it, but that she was not adequately linked to a major portion of the drugs introduced against her. Thus, we affirm her conviction only of the lesser included offense, under G.L. c. 94C, § 32A, of possession of cocaine with intent to distribute it.

The jury heard the following evidence. Authorized by a search warrant, officers of the narcotics unit of the State police, along with Worcester police officers, conducted a late afternoon search of a two bedroom apartment on Boylston Street in Worcester. When the police arrived on the premises, the defendant was in the kitchen. Two men, Ismael Cruz and Luis Garcia, were in the smaller of the two bedrooms. Ignacio Lebron, to whom the apartment was leased, was not at home.

Found in various locations throughout the apartment were a quantity of drugs and other objects and substances which, according to the testimony of officers experienced in narcotics work, are commonly used in the business of selling drugs. In the smaller of the two bedrooms, the police found a total of 25.3 grams of 81 per cent pure cocaine. The cocaine was found inside a zip-lock bag in a dresser drawer and two plastic bags in the pocket of a jacket hanging in a closet. Hidden under a mattress they found a metric scale. Garcia had been present in the small bedroom when the police arrived, and on his person they found an electronic pager. In the larger bedroom, the police found .5 gram of cocaine, also 81 per cent pure. It was inside a film canister in a suitcase near the closet. Inside drawers of a desk they found a strainer (part of a grinder used for cutting cocaine), a zip-lock bag containing traces of cocaine, and a paper with notations, described by the police as a drug code. On top of the desk, the police found a radio scanner and a note listing law enforcement frequencies. A jar of procaine crystal, known to be used to dilute cocaine, was found in an alcove. In the kitchen they found an electric beeper and a plastic strainer, also part of a grinder and interchangeable with the strainer found in the larger bedroom.

The defendant admitted to the police and at trial that she often stayed with Lebron, her boyfriend, in the larger bedroom. She stated that she had stayed there without Lebron the night before the search. Her name, along with Lebron's, was on the mailbox. Telephone and cable television bills in her name were found in the desk in the larger bedroom along with her personal papers and letters. The closet contained both male and female clothing. She admitted to the police and at trial that she had washed dishes in the kitchen the preceding night. None of her possessions were found in the smaller bedroom, however, and no witness ever placed her inside that bedroom. Cruz, on the other hand, admitted that the room was his bedroom and that the drugs in the dresser, and the jacket in which other drugs were found, were his. His personal papers were found in the room, and the closet in that room contained only men's clothing. There was no evidence of any familial or other relationship between the defendant and either Cruz or Garcia.

1. Possession of drugs in the larger bedroom. One's possession of an object depends upon a finding of his ability and intention to exercise dominion and control over it. See Commonwealth v. Arias, 29 Mass.App.Ct. at 618, 563 N.E.2d 1379. Possession may be constructive; it need not be exclusive; and it may be proved by circumstantial evidence. See Commonwealth v. Dinnall, 366 Mass. 165, 168-169, 314 N.E.2d 903 (1974).

There was ample circumstantial evidence, apart from the defendant's presence in the apartment when the search warrant was executed, to support an inference that she lived there and occupied the larger bedroom with Lebron. Her belongings were in various locations throughout the room, including the closet in which the canister containing .5 gram of cocaine was found. In these circumstances, the jury could reasonably infer that she was in constructive possession, jointly with Lebron, of the...