Commonwealth v. Ormond O.

• Citation: 92 Mass.App.Ct. 233,84 N.E.3d 915
• Decision Date: 18 September 2017
• Docket Number: No. 16-P-840.,16-P-840.
• Parties: COMMONWEALTH v. ORMOND O., a Juvenile.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 233

84 N.E.3d 915

COMMONWEALTH

v.ORMOND O., a Juvenile.

No. 16-P-840.

Appeals Court of Massachusetts, Norfolk..

Argued February 7, 2017

Decided September 18, 2017

Frank H. Spillane for the juvenile.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Present: Green, Meade, & Agnes, JJ.

MEADE, J.

After a jury trial in the Juvenile Court, the juvenile was found delinquent by reason of possession of cocaine, in violation of G.L.c. 94C, § 34.¹ The judge imposed a sentence of six months of probation. On appeal, the juvenile claims there was insufficient evidence to support his conviction. We affirm.

1. Background.² On April 4, 2015, Quincy police Detective Dennis Keenan was patrolling the "South Quincy/Penn Hill" area

of Quincy in plain clothes and in an unmarked cruiser. Detective Keenan, a seven-year drug control unit veteran who had been involved in more than one thousand drug cases, had made arrests in that area. Around 5:45 P.M. , Keenan witnessed Tyler Mauritson exit a blue Infiniti motor vehicle, registered to a Brockton woman, that was parked in front of 35 Nicholl Street, which is Mauritson's home. Keenan, who was familiar with Mauritson, watched as Mauritson entered his residence.

The Infiniti drove away and turned left onto Franklin Street, traveling into Braintree. The detective followed the car as it went left onto Hayward Street and then right onto Quincy Avenue, traveling south. While Keenan followed the Infiniti, he contacted Detective Michael Duran and requested that he speak to Mauritson and provide Keenan with an update.

The Infiniti turned onto the Arborway, which is a residential way that ends at the Fore River with side streets that lead back to Quincy Avenue. Once the vehicle was on the Arborway, it began to slow down before it turned into a driveway located ten to fifteen houses down the street. The car then backed up, turned around, and traveled back on the same route it had just driven. While this was occurring, Keenan "tucked" his unmarked cruiser onto a side street to remain undetected. Keenan was aware of counter surveillance methods by which a suspect, who is being surveilled for illegal narcotics activity, employs certain driving tactics to determine if the police are following him. Such tactics include the suspect pulling the car over and watching how many cars go by and in which direction they proceed, or driving around a rotary without exiting to monitor any cars that similarly follow.

As the Infiniti passed by Keenan, he noticed that the front passenger window was open and that there was both an operator and a front seat passenger. The detective could not see if there were back seat passengers because the windows were tinted and closed. The car continued back up the Arborway, back onto Quincy Avenue, then back onto Hayward Street on the same route it had just followed. The vehicle did not go back to Franklin Street; instead, it continued toward Elm Street, which leads toward a highway on-ramp. Keenan found it significant that the Infiniti had stopped, reversed direction, and then continued toward the same place from where it had started.

After Detective Duran provided Keenan with an update on his conversation with Mauritson, Keenan contacted the Braintree police to request assistance in stopping the Infiniti. When a Braintree police officer pulled his car behind the Infiniti and activated its siren, the Infiniti did not stop immediately, but turned right and traveled "a very short distance and stopped." When the car stopped, Keenan approached the passenger's side, while the Braintree police officer approached the driver. The driver was identified as Kevin Cardoza, and the front seat passenger was identified as the juvenile. Through the open back passenger's side window, Keenan saw Louis Andrade, the back seat passenger, take his right hand and place it on the floor. Keenan considered this movement "suspicious" and "significant," and he feared that Andrade might be retrieving a weapon. Keenan grabbed Andrade's hand and pinned it to the floor, then raised it up and told Andrade to keep his hands in the air.

Andrade was removed from the back seat of the Infiniti. As he was removed, Keenan saw a small bag on the seat where Andrade had been sitting. That bag contained seven individually packaged bags of cocaine. The other occupants were also removed from the vehicle.

After Andrade had been handcuffed, Detective Keenan went back to the area of the car where Andrade had put his hand on the floor and Keenan "could see right in front of [him] ... a larger plastic bag" that contained twenty-three individually packaged bags of cocaine and that weighed forty-four grams. Keenan thought Andrade's earlier hand movement to the car's floor was consistent with Andrade removing the cocaine from his person and putting it on the floor. Other than the front seat itself, no barrier separated the juvenile from the back seat area where the larger bag of cocaine was discovered.

From the car's occupants, the police also seized three knives, one from each suspect; seven cellular telephones (cell phones); and approximately $2,000, divided among the three occupants. The money was separated into "different folds" and denominations. Cardoza possessed the majority of the money, the juvenile had $294, and sixty-five dollars were either in Andrade's possession or in the glove compartment.

No narcotics were found on the juvenile's person or in the front seat area where he had been sitting, but he did possess one of the cell phones and a knife. When asked on cross-examination whether the juvenile "appear[ed] to have any control over" the cocaine, Keenan replied that "[h]e did not, nope."

Based on his training and experience, Detective Keenan explained that multiple cell phones are often used in the distribution of narcotics. Narcotics dealers keep both a personal phone and a phone for their illicit transactions. Phones are often "switched out" after a couple of weeks or months "if a person selling narcotics is nervous that maybe the police are on to them or their phone, ... they dump it, and they get a new phone and a new number. So they're constantly changing. But ... their own personal phone usually stays the same, and that's why ... sometimes we do recover more than one cell phone off a single person."

Keenan also testified that large sums of money, in different folds and denominations, often signifies drug distribution. He explained that this is because "a lot of times these deals happen this quick," and "[t]he drugs go in one, the money goes in your pocket, and if you were buying a $40 bag of narcotics, you could have two 20s or some denomination of $40. If it's 100, you could have five 20s, and that's why we find the different denominations. It's denoting the sales of the drug trafficker."

2. Discussion. The juvenile claims that there was insufficient evidence to support the verdict of delinquency by reason of possession of cocaine. We disagree. To evaluate this claim, we apply the same test as if we were evaluating the sufficiency of the evidence to support a criminal conviction. That is, "[w]hen analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 475, 892 N.E.2d 805 (2008), quoting from Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152, 718 N.E.2d 398 (1999).... Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19, 903 N.E.2d 598 (2009). See Commonwealth v. Bell, 83 Mass.App.Ct. 82, 83-84, 981 N.E.2d 220 (2013).

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, supra at 324 n.16, 99 S.Ct. 2781 ; Commonwealth v. Latimore, supra at 677-678, 393 N.E.2d 370. Here, the Commonwealth sought to prove the juvenile's possession of the cocaine as a joint venturer or as a principal based on a theory of constructive possession.

However, there was no requirement that the Commonwealth prove precisely what role the juvenile played, i.e., whether he acted as a principal or as a joint venturer. See Commonwealth v. Rosa, 468 Mass. 231, 246, 9 N.E.3d 832 (2014) ; Commonwealth v. Silva, 471 Mass. 610, 621, 31 N.E.3d 1092 (2015). Rather, under Commonwealth v. Zanetti, 454 Mass. 449, 466-468 & n.22, 910 N.E.2d 869 (2009), there need only be (1) proof of the juvenile's knowing participation in some manner in the commission of the offense and (2) proof that the juvenile had or shared in the intent necessary for the offense.

Here, there was direct evidence that Andrade possessed the cocaine. Although the Commonwealth did not present direct evidence of possession of the cocaine on behalf of the juvenile, "evidence of a [juvenile's delinquency] may be primarily or entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005). Indeed, a joint venture may be proved wholly by circumstantial evidence. See Commonwealth v. Bright, 463 Mass. 421, 435, 974 N.E.2d 1092 (2012). When we view the evidence in the light most favorable to the Commonwealth, the juvenile's claim of mere presence is defeated by several facts, and the reasonable inferences drawn from those facts. Detective Keenan's investigation began in a Quincy neighborhood known for drug activity where he had made arrests in the past.³ His attention was drawn to the blue Infiniti, in which the juvenile was the front seat passenger. After Keenan saw...