Commonwealth v. Sepheus

• Decision Date: 31 January 2013
• Docket Number: No. 11–P–160.,11–P–160.
• Citation: 978 N.E.2d 777,82 Mass.App.Ct. 765
• Parties: COMMONWEALTH v. Carl SEPHEUS.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 765

978 N.E.2d 777

COMMONWEALTH

v.Carl SEPHEUS.

No. 11–P–160.

Appeals Court of Massachusetts,

Hampden.

Argued Jan. 17, 2012.

Decided Nov. 21, 2012.

Further appellate review granted Jan. 31, 2013.

Leslie H. Powers, Lexington, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: TRAINOR, MILKEY, & AGNES, JJ.

TRAINOR, J.

The Commonwealth charged the defendant, Carl Sepheus, with possession of cocaine with the intent to distribute, G.L. c. 94C, § 32A( c ). At the close of the Commonwealth's case in a jury-waived trial, Sepheus filed a motion for a required finding of not guilty, which the judge denied. The defendant was convicted, and now argues in a timely appeal that the evidence was not sufficient to support a finding that he intended to distribute the three, separately wrapped rocks of “crack” cocaine that were found in his possession.

We conclude that there was sufficient evidence for a reasonable fact finder to have found the essential elements of the crime beyond a reasonable doubt, and the judge therefore correctly denied the motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 678, 393 N.E.2d 370 (1978). We therefore affirm the conviction.

Background. With the evidence viewed in a light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. at 677–678, 393 N.E.2d 370, the trial judge could have found the following facts: On September 30, 2009, Springfield police Officer William Lopes, an experienced narcotics investigator, received information ¹ that the defendant, who was wanted on an outstanding warrant, was in the general area of 585 Wilbraham Road in Springfield.² After receiving this information at the start of his 4:00 p.m. to 12:00 a.m. shift, Lopes drove to the area in an unmarked police cruiser.³ Lopes initially drove to the intersection of Bristol Street and Wilbraham Road, then expanded his search to include the Daily Mart convenience store and gasoline station at the intersection of Alden Street and Wilbraham Road a short distance away. He arrived at that location at or around 5:00 p.m. After circling around the parking lots of the Daily Mart and gasoline station, Lopes, with the aid of a photograph, observed the defendant standing with a small group of three to five males outside the Daily Mart. Lopes radioed for backup to assist him with the arrest. As Lopes waited for other officers to arrive, an individual who was not the defendant suddenly left the group and conducted what Lopes observed to be a drug transaction through the window of a vehicle, in plain view of the group of men and Lopes. This individual then walked back to the group. The group, including the defendant, then walked together into the Daily Mart. Officer Lopes, and seven to ten other officers who had responded to his call, entered the store and placed the defendant under arrest.⁴

Springfield police Officer John Wadlegger, who had responded to the scene in an unmarked police cruiser, transported the defendant to the police station. Before driving to the station, and based on the defendant's movements while in the backseat of the cruiser, Wadlegger searched the defendant. Inside the center pocket of the defendant's gray hooded sweatshirt, Wadlegger found three rocks of what appeared to be crack cocaine, each inside a small plastic baggie twisted off near the corner. A chemist later testified that one of the rocks was weighed and tested positive for cocaine. Wadlegger also found $312 in United States currency in the defendant's pants pocket.

Wadlegger, like Lopes, was an experienced narcotics investigator. He testified that he found no smoking apparatus on the defendant, and that, in his experience stopping users of either cocaine or heroin, he usually found something on their person to ingest the drug. Wadlegger testified that not every user was arrested with a smoking apparatus but stated that such a circumstance was the exception to the very general rule. He testified that the packaging of the drugs found on the defendant was consistent with the street-level sale of narcotics, and that the total street value of the drugs was around $60. Wadlegger testified that the absence of any device to ingest the drug, the packaging of the cocaine, and the nature of the area where the defendant was arrested were consistent with possession with the intent to distribute the drugs.

Discussion. In considering whether a denial of a motion for a required finding of not guilty is proper, “[w]e review the evidence in the light most favorable to the Commonwealth to determine whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (emphasis original). Commonwealth v. Little, 453 Mass. 766, 771, 906 N.E.2d 286 (2009)( Little ), quoting from Commonwealth v. Wilson, 441 Mass. 390, 401, 805 N.E.2d 968 (2004)( Wilson ).

“The two basic elements for conviction of possession with the intent to distribute cocaine are (1) knowingly possessing the drug and (2) intending to transfer it physically to another person.” Commonwealth v. Tavernier, 76 Mass.App.Ct. 351, 355, 922 N.E.2d 166 (2010). The defendant does not challenge the sufficiency of the evidence on the possession element, but argues that evidence of the essential element of his intent to distribute was lacking. In this case, the defendant's intent to distribute “is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances....” Commonwealth v. Keefner, 461 Mass. 507, 517, 961 N.E.2d 1083 (2012)( Keefner ), quoting from Commonwealth v. Rivera, 425 Mass. 633, 648, 682 N.E.2d 636 (1997).

Here the defendant was found to possess three small individually wrapped rocks of crack cocaine, with a total weight of approximately .4 grams. In Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731, 604 N.E.2d 1317 (1992)( Gonzales ), we ruled that although the defendant was arrested with only .32 grams of heroin, “[t]he fact that the amount of drugs seized was small does not, by itself, require a finding of not guilty to so much of the indictment as states ‘intent to distribute.’ A dealer's inventory of drugs may have been reduced before his arrest to a small amount by a number of sales.”

In Gonzales, the conviction of possession with intent to distribute was affirmed based on factors that included the packaging of the .32 grams of heroin in ten glassine packets, which according to expert testimony was “consistent with distribution rather than personal use,” the presence of a “scorpion” mark on each of the bags that was indicative of a dealer's brand name, and the defendant's possession of $167 in cash, despite being unemployed. Ibid. In this case, as in Gonzales, although the approximately .4 grams Sepheus possessed would not alone support a finding of intent to distribute, sufficient additional evidence was presented at trial that ultimately supports such a finding.

Additional evidence. Several factors have been acknowledged by this court and the Supreme Judicial Court to be probative, while not individually dispositive, of a defendant's intent to distribute. These include, inter alia, the manner in which the drugs were packaged, the amount of cash the defendant had on his person when arrested, and the absence of smoking paraphernalia.See Commonwealth v. Gollman, 436 Mass. 111, 113, 116–117, 762 N.E.2d 847 (2002)( Gollman ) (2.71 grams of crack cocaine and no smoking paraphernalia held to be sufficient evidence to uphold conviction); Wilson, 441 Mass. at 400–402, 805 N.E.2d 968 (one-half ounce of marijuana in twenty bags packaged for sale, no smoking paraphernalia, and $476 cash held to be sufficient evidence to uphold conviction); and Little, 453 Mass. at 768, 771–772, 906 N.E.2d 286 (fifteen bags of marijuana packaged for sale, $254 cash, and no smoking paraphernalia held to be sufficient evidence to uphold denial of motion for required finding).

In the present case the defendant possessed three rocks of crack cocaine, with a total weight of approximately .4 grams, packaged individually in small sandwich bags, twisted off near the corner, in a manner that Officer Wadlegger testified was “consistent with street level sale.” The defendant also possessed no device with which to smoke or otherwise ingest the rocks of cocaine, and was arrested with $312 in cash on his person.⁵ Furthermore, Officer Lopes testified that the area around the Daily Mart was “a high crime area” that has seen “numerous violations and arrests for narcotics, shootings, stabbings, [and] other violent offenses.” Although the amount of contraband possessed by the defendant differs in each case, similar “plus factors” have contributed to the upholding of several past convictions for possession with intent to distribute. See Gonzales, supra;Gollman, supra,Wilson, supra.

Furthermore, the circumstances in which the police encountered Sepheus and his conduct prior to his arrest could have properly been considered by the judge as additional evidence supporting an inference of intent to distribute. See Commonwealth v. Burke, 44 Mass.App.Ct. 76, 79–80, 687 N.E.2d 1279 (1997); Commonwealth v. Dessources, 74 Mass.App.Ct. 232, 238, 905 N.E.2d 586 (2009) (where marijuana packaged for sale was found on the defendant, conviction of possession with intent to distribute was affirmed in part because the arresting officer “observed three other individuals seated near the defendant passing a pipe commonly used to smoke marijuana”). Here, the defendant was observed standing with a group of men that included an individual whom Officer Lopes observed conduct a “drug transaction” through the window of a vehicle. Sepheus was subsequently seen walking with that same group of men into the Daily Mart. The judge also could have properly inferred that Sepheus had been located in...