Commonwealth v. Acosta

969 N.E.2d 720, 81 Mass. App. Ct. 836, 2012 WL 2052980, 2012 Mass. App. LEXIS 201
CourtMassachusetts Appeals Court
DecidedJune 11, 2012
DocketNo. 10-P-783
StatusPublished
Cited by17 cases

This text of 969 N.E.2d 720 (Commonwealth v. Acosta) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Acosta, 969 N.E.2d 720, 81 Mass. App. Ct. 836, 2012 WL 2052980, 2012 Mass. App. LEXIS 201 (Mass. Ct. App. 2012).

Opinion

Graham, J.

A jury convicted the defendant of possession of cocaine with intent to distribute and an accompanying school zone offense.1 G. L. c. 94C, §§ 32A & 32J. On appeal, the [837]*837defendant principally argues that the Commonwealth’s evidence at trial was insufficient as matter of law to prove beyond a reasonable doubt he intended to distribute cocaine.2 We agree.

Facts. Based upon the Commonwealth’s evidence, reviewed in the light most favorable to it, the jury would have been warranted to find the following. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On New Year’s Day 2009, at 9:30 p.m., Trooper Robert Noonan of the State police was on patrol in a marked cruiser, traveling south on Route 1, a State highway, in the town of Lynnfield, when he noticed a Honda station wagon weaving in and out of the speed lane of the highway. He activated his cruiser’s emergency lights and caused the Honda to come to a halt off to the side of the Route 1 roadway; the location of the stop was just shy of the southbound entrance to the Lynnfield tunnel.3

Trooper Noonan left his cruiser and approached the Honda on its front passenger side. He directed the driver (the defendant) to roll down the window. With the window down, Trooper Noonan was able to detect a strong odor of alcohol from the defendant. On the floor of the rear passenger compartment, the trooper observed a bottle of Chivas Regal whiskey, approximately three-fourths empty, and a case of beer.

Trooper Noonan ordered the defendant out of the vehicle. The defendant had difficulty complying. Outside the vehicle, the defendant was quite unsteady on his feet, and conspicuously kept his left hand inside the left front pocket of his coat; he continued to do so even after being directed to place both hands on the hood of the Honda. The defendant continued to be unsteady on his feet and had to be restrained by Noonan from walking into oncoming traffic. Noonan grabbed the defendant, placed him under arrest, and removed his hand from the pocket. In the defendant’s hand was a clear plastic bag, which held five smaller clear plastic bags with a white powdery substance inside. Testing disclosed that the five small bags, combined, held 3.16 grams of cocaine.

[838]*838Trooper Patrick Silva of the State police soon arrived at the scene with a police dog trained to alert for narcotics. Noonan had since secured the defendant in the rear of his cruiser and thereafter transported him to a nearby barracks for booking. Meanwhile, Silva had the defendant’s vehicle impounded and towed to a location off the highway where he conducted a search of the vehicle. Inside the vehicle was the defendant’s wallet, which, in its billfold, had two open bags containing small amounts of white powder, later determined to be cocaine; the two bags, combined, weighed .14 grams. No other narcotics were found.

The vital question for the jury was whether the defendant had possessed the cocaine with the intent to distribute, as charged in the complaint. In its case, the Commonwealth called Troopers Noonan and Silva, as percipient witnesses; Trooper Brian Robert, who testified that, when the defendant was stopped, he was within 1,000 feet of a school zone; and Trooper James Bruce, who was assigned to the Essex County drug task force, as a nonpercipient narcotics expert whose qualifications are not contested.

The sole defense witness was the defendant. He was then forty-nine years of age. He flatly denied having an intent to distribute cocaine to anyone.

Trooper Noonan testified that, after the stop, he had removed from the defendant’s hand the five “baggies” containing a white powdery substance, which he believed to be cocaine due to the manner of its packaging. Each bag, he recounted, had consisted of a corner torn from a plastic sandwich bag, which was “twisted” and “knotted” shut, containing cocaine with a street value of about forty dollars.4

The narcotics expert, Trooper Bruce, testified as to the street trade for cocaine. He explained that cocaine is commonly packaged, sold, and bought in the form of “small twist bags” that [839]*839contain one-half to one gram apiece. He opined that the five glossine bags of cocaine were consistent with distribution, and that the two open bags in the billfold of the defendant’s wallet were consistent with personal use.5 Bruce testified that a half-gram bag could yield between “8 to 10 individual lines” (or “dosages”) of cocaine for a user to inhale. He concluded the five twist bags were “for sale” because the total amount of cocaine therein (3.16 grams) was “a lot of cocaine to be using all at once.”

Evidence as to the school zone was also introduced and admitted in the Commonwealth’s case. The defendant moved for a required finding of not guilty when the Commonwealth rested, and again at the close of all the evidence. The judge denied both motions.6

Discussion. A motion for a required finding of not guilty is allowed if the evidence of the Commonwealth is insufficient as a matter of law to sustain a conviction for the offense at issue. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). Mass. R.Crim.P. 25(a), 378 Mass. 896 (1979). We apply the Latimore standard: namely, in considering the Commonwealth’s evidence in its entirety and in the light most favorable to the Commonwealth, we inquire whether any rational fact finder could have found all essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass, at 677-67S.7 See Commonwealth v. Renaud, ante 261, 262 (2012). The elements for the crime here are (1) knowingly or intentionally possessing the illegal substance (i.e., cocaine), and (2) doing so with the specific intent to distribute. Intent may be inferred from the surrounding facts proved at the trial provided any such inference is reasonable. Commonwealth v. Gollman, 436 Mass. [840]*840111, 116 (2002). Commonwealth v. Clermy, 37 Mass. App. Ct. 774, 778, S.C., 421 Mass. 325 (1995).

The defendant does not contest the adequacy of the evidence as to the element of possession; rather, on appeal, he challenges the sufficiency of the evidence as to the element of intent to distribute.

We consider “only the evidence introduced up to the time that the Commonwealth rested its case, and the defendant first filed his motion[] for [a required finding of not guilty].” Commonwealth v. Kelley, 370 Mass. 147, 150 (1976).8 “[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense.” Commonwealth v. Latimore, supra at 677. No element of the crime may be left to a jury’s guesswork or surmise. Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). The evidence will be insufficient to support a conviction if it merely “pil[es] inference upon inference or conjecture and speculation,” Commonwealth v. Mandile, 403 Mass. 93, 94 (1988), or if it tends “equally to support either of two inconsistent propositions.” Commonwealth v. Rhoades, 379 Mass. 810, 817 (1980).

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Cite This Page — Counsel Stack

Bluebook (online)
969 N.E.2d 720, 81 Mass. App. Ct. 836, 2012 WL 2052980, 2012 Mass. App. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-acosta-massappct-2012.