Commonwealth v. Crapps

997 N.E.2d 444, 84 Mass. App. Ct. 442, 2013 WL 5736848, 2013 Mass. App. LEXIS 161
CourtMassachusetts Appeals Court
DecidedOctober 24, 2013
DocketNo. 11-P-1753
StatusPublished
Cited by9 cases

This text of 997 N.E.2d 444 (Commonwealth v. Crapps) 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. Crapps, 997 N.E.2d 444, 84 Mass. App. Ct. 442, 2013 WL 5736848, 2013 Mass. App. LEXIS 161 (Mass. Ct. App. 2013).

Opinions

Sikora, J.

At the conclusion of a jury-waived trial, a Superior Court judge convicted the defendant of trafficking in twenty-eight to one hundred grams of “crack” cocaine, G. L. c. 94C, § 32E(¿>)(2).1 On appeal, the defendant presents two challenges to the sufficiency of the evidence. He contends that the Com[443]*443monwealth failed to prove (1) that he constructively possessed the drugs found in the center console of the automobile which he was driving; and (2) that the weight of the crack cocaine exceeded twenty-eight grams because the Commonwealth’s chemist improperly extrapolated the net aggregate weight of the crack cocaine from a sampling of the packets found in the console. For the following reasons, we affirm.

Background. The evidence permitted the judge to find the following facts. In July, 2009, Springfield police were conducting surveillance of the defendant. On one occasion, they observed him driving a white Lexus sport utility vehicle (SUV). The registration of the SUV identified the owner as Matrisa Collins, the defendant’s girlfriend, with whom he shared an address. On July 23, 2009, the police observed the defendant driving the SUV with no passengers. He drove to a store parking lot, where a female entered the passenger’s side of the SUV. The SUV traveled a very short distance and then stopped. The woman got out and walked away.

These observations prompted the police to stop and search the SUV and, later, the defendant.2 The officers recovered (1) a white tube sock in the center console containing (a) a plastic bag of thirty-six individual packets of apparent crack cocaine; and (b) a plastic bag containing a larger chunk of apparent crack cocaine; (2) sixty-six dollars in cash; (3) on the front passenger’s side seat, the defendant’s personal papers; (4) from the driver’s side door pocket, a cellular telephone; and (5) from the defendant’s pants pocket, $585 in cash.

At trial, a chemist from the University of Massachusetts drug laboratory testified that the substances were crack cocaine. She testified also to the net weight of the drugs, and to the process of extrapolated measurement of that weight. She randomly had chosen four packets from the thirty-six, or approximately ten percent of the total, and entered their weights into a computer program. The program then computed an average weight of the four packets and a standard deviation to produce an aggregate net weight of the thirty-six packets of 14.29 grams. Because the [444]*444larger chunk weighed 17.58 grams, the total net weight of the substances reached 31.87 grams.

Analysis. 1. Constructive possession. A challenge to sufficiency requires review of the evidence in the light most favorable to the Commonwealth. Under the settled standard, we ask whether “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 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To establish constructive possession, the Commonwealth must prove a defendant’s (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Commonwealth v. Boria, 440 Mass. 416, 418 (2003). Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). Mere presence is insufficient proof. Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Commonwealth v. Romero, 464 Mass. 648, 653, 654 (2013). Rather, “additional inculpatory evidence” beyond a defendant’s presence in, and operation of, a vehicle is necessary. Id. at 654. Additional incriminating evidence can “tip the scale in favor of sufficiency.” Id. at 653, quoting from Commonwealth v. Albano, supra. Here the evidence passes the tipping point.

The defendant was the driver and the sole occupant of the SUV. He lived with the registered owner of the vehicle; the previous day, she had permitted him to use the SUV. Exclusive and continuous operation of the SUV both supported the inference of the defendant’s knowledge of its contents and reduced the number of possible alternate possessors. Contrast Commonwealth v. Almeida, 381 Mass. 420, 422-423 (1980) (no constructive possession of weapon in center console of vehicle which defendant had borrowed that evening); Commonwealth v. Romero, supra at 650, 656-657 (no constructive possession where defendant driver had multiple passengers in vehicle, and had no specific connection to weapon).

In addition, the police had observed suspected drug dealing behavior: the brief visit of the female passenger, the short drive to nowhere, and the passenger’s quick exit. During the search, the police found the defendant’s personal papers on the passenger’s side seat adjacent to the console. These circumstances [445]*445strengthen the link between the defendant and the location of the drugs. See Commonwealth v. Clark, 446 Mass. 620, 624 (2006) (constructive possession where [a] cocaine found in center console; and [b] defendant had control of vehicle; even though [c] the Commonwealth did not establish ownership of vehicle); Commonwealth v. Lee, 2 Mass. App. Ct. 700, 704-705 (1974) (constructive possession supported by evidence of personal papers in apartment where police found heroin). Additional indicia of intent to control the drugs included the defendant’s possession of $585 in cash as inferable sales revenue, and the cellular telephone in the driver’s side door pocket as an infer-able instmment of deals and delivery.3

In sum, the aggregate evidence exceeds the defendant’s mere presence in, or operation of, the vehicle. It “tip[ped] the scale in favor of sufficiency,” Commonwealth v. Romero, supra at 653 (citation omitted), and permitted the judge to find both knowledge of the presence of the drugs and the ability and intent to exercise control over them. The evidence placed this case in the category of automobile decisions in which a defendant’s proximity, access, and collateral conduct (here, his sole occupancy of the vehicle, and the brief visit by a suspected buyer) permitted the inference of an intention to exercise control over contraband or forbidden weaponry in the vehicle. See, e.g., Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998) (weapon under driver’s seat; motion of concealment as police approached); Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 638 (2005) (defendant, who owned vehicle, in back seat in close proximity to drug dealing instrumentalities); Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592-593 (2007) (defendant’s proximity to weapon beneath his automobile seat and his foot movement pushing it out of sight raise circumstantial evidence above level of mere presence).

2. Weight by extrapolation. The defendant challenges the extrapolated calculation of the weight of the thirty-six packets of crack cocaine found in the console. An essential element of [446]*446the crime of trafficking in a class B substance (such as crack cocaine) under G. L. c.

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Bluebook (online)
997 N.E.2d 444, 84 Mass. App. Ct. 442, 2013 WL 5736848, 2013 Mass. App. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-crapps-massappct-2013.