NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1398
COMMONWEALTH
vs.
EDDIE MCCLOY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a joint, jury-waived trial in the Superior Court
with two codefendants, the defendant, Eddie McCloy, was found
guilty of possession with intent to distribute cocaine, in
violation of G. L. c. 94C, § 32A (c), and possession with intent
to distribute heroin, in violation of G. L. c. 94C, § 32 (a).
The defendant now appeals, arguing that the trial judge
improperly denied his motion for a required finding of not
guilty because the Commonwealth failed to present sufficient
evidence that the defendant had the ability and intention to
exercise dominion and control over the drugs necessary to find
him guilty on a theory of constructive possession. We affirm. Background. We summarize the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). On September 9, 2016, at
approximately 8:30 A.M., members of the Massachusetts State
police executed a search warrant for a three-bedroom apartment
in a multifamily home in Fitchburg. During their search, the
police "breached" the first bedroom on the left hand side of the
apartment, which was secured by a deadbolt lock (which none of
the defendants had a key to on their person). The police
discovered the defendant alone in the bedroom and placed him
under arrest. While the police did not find cash, drugs, or
drug paraphernalia on the defendant's person, the police did
find, in plain view, drug paraphernalia on top of a bureau
located in the room, including digital scales, white residue, a
knife with residue, and boxes of small plastic bags. Inside the
bureau drawers, the police found an "off-white block like
substance," packaging materials consistent with drug
distribution, and United States currency. The bedroom also
contained several surveillance monitors that captured the
outside of the residence and the common room of the apartment.
Inside the bedroom closet, the police discovered an open safe
containing a glass measuring cup with a "whitish-brown" rock-
like substance in it, as well as two firearms and ammunition.
2 Three additional firearms were found in the room, two under a
pillow and one in a brown satchel at the foot of the bed. The
white rock-like substance found within the bureau consisted of
106 grams of cocaine, and the brown rock-like substance found
within the safe consisted of 63 grams of heroin. The police
also found drug paraphernalia and currency elsewhere in the
apartment including a digital scale, plastic baggies, and
packaging materials in the kitchen cabinets; needles and corner
baggies in the second bedroom; and nearly two thousand dollars
in United States currency in a bag located in the third bedroom.
The police also arrested codefendants Jones and Mitchell.
Codefendant Jones was discovered in the third bedroom and was
carrying over four thousand dollars on his person. Although
codefendant Mitchell was not present in the apartment at the
time the warrant was executed, the police found Mitchell's
fingerprints inside the safe located in the first bedroom
closet, as well as paperwork and mail belonging to Mitchell in
the first bedroom and throughout the residence.
For approximately three weeks prior to the execution of the
search warrant, the police conducted a drug distribution
investigation of the apartment. At trial, State police Trooper
Ryan Dolan testified that police conducted surveillance of the
apartment and saw numerous people, many of whom appeared to be
3 drug users, entering the apartment and leaving after a short
amount of time. Trooper Dolan also testified that he saw the
defendant and codefendants exiting the apartment.
Discussion. When reviewing claims of insufficient evidence
presented at trial, "we assess the evidence in the light most
favorable to the Commonwealth 'to determine whether any rational
trier of fact could have found each element of the crime beyond
a reasonable doubt.'" Commonwealth v. Baez, 494 Mass. 396, 400
(2024), quoting Commonwealth v. Robinson, 493 Mass. 303, 307
(2024). "The evidence may be direct or circumstantial, and we
draw all reasonable inferences in favor of the Commonwealth"
(citation omitted). Baez, supra.
To prove possession with the intent to distribute cocaine
or heroin, the Commonwealth must establish that the defendant
"(1) knowingly possess[ed] the drug and (2) intend[ed] to
transfer it physically to another person" (citation omitted).
Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 355 (2010).
"[T]o prove constructive possession, the Commonwealth must
present evidence that the defendant had both knowledge of the
contraband and the ability and intention to exercise dominion
and control over it." Commonwealth v. Bienvenu, 63 Mass. App.
Ct. 632, 638 (2005), quoting Commonwealth v. Ortega, 441 Mass.
170, 174 (2004). "Although mere presence where drugs are
4 discovered is not enough to support an inference of possession
of the drugs, the defendant's presence, coupled with a 'plus'
factor, i.e., other incriminating evidence, may suffice"
(quotations and citation omitted). Bienvenu, supra.
Here, the defendant argues that the Commonwealth failed to
present sufficient evidence that he had the ability and
intention to exercise dominion and control over the heroin and
cocaine because the evidence established that he was merely
present in the apartment and no cash or drugs were found on his
person. This argument is unavailing.
The evidence, viewed in the light most favorable to the
Commonwealth, revealed ample "plus factors" to support an
inference that the defendant had both "knowledge of the
contraband and the ability and intention to exercise dominion
and control over it" (citation omitted). Bienvenu, 63 Mass.
App. Ct. at 638. While the police found drug paraphernalia and
surveillance equipment throughout the apartment, the evidence
supported that the bedroom where the police found the defendant
locked inside was the center of the drug distribution operation
within the apartment. At trial, State police Trooper Felipe
Martinez, who testified as an expert for the Commonwealth on
drug distribution, stated that the quantity of cocaine and
heroin found in the bedroom; the surveillance equipment; and the
5 drug paraphernalia, including the digital scales, baggies, and
drug packaging materials, were all indicative of drug
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1398
COMMONWEALTH
vs.
EDDIE MCCLOY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a joint, jury-waived trial in the Superior Court
with two codefendants, the defendant, Eddie McCloy, was found
guilty of possession with intent to distribute cocaine, in
violation of G. L. c. 94C, § 32A (c), and possession with intent
to distribute heroin, in violation of G. L. c. 94C, § 32 (a).
The defendant now appeals, arguing that the trial judge
improperly denied his motion for a required finding of not
guilty because the Commonwealth failed to present sufficient
evidence that the defendant had the ability and intention to
exercise dominion and control over the drugs necessary to find
him guilty on a theory of constructive possession. We affirm. Background. We summarize the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). On September 9, 2016, at
approximately 8:30 A.M., members of the Massachusetts State
police executed a search warrant for a three-bedroom apartment
in a multifamily home in Fitchburg. During their search, the
police "breached" the first bedroom on the left hand side of the
apartment, which was secured by a deadbolt lock (which none of
the defendants had a key to on their person). The police
discovered the defendant alone in the bedroom and placed him
under arrest. While the police did not find cash, drugs, or
drug paraphernalia on the defendant's person, the police did
find, in plain view, drug paraphernalia on top of a bureau
located in the room, including digital scales, white residue, a
knife with residue, and boxes of small plastic bags. Inside the
bureau drawers, the police found an "off-white block like
substance," packaging materials consistent with drug
distribution, and United States currency. The bedroom also
contained several surveillance monitors that captured the
outside of the residence and the common room of the apartment.
Inside the bedroom closet, the police discovered an open safe
containing a glass measuring cup with a "whitish-brown" rock-
like substance in it, as well as two firearms and ammunition.
2 Three additional firearms were found in the room, two under a
pillow and one in a brown satchel at the foot of the bed. The
white rock-like substance found within the bureau consisted of
106 grams of cocaine, and the brown rock-like substance found
within the safe consisted of 63 grams of heroin. The police
also found drug paraphernalia and currency elsewhere in the
apartment including a digital scale, plastic baggies, and
packaging materials in the kitchen cabinets; needles and corner
baggies in the second bedroom; and nearly two thousand dollars
in United States currency in a bag located in the third bedroom.
The police also arrested codefendants Jones and Mitchell.
Codefendant Jones was discovered in the third bedroom and was
carrying over four thousand dollars on his person. Although
codefendant Mitchell was not present in the apartment at the
time the warrant was executed, the police found Mitchell's
fingerprints inside the safe located in the first bedroom
closet, as well as paperwork and mail belonging to Mitchell in
the first bedroom and throughout the residence.
For approximately three weeks prior to the execution of the
search warrant, the police conducted a drug distribution
investigation of the apartment. At trial, State police Trooper
Ryan Dolan testified that police conducted surveillance of the
apartment and saw numerous people, many of whom appeared to be
3 drug users, entering the apartment and leaving after a short
amount of time. Trooper Dolan also testified that he saw the
defendant and codefendants exiting the apartment.
Discussion. When reviewing claims of insufficient evidence
presented at trial, "we assess the evidence in the light most
favorable to the Commonwealth 'to determine whether any rational
trier of fact could have found each element of the crime beyond
a reasonable doubt.'" Commonwealth v. Baez, 494 Mass. 396, 400
(2024), quoting Commonwealth v. Robinson, 493 Mass. 303, 307
(2024). "The evidence may be direct or circumstantial, and we
draw all reasonable inferences in favor of the Commonwealth"
(citation omitted). Baez, supra.
To prove possession with the intent to distribute cocaine
or heroin, the Commonwealth must establish that the defendant
"(1) knowingly possess[ed] the drug and (2) intend[ed] to
transfer it physically to another person" (citation omitted).
Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 355 (2010).
"[T]o prove constructive possession, the Commonwealth must
present evidence that the defendant had both knowledge of the
contraband and the ability and intention to exercise dominion
and control over it." Commonwealth v. Bienvenu, 63 Mass. App.
Ct. 632, 638 (2005), quoting Commonwealth v. Ortega, 441 Mass.
170, 174 (2004). "Although mere presence where drugs are
4 discovered is not enough to support an inference of possession
of the drugs, the defendant's presence, coupled with a 'plus'
factor, i.e., other incriminating evidence, may suffice"
(quotations and citation omitted). Bienvenu, supra.
Here, the defendant argues that the Commonwealth failed to
present sufficient evidence that he had the ability and
intention to exercise dominion and control over the heroin and
cocaine because the evidence established that he was merely
present in the apartment and no cash or drugs were found on his
person. This argument is unavailing.
The evidence, viewed in the light most favorable to the
Commonwealth, revealed ample "plus factors" to support an
inference that the defendant had both "knowledge of the
contraband and the ability and intention to exercise dominion
and control over it" (citation omitted). Bienvenu, 63 Mass.
App. Ct. at 638. While the police found drug paraphernalia and
surveillance equipment throughout the apartment, the evidence
supported that the bedroom where the police found the defendant
locked inside was the center of the drug distribution operation
within the apartment. At trial, State police Trooper Felipe
Martinez, who testified as an expert for the Commonwealth on
drug distribution, stated that the quantity of cocaine and
heroin found in the bedroom; the surveillance equipment; and the
5 drug paraphernalia, including the digital scales, baggies, and
drug packaging materials, were all indicative of drug
distribution.
The defendant's knowledge can also be inferred from the
drug residue and drug paraphernalia in plain view located on top
of the bureau in the room he occupied alone behind a locked
door. See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323-
324 (2010) (evidence that defendant was in only room where
contraband was located and in close proximity to drugs and
packaging materials in plain view supported inference that
defendant had knowledge of drugs).
That the defendant was the sole occupant of the locked
bedroom at 8:30 A.M. is also a "plus factor" indicative of his
intention to exercise dominion and control over the drugs. See
Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 (1990)
(evidence of intention to exercise dominion and control over
premises and its contents where defendant was present at early
morning hour in barricaded and sparsely furnished apartment in
absence of owner or tenant). See also Commonwealth v.
Frongillo, 66 Mass. App. Ct. 677, 683 n.13 (2006), and cases
cited therein. But see Commonwealth v. Hamilton, 83 Mass. App.
Ct. 406, 411 (2013) (finding mere proximity to contraband
insufficient to establish constructive possession).
6 Additionally, that the police found a large sum of cash on
codefendant Jones, or that codefendant Mitchell's fingerprints
were discovered inside the safe in the first bedroom and his
personal belongings were found throughout the apartment, does
not diminish the evidence of the defendant's intention to
exercise dominion or control over the drugs. See Commonwealth
v. Proia, 92 Mass. App. Ct. 824, 833-834 & n.11 (2018)
(possession need not be exclusive).
Furthermore, the defendant's reliance on Commonwealth v.
Brown, 34 Mass. App. Ct. 222, 225 (1993), is misplaced. Brown
simply reaffirmed the principle that a defendant's presence
where drugs are found and awareness of the drugs, without other
"plus" factors of incriminating evidence, "do not constitute
evidence which warrants an inference of ability and intention to
exercise control" of an illicit substance. Id. at 226.
Notably, the evidence in Brown was found to be insufficient of
constructive possession of drugs where a defendant was found by
police standing in the living room of her shared apartment that
was used for drug dealing but with no drugs, drug paraphernalia,
or cash on her person, in her belongings, or in her bedroom.
Id. at 225-226. In contrast, beyond mere presence and
awareness, the plus factors here included the fact that the
defendant was locked in a small bedroom, to which no defendant
7 had keys, that served as the locus of the drug distribution
operation and was found in close proximity to significant
quantities of narcotics and drug paraphernalia.
Accordingly, the judge did not err in denying the
defendant's motion for a required finding of not guilty.
Judgments affirmed.
By the Court (Desmond, Walsh & Toone, JJ.1),
Clerk
Entered: February 4, 2025.
1 The panelists are listed in order of seniority. 8