This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted in Superior Court of unlawful possession of a firearm in violation of G. L. c. 269, § 10( a ), unlawful possession of a loaded firearm in violation of G. L. c. 269, § 10( n ), and possession with intent to distribute cocaine in violation of G. L. c. 94C, § 32A( c ). The defendant appeals on the ground that the convictions are not supported by sufficient evidence. He further contends that (1) the prosecutor made improper statements during closing arguments, (2) the trial judge's instructions to the jury were flawed, and (3) the trial judge erred in allowing hearsay testimony in evidence.
We affirm the firearm convictions. We reverse the conviction of possession with intent to distribute cocaine.
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On the evening of Sunday, June 26, 2011, police officers arrived at an apartment building in Lowell, where they were responding to a complaint unrelated to this appeal. When two officers arrived at the apartment where the defendant was found, they knocked on the door and heard a voice invite them inside. Upon entering the apartment, the officers saw the defendant standing about thirty feet away in a bedroom doorway at the end of a hallway. Two other persons were also in the apartment at the time, in a different bedroom with the door closed. As the officers approached the defendant, they could see into the " messy" bedroom behind him and observed a gun holster among the men's clothing strewn about the floor. One officer testified that a woman who was " upset" entered the apartment after them and that the officers learned that the defendant might have a gun. The officers subsequently searched the bedroom and discovered twenty-two baggies of crack cocaine and $279 in cash behind a folding closet door that was slightly open.
Two days later, the brother of a woman who lived in a neighboring apartment contacted police because, as the woman testified at trial, she feared for her life. The woman testified that she did not recall exactly why she had wanted the police to come to her apartment, but she did testify that she believed there was something in her apartment that she did not want there any longer. Two officers testified that when they arrived at the neighbor's apartment they were directed to a closet near the kitchen and that they expected to find a handgun inside. The officers searched only the closet. In it they found a loaded revolver hidden inside a white sock. The neighbor testified that she did not own a gun, that she had never seen her two nieces or nephew, who stayed at her apartment, with a gun, and that she had never known there to be a gun in the closet.
She did testify, however, that the defendant had visited her apartment briefly. Though she was not certain exactly when this visit occurred, she did say that it took place on a Sunday and that police officers were at the apartment building later that night. She testified that she saw the defendant enter the apartment through the unlocked front door. The closet is near the front door, and the neighbor testified that her view of the closet and the defendant was obscured by the opened front door. She said the defendant did not say anything and left very quickly, walking " in and out" of the apartment. The defendant did not go anywhere else in the apartment. The neighbor further testified that she did not look in the closet between the time of the defendant's visit and the arrival of the police because she was physically unable to open the closet door.
Sufficiency of evidence.
The defendant contends that none of the convictions are supported by sufficient evidence. In reviewing a sufficiency of the evidence claim, we determine whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, could find the crimes proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). On the record before us we conclude that the evidence presented was sufficient to support the convictions of possession of a firearm and possession of a loaded firearm, but was not sufficient to support the conviction of possession with intent to distribute cocaine.
As to the firearms convictions, when viewing the evidence in the light most favorable to the Commonwealth, a jury could reasonably have found that the defendant visited the neighbor's apartment on the Sunday that he was arrested on the drug charge. The visit would therefore have occurred two days before the neighbor arranged for police to come to her apartment to retrieve something she did not want there any longer. A jury could have also reasonably found that during the defendant's brief visit, when he was in the vicinity of the closet and out of the neighbor's view, he placed the revolver inside the closet. Such an inference is bolstered by the neighbor's testimony that she did not put the gun in the closet and had never seen her nieces or nephew with a gun.
However, the drug conviction is not supported by sufficient evidence. As the cocaine was found inside a bedroom closet behind a partially closed door and not on the defendant himself, " the issue before us is whether the Commonwealth proved, beyond a reasonable doubt, that the defendant had constructive possession of the drugs." Commonwealth v. Boria, 440 Mass. 416, 418, 798 N.E.2d 1017 (2003), citing Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991). To prove constructive possession beyond a reasonable doubt, the Commonwealth must show the defendant had " knowledge coupled with the ability and intention to exercise dominion and control" over the drugs. Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). " While presence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] . . . presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Charlton, 81 Mass.App.Ct. 294, 299, 962 N.E.2d 203 (2012), quoting from Commonwealth v. Gonzalez, 452 Mass. 142, 146, 892 N.E.2d 255 (2008).
Here, there is no " other incriminating evidence." The defendant's presence is the only evidence linking him to the apartment. No personal papers or effects belonging to the defendant were found in the apartment, no testimony or other evidence indicated the defendant gave the apartment as his address, and no evidence suggested the clothing found in the bedroom belonged to the defendant, as it was described generically as men's clothing. In the absence of such factors, the defendant's link to the apartment is not sufficient to support a conviction under a theory of constructive possession. See Commonwealth v.Charlton, supra at 302-303 (evidence sufficient to support conviction under theory of constructive possession when the defendant provided as his address the house where drugs were discovered). But see Commonwealth v.Frongillo (No. 1), 66 Mass.App.Ct. 677, 685, 850 N.E.2d 1060 (2006) (evidence not sufficient to support conviction under theory of constructive possession when ...