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Commonwealth v. Cooper

Appeals Court of Massachusetts, Middlesex

May 25, 2017

COMMONWEALTH
v.
ROBERT F. COOPER.

          Heard: March 8, 2017.

         Complaint received and sworn to in the Cambridge Division of the District Court Department on March 29, 2012.

         The case was tried before Michelle B. Hogan, J.

          Kathleen A. Kelly for the defendant.

          Jason R. Chandler, Assistant District Attorney, for the Commonwealth.

          Present: Green, Wolohojian, & Sullivan, JJ.

          GREEN, J.

         Among the challenges to his conviction of distribution of a class E substance in a school zone, in violation of G. L. c. 94C, §§ 32D (a.) and 32 J, the defendant contends that the evidence was insufficient to establish that the pills seized at the time of his arrest were a class E substance (gabapentin), or that the school furnishing the basis for his school zone violation was an "accredited private preschool" within the meaning of § 32J. We conclude that the evidence was sufficient to establish that the pills were a class E substance and, discerning no merit in his other claims of error as to that charge, affirm his conviction on the charge of distribution of a class E substance. However, we reject the Commonwealth's contention that evidence that the preschool in question was licensed sufficed to establish that it was "accredited" within the meaning of the statute, and accordingly the defendant's conviction of the school zone violation is reversed, the verdict is set aside, and judgment shall enter for the defendant on that charge.

         Background.

         We summarize the facts the jury could have found, reserving other details for discussion of the issues. On the morning of March 16, 2012, undercover Cambridge police Officer Janie Munro entered a fast food restaurant and made eye contact with the defendant; shortly thereafter, the two left the restaurant together. Munro told the defendant that she was looking to buy drugs, and the defendant asked if she was familiar with "Johnnies, " or Neurontins. The defendant explained that the pills were really called gabapentin, and that he had a prescription for that medication, with five refills remaining. During their conversation, the defendant displayed a prescription pill bottle from his backpack, though Munro was not able to read the label. As they ended their conversation, Munro and the defendant exchanged telephone numbers. Later that day, the defendant sent Munro a text message, offering to sell her fifty "Johnnies" for forty dollars. The two met again that day at a pizza restaurant in Cambridge, where the defendant advised Munro that he did not have the agreed-upon fifty pills but that he would sell her what he could. Munro watched as the defendant removed yellow pills from a prescription bottle and placed them in a plastic bag. The defendant then handed the pills to Munro underneath the table at which they were seated, and Munro handed him the agreed-upon payment in exchange.

         Following the exchange, the defendant cautioned Munro to be careful when taking the pills, and not to consume more than five pills at once. He further explained that the pills were 300 milligram, quick-release capsules. During their conversation, Munro observed the defendant holding a prescription pill bottle, and saw the defendant's name on the label. When Munro left the defendant and returned to the Cambridge police station, she counted thirty-two pills inside the bag she received from the defendant, each imprinted with "G5O27."

         The pills Munro purchased from the defendant were sent to the State police drug laboratory and examined by chemist Rebecca Daner.[1] Upon examination, Daner determined that the pills were all the same color, appearance, and size, and each bore the marking "G5O27." Based on her examination of the capsules, and after consulting reference materials maintained in the laboratory concerning the markings of prescription medications, Daner concluded that they contained gabapentin.

         The pizza restaurant where the defendant sold the pills to Munro is located within 300 feet of the Bright Horizon Children's Center at University Park. At trial, the center's director, Katie Coffin, testified that the center was licensed by the Department of Early Education and Care, as required for it to operate in Massachusetts, and a copy of the center's license was admitted in evidence.

         D ...


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