COMMONWEALTH v. LOPES (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant was convicted of trafficking 200 or more grams of cocaine. See G. L. c. 94C, § 32E (b) (4). The jury acquitted the defendant of two counts of distribution of a class B substance. See G. L. c. 94C, § 32A (c). On appeal, he claims that the evidence was insufficient to support the trafficking conviction. We affirm.

Under the familiar Latimore standard, evidence is sufficient to support a conviction if “after viewing the evidence in the light most favorable to the prosecution, 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 Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). “[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.” Latimore, supra. The jury cannot rely on guesswork or surmise, and “[t]he evidence will be insufficient to support a conviction if it merely ‘pil[es] inference upon inference or conjecture and speculation.’ ” Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 840 (2012), quoting Commonwealth v. Mandile, 403 Mass. 93, 94 (1988).

The Commonwealth proceeded under a joint venture theory. To prove that the defendant trafficked in cocaine as a joint venturer, the Commonwealth had to show that he “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). “Mere presence at the scene of the crime is not enough to find a defendant guilty․ [T]here must be proof that the defendant intentionally participated in some fashion in committing that particular crime and had or shared the intent required to commit the crime.” Id. at 470. A formal or explicit agreement is not required; “it is enough consciously to act together before or during the crime with the intent of making the crime succeed.” Commonwealth v. Khan, 92 Mass. App. Ct. 487, 493 (2017), quoting Commonwealth v. Bright, 463 Mass. 421, 435 (2012).

The evidence was sufficient to prove beyond a reasonable doubt that a substantial “crack” cocaine trafficking operation, involving more than 200 grams, was taking place in the first-floor apartment of a three-family residence in the Dorchester section of Boston. The defendant does not contend otherwise. Rather he claims that the evidence was insufficient to show that he had knowledge of the operation or was an active participant. His claim relies on the mistaken premise that, in reviewing the sufficiency of the evidence, we may not consider the evidence of the two incidents of distribution of which he was acquitted.

“[F]actual inconsistencies in verdicts ‘do not afford a ground for setting aside a conviction as long as the evidence is sufficient to support a conviction on the count on which the guilty verdict was reached.’ ” Commonwealth v. Resende, 476 Mass. 141, 147 (2017), quoting Commonwealth v. Pease, 49 Mass. App. Ct. 539, 542 (2000). See, e.g., Commonwealth v. Hamilton, 411 Mass. 313, 323-324 (1991) (affirming convictions of armed robbery and murder in the first degree, even though jury acquitted defendant of unlawful carrying of shotgun used in committing crime). In other words, the defendant's acquittal of some charges does not affect the Latimore analysis, which requires examining the state of the evidence before the jury begin deliberations. See Commonwealth v. Fluellen, 456 Mass. 517, 523 (2010); Commonwealth v. Elliffe, 47 Mass. 580, 584-585 (1999). See also Commonwealth v. Therrien, 383 Mass. 529, 537 (1981) (“we may consider all the evidence, including evidence that the jury may have disbelieved in arriving at their conclusion that the defendant was not guilty as a joint venturer”).

Thus, viewing all of the evidence available in the light most favorable to the Commonwealth, the jury could have found beyond a reasonable doubt that the defendant was an active participant in the cocaine trafficking venture and that he possessed the intent to distribute. See Commonwealth v. Roman, 414 Mass. 642, 643-644 (1993); Commonwealth v. Mora, 82 Mass. App. Ct. 575, 582 n.9 (2012). On the morning of May 9, 2013, the police observed the defendant getting into a brown Infinity motor vehicle parked in front of the subject residence. The car drove a short distance, and the defendant remained inside for a few minutes, speaking with the driver. When a grey or silver Kia motor vehicle pulled up and parked across the street, the defendant exited the Infinity and got into the Kia. The driver of the Infinity was apprehended soon thereafter, in possession of a quantity of crack cocaine. The last telephone number the driver had called on his cell phone was the defendant's.

Meanwhile, the Kia drove a short distance and returned to the subject residence, parking across the street. The defendant exited the Kia and entered the building. When the police stopped the Kia a short while later, its passenger also possessed a quantity of crack cocaine.

After several hours the defendant left the building, got into a white Chrysler motor vehicle, and drove away. The police followed the defendant, stopped the vehicle, and arrested him. He was hiding $ 7,378, separated into nine bundles, inside his pants. The Chrysler was registered to a resident of the first-floor apartment where the cocaine trafficking operation was located. From all of this evidence, the jury could readily infer that the defendant had knowledge of the operation taking place inside the apartment, was participating in the venture, and shared the intent to distribute.

Judgment affirmed.