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17-P-1127                                               Appeals Court

                   COMMONWEALTH   vs.   ANDREW WOODS.


                             No. 17-P-1127.

         Worcester.      November 8, 2018. - February 7, 2019.

             Present:    Green, C.J., Meade, & Sacks, JJ.


Firearms. Controlled Substances. Evidence, Constructive
     possession. Armed Home Invasion. Malicious Injury to
     Property. Malice. Practice, Criminal, Required finding.



     Indictments found and returned in the Superior Court
Department on March 20, 2015.

     The cases were tried before Richard T. Tucker, J.


     Deborah Bates Riordan for the defendant.
     Michelle R. King, Assistant District Attorney, for the
Commonwealth.


     GREEN, C.J.      The defendant appeals from his convictions of

various charges arising from the discovery of a loaded firearm

and drugs in a closet in the apartment in which he was arrested.1


     1 The defendant was convicted of: (i) armed home invasion,
G. L. c. 265, § 18C; (ii) trafficking in cocaine between thirty-
six and one hundred grams, G. L. c. 94C, § 32E (b); (iii)
                                                                   2


Among his claims on appeal, the defendant contends that (1) the

evidence was insufficient to establish that he constructively

possessed the loaded firearm and drugs; (2) his conviction of

possession of a loaded firearm must be reversed, because the

jury were not instructed that they must find that the defendant

knew that the firearm was loaded; (3) his conviction of

possession of ammunition is duplicative of his conviction of

possession of a loaded firearm; (4) the evidence was

insufficient to establish the use of force or threat element of

the charge of armed home invasion; and (5) the evidence was

insufficient to support his conviction of malicious destruction

of property over $250, both because it did not establish that he

acted with malice and because there was no evidence that the

property damage was more than $250.

    We agree with the Commonwealth's concession that the

defendant's conviction of possession of ammunition is

duplicative of his conviction of possession of a loaded firearm,

and we also agree that the evidence was insufficient to support




possession of a firearm in a felony, G. L. c. 265, § 18B; (iv)
carrying a firearm without a license, G. L. c. 269, § 10 (a);
(v) carrying a loaded firearm without a license, G. L. c. 269,
§ 10 (n); (vi) possession of ammunition without an FID card,
G. L. c. 269, § 10 (h) (1); (vii) possession of a class A
substance with intent to distribute, G. L. c. 94C, § 32 (a);
(viii) malicious destruction of property over $250, G. L.
c. 266, § 127; and (ix) resisting arrest, G. L. c. 268, § 32B.
                                                                        3


his conviction of malicious destruction of property over $250.

Accordingly, on the charge of unlawful possession of ammunition,

the judgment is vacated, the verdict is set aside, and the

indictment is to be dismissed.     On the charge of malicious

destruction of property over $250, the judgment is reversed, the

verdict is set aside, and judgment shall enter for the defendant

on that count.     We otherwise discern in the defendant's various

arguments no cause for relief, and affirm the remaining

judgments of conviction.

     Background.     On the morning of December 23, 2014, a team

from the Massachusetts fugitive apprehension task force went to

190 Blossom Street in Fitchburg to serve an arrest warrant on an

individual they understood to be living in apartment 3 at that

address (the only apartment unit on the third floor).2       The team

entered the building through the unlocked front door and began

climbing the stairs; as they reached the second floor landing

they noticed an open apartment door on their left, and then

heard a loud bang -- followed by a woman's screams for help --

coming from the third floor.     The team raced up the stairs to

the third floor, arriving ten to fifteen seconds after hearing

the loud bang.    When they arrived, they found the apartment door

off its hinges and lying on the kitchen floor, and the door


     2   The building is a three-story apartment building.
                                                                     4


frame damaged; a hole in the door suggested it had been kicked

in.

      Lauren Wiener was the tenant of the third floor apartment,

where she and her husband had moved about three months earlier.

Neither she nor her husband was the target of the arrest warrant

the task force had come to serve.3    She had been sleeping in her

bedroom at around 9:00 A.M. when she was awakened by a crash.

She began screaming.   At the time, the apartment was dark, with

the lights off and the shades pulled.    After hearing the crash,

Wiener saw a "dark figure" in her bedroom doorway, putting his

finger to his lips while saying, "shhh."    Wiener was "afraid for

[her] life," and continued screaming for help.     Wiener then saw

the person move from her bedroom doorway into the living room.

      As Trooper Amy Waterman approached the entrance to Wiener's

apartment, she saw an individual moving quickly in the back of

the living room, coming toward her.     The man, later identified

as the defendant, initially stopped and was cooperative;

however, he quickly "threw an elbow to resist . . . attempts to

arrest him, and then attempted to run out the way that

[everyone] had come in, past the broken door."     Several members

of the task force physically wrestled with the defendant for


      3Wiener's husband was not home at the time the team
arrived. There is no indication in the evidence that the target
of the arrest warrant was a resident of the apartment.
                                                                      5


several minutes in an effort to place him in handcuffs.     A

search of the defendant yielded $2,293 in cash, three one

hundred dollar bills that were "smudged and off-center," and a

"rock in a sock" makeshift weapon comprised of a sock containing

heavy metal objects.    On the floor, near the defendant, were

three cellular telephones (cell phones) that the defendant

acknowledged as his.

     While Trooper Waterman went into the bedroom to speak with

Wiener, who had been screaming and crying and was obviously

frightened, another trooper stayed with the defendant, and other

task force members conducted a protective sweep of the

apartment.    There were four doors in the living room:   two

closet doors, one door to the attic, and an exit door to the

outside.     When Worcester police Officer Robert Johnson looked in

one of the closets, he observed a bag of empty soda bottles on

the floor and a child's blue kick ball, slit open, sitting on a

wire rack above.4    Officer Johnson could see the handle of a

firearm inside the kick ball; as soon as he saw the weapon he

alerted other members of the task force.    The firearm was loaded

with a bullet in the chamber and a clip holding additional

rounds of ammunition.




     4 The other closet contained Wiener's pea coat, scarves, and
her husband's work reflector vests.
                                                                   6


    After Officer Johnson alerted the team to the discovery of

the firearm, police brought Wiener into the living room to look

at the items in the closet.   While standing in the living room,

Wiener heard the defendant say repeatedly, "that's not mine,"

though she did not know to what he was referring.   Wiener was

then asked to look inside the closet.   Inside the closet, she

saw a blue ball that had not been in the closet when she last

looked into it the previous night.   Inside the blue ball, Wiener

was able to see two smaller balls (a basketball and a tennis

ball), a handgun, and what appeared to be drugs inside the

smaller balls.   Wiener had never seen the blue ball or its

contents before that moment, and the ball and its contents did

not belong to her or any other member of her household.

    As the defendant was led out of the building, he asked

Massachusetts State Trooper Darlene DeCaire to close the second-

floor door to his apartment, which she did.   Task force members

attempted to secure the defendant’s apartment while other

members applied for a search warrant.   However, while the task

force members were waiting, the defendant's girlfriend, Alicia

Ortiz, entered the apartment through an unknown door that she

then locked, and would not let the task force members inside.

At some point before the warrant was obtained, Ms. Ortiz left

the apartment; she was not pat frisked or searched as she left.
                                                                      7


    Once the search warrant was obtained, task force members

searched the defendant's apartment.     Inside they found a digital

scale in a bedroom drawer.     In a kitchen cabinet, they found a

box of sandwich bags, one of which had a corner ripped off, and

an empty gun holster.    The gun found inside the blue ball "fit

pretty well" into the holster found in the defendant's

apartment.

    When police later examined the blue ball at the Leominster

State police barracks, they determined that the gun was a 380-

caliber handgun, loaded with six rounds of ammunition.       There

was a smaller brown basketball inside the blue ball that was cut

open, and the basketball contained a small purple tennis ball,

also cut open.    There were small plastic bags inside the

basketball and tennis ball, some containing a "white-powder

substance" and other bags holding a "tan powder substance."

Five bags of white powder tested positive for cocaine, with a

total weight of 94.36 grams.     Two packages were positive for

methylone, commonly referred to as "bath salts," and the tan

powder tested positive for heroin.

    Discussion.    1.   Constructive possession.   The defendant

contends that the evidence was insufficient to establish that he

possessed the blue ball (and the other items it contained) found

in the closet of Wiener's apartment.     In assessing the

sufficiency of the evidence, we must decide "whether the
                                                                      8


evidence, in its light most favorable to the Commonwealth,

notwithstanding the contrary evidence presented by the

defendant, is sufficient . . . to permit the jury to infer the

existence of the essential elements of the crime charged . . ."

Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 392 (2009),

quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

Because the defendant did not have actual physical possession of

the blue ball when he was apprehended, the Commonwealth's case

rested on the theory of constructive possession.   "'Constructive

possession' requires proof that the defendant had 'knowledge

coupled with the ability and intention to exercise dominion and

control.'"    Commonwealth v. Than, 442 Mass. 748, 751 (2004),

quoting Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).

"Proof of possession of [contraband] may be established by

circumstantial evidence, and the inferences that can be drawn

therefrom."   Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426

(1985).   "The defendant's mere presence in the area where

contraband is found is insufficient to show 'the requisite

knowledge, power, or intention to exercise control over the

[contraband], but presence, supplemented by other incriminating

evidence will serve to tip the scale in favor of sufficiency.'"

Commonwealth v. Schmeider, 58 Mass. App. Ct. 300, 303 (2003),

quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977).       In

the present case, several pieces of incriminating evidence
                                                                    9


suffice to tie the defendant to the blue ball found in Wiener's

apartment closet.

     To begin with, the open door to the defendant's apartment

immediately downstairs from Wiener's, coupled with evidence of a

forced entry into Wiener's apartment, and the defendant's

efforts to quiet Wiener's screams (by holding his finger to his

lips and whispering "shhh") suggest an urgent and spontaneous

series of actions by the defendant to flee from his apartment

(and to hide in Wiener's) when the task force entered the

apartment building.   Wiener and her husband had no children, and

no children's toys (other than the blue ball with the basketball

and the tennis ball stored inside it) were found in Wiener's

apartment.   Wiener testified that she did not see the blue ball

in the closet the evening before its discovery by the task

force, and adamantly denied that it belonged to her or her

husband.5

     In addition, police found a gun holster in the defendant's

apartment into which the handgun found in the blue ball fit

"pretty well."   They also found in the defendant's apartment

plastic baggies including one with a cut corner, and a digital




     5 Though the defendant also denied that the ball was his
when he was apprehended at the scene, the jury were free to
credit Wiener's denial and discredit the defendant's.
                                                                    10


scale; both items were described in expert testimony as

indicative of the drug trade.6

     Finally, though Wiener and her husband had no children, the

defendant and his girlfriend each had a child.    The defendant's

girlfriend's child lived in their apartment and the defendant's

child visited on weekends.   Children's toys were seen by task

force members in the defendant's apartment, permitting an

inference that the defendant had converted three balls

previously used as children's toys into storage compartments for

the drugs and handgun found in Wiener's closet.

     2.   Armed home invasion.   There is likewise no merit in the

defendant's challenge to the sufficiency of the evidence on the

charge of armed home invasion.   In order to convict the

defendant of that charge, the Commonwealth was required to

establish that:

     "[T]he defendant (1) 'knowingly enter[ed] the dwelling
     place of another'; (2) 'knowing or having reason to know
     that one or more persons are present within' (or entered
     without such knowledge but then remained in the dwelling
     place after acquiring or having reason to acquire such
     knowledge); (3) 'while armed with a dangerous weapon'; and
     (4) 'use[d] force or threaten[ed] the imminent use of force
     upon any person within such dwelling place whether or not
     injury occur[red], or intentionally cause[d] any injury to
     any person within such dwelling place.'"




     6 Expert testimony also described the presence of multiple
cell phones (such as the three found next to the defendant at
the time of his arrest) as associated with the drug trade.
                                                                     11


Commonwealth v. Smith, 458 Mass. 1012, 1013 (2010), quoting

Commonwealth v. Doucette, 430 Mass. 461, 465-466 (1999).

     In the present case, the Commonwealth proceeded on two

separate theories:     that the defendant threatened Wiener with

the imminent use of force after he forcibly entered her

apartment and directed her to be silent, and that he used actual

force against the task force members who thereafter entered

Wiener's apartment.7    We are persuaded that the evidence sufficed

to support a guilty verdict on either theory.

     Following the defendant's forcible, violent entry into her

apartment while she was asleep, by her account Wiener was

frightened for her life (and her fear was objectively

reasonable).8    In such circumstances, a rational finder of fact

could construe the defendant's directive to Wiener that she be

silent as an implicit threat of violence against her if she did

not comply.     In any event, there is no serious dispute that the

defendant used actual force against the task force members as

they attempted to take him into custody.9    That the task force


     7 The defendant challenges only the sufficiency of the
evidence on the element of threat or use of force.

     8 We note that the Commonwealth was not required to show
that Wiener was actually placed in fear. See Commonwealth v.
Dunn, 43 Mass. App. Ct. 58, 62 (1997).

     9 For the first time on appeal, the defendant contends that,
because the task force members were not listed as victims on the
indictment for armed home invasion, the Commonwealth could not
                                                                    12


members were not in the apartment when the defendant entered it

is of no consequence.   See Commonwealth v. Martinez, 85 Mass.

App. Ct. 288, 291 (2014).

     3.   Loaded firearm.   As the Commonwealth acknowledges, the

jury instruction on the charge of possession of a loaded firearm

was deficient, insofar as it did not instruct the jury that, to

return a verdict of guilty, they must find that the defendant

knew that the firearm was loaded.   See Commonwealth v. Brown,

479 Mass. 600, 608 (2018).10   Though the defendant did not object

to the instruction, the absence of instruction on an element of

the charged offense can often give rise to a substantial risk of

a miscarriage of justice.   See, e.g., Commonwealth v. Redmond,

53 Mass. App. Ct. 1, 8 (2001).    In the circumstances of the

present case, "[h]aving reviewed the charge and the evidence as

a whole," id., we discern no such risk.




pursue that theory at trial. To the contrary, "'[i]n a criminal
case, any . . . objection based upon defects . . . in the
complaint or indictment, other than a failure to show
jurisdiction in the court or to charge an offense, shall only be
raised prior to trial . . . .' Failing to object to such a
defect prior to trial ordinarily waives any argument pertaining
to that defect." Commonwealth v. Lamont L., 438 Mass. 842, 845
(2003), quoting G. L. c. 277, § 47A. The defendant was on
notice of the Commonwealth's alternative theory before trial
began and raised no objection. The claim is accordingly waived.

     10We note that the trial judge and the parties did not have
the benefit of the Brown decision at the time of trial.
                                                                      13


     In particular, we observe that the defendant was convicted

of the charge of possession of ammunition.      On that charge, the

jury were instructed clearly that a required element for a

verdict of guilty was that the "defendant knew that he possessed

that ammunition."    As the defendant acknowledges, the only

ammunition for which he was charged was that located within the

firearm.    Because the jury found that the defendant knowingly

possessed the ammunition within the firearm, the failure to

instruct the jury that they were required to find that he knew

the handgun was loaded with ammunition in order to return a

verdict of guilty on the charge of possession of a loaded

firearm was of no significance.11

     4.    Malicious destruction of property.    We agree with the

defendant that the evidence was insufficient to satisfy the

element of malice on the charge of malicious destruction of

property.    "To prove a violation of G. L. c. 266, § 127, as




     11As the Commonwealth concedes, the defendant's conviction
on the lesser included offense of possession of ammunition is
duplicative of his conviction of possession of loaded firearm,
in the circumstances of this case, where the only ammunition at
issue was that within the firearm. See Commonwealth v. Johnson,
461 Mass. 44, 54 (2011). Accordingly, on the indictment
charging unlawful possession of ammunition under G. L. c. 269,
§ 10 (h), the judgment is vacated, the verdict is set aside, and
the indictment is to be dismissed. Because the defendant's
sentence on this conviction did not increase the amount of time
of the defendant's incarceration, we do not remand for
resentencing.
                                                                    14


amended by St. 1994, c. 168, § 4, the Commonwealth must prove

that the [defendant] 'destroy[ed] or injure[d] the personal

property, dwelling house or building of another . . . .'       If the

destruction or injury is 'wilful and malicious,' the permissible

penalty is greater than if it is merely 'wanton,' which is a

separate crime requiring different proof.     See Commonwealth v.

Schuchardt, 408 Mass. 347, 352 (1990)."     Commonwealth v. Morris

M., 70 Mass. App. Ct. 688, 691 (2007).    The terms "wilful" and

"malicious" represent two distinct elements of the crime, both

of which must be proved beyond a reasonable doubt.     See Redmond,

53 Mass. App. Ct. at 4.   "The word 'wilful' means intentional

and by design in contrast to that which is thoughtless or

accidental.   Malice, on the other hand, refers to a state of

mind of cruelty, hostility or revenge."     Nolan & Santoro,

Criminal Law § 427, at 438 (2001).

    In the present case, the evidence clearly sufficed to show

that the defendant acted wilfully (that is to say,

intentionally) when he broke down the door to Wiener's apartment

to gain entry.   However, the wilful commission of an unlawful or

even destructive act does not, by itself, suffice to prove

malice under G. L. c. 266, § 127.    See Redmond, 53 Mass. App.

Ct. at 4.   In the circumstances of the present case, the

evidence establishes instead that the defendant's acts in

breaking down the door were wanton -- that he acted "heedlessly
                                                                   15


and in reckless disregard of the rights of others."    Morris M.,

70 Mass. App. Ct at 692, quoting Nolan & Santoro, supra at 440.

There is no evidence that the defendant was motivated by animus

or hostility toward Wiener; instead, his destruction of her door

was by all appearances an incidental consequence of his

ultimately fruitless efforts to evade the approaching task

force.    And though the defendant's actions were wanton, he was

not charged with wanton destruction of personal property, and it

is not a lesser included offense of malicious destruction of

property.    See Schuchardt, 408 Mass. at 352; Redmond, supra at

5.

       Commonwealth v. Cimino, 34 Mass. App. Ct. 925 (1993), on

which the Commonwealth relies, is not to the contrary.    In that

case, the defendant was convicted of malicious destruction of

property based on his destruction of car windows by shooting

through them with a BB gun.    What made the shootings malicious

rather than wanton is that destruction of the windows was the

defendant's principal purpose in shooting at them.    See id. at

927.   Compare Redmond, 53 Mass. App. Ct. at 4-5 (evidence of

malicious destruction was insufficient where destruction of

property was not designed to intimidate or overpower its owner,
                                                                 16


but rather was incidental means to carry out defendant's goal of

theft).12

     Conclusion.   On the charge of unlawful possession of

ammunition, the judgment is vacated, the verdict is set aside,

and the indictment is to be dismissed.   On the charge of

malicious destruction of property over $250, the judgment is

reversed, the verdict is set aside, and judgment shall enter for

the defendant on that count.   The remaining judgments are

affirmed.

                                   So ordered.




     12Our conclusion that the evidence was insufficient to
satisfy the element of malice obviates any need to address the
defendant's contention that the evidence was insufficient to
establish that the amount of damage exceeded $250.
