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16-P-697                                              Appeals Court

                 COMMONWEALTH   vs.   ROBERT F. COOPER.


                             No. 16-P-697.

           Middlesex.       March 8, 2017. - May 25, 2017.

           Present:     Green, Wolohojian, & Sullivan, JJ.


Controlled Substances.     "School Zone" Statute.   Words,
     "Accredited."


     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.


     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 32J, 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
                                                                       2


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
                                                                    3


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 "G5027."

     The pills Munro purchased from the defendant were sent to

the State police drug laboratory and examined by chemist Rebecca
                                                                    4


Daner. 1   Upon examination, Daner determined that the pills were

all the same color, appearance, and size, and each bore the

marking "G5027."    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.

     Discussion.    1.   Sufficiency of the evidence -- class E

substance.    In his challenge to the sufficiency of the evidence

on his conviction of distribution of a class E substance, the

defendant contends that the Commonwealth's evidence did not

sufficiently establish that the substance the defendant sold to

Munro was in fact a class E substance (gabapentin).    In


     1
       Daner worked in the drug identification unit from May of
2011 to January of 2015, analyzing thousands of substances
during her tenure. Before joining the unit Daner earned a
bachelor's degree in biology and a master's degree in biomedical
forensic science. During her time with the laboratory she
received specialized training in drug identification, reviewed
literature on drug analysis, completed practical exercises, and
passed required competency exams.
                                                                      5


particular, the defendant contends that the Commonwealth's

failure to present evidence of a chemical analysis of the

substance left the jury to speculate whether the substance was

gabapentin, as the defendant represented it to be at the time he

sold it to Munro, or was instead a counterfeit substance that

the defendant falsely represented to be gabapentin.     See,

e.g., Commonwealth v. Vasquez, 456 Mass. 350, 365-366 (2010),

and cases cited.   See also G. L. c. 94C, § 32G (prohibiting

possession with intent to distribute counterfeit substance).     We

disagree.

     When prosecuting a narcotics offense, the Commonwealth must

prove that the substance in question "is a particular

drug."    Commonwealth v. Paine, 86 Mass. App. Ct. 432, 434

(2014), quoting from Commonwealth v. MacDonald, 459 Mass. 148,

153 (2011).   "Proof that a substance is a particular drug need

not be made by chemical analysis and may be made by

circumstantial evidence."    Commonwealth v. Dawson, 399 Mass.

465, 467 (1987).   In cases involving pharmaceutical drugs, we

have held that visual inspection supplemented by additional

evidence probative of the identity of a drug may be sufficient

to sustain the Commonwealth's burden of proof.   See,

e.g., Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 313-315

(2002); Commonwealth v. Greco, 76 Mass. App. Ct. 296, 299

(2010).
                                                                       6


     In Alisha A., supra at 313, the evidence included a

description of the color and shape of the pills, and of the

presence of a hollowed out "K" in the middle of each tablet, and

a physician testified that Klonopin pills are usually identified

by a "K" marked on them.     In addition, the juvenile had told her

schoolmates that she would be bringing Klonopin pills into

school to distribute; on the following day at school she

displayed the pills and gave about fifteen of them to a

schoolmate who, after ingesting them, was observed to be "under

the influence."   Id. at 312.    On the same day the juvenile

brought the pills to school, her mother (who had a prescription

for Klonopin) noticed that she was missing seventeen

pills.   Ibid.

     In Greco, supra at 297, there was evidence that the pills

in question were yellow and stamped with the word "Seroquel,"

the brand name equivalent of the generic drug quetiapine.       In

addition, the defendant was observed in front of a Walgreens

pharmacy, removing pills from a large prescription bottle and

handing them to another individual.     Ibid.   When questioned, the

defendant stated that the other individual had given him "ten

bucks for the pills."   Id. at 299.    The bottle, which was

introduced in evidence, bore the defendant's name and a

"Walgreen's" logo.   Ibid.
                                                                    7


     Similar to the facts in Alisha A. and Greco, the evidence

in the present case included substantial circumstantial evidence

in addition to the distinctive markings on the pills the

defendant sold to Munro.   In particular, in his first meeting

with Munro the defendant described the pills he intended to sell

by both their street name ("Johnnies") and their pharmaceutical

name (gabapentin).   He told Munro that he had a prescription for

gabapentin, with five refills remaining.   When the two met for

the sale, Munro saw the defendant remove the pills from a

prescription bottle with his name on it.   In addition, on that

occasion the defendant cautioned Munro to take no more than five

pills at once, and advised her that the capsules were each 300

milligram, quick-release capsules.   That additional evidence

distinguishes the present case from Paine, supra at 436, on

which the defendant relies, but in which no evidence was

presented regarding the nature of the drugs beyond the visual

markings "consistent in markings and appearance with" a class E

substance.   The evidence that the pills were a class E narcotic

was sufficient to support the defendant's conviction.

     2.   Sufficiency of the evidence -- school zone.   In his

separate challenge to the sufficiency of the evidence to support

his conviction of the school zone charge, the defendant

acknowledges that the Commonwealth introduced evidence that the

Bright Horizon Children's Center was licensed by the
                                                                     8


Massachusetts Department of Early Education and Care, but

observes that the statute applies only to private preschools

that are "accredited." 2,3   In response, the Commonwealth asserts

that the term "accredited," as used in the statute, should be

construed to include any private preschool that is licensed.

     In general, "a statute is to be interpreted 'according to

the intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated.'"   Commonwealth v. Welch, 444 Mass. 80, 85

(2005), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328

(1983).   "We begin, of course, with 'the plain language of the

statute,' but we also draw guidance from the legislative history

of the statute [and] 'the language and construction of related

statutes.'"   Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162,

163 (2005), quoting from Welch, supra.    Where a term is not


     2
       The defendant does not challenge the sufficiency of the
evidence to establish that the sale occurred within 300 feet of
the center, or that it occurred between the hours of 5:00 A.M.
and midnight.
     3
       Some schools and daycare facilities are licensed but never
accredited for any number of reasons. Although one may conceive
valid policy grounds to include licensed educational facilities
and day care centers under the umbrella of G. L. c. 94C, § 32J,
we are bound by the language chosen by the Legislature.
                                                                    9


defined, we may also "refer to definitions given the same word

where it has appeared in other statutes under

review."   Commonwealth v. Baker, 368 Mass. 58, 69 (1975).

     Prior to 1998, G. L. c. 94C, § 32J, as inserted by St.

1989, c. 227, § 2, imposed a mandatory minimum sentence on

"[a]ny person who violates the provisions of [certain specified

drug statutes] while in or on, or within one thousand feet of

the real property comprising a public or private elementary,

vocational, or secondary school."   By St. 1998, c. 194, § 146,

the statute was amended to add to the list of facilities

triggering the statute's minimum penalties "a public or private

accredited preschool" and an "accredited headstart facility." 4

By St. 2012, c. 192, § 30, effective August 2, 2012, the statute

was again amended to reduce the distance from one thousand to

300 feet, and to restrict its scope to violations of the school

zone provisions occurring between 5:00 A.M. and midnight.

     The term "accredited" is not defined in G. L. c. 94C. 5   As

defined in Black's Law Dictionary (9th ed. 2009), "accredit"


     4
       In Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325
(2008), we construed the new language to include public
preschools, whether or not accredited, based on the conclusion
that the modifier "accredited," as applied to preschools, was
applicable only to "those newly added facilities that were
private in nature."
     5
       We note that several other statutes that refer to
accreditation without reference to licensure either provide a
definition of accreditation or include a list of organizations
                                                                       10


means "1.    To give official authorization or status to.    2.   To

recognize (a school) as having sufficient academic standards to

qualify graduates for higher education or for professional

practice."    According to the same source, "license" means "1.     A

permission, usu. revocable, to commit some act that would

otherwise be unlawful . . .    2.   The certificate or document

evidencing such permission."    Neither definition, standing

alone, resolves the question whether the two terms are or should

be considered equivalent for purposes of the school zone

statute.    At trial in the present case, the Commonwealth

presented no evidence concerning the availability or use of

accreditation in the field of preschool or daycare facilities,

so as to establish that accreditation is the substantial

equivalent of licensure. 6   We turn, then, to consideration of how

the terms are used in other related statutory contexts.

See Baker, supra.    See also Department of Youth Servs. v. A

Juvenile, 398 Mass. 516, 523 (1986).

     Our research has disclosed references to accreditation in a

variety of other statutory settings, principally in the fields

of education and health.     In several statutes, certification for



that can provide qualifying accreditation. See, e.g., G. L.
c. 18, § 28; G. L. c. 29, § 2JJ; G. L. c. 278A, § 8; G. L.
c. 112, § 24G; and G. L. c. 112, § 54A.
     6
       The record furnishes no guidance, for example, on the
proportion of licensed preschools that are also accredited.
                                                                   11


participation in a government program preempts or satisfies an

otherwise applicable requirement for accreditation.   In those

instances, however, the relevant statute makes the equivalency

between certification and accreditation explicit.   See, e.g.,

G. L. c. 175, § 108 (contracts regarding accident and health

insurance policies); G. L. c. 175, § 110 (contracts with

insurers generally); G. L. c. 176A, § 5 (contracts with hospital

service corporations); G. L. c. 176B, § 4 (contracts with a

medical service corporation); G. L. c. 176G, § 6 (contracts with

health maintenance organizations); G. L. c. 176I, § 2 (preferred

provider arrangements).   In certain other instances, a statute

describing regulatory oversight of a field recognizes either a

license or accreditation as alternative means to satisfy

eligibility requirements under the statute.   Again, however, in

such instances the statutory equivalency is stated explicitly in

the statute.   See, e.g., G. L. c. 111, § 25N1/2 (primary care

residency grant program); G. L. c. 152, § 28 (eligibility to

employ a mentally retarded person under exemption for certain

sheltered workspaces); G. L. c. 175, § 20A (credit for

reinsurance); G. L. c. 176O, § 1 (defining health care

professional).

     We consider particularly instructive the treatment of

licensure and accreditation, respectively, under G. L. c. 112,
                                                                    12


§ 263, which governs the licensure and operation of private

occupational schools.    Subsection (p) of that statute describes

the manner in which private schools, having obtained a license,

may become accredited.   It is clear from the statute that

accreditation involves an additional review process, and a more

stringent set of criteria, than licensing, and that not all

licensed schools are accredited.

     As we have observed, we construe the language used in a

statute based on the meaning of the words used.   The Legislature

is presumed to be aware of the meaning it has ascribed to terms

it has used in other statutes, particularly in relation to

similar subjects.   Accordingly, we must place some significance

on the choice of the Legislature to use the term "accredited"

rather than "licensed" in § 32J, and on the fact that it did not

use both as alternatives (as it has in other settings).    We note

as well that, prior to 1998, the statute did not refer to

preschools at all and that, when it did, it encompassed only

accredited private preschools (as compared to public schools,

which are encompassed without regard to "accreditation").

See Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008).

On the record before us, the Commonwealth has developed no

evidence suggesting that "accredited" and "licensed" are

considered or treated as equivalents in any manner in the

context of private preschools.   In the absence of such evidence,
                                                                  13


and mindful of the principle of lenity applicable to the

construction of criminal statutes, see Commonwealth

v. Williamson, 462 Mass. 676, 679 (2012), we conclude that the

evidence in the present case was insufficient to support the

defendant's conviction of a violation of G. L. c. § 94C, § 32J.

     3.   Other issues.   The defendant's remaining claims of

error require only brief discussion.    The defendant claims error

in the denial of his motion to exclude the drug certificate and

the testimony of chemist Rebecca Daner, filed after both sides

rested.   The motion was untimely and, accordingly, is waived.

See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 692 (2015).

In any event, the trial judge did not abuse her discretion in

determining that Daner was qualified to offer an expert opinion,

or to present a certificate expressing that opinion.    Daner

testified about her extensive training and experience,

establishing her qualifications to offer an opinion based on the

appearance and markings of the pills she examined that they were

gabapentin.   Cf. Alisha A., 56 Mass. App. Ct. at 313-315

(physician testified regarding appearance and distinctive

markings of Klonopin).    There was no abuse of discretion and,

hence, no error; the admission of the evidence accordingly does

not give rise to a substantial risk of a miscarriage of justice.

     The defendant's related claim of ineffective assistance of

counsel, based on trial counsel's failure to challenge Daner's
                                                                    14


testimony and certificate in a timely manner, is likewise

unavailing. 7   As we have observed, however, the trial judge did

not abuse her discretion in allowing Daner to testify to her

opinion that the pills were gabapentin, based on her examination

of their appearance and markings.    A timely objection to the

testimony and certificate would have achieved nothing for the

defendant, and counsel's failure to raise one accordingly

furnishes no basis for a claim of ineffective assistance.

See Commonwealth v. Satterfield, 373 Mass. 109, 115

(1977); Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

     Conclusion.    The defendant's judgment of conviction on

count 1, distribution of a class E substance, in violation of

G. L. c. 94C, § 32D(a), is affirmed.    The defendant's judgment

of conviction on count 2, distribution in a school zone, in

violation of G. L. c. 94C, § 32J, is reversed, the verdict is

set aside, and judgment shall enter for the defendant.

                                     So ordered.




     7
       We note that the defendant has raised his claim on direct
appeal, so it is eligible for consideration and relief only if
the "factual basis of the claim appears indisputably on the
trial record." Commonwealth v. Zinser, 446 Mass. 807, 811
(2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct.
339, 344 (1994).
