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SJC-11754

              COMMONWEALTH vs. JASON DAGRACA-TEIXEIRA
                       (and a companion case1).



                           March 16, 2015



Firearms. Controlled Substances. Evidence, Firearm,
     Constructive possession, Inference. Search and Seizure,
     Warrant.



     The defendants, Jason Dagraca-Teixeira (Jason) and Adilson
Teixeira (Adilson), were convicted of possession of heroin,
G. L. c. 94C, § 34;2 unlawful possession of a firearm, G. L.
c. 269, § 10 (h); and unlawful possession of ammunition, G. L.
c. 269, § 10 (h) (1). On appeal, the defendants argued, among
other things, that the evidence supporting their convictions was
insufficient. A panel of the Appeals Court affirmed the
convictions. Commonwealth v. Dagraca-Teixeira, 85 Mass. App.
Ct. 1126 (2014). We granted the defendants' applications for
further appellate review, limited to the issue of the
sufficiency of the evidence. See Commonwealth v. Dagraca-
Teixeira, 469 Mass. 1110 (2014).

     We hold that there was sufficient evidence supporting the
convictions of possession of heroin, but that the Commonwealth

     1
         Commonwealth vs. Adilson Teixeira.
     2
       The defendants were charged with possession of heroin with
intent to distribute, G. L. c. 94C, § 32 (a). The jury found
the defendants guilty of the lesser included offense of
possession of heroin.
                                                                   2


did not present sufficient evidence to establish possession of
the firearms and ammunition beyond a reasonable doubt. We
therefore affirm in part and reverse in part.

     We review the essential evidence in the light most
favorable to the Commonwealth. At approximately 11 P.M. on an
evening in November, 2011, six Taunton police officers executed
a search warrant for a second-floor apartment on Wales Street in
Taunton. They entered through an open door and found eight to
ten people inside, including Adilson. The officers secured the
apartment and its occupants. One of the officers searched
Adilson and found $340 in cash in his pocket. While the
officers were present, Jason arrived with an unidentified woman.
An officer searched him and found $375 in cash and a key.

     The search of the apartment included three bedrooms located
off a short interior hallway. Jason's key fit the lock of one
of the bedrooms. In that bedroom, an officer found a small bag
containing a substance believed to be heroin, along with Jason's
baptismal certificate, a cellular telephone, and scales. During
the search of a second bedroom, another officer found two small
bags of what appeared to be the same substance found in the
first bedroom, along with twenty-nine dollars in cash, on a
table with Adilson's birth certificate and other documents. A
woman's jacket was hanging on the door to the bedroom closet.
Inside a zippered pocket, in the jacket, officers found $200 in
cash and a plastic bag containing ten smaller bags of the same
substance as on the table. At trial, the defendants stipulated
to the fact that the substance in the various bags found in
these bedrooms was heroin. No contraband was found in the third
bedroom.

     In the ceiling of the common hallway was a small, sealed
hatch to an attic. The attic was accessible only through the
hatch. To gain entry, one of the officers pushed in the hatch
door and was boosted up by the other officers. There was no
ladder or pull-down stairs leading to the attic. The officer
testified that, on entering the attic, he sat on the edge of the
opening. He eventually noticed a small plastic shopping bag
wedged between the ceiling joists and the insulation. The
officer removed the bag and found that it contained two loaded
handguns. He did not testify to finding anything else in the
attic.

     Possession of heroin. The Commonwealth presented ample
evidence to support the defendants' drug convictions. Their
presence in the apartment plus the evidence of their personal
                                                                   3


documents found in the respective bedrooms, in direct proximity
to the heroin, was more than sufficient to establish possession.
Commonwealth v. Pratt, 407 Mass. 647, 652 (1990).

     Possession of firearms and ammunition. Because the loaded
guns were concealed in the attic, the issue before us is the
sufficiency of the evidence to support the Commonwealth's theory
of constructive possession. Constructive possession requires
proof of "knowledge coupled with the ability and intention to
exercise dominion and control." Commonwealth v. Brzezinski, 405
Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass.
App. Ct. 495, 498 (1984). See Commonwealth v. Deagle, 10 Mass.
App. Ct. 563, 567-568 (1980), and cases cited. This proof "may
be established by circumstantial evidence, and the inferences
that can be drawn therefrom." Brzezinski, supra, quoting
Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).
However, "[p]resence alone cannot 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. Albano, 373 Mass. 132, 134 (1977), quoting
United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

     Because they had access to the attic, it reasonably can be
inferred that the defendants had the "ability" to exercise
control over items located there. Brzezinski, supra at 409-410.
The dispositive question, however, is whether the Commonwealth
provided sufficient evidence of their "knowledge" of the
concealed firearms and "intention" to exercise such control.
Id. The mere fact that the attic was above the bedrooms,
without any evidence that it was directly accessible through the
bedrooms, was insufficient, without more, to support an
inference that the defendants had the requisite knowledge of the
contents of the attic and an intention to exercise control of
the contents. The attic was equally accessible to all occupants
of the apartment, and not uniquely accessible to the occupants
of the bedrooms.

     None of the evidence presented showed a connection between
the defendants and anything in the attic, let alone to the
firearms and ammunition concealed there. Conversely, the search
of the bedrooms and the common living areas uncovered nothing
establishing the defendants' connection to the weapons. See
Commonwealth v. Caraballo, 33 Mass. App. Ct. 616, 618-620 (1992)
(no constructive possession where defendant stood in common
hallway immediately outside his apartment next to chair above
which bags of cocaine were concealed in ceiling). Contrast
                                                                   4


Commonwealth v. Montanez, 410 Mass. 290, 305-306 (1991)
(possession where drugs were concealed in ceiling of common
hallway immediately outside defendant's apartment and were
packaged in same type of materials as drugs found in his
apartment). No known possessions of the defendants were found
in the attic; indeed, there was no evidence that the defendants
had ever been in the attic. There was also no evidence that
police officers observed the defendants engaged in any
suspicious activity relating to firearms and ammunition,3 and no
evidence that any other firearms, ammunition, or gun
paraphernalia were found in the bedrooms or common living areas
of the apartment. Nor was there any suggestion that the
defendants displayed any consciousness of guilt in reaction to
the search of the attic. Cf. Brzezinski, supra at 410. Thus,
the evidence was insufficient to support a conclusion beyond a
reasonable doubt that the defendants constructively possessed
the firearms and ammunition concealed in the attic.

     Conclusion. The convictions of possession of heroin are
affirmed. The convictions of unlawful possession of firearms
and ammunition are reversed.

                                   So ordered.

     Travis J. Jacobs for Jason Dagraca-Teixeira.
     Jacob B. Stone for Adilson Teixeira.
     Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.




     3
       We have held in other contexts that evidence of illegal
drug activity does not necessarily warrant a conclusion -- even
under a reasonable suspicion or probable cause standard -- that
illegal weapons are present. See Commonwealth v. Gomes, 453
Mass. 506, 512-513 (2009); Commonwealth v. Jimenez, 438 Mass.
213, 220 (2002). Moreover, in acquitting the defendants of
possession with intent to distribute, the jury appear to have
rejected the notion that the defendants were engaged in large-
scale drug activity. See note 2, supra.
