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18-P-253                                                  Appeals Court

                  COMMONWEALTH    vs.   RAFAEL SANTANA.


                               No. 18-P-253.

            Middlesex.       January 2, 2019. - May 8, 2019.

            Present:     Green, C.J., Shin, & Englander, JJ.


Controlled Substances. Motor Vehicle. Evidence, Constructive
     possession. Practice, Criminal, Required finding.


     Complaint received and sworn to in the Lowell Division of
the District Court Department on September 19, 2016.

    The case was tried before J. Elizabeth Cremens, J.


     Philip Weber for the defendant.
     Gregory J. Galizio, Assistant District Attorney, for the
Commonwealth.


    ENGLANDER, J.        The defendant was convicted by a jury of

possession of cocaine based on a theory of constructive

possession, and the issue before us is the sufficiency of the

proof.     The cocaine was found in the glove compartment of a car

in which the defendant was the driver and sole occupant, after

the defendant was pulled over for a traffic violation.         The car
                                                                        2


was not registered to the defendant, and the cocaine was viewed

by the police officer only because, after he asked the defendant

for his license and the vehicle registration, the defendant

opened the glove compartment to look for the registration.        The

totality of the evidence was not sufficient to find that the

defendant had previous knowledge of the cocaine beyond a

reasonable doubt, and we accordingly reverse.

    Background.       Based on the evidence at trial, the jury could

have reasonably found the following.     In the early morning of

September 18, 2016, the defendant was driving a Honda automobile

on a street in Lowell.      The Honda strayed into the opposite

travel lane, almost striking a police vehicle being driven by

Officer Jerome Moore.     Officer Moore thereafter stopped the

Honda and approached the defendant.      Officer Moore testified as

follows:

    Q.: "Now, when you encountered the [d]efendant, did you
    ask him about the driving?"

    A.:    "I did."

    Q.:    "And what did he say?"

    A.: "He said he didn't know what I was talking about, and
    that he had just replaced the axles in his car."

    Q.:    "And did you ask him for his license or registration?"

    A.:    "I did."

    Q.:    "And what did he do when you asked him that?"
                                                                  3


     A.: "He opened up the glove box, to grab the
     registration."

     Q.: "And while he was opening up the glove box, did you
     see anything in the glove box?"

     A.:   "Yes."

     Q.:   "And what was that?"

     A.: "It was a bag, a fairly small bag of white powdery
     substance, sitting on the top of all the paperwork."

     Q.:   "And at that point, what did it appear to be?" . . .

     A.:   "It appeared to be cocaine."

     Q.: "And after you saw that bag, did you ask the
     [d]efendant about it?"

     A.:   "I -- I did."

     Q.:   "And what did he say?"

     A.: "He didn't say anything. He started putting papers
     over it, so I couldn't see it."

     Q.:   "And at this point, what did you do?"

     A.:   "I -- I ordered him out of the vehicle."

     Subsequent searches of the Honda also revealed a digital

scale and an unfired nine millimeter round in the glove

compartment, and a nine millimeter pistol located under the

passenger seat.1    Thirteen rounds of ammunition were found inside

a backpack in the trunk.    In the rear seat of the Honda there




     1 The Commonwealth does not suggest that the pistol was in
plain view. It was discovered during the inventory search of
the car.
                                                                   4


were two car seats.   There was also a "pink child sized guitar"

in the passenger compartment, and clothing on the floor.

     On cross-examination Officer Moore testified that the

defendant pulled over without incident, that the defendant

complied with his instructions, and that the defendant did not

appear agitated or "to be concealing anything."   The officer

also confirmed that he did not ask the defendant to open the

glove compartment, but rather the defendant did so "in response

to [the officer's] question to produce the registration."

     The car was not registered to the defendant, but to one

Francesca Rosario, who resided on "Pine Street," presumably in

Lowell.   The defendant had a different address, on Cork Street.

The prosecution introduced no additional evidence that linked

the defendant to any of the items in the car.

     The defendant was arrested and charged with carrying a

firearm without a license, possession of ammunition without a

firearm identification card, and possession of a class B drug

with intent to distribute.2   At trial, the judge denied the

defendant's motion for required findings, which argued among

other things that the Commonwealth had not adduced sufficient

evidence to establish constructive possession.    The jury found


     2 The Commonwealth points out that, after the officer
advised the defendant that he would be charged with drug
trafficking, the defendant swore at the officer. We do not
consider this evidence probative of the possession charge.
                                                                      5


the defendant not guilty of possession with intent to

distribute, but guilty of the lesser included offense of

possession of cocaine.    The jury also returned not guilty

verdicts on the gun and ammunition charges.

    Discussion.    The test for sufficiency of the evidence is

"whether, 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, 677-678 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

    A person who is not in actual possession of contraband can

nonetheless be found in constructive possession, and therefore

guilty of a possession crime.    Commonwealth v. Ortega, 441 Mass.

170, 174 (2004).   To show constructive possession, the

Commonwealth must show that the defendant knew of the existence

of the item, and had the ability and intent to exercise dominion

and control over it.     Commonwealth v. Brzezinski, 405 Mass. 401,

409 (1989).   These elements can be shown by circumstantial

evidence, and the reasonable inferences from such evidence.

Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).

However, mere presence in proximity to the contraband is not

sufficient to establish constructive possession.     Commonwealth

v. Romero, 464 Mass. 648, 653 (2013), citing Commonwealth v.

Albano, 373 Mass. 132, 134 (1977).    Rather, our cases emphasize
                                                                     6


the need for "other incriminating evidence" -- a so-called "plus

factor" -- in addition to evidence of proximity (quotation and

citation omitted).    Ortega, supra.   This additional evidence

must support an inference, among others, that the defendant had

knowledge of the contraband.    The requirement that the

Commonwealth demonstrate a plus factor holds true even where the

contraband is found in a car and the defendant is the car's sole

occupant.   See Commonwealth v. Almeida, 381 Mass. 420, 423

(1980) (evidence of constructive possession insufficient where

it demonstrated only that defendant was lone occupant of vehicle

containing contraband).    See also Alicea v. Commonwealth, 410

Mass. 384, 387-388 (1991).

    As the cases recognize, a sufficiency of the evidence

evaluation for constructive possession is necessarily fact-

specific, and turns on the totality of the evidence.       Albano,

373 Mass. at 134.    But while the inquiry is fact-specific, that

does not mean that the evaluation is without guiding principles.

There is a body of case law on the subject, and that case law

illuminates the importance and the adequacy of various plus

factors.    Here the critical question is whether there was

sufficient evidence of knowledge -- that the defendant knew of

the presence of the cocaine.    The factors that may have

relevance to that inquiry include, among others, who owned or

had control over the car, whether anyone else was present in the
                                                                   7


car, whether the contraband was in plain view or hidden, the

demeanor of the defendant, including whether he took any evasive

actions, and any additional facts that tend to show that the

defendant knew of, or had control of, the contents of the car.

See Commonwealth v. Sinforoso, 434 Mass. 320, 328-329 (2001)

(defendant's behavior and demeanor provided additional

incriminating evidence); Commonwealth v. Bienvenu, 63 Mass. App.

Ct. 632, 638-639 (2005) (defendant owned vehicle and contraband

was in plain view).

    In this case the Commonwealth cites three particular

aspects of the evidence:   first, the defendant was the driver

and sole occupant of the car; second, the defendant stated that

he had just replaced the axles in "his" car; and third, after

the officer asked about the bag of "white powdery substance" in

the glove compartment, the defendant acted evasively by trying

to cover the bag with papers.

    Under the case law, this evidence does not suffice to

establish constructive possession.   First, the fact that the

defendant was the driver and sole occupant of a car in which

contraband was found, where the contraband was not in plain

view, is not by itself sufficient.   Almeida, 381 Mass. at 423.

In Almeida, the police found the defendant alone in a parked car

with the engine running.   Id. at 421-422.   When the defendant

could not produce the car's registration he was ordered out of
                                                                      8


the car, and the police located a gun in the covered center

console of the car, not in plain view.     Id. at 422.   The

evidence showed that the car was owned by someone other than the

defendant.    Id.   The Supreme Judicial Court ruled on these facts

that there was insufficient evidence that the defendant had

knowledge of the gun.     Id. at 423.

    The Commonwealth suggests that in this case the calculus is

different, because unlike in Almeida, here the defendant

indicated that he was the "owner" and "caretaker" of the car.

We do not find the distinction persuasive here.     The car was not

registered to the defendant, but to a woman with a different

address than his, and as to whom there was no evidence of any

connection.   As a factual matter, the Commonwealth rests its

ownership or caretaker contention entirely on Officer Moore's

testimony that when first pulled over, the defendant stated that

he had just replaced the axles in "his" car.     But while the

defendant's replacement of the axles on the car may show that

his connection to the car was more than transient, it falls

short of showing the sort of exclusive or primary control that

would warrant a conclusion that he necessarily had knowledge of

the contents of the glove compartment.    This is especially so

given the presence of car seats and a child's toy, and the
                                                                    9


absence of evidence that the defendant had children.3    And in any

event, in Romero, the Supreme Judicial Court warned against

concluding that presence in and ownership of a car in which

contraband was found is sufficient, without more, to establish

constructive possession:   "[o]ur extended discussion of the

defendant's ownership and operation of the vehicle stems from a

concern that naked reliance on these factors comes 'perilously

close to endorsing guilt by presence at the scene of contraband,

a concept we have disavowed.'"   Romero, 464 Mass. at 658,

quoting Commonwealth v. Sespedes, 442 Mass. 95, 102 (2004).

     The only additional fact the Commonwealth can rely on is

the defendant's effort to conceal the bag of cocaine under some

papers, after the defendant opened the glove compartment and

after Officer Moore asked him about the bag.     The Commonwealth

urges that this is "evasive behavior" of the type relied on in

the cases as a sufficient plus factor, but we do not agree.

Here the defendant's actions did not provide sufficient evidence

of knowledge of the cocaine in advance of when the cocaine was

revealed by opening the glove compartment.     To the contrary,




     3 As we have observed, the evidence indicated that the
defendant did not own the car, as it was registered to someone
else. Moreover, even if the defendant had used a possessive
pronoun to describe the car (e.g., "my car"), such a statement
still would have been ambiguous, in context, as to whether the
defendant was stating that he owned the car, or merely that he
was driving it.
                                                                   10


there was no evidence of any action by the defendant that showed

knowledge in advance -- no agitation, no furtiveness, and no

effort to conceal.   Notably, it was the defendant himself who

exposed the cocaine by choosing to look in the glove compartment

-- he was not directed to do so.   In these circumstances we do

not think the defendant's action in attempting to cover the

cocaine with paper, after the officer pointed it out, suffices

to tip the scales.   The defendant reacted to seeing the cocaine

at the same time the officer did; the defendant's actions in

these circumstances do not give rise to a reasonable inference,

sufficient to support guilt beyond a reasonable doubt, that the

defendant had knowledge of the cocaine beforehand.

    Our conclusion in this regard is bolstered by the court's

reasoning in Alicea.   There the defendant also was the sole

occupant of a car that did not belong to him, and he was stopped

for a traffic violation.    Alicea, 410 Mass. at 385.   After

consenting to a search of the car, the defendant's demeanor

changed "remarkably" when the State police trooper began looking

inside the driver's side door frame.    Id. at 386.   After the

trooper removed a package wrapped in duct tape and began walking

toward the defendant, the defendant began to cry and said, "It's

not mine, it's not mine."   Id.

    On these facts the Alicea court first noted that the

defendant's behavior after the trooper found the package and
                                                                     11


showed it to him, although "relevant," would not have been

sufficient evidence to establish constructive possession:    "[w]e

find little support for a finding that the defendant knew of the

concealed heroin from . . . his reaction when the first trooper

showed the package to him."    Alicea, at 387.   Instead, although

the court went on to find sufficient evidence to support

constructive possession, it did so only because, before the

drugs had been located, the defendant showed "obvious agitation"

as the trooper's search moved closer to their hiding place.     Id.

The court ruled that this behavior "tended to show that [the

defendant] knew that there was cause for alarm."     Id. at 388.

     This case is not Alicea, as it lacks any evidence of

"agitation" or "change in demeanor" before the drugs were

located.   Id. at 387-388.    Instead, this case presents only the

facts that Alicea said were not sufficient.4

     The conviction of possession of cocaine must be reversed.

We are not unmindful that the jury reached a contrary

conclusion, but it is inherent in a sufficiency of the evidence

review that, on rare occasions, a jury verdict will be set




     4 We do not mean to imply that any and all actions by the
defendant after contraband is identified would be insufficient
to establish constructive possession. Each set of facts must be
reviewed in totality. Certainly some post-discovery conduct --
such as flight or false statements -- could be highly relevant
evidence of guilt. Commonwealth v. Sabetti, 411 Mass. 770, 778
(1992).
                                                                 12


aside.   Jackson, 443 U.S. at 317 ("a properly instructed jury

may occasionally convict even when it can be said that no

rational trier of fact could find guilt beyond a reasonable

doubt").   While a close case, here the evidence of possession

that the Commonwealth brought forward at trial was not

sufficient.

    Accordingly, the judgment is reversed, the verdict is set

aside, and judgment shall enter for the defendant.

                                      So ordered.
