                                                   Supreme Court

                                                   No. 2014-252-C.A.
                                                   (P2/12-475A)

      State                      :

        v.                       :

Francisco Maria.                 :




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notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                    Supreme Court

                                                                    No. 2014-252-C.A.
                                                                    (P2/12-475A)

                       State                       :

                         v.                        :

                  Francisco Maria.                 :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                            OPINION

       Chief Justice Suttell, for the Court. The defendant, Francisco Maria, was found guilty

by a jury of possession of cocaine with intent to deliver. He now appeals from the judgment of

conviction sentencing him to a term of fifteen years’ incarceration, with five years to serve and

ten years suspended, with probation. He argues that the trial justice erred by denying his motion

for judgment of acquittal as well as by not instructing the jury on the lesser-included offense of

simple possession. This case came before the Supreme Court pursuant to an order directing the

parties to appear and show cause why the issues raised in this appeal should not be summarily

decided. After considering the parties’ written and oral submissions and reviewing the record,

we conclude that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

                                                  I

                                     Facts and Procedural History

       On February 7, 2012, defendant was charged with one count of possessing cocaine with

the intent to deliver it. The defendant was tried by a jury over three consecutive days in March




                                                 -1-
and April 2014 in the Providence County Superior Court. The state presented six witnesses;

their pertinent testimony and the evidence admitted at trial are summarized below.

       In June 2011, Michael Naylor was a detective with a local Drug Enforcement Agency

(DEA) task force. Sergeant Naylor 1 testified that, during May and June 2011, he conducted

surveillance of an apartment building located on First Avenue in East Greenwich. Sergeant

Naylor testified that, on June 1, 2011, he observed a “Hispanic male arrive in a gold Acura,”

enter the specific apartment under surveillance, “stay[] for awhile,” and then exit the apartment

with a female who had been the target of the surveillance at that apartment. Sergeant Naylor

identified defendant as the Hispanic male whom he had seen at the apartment building on First

Avenue on June 1, 2011. However, Sgt. Naylor also testified that, on June 1, 2011, he had not

known defendant’s identity. To ascertain the identity of the Hispanic male he had observed at

the East Greenwich apartment building, Sgt. Naylor testified, he had “requested that one of the

East Greenwich police officers stop the vehicle and identify the driver.” Sergeant Naylor

admitted that defendant’s vehicle was subsequently pulled over using a “pretext stop” for the

sole purpose of ascertaining defendant’s identity. He further testified that he subsequently

confirmed that the gold Acura was registered to defendant and that defendant owned residential

property located on Montgomery Avenue in Providence (the target property). Sergeant Naylor

also testified that, from May 18, 2011, through June 2011, he observed defendant at the East

Greenwich property approximately fifteen times and that he was in contact with detectives from

the Cranston Police Department during the surveillance operations conducted in June 2011.

Sergeant Naylor also testified that the female target of the East Greenwich apartment’s

surveillance drove a Nissan Maxima.

1
  At the time of the trial, Sgt. Naylor was working as a police sergeant with the patrol division of
the Newport Police Department.

                                               -2-
       Warren Henseler, a detective in the special investigations unit of the Cranston Police

Department and a member of the Federal Bureau of Investigation’s “Safe Streets Violent Crimes

Task Force,” testified that, in June 2011, he was investigating the distribution of cocaine in the

city of Providence.    On June 3, 2011, based on information received from a confidential

informant (CI), Det. Henseler conducted undercover surveillance of the target property.

Detective Henseler testified that, during the surveillance, he saw an individual known to him as

Michael White exit a vehicle that was driven by the CI and parked near the target property.

Detective Henseler saw White meet with defendant in front of the house, walk up the driveway

towards the house, then disappear from his view for approximately five minutes before both men

returned to the detective’s line of vision. Detective Henseler further testified that he then saw

White depart in the vehicle driven by the CI and defendant remain at the target property.

Detective Henseler testified that he had seen defendant and White walk and talk only, and that he

had not observed an actual transaction for the sale of drugs. When the vehicle with the CI and

White drove away from the target property, Det. Henseler followed it to the City of Warwick.

Detective Henseler testified that White was dropped off at a residence and that he continued

following the CI’s vehicle to the DEA’s office in Providence.

       Ronald Fuoroli, a detective in the narcotics unit of the Cranston Police Department,

testified regarding his undercover surveillance of the target property on June 23, 2011. Detective

Fuoroli testified that he saw defendant arrive at the target property in a gold Acura, park across

the street, and walk up the driveway towards the house with a cooler on his shoulder. Detective

Fuoroli further testified that he saw defendant leave the target property half an hour later in the

same vehicle, then return to the target property approximately five minutes later. Detective

Fuoroli then saw defendant exit the gold Acura and meet up with White—who had arrived in a



                                               -3-
vehicle driven by a CI shortly before defendant returned. The two men met on the street, then

proceeded to walk together up the driveway of the target property towards the house. Detective

Fuoroli lost sight of the two men for “two to three minutes” before White reappeared into his

view and White and the CI drove away. After White and the CI drove away, Det. Fuoroli

observed defendant departing in the gold Acura. Detective Fuoroli further testified that he

followed the gold Acura and he saw the vehicle pull over to the side of a road where he met with

someone in “either a green or gray Maxima.”

       Kevin Antonucci, a detective sergeant and commanding officer of the narcotics unit with

the Cranston Police Department, testified about the execution of a search warrant for the target

property on June 29, 2011. Detective Antonucci testified that he was one of the law-enforcement

officers who had conducted the search of the master bedroom in the residence. From the master

bedroom, Det. Antonucci seized a passport issued by the Dominican Republic to defendant, bank

statements with defendant’s name and address, and a digital scale. From a dresser drawer, Det.

Antonucci seized “nine clear plastic bags containing what [he] believed to be cocaine” as well as

“some empty bags.” Detective Antonucci also seized a “large machete-type knife” from under

the bed. He further testified that he turned over all of the items seized to Det. Juan Robles of the

Providence Police Department, who, according to Det. Antonucci, served as the “evidence

custodian” during the execution of the search warrant. Although Det. Antonucci testified that he

had searched for physical evidence or records of sale, he stated that he had not found any

evidence of the actual sale of illegal substances such as ledgers or receipts.

       Juan Robles, a police officer with the Providence Police Department’s narcotics unit and

part-time member of the DEA’s task force, testified that he was also present on June 29, 2011,

during the execution of the search warrant at the target property. Officer Robles testified that his



                                                -4-
role during the execution of the search warrant was to “keep[] an eye on everybody while the

search was being done, and at the same time try[] to speak with [defendant].” Officer Robles

further testified that he observed a detective conduct a search of defendant’s person and seize

narcotics from defendant’s pocket. One of the bags seized from defendant’s pocket contained a

straw within it. Officer Robles also testified that he performed a chemical field test on the

narcotics seized from defendant’s pocket and that the test result was positive for cocaine.

       Michael Liberto, a principal forensic chemist at the Rhode Island Department of Health

Forensic Drug Chemistry Laboratory, was the last witness to testify. Mr. Liberto was qualified

to testify as an expert witness in the field of narcotics analysis and identification. He testified

that the Providence Police Department had submitted a total of fourteen bags of suspected

narcotics in July 2011 and that the suspected narcotics had tested positive for cocaine salts. Mr.

Liberto further testified that the combined weight of the cocaine salts that he received from the

Providence Police Department for testing totaled 33.43 grams.

       At the close of the state’s evidence, defendant moved for a judgment of acquittal on the

basis that there was insufficient evidence of defendant’s intent to deliver. After the trial justice

summarized the evidence presented by the state for each of the elements required to prove the

charge of possession of a controlled substance with intent to deliver, the trial justice denied

defendant’s motion, concluding that there was “sufficient evidence which a jury could find the

[s]tate proved the four elements of this offense.” The trial justice then heard defendant’s

objection to the state’s previously submitted request to include “simple possession of cocaine” as

a lesser-included offense in the instructions to the jury. The defendant objected to instructing the

jury on this lesser-included offense because he had not anticipated the state’s request during his

preparation for trial and had focused his defense strategy on the sufficiency of the evidence



                                               -5-
regarding the intent element of the offense charged. The trial justice acknowledged defendant’s

chosen trial strategy and denied the state’s request.

       The jury returned a guilty verdict on April 2, 2014, on the one charge of possession of

cocaine with the intent to deliver it. On May 22, 2014, the trial justice sentenced defendant to

fifteen years’ imprisonment with five years to serve and ten years suspended, with probation, as

well as drug abuse treatment, 200 hours of community service and a $5,000 fine. The defendant

filed his notice of appeal on June 10, 2014. The judgment of conviction and commitment was

entered on June 16, 2014. 2

                                                 II

                                         Issues on Appeal

                                                 A

                               Motion for Judgment of Acquittal

                                      1. Standard of Review

       Rule 29(a)(1) of the Superior Court Rules of Criminal Procedure provides that the trial

justice shall order the entry of judgment of acquittal when “the evidence is insufficient to sustain

a conviction” of one or more of the offenses charged. “In reviewing the denial of a motion for a

judgment of acquittal, we apply the same standard as that applied by the trial justice; namely, we

must view the evidence in the light most favorable to the state, * * * giv[e] full credibility to the

state’s witnesses, and draw therefrom all reasonable inferences consistent with guilt.” State v.

Gomez, 116 A.3d 216, 224-25 (R.I. 2015) (quoting State v. Rolon, 45 A.3d 518, 523 (R.I.

2012)). The trial justice’s denial of the motion should be upheld when “the totality of the



2
  “Although defendant’s notice[] of appeal [was] filed before the entry of judgment, ‘this Court
treats [it] as if [it] had been filed after the entry of judgment.’” State v. Jimenez, 33 A.3d 724,
731 n.10 (R.I. 2011) (quoting State v. Vargas, 21 A.3d 347, 352 n.9 (R.I. 2011)).

                                                -6-
evidence so viewed and the inferences so drawn would justify a reasonable juror in finding a

defendant guilty beyond a reasonable doubt * * *.” Id. at 225 (quoting State v. Snow, 670 A.2d

239, 243 (R.I. 1996)); see also State v. Cipriano, 21 A.3d 408, 420 (R.I. 2011).

                                           2. Discussion

       The defendant argues that the trial justice erred by denying his motion for judgment of

acquittal at the close of the state’s evidence because the state failed to present sufficient evidence

of defendant’s intent to deliver. The defendant was convicted of violating G.L. 1956 § 21-28-

4.01(a)(1), which states in pertinent part that “it shall be unlawful for any person to * * * possess

with intent to * * * deliver a controlled substance.” We have previously stated that, pursuant to

this statute, an individual is guilty of possession of a controlled substance with intent to deliver

when the state proves beyond a reasonable doubt that “a defendant was in possession of drugs,

had the requisite control over them, and intended to deliver the drugs to others.” State v.

Oliveira, 882 A.2d 1097, 1112 (R.I. 2005) (quoting State v. Williams, 656 A.2d 975, 978 (R.I.

1995)). Since defendant’s appeal from the denial of his motion for a judgment of acquittal is

based solely on his assertion that the state provided insufficient evidence of the intent element of

the crime charged, we will limit our review of the evidence to that from which a jury could have

inferred that defendant intended to deliver the cocaine found in his possession. See Rolon, 45

A.3d at 524.

       With respect to the intent element of defendant’s charge, we have previously held that a

jury may “infer an intent to deliver illegal narcotics solely on the basis of the amount of the drugs

found.” State v. Rodriguez, 10 A.3d 431, 435 (R.I. 2010) (quoting Williams, 656 A.2d at 978).

Nevertheless, we have also deemed 34.5 grams of cocaine, without any other evidence of intent

to deliver, such as scales or packaging materials, to be insufficient to sustain a conviction for



                                                -7-
possession with intent to deliver. State v. Eiseman, 461 A.2d 369, 381, 383 (R.I. 1983),

abrogated on other grounds by, Horton v. California, 496 U.S. 128 (1990). “By so holding,

however, we in no way intimate[d] that possession of a large amount of a controlled substance

may not suffice to justify an inference of intent to deliver beyond a reasonable doubt.” Id. at 383.

         We also bear in mind that “circumstantial and direct evidence should be given equal

weight.” State v. Brown, 9 A.3d 1232, 1237 (R.I. 2010) (quoting State v. Wilshire, 509 A.2d

444, 452 (R.I. 1986)). Accordingly, we have held that, when “police conducted surveillance of

[a] defendant and observed individuals arriving at [the] defendant’s apartment, staying for a few

moments, and then leaving,” “were aware that neighbors had complained about visitors coming

and going from the apartment at all hours,” and had “two confidential informants [telling them]

that [the] defendant was selling crack cocaine at his apartment,” “combined with [thirty-seven]

individually wrapped cocaine packets seized from the defendant’s apartment,” there was

sufficient evidence to withstand a motion to dismiss for lack of probable cause on a charge for

possession of a controlled substance with intent to deliver. State v. Reed, 764 A.2d 144, 147 (R.I.

2001).

         Here, five law enforcement officers who were directly involved in the investigation of

defendant and one expert in the field of narcotics analysis and identification testified during the

trial. Two of the law enforcement officers testified to observing defendant meeting with the

same individual on two separate days outside of defendant’s residence and then disappearing

from view for only a few minutes before that individual departed. One of the law enforcement

officers testified that, on approximately fifteen occasions in less than a two-month period, he had

observed defendant visiting an apartment in East Greenwich that had been under investigation

for selling narcotics. In addition, the exhibits presented at trial included a digital scale, nine clear



                                                 -8-
plastic bags containing cocaine and some empty clear plastic bags that had been seized from

defendant’s bedroom during the execution of the search warrant at defendant’s residence. The

state also presented a bag of cocaine with a straw inside that had been seized from defendant’s

pocket during the search of his house as an exhibit. The expert witness testified that the

substances submitted to the state laboratory all tested positive for cocaine salts. Based on the

expert witness’s testimony regarding the weight of cocaine that had been seized from both

defendant’s person and from his dresser drawer during the execution of the search warrant and

subsequently submitted for testing, the total weight of cocaine seized during the search on June

29, 2011 was 33.43 grams. According to testimony from Det. Antonucci that one gram of

cocaine had an estimated street value of $100, approximately $3,300 worth of cocaine was seized

from defendant and his residence during the search.

       Reviewing all of the testimony and considering the direct and circumstantial evidence in

the light most favorable to the state, giving full credibility to the state’s witnesses, and drawing

all reasonable inferences consistent with guilt, we conclude that the state presented sufficient

evidence from which a reasonable juror could find beyond a reasonable doubt that defendant

intended to deliver the cocaine. See Gomez, 116 A.3d at 225. We therefore discern no error in

the trial justice’s denial of defendant’s motion for judgment of acquittal.

                                                 B

                                        Jury Instructions

       Notwithstanding defendant’s objection during trial to the state’s request to instruct the

jury on the lesser-included offense of possession of cocaine, defendant also argues before us that

the trial justice erred by failing to instruct the jury on this lesser-included offense. The state

replies that this issue is waived because defendant objected to this instruction during trial and the



                                                -9-
trial justice accordingly denied the state’s request. According to Rule 30 of the Superior Court

Rules of Criminal Procedure, “[n]o party may assign as error any portion of the [jury

instructions] or omission therefrom unless the party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter to which the party objects and the grounds of the

party’s objection.” We have previously commented that “[t]he purpose of Rule 30 is to notify

the trial justice, with clarity and specificity, of any deficiencies in the [jury instructions] so that

the alleged error may be cured before the jury retires for deliberations.” State v. Gautier, 950

A.2d 400, 415 (R.I. 2008) (quoting State v. Brown, 898 A.2d 69, 83 (R.I. 2006)). “As a result,

‘if an objection to a jury instruction is not effectively raised below, it is waived on appeal.’” Id.

(quoting State v. Crow, 871 A.2d 930, 935 (R.I. 2005)).

       The defendant’s argument before us provides an unusual twist on our long-established

raise-or-waive rule. Here, the issue was thoroughly discussed during the trial after the defendant

objected to the state’s request to include simple possession of cocaine as a lesser-included

offense in the jury’s instructions. The record before us reflects that, since trial, the defendant has

completely reversed his position regarding the desirability of the lesser-included offense of

simple possession. As such, this issue is not properly before us for review, and we decline to

consider the defendant’s argument on its merits.

                                                 III

                                             Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned to the Superior Court.




                                                - 10 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Francisco Maria.

CASE NO:              No. 2014-252-C.A.
                      (P2/12-475A)

COURT:                Supreme Court

DATE OPINION FILED: February 24, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For State: Virginia M. McGinn
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
