COMMONWEALTH vs. CARL SEPHEUS.

TRAINOR, J. The Commonwealth charged the defendant, Carl Sepheus, with possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A(c). At the close of the Commonwealth's case in a jury-waived trial, Sepheus filed a motion for a required finding of not guilty, which the judge denied. The defendant was convicted, and now argues in a timely appeal that the evidence was not sufficient to support a finding that he intended to distribute the three, separately wrapped rocks of "crack" cocaine that were found in his possession.

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We conclude that there was sufficient evidence for a reasonable fact finder to have found the essential elements of the crime beyond a reasonable doubt, and the judge therefore correctly denied the motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671 , 678 (1978). We therefore affirm the conviction.

Background. With the evidence viewed in a light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. at 677-678, the trial judge could have found the following facts: On September 30, 2009, Springfield police Officer William Lopes, an experienced narcotics investigator, received information [Note 1] that the defendant, who was wanted on an outstanding warrant, was in the general area of 585 Wilbraham Road in Springfield. [Note 2] After receiving this information at the start of his 4:00 P.M. to 12:00 A.M. shift, Lopes drove to the area in an unmarked police cruiser. [Note 3] Lopes initially drove to the intersection of Bristol Street and Wilbraham Road, then expanded his search to include the Daily Mart convenience store and gasoline station at the intersection of Alden Street and Wilbraham Road a short distance away. He arrived at that location at or around 5:00 P.M. After circling around the parking lots of the Daily Mart and gasoline station, Lopes, with the aid of a photograph, observed the defendant standing with a small group of three to five males outside the Daily Mart. Lopes radioed for backup to assist him with the arrest. As Lopes waited for other officers to arrive, an individual who was not the defendant suddenly left the group and conducted what Lopes observed to be a drug transaction through the window of a vehicle, in plain view of the group of men and Lopes. This individual then walked back to the group. The group, including the defendant, then walked together into the Daily Mart. Officer Lopes, and seven to ten

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other officers who had responded to his call, entered the store and placed the defendant under arrest. [Note 4]

Springfield police Officer John Wadlegger, who had responded to the scene in an unmarked police cruiser, transported the defendant to the police station. Before driving to the station, and based on the defendant's movements while in the backseat of the cruiser, Wadlegger searched the defendant. Inside the center pocket of the defendant's gray hooded sweatshirt, Wadlegger found three rocks of what appeared to be crack cocaine, each inside a small plastic baggie twisted off near the corner. A chemist later testified that one of the rocks was weighed and tested positive for cocaine. Wadlegger also found $312 in United States currency in the defendant's pants pocket.

Wadlegger, like Lopes, was an experienced narcotics investigator. He testified that he found no smoking apparatus on the defendant, and that, in his experience stopping users of either cocaine or heroin, he usually found something on their person to ingest the drug. Wadlegger testified that not every user was arrested with a smoking apparatus but stated that such a circumstance was the exception to the very general rule. He testified that the packaging of the drugs found on the defendant was consistent with the street-level sale of narcotics, and that the total street value of the drugs was around $60. Wadlegger testified that the absence of any device to ingest the drug, the packaging of the cocaine, and the nature of the area where the defendant was arrested were consistent with possession with the intent to distribute the drugs.

Discussion. In considering whether a denial of a motion for a required finding of not guilty is proper, "[w]e review the evidence in the light most favorable to the Commonwealth to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (emphasis original). Commonwealth v. Little, 453 Mass. 766 , 771 (2009) (Little), quoting from Commonwealth v. Wilson, 441 Mass. 390 , 401 (2004) (Wilson).

"The two basic elements for conviction of possession with

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the intent to distribute cocaine are (1) knowingly possessing the drug and (2) intending to transfer it physically to another person." Commonwealth v. Tavernier, 76 Mass. App. Ct. 351 , 355 (2010). The defendant does not challenge the sufficiency of the evidence on the possession element, but argues that evidence of the essential element of his intent to distribute was lacking. In this case, the defendant's intent to distribute "is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had . . . by inference from all the facts and circumstances . . . ." Commonwealth v. Keefner, 461 Mass. 507 , 517 (2012) (Keefner), quoting from Commonwealth v. Rivera, 425 Mass. 633 , 648 (1997).

Here the defendant was found to possess three small individually wrapped rocks of crack cocaine, with a total weight of approximately .4 grams. In Commonwealth v. Gonzales, 33 Mass. App. Ct. 728 , 731 (1992) (Gonzales), we ruled that although the defendant was arrested with only .32 grams of heroin, "[t]he fact that the amount of drugs seized was small does not, by itself, require a finding of not guilty to so much of the indictment as states 'intent to distribute.' A dealer's inventory of drugs may have been reduced before his arrest to a small amount by a number of sales."

In Gonzales, the conviction of possession with intent to distribute was affirmed based on factors that included the packaging of the .32 grams of heroin in ten glassine packets, which according to expert testimony was "consistent with distribution rather than personal use," the presence of a "scorpion" mark on each of the bags that was indicative of a dealer's brand name, and the defendant's possession of $167 in cash, despite being unemployed. Ibid. In this case, as in Gonzales, although the approximately .4 grams Sepheus possessed would not alone support a finding of intent to distribute, sufficient additional evidence was presented at trial that ultimately supports such a finding.

Additional evidence. Several factors have been acknowledged by this court and the Supreme Judicial Court to be probative, while not individually dispositive, of a defendant's intent to distribute. These include, inter alia, the manner in which the drugs were packaged, the amount of cash the defendant had on his person when arrested, and the absence of smoking paraphernalia.

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See Commonwealth v. Gollman, 436 Mass. 111 , 113, 116-117 (2002) (Gollman) (2.71 grams of crack cocaine and no smoking paraphernalia held to be sufficient evidence to uphold conviction); Wilson, 441 Mass. at 400-402 (one-half ounce of marijuana in twenty bags packaged for sale, no smoking paraphernalia, and $476 cash held to be sufficient evidence to uphold conviction); and Little, 453 Mass. at 768, 771-772 (fifteen bags of marijuana packaged for sale, $254 cash, and no smoking paraphernalia held to be sufficient evidence to uphold denial of motion for required finding).

In the present case the defendant possessed three rocks of crack cocaine, with a total weight of approximately .4 grams, packaged individually in small sandwich bags, twisted off near the corner, in a manner that Officer Wadlegger testified was "consistent with street level sale." The defendant also possessed no device with which to smoke or otherwise ingest the rocks of cocaine, and was arrested with $312 in cash on his person. [Note 5] Furthermore, Officer Lopes testified that the area around the Daily Mart was "a high crime area" that has seen "numerous violations and arrests for narcotics, shootings, stabbings, [and] other violent offenses." Although the amount of contraband possessed by the defendant differs in each case, similar "plus factors" have contributed to the upholding of several past convictions for possession with intent to distribute. See Gonzales, supra; Gollman, supra, Wilson, supra.

Furthermore, the circumstances in which the police encountered Sepheus and his conduct prior to his arrest could have properly been considered by the judge as additional evidence supporting an inference of intent to distribute. See Commonwealth v. Burke,

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44 Mass. App. Ct. 76 , 79-80 (1997); Commonwealth v. Dessources, 74 Mass. App. Ct. 232 , 238 (2009) (where marijuana packaged for sale was found on the defendant, conviction of possession with intent to distribute was affirmed in part because the arresting officer "observed three other individuals seated near the defendant passing a pipe commonly used to smoke marijuana"). Here, the defendant was observed standing with a group of men that included an individual whom Officer Lopes observed conduct a "drug transaction" through the window of a vehicle. Sepheus was subsequently seen walking with that same group of men into the Daily Mart. The judge also could have properly inferred that Sepheus had been located in the general area of his arrest [Note 6] from at least about 4:00 P.M., the time the officers received the information regarding his whereabouts, to approximately 5:00 P.M., the time of his arrest. [Note 7] The judge could have reasonably concluded that a user would not likely remain at the point of purchase for such an extended period of time. [Note 8]

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The dissent states that the Commonwealth's evidence here is equally probative of innocence as it is of guilt. More specifically, it argues that the evidence supports an inference that Sepheus was a drug buyer as much as it supports an inference that he was a drug seller, and that to conclude the latter requires an impermissible speculative leap. [Note 9] We do not agree. Considering, as we must, "all the facts and circumstances," Keefner, 461 Mass. at 517, and the proper inferences to be drawn from such facts and circumstances, we conclude that an individual arrested in possession of crack cocaine packaged for sale, with an amount of cash in excess of $300 in his pocket, in possession of no apparatus to ingest the drug, who was first observed standing in an area known for narcotics trafficking in a group that included an individual whom an arresting officer observed make a drug transaction, is more likely to be a seller than a buyer of crack cocaine. See Commonwealth v. Lao, 443 Mass. 770 , 779 (2005), S.C., 450 Mass. 215 (2007), S.C., 460 Mass. 12 (2011) ("If, from the evidence, conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [the fact finder's] province").

Additionally, this conclusion is supported by Officer Wadlegger's expert testimony at trial. Wadlegger's testimony was germane, because the ability to distinguish between drugs possessed for the purpose of distribution and those for personal use "is not a matter within the common experience of [fact finders]." Little, 453 Mass. at 769, quoting from Commonwealth v. Grissett, 66 Mass. App. Ct. 454 , 457 (2006). As a result, judges have allowed police officers with experience in narcotics investigation to give their expert opinion as to whether the facts

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of the case were more consistent with distribution or with personal use. See Gollman, 436 Mass. at 115-116; Wilson, 441 Mass. at 400-401; Little, 453 Mass. at 768-770. In this case, Officer Wadlegger testified that the crack cocaine found on Sepheus suggested that he was a distributor as opposed to a buyer of drugs, and the officer based this opinion on, inter alia, the manner in which the drugs were packaged, the absence of smoking paraphernalia, and the high incidence of crime in the area where Sepheus was arrested. [Note 10], [Note 11], [Note 12] The judge could have properly considered Wadlegger's testimony to support an inference of an intent to distribute. See Wilson, 441 Mass. at 401-402; Little, 453 Mass. at 769.

Conclusion. In this case, the defendant was found with three individually wrapped rocks of crack cocaine, had $312 in cash in his pocket, and carried no paraphernalia for ingesting the drugs. A police expert testified that several of these facts suggested that the defendant intended to distribute the drugs he possessed. Further, the judge could have inferred that the defendant had been located in an area known for drug sales for at least an hour, and was in the company of an individual who conducted a drug transaction in his presence. The inference of an intent to distribute based on these facts and circumstances is both "reasonable and possible," Commonwealth v. Montecalvo, 367 Mass. 46 , 54 (1975), and amounts to more than mere "conjecture and speculation." Commonwealth v. White, 452 Mass. 133 , 136

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(2008), quoting from Commonwealth v. Armand, 411 Mass. 167 , 170 (1991). The judgment is affirmed.

So ordered.

MILKEY, J. (concurring) . I write separately for two reasons. First, I want to note my disagreement with the conclusion the majority opinion draws with respect to how long the defendant had been at the gasoline station. Even reading the evidence in the light most favorable to the Commonwealth, the most that could be said is that the police had information that -- an hour before they found the defendant at the Daily Mart convenience store and gasoline station -- the defendant reportedly was somewhere in the general vicinity. [Note Concur-1] That fact has no bearing whatsoever on the question whether the defendant intended to distribute the drugs found on him.

Second, I want to note my discomfort with the extent to which the Commonwealth has sought to rely on opinion testimony to prove the ultimate factual issue in dispute. Such efforts are particularly troubling in light of the fact that the police expert here acknowledged that he formed his opinion "predominantly" based on facts that never came into evidence, that were not independently admissible, and that were of questionable reliability. Nevertheless, the only issue the defendant has raised on appeal is the sufficiency of the evidence, and -- on that narrow question -- I ultimately agree that the evidence was sufficient (if barely so). See Commonwealth v. Farnsworth, 76 Mass. App. 87, 98-99 (2010) (sufficiency of evidence "is to be measured upon that which was admitted in evidence without regard to the propriety of the admission").

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AGNES, J. (dissenting) . "Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence." [Note Dissent-1]

The Commonwealth's case consists of evidence that the defendant had possession of three plastic "twists," each containing a small rock of "crack" cocaine, [Note Dissent-2] along with $312 in United States currency, in unknown denominations. Based on this evidence, and conjecture from evidence that is as probative of possession for personal use as it is of possession with intent to distribute, the majority concludes that the judge below was correct in denying the defendant's motion for a required finding of not guilty on so much of the indictment as charged possession with the intent to distribute. This result finds no support in any previous decision by this court or the Supreme Judicial Court, and is incompatible with the constitutionally based standard, enunciated in Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), and Commonwealth v. Latimore, 378 Mass. 671 , 678 (1978), by which we must test sufficiency of the evidence claims like the one presented in this case. Accordingly, I respectfully dissent.

1. The evidence. I disagree with my colleagues in the majority about what evidence was available for the judge's consideration.

First, while it is true that this case originated with a tip from an informant, [Note Dissent-3] the contents of the tip were not admitted for the truth of the matters asserted, and thus cannot supply the basis for an inference that the defendant was in the general area where he was arrested from between 4:00 P.M. and 5:00 P.M. [Note Dissent-4] Compare ante at 770.

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Second, the police observations of the defendant's conduct prior to his arrest took place over the span of a minute or two at the most. [Note Dissent-5] Compare ante at 770.

Third, while it is true that another man with whom the defendant was standing when he was first seen by the police was observed to make what appeared to be a hand-to-hand sale of

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drugs to someone in a motor vehicle, there is no evidence linking the defendant to this other person. [Note Dissent-6] Compare ante at 770.

Fourth, Officer Wadlegger's contribution as an expert witness was very limited, and, for reasons discussed infra, of dubious validity. The record indicates he offered only two opinions relating to the central issue of the defendant's intent: (1) that the drugs possessed by the defendant were packaged and of a size "consistent with street level sale"; and (2) that the absence of a pipe or implement for smoking crack cocaine on the defendant's person indicated he was "not a user." He did not opine about the significance of the money found in the defendant's pocket. Neither did he opine that the defendant's proximity to a drug sale had significance, or that the defendant's movements were indicative of a joint venture. Furthermore, on cross-examination, he made concessions that undermined the probative value of his other opinions. [Note Dissent-7] However, of special significance is Officer Wadlegger's admission on cross-examination that his opinion that the defendant was a drug dealer was based "predominantly on information that was supplied by outside sources." [Note Dissent-8] For the reasons discussed infra, this concession calls into question the probative value of his expert witness testimony.

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2. Unreasonable factual inferences. The Commonwealth may satisfy the Jackson-Latimore due process standard based on reasonable inferences drawn from circumstantial evidence. See Commonwealth v. Degro, 432 Mass. 319 , 325 (2000). It is only necessary that the inferences drawn from the facts be reasonable and possible. Commonwealth v. Montecalvo, 367 Mass. 46 , 54 (1975). However, when the relationship between the facts and the inferences drawn from those facts is not one that a rational person would regard as reasonable, inference crosses over into the realm of conjecture. See James v. United States, 39 A.3d 1262, 1269 (D.C. 2012). [Note Dissent-9]

Here at least two of the factual elements of the case relied upon by the majority do not support an inference that is more consistent with the defendant's guilt than his innocence on so much of the indictment as charges possession with the intent to distribute.

a. Defendant's presence in a high crime area. As noted above, the majority's observation that the judge could have inferred that the defendant was in the vicinity of the Daily Mart and gasoline station "from at least about 4:00 P.M., the time the officers received the information regarding his whereabouts, to approximately 5:00 P.M., the time of his arrest," ante at 770, is not supported by the record. The only way such an inference could be drawn is to accept as credible the content of the

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informant's tip. However, the judge did not admit this evidence for its truth. A fair reading of Officer Lopes's testimony is that no more than a minute or two elapsed from when the defendant was first spotted at the Daily Mart until he was arrested inside the store. Prior to this, the whereabouts and activity of the defendant were unknown, and the whereabouts and activity of Dwayne Griffiths, see note 6, supra, were unknown. [Note Dissent-10] Thus, in this case, the mere fact that the defendant was present in a so-called high crime area sheds no light on whether the defendant's criminal activity consisted of unlawful possession or of unlawful possession with the intent to distribute, for obviously such locations are where both buyers and sellers of drugs congregate. [Note Dissent-11] Contrast Commonwealth v. Rivera, 425 Mass. 633 , 648-649 (1997) (police officers observed defendant make several hand-to-hand exchanges; evidence that incidents were in "an area known for drug dealing" buttressed inference that the observed transactions were drug deals).

b. Defendant's proximity to a person who sold drugs. The evidence also is not sufficient to permit the fact finder to infer a connection between the defendant and Dwayne Griffiths, who was observed to sell drugs -- that is, there is no evidence on which to base an inference that because Griffiths engaged in a drug sale, the defendant intended to do so also. See ante at 770. As noted above, the evidence is that the defendant was observed in the presence of Dwayne Griffiths for only a minute or two.

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There is no evidence of what the defendant or Dwayne Griffiths was doing, or even whether they were in proximity to each other, before the brief observation made by Officer Lopes. The only way to establish an association between the two is to engage in conjecture and speculation, because mere presence at the scene where a crime is committed is not probative of guilt. [Note Dissent-12] "Indeed, [even] presence with knowledge of the planned act is insufficient alone to be the basis of a conviction of a person for the acts of another." Commonwealth v. Casale, 381 Mass. 167 , 173 (1980). See also Commonwealth v. Perry, 357 Mass. 149 , 151 (1970) ("There was evidence that the defendant knew the three persons who entered the liquor store and committed the robbery and assault, that he associated with them, and that he was in their company both before and after the robbery. But that, without more, is not enough to convict the defendant on either charge. There can be no finding of guilt by association"). Even less does the evidence here permit an inference that the defendant himself intended to commit the same act as another person merely because they were standing in a group together for a minute or two.

The ability to distinguish between the possession of drugs for the purpose of distribution and possession for personal use "is not a matter within the common experience of [fact finders]."

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Commonwealth v. Little, 453 Mass. 766 , 769 (2009), quoting from Commonwealth v. Grissett, 66 Mass. App. Ct. 454 , 457 (2006). The majority tries to have it both ways; it attaches significance to an expert opinion because nonexperts would not understand possession with intent to distribute, while simultaneously asserting, based solely on its own, nonexpert intuition, that the defendant's proximity to a person who sold drugs once in his presence is indicative of his own intent to distribute.

3. The absence of traditional factors considered probative of an intent to distribute. a. Quantity of drugs. The quantity of cocaine possessed by the defendant (approximately .4 grams) is not an amount that alone may raise an inference of an intent to distribute. See note 15, infra; Commonwealth v. Acosta, 81 Mass. App. Ct. 836 , 840-841 (2012) (3.16 grams of cocaine not a sufficient quantity to alone raise inference of intent to distribute).

Further, none of the traditional factors that allow a reasonable inference to be drawn that a defendant's possession of a small quantity of drugs was, nonetheless, with the intent to distribute are present in this case.

b. Packaging of the drugs. The testimony by Officer Wadlegger that the size and packaging of the three twists of crack cocaine found in the defendant's pocket was consistent with "street level sale" is not probative of intent to distribute as opposed to possession for personal use. See Commonwealth v. Acosta, supra at 841 ("Nor was there anything distinctive or unique about the five twist bags [of cocaine] to indicate they were intended for transfer or sale as opposed to personal use"). There was no expert testimony or other evidence that purchasers of street-level quantities of drugs alter the packaging of the drugs upon receipt. Further, there was no expert testimony or other evidence suggesting that drugs purchased on the street are consumed immediately after they are purchased or within any particular period of time. The reasoning employed by Officer Wadlegger in recommending that the fact finder draw an inference that the defendant intended to sell the drugs rather than possess them for personal use on the basis of such evidence is nothing more than "speculation based upon a generalization." Commonwealth v. Murphy, 34 Mass. App. Ct. 16 , 18 (1993).

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The mere fact that an expert states such speculation as an opinion does not make it any less speculative.

c. Conduct of the defendant. In other cases involving small quantities of drugs, the circumstances in which the police encounter the defendant can signal whether his role is as a seller or a user. In Commonwealth v. Burke, 44 Mass. App. Ct. 76 , 76-77, 79 80 (1997), the police observed the defendant holding a clear plastic envelope containing a white powder, while the person he was conversing with took some currency out of his pocket. When the defendant saw the police approaching, he yelled "cops" and tried to flee. He was subdued by the police, who found the plastic bag clenched in his hand. It contained 2.88 grams of cocaine. The police also found ten glassine bags, bundled together, containing .21 gram of heroin and a small quantity of marijuana in his pockets. Although the defendant argued there was insufficient evidence to prove beyond a reasonable doubt he intended to distribute the heroin, the court held the evidence that at the time he possessed the heroin he was engaged in the sale of another drug, along with the packaging of the heroin and the fact he possessed three drugs, was sufficient to warrant a rational fact finder in finding intent to distribute the heroin beyond a reasonable doubt. See id. at 79-80. [Note Dissent-13] In the present case, by contrast, there is no evidence of the defendant's conduct, either before or after his arrest, that suggests his possession was with the intent to distribute as opposed to personal use. See Commonwealth v. Keefner, 461 Mass. 507 , 517-518 (2012) (no probable cause to search where police

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did not observe any illegal or suspicious behavior of defendant indicating intent to distribute marijuana).

d. Implements associated with distribution. In some cases, the defendant's possession of small quantities of drugs is determined to be more indicative of an intent to distribute than of mere possession because the defendant is found with or in the vicinity of paraphernalia associated with the distribution of drugs. [Note Dissent-14] In the present case, there is no evidence connecting the defendant to any of the items often used by drug dealers to facilitate the packaging and distribution of drugs. Further, in view of the fact that the defendant possessed only three rocks of crack cocaine, weighing a total of approximately .4 grams, the mere fact that the drugs were packaged for street level sale is not probative on the "dealer versus user" question. [Note Dissent-15]

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e. Possession of currency. The fact that a person found in possession of drugs also has on his person or under his control a "a large amount of cash," Pena v. Commonwealth, 426 Mass. 1015 , 1018 (1998), may suggest his direct involvement in drug distribution. [Note Dissent-16] In the present case, the defendant had $312 in cash on his person. Officer Wadlegger did not offer an opinion that the possession of this cash was a factor that suggested the defendant's possession of the drugs was with the intent to distribute. See Jowers v. State, 593 So.2d 46, 47 (Miss. 1992) ("[N]ot everyone who has $356.00 in cash is a drug dealer . . ."). The cash was not marked as an exhibit. There is no evidence that the cash consisted of denominations of bills corresponding to the proceeds of street level sales. Further, there is no evidence that the defendant was unemployed or had no known source of income. In these circumstances, the cash found on the defendant's person has little, if any, evidentiary value. [Note Dissent-17]

f. The Gonzales case. The principal case on which the majority relies is Commonwealth v. Gonzales, 33 Mass. App. Ct. 728 , 731 (1992), in which we held that, although the question as to sufficiency of the evidence was "a close one," an inference of

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possession with the intent to distribute was possible, with the aid of expert witness testimony, even though the amount of the drugs was small (.32 grams). The differences between the present case and Gonzales are significant. There, although the amount of the drugs was small, an expert witness testified that the possession of a "bundle" of ten individually wrapped and distinctively stamped packets of heroin, tied together by an elastic, was consistent with possession with intent to distribute rather than personal use, and the defendant had $167 in "loose currency" despite being unemployed. [Note Dissent-18] Here, by contrast, there were only three packets of cocaine. There was also no evidence the defendant was unemployed and thus unlikely to have this amount of cash in his pocket. In sum, there was less evidence in this case than in Gonzales, which the court considered to be a "close" case. Ibid. There is no appellate authority in this Commonwealth for the view that the possession of a small quantity of drugs and an amount of cash as in this case ($312) without more permits a reasonable inference that the drugs were possessed with the intent to distribute. Contrast Commonwealth v. Rivera, 425 Mass. 633 , 647-649 (1997) (although defendant had only two bags of cocaine weighing respectively .18 and .23 grams and $20, his conviction of possession with the intent to distribute was warranted by evidence that police observed him engage in hand-to-hand sales of drugs from the apartment).

4. Opinion testimony by Officer Wadlegger. a. Lack of adequate foundation. The opinion testimony of an experienced narcotics investigator may supply additional evidence necessary to enable a fact finder to determine that a defendant's possession of drugs was with the intent to distribute. See, e.g., Commonwealth v. Gollman, 436 Mass. 111 , 115-117 (2002); Commonwealth v. Evans, 436 Mass. 369 , 371-372, 376-377 (2002); Commonwealth v. Hernandez, 77 Mass. App. Ct. 259 , 265 n.9 (2010).

Officer Wadlegger contributed two opinions in his capacity as an expert witness in this case. First, he opined that the size and packaging of the drugs was "consistent with street level sale." "This much-used word has certain chameleon-like qualities. Many activities may be 'consistent' with a certain state of affairs,

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but equally, if not more, consistent with completely different ones. The probative effect of 'consistent' evidence depends upon the extent to which the consistency is exclusive of other explanations, and elicited testimony using the word should make this clear." Parker v. United States, 601 A.2d 45, 52 n.23 (D.C. 1991).

The present case illustrates the weakness of relying predominantly on expert witness opinion that certain facts are "consistent with" intent to distribute, because, here, without added information that the defendant was actually loitering in a high crime area and doing something in some way associated with the sale of drugs, the inference that the defendant was a seller as opposed to a recent buyer -- that is, that any "street level sale" was by the defendant rather than to the defendant -- is a matter of speculation. See Commonwealth v. Murphy, 34 Mass. App. Ct. 16 , 18-19 (1993).

Officer Wadlegger's second opinion was that the defendant was more likely a seller rather than a user because he did not have a pipe in his possession. While this adds something to the equation, see Commonwealth v. Wilson, 441 Mass. 390 , 401-402 (2004); Commonwealth v. Little, 453 Mass. 766 , 770, 792 (2009), to infer intent to distribute on the basis of this opinion, even in combination with the first opinion, would also be based on speculation given the absence of other indicia of an intent to distribute [Note Dissent-19] and the fact that Officer Wadlegger conceded that he had arrested and charged other persons with mere possession of crack cocaine even though they were not in possession of implements for smoking the cocaine, that other common items such as soda cans can be used to smoke crack cocaine, and that crack cocaine can be mixed with marijuana and smoked in the form of a cigarette. See Sevigny's Case, 337 Mass. 747 , 751 (1958) ("an opinion given by an expert will be disregarded where it amounts to no more than mere speculation or a guess from subordinate facts that do not give adequate support to the conclusion reached"). In sum, even though this opinion provides evidence that, when stopped, users of cocaine "usually have

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something on their person . . . to ingest [the] drug," it also states that that is not always the case; thus, it is not sufficient to provide proof beyond a reasonable doubt of the element of intent to distribute.

b. Inadmissible hearsay basis for expert opinion. The trial judge sustained seven hearsay-based objections by defense counsel over the course of Officer Wadlegger's brief testimony. On cross-examination, this telling exchange occurred:

Q.: "And there is nothing about the fact that it's three rocks that suggests to you that he's a dealer?"

A.: "The manner in which it was packaged, our information about [the defendant], the area, the observations beforehand, and the way it's packaged, and the amount."

Q.: "Let me ask you this: Did you personally see [the defendant] engage in narcotics transactions on September 30, 2009?"

A.: "I did not, no."

Q.: "And so you're relying predominantly on information that was provided by outside sources?"

A.: "Yes. From a reliable informant, correct."

Q.: "And the informant's name?"

A.: "I don't have that. It wasn't my informant."

Although defense counsel did not move to strike the remainder of Officer Wadlegger's opinion testimony, this testimony casts a pall over his other opinion testimony. This case falls into that narrow and exceptional class of cases in which the failure to object to evidence at trial must be noticed for the first time by an appellate court because the record on appeal demonstrates that the error was plain and trial counsel's failure to object created a substantial risk of a miscarriage of justice. See Massaro v. United States, 538 U.S. 500, 508 (2003) ("There may be instances, too, when obvious deficiencies in representation will be addressed by an appellate court sua sponte"); Commonwealth

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v. Zinser, 446 Mass. 807 , 811 n.4 (2006). See also Commonwealth v. Frisino, 21 Mass. App. Ct. 551 , 553-554 (1986); Commonwealth v. Lester, 70 Mass. App. Ct. 55 , 63-66 (2007).

The principal problem with Officer Wadlegger's opinion testimony is that, as he testified on cross-examination, it was based predominantly on inadmissible hearsay, and it thus violated the defendant's right to confrontation insofar as it channeled information from an informant who was not a witness at trial or even identified, and whose reliability was unknown. See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713, 2716 (2011). See also Williams v. Illinois, 132 S.Ct. 2221 (2012) (plurality opinion). Without it, any inference that the defendant's possession of the drugs was with the intent to distribute would be based only on speculation. See Commonwealth v. McGovern, 397 Mass. 863 , 867- 868 (1986) ("findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice"). [Note Dissent-20]

5. Application of the Jackson-Latimore standard. a. Deference to rational fact finder. In Commonwealth v. Latimore, 378 Mass. at 374, citing Jackson v. Virginia, 443 U.S. at 318-319, the Supreme Judicial Court adopted the governing Federal due process standard for assessing the sufficiency of the evidence in a criminal case. This test has multiple parts. Sufficiency of the evidence challenges in most cases are resolved on the basis of the first part of the Jackson-Latimore standard, which is relied upon by the majority. We defer to the jury or judicial fact finder's judgment about the sufficiency of the evidence when, "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" (emphasis original). Jackson v. Virginia, 443 U.S. at 319. This case, however,

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is not one in which the evidence was sufficient for a rational trier of fact to infer an intent to distribute beyond a reasonable doubt. [Note Dissent-21]

b. Conclusions based on conjecture insufficient to support conviction. The second part of the Jackson-Latimore standard is reserved for cases such as this where proof of an essential element such as intent has been deemed sufficient by the fact finder on the basis of a conjecture, as opposed to a reasonable inference, from the evidence. "[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Latimore, 378 Mass. at 677-678.

It is possible that the defendant in this case had possession of crack cocaine with the intent to distribute it. One could speculate that the defendant had sold ten to fifteen twists of crack cocaine for $20 apiece before the police arrived and arrested him, which might account for much of the cash in his pocket. One could speculate that the absence of a pipe with which to smoke crack cocaine means that the three twists of crack cocaine in the defendant's possession were being held with the intent to distribute. One could speculate that the defendant was standing in an area known for drug sales with a group of individuals, one of whom was a drug dealer, before they entered the Daily Mart store because he too was a drug dealer. However, our duty as an appellate court requires us "to take a hard look at the record and to reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative. . . . This function is especially important in criminal cases, given the prosecution's obligation to prove every element of an offense beyond a reasonable doubt." United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995). Accord Commonwealth v. Montalvo, 76 Mass. App. Ct. 319 , 329-330 (2010). An inference here that the defendant had the intent to distribute "may be

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plausible, but cannot bear the weight of proof beyond a reasonable doubt." Commonwealth v. Rodriguez, 456 Mass. 578 , 582 (2010).

c. The evidence of intent to distribute is insufficient to satisfy the Jackson-Latimore standard because it tends equally to sustain two inconsistent propositions. The principle that in certain situations the fact finder can permissibly draw either of two conflicting, but nonetheless reasonable and possible, inferences, is illustrated by the facts in Commonwealth v. Hernandez, 77 Mass. App. Ct. 259 , 260-261, 264-266 (2010). There, the police observed a van parked with its engine running and lights on. The passenger side door was open and a man was observed bending over behind a dumpster. The man then entered the van, and it drove away. The police followed the van and pulled it over after a traffic violation. Id. at 260-261. The experienced narcotics officers suspected that drugs had been either dropped off or picked up. Ibid. The defendant was pat frisked. The police found a cellular telephone in his right pants pocket and, in the pocket of a pair of athletic style shorts underneath his pants, a clear plastic bag filled with 13.98 grams of powder cocaine. Id. at 261, 262. During booking, the detectives also removed $56 in cash. Id. at 261. A police witness acknowledged that the defendant's activity at the dumpster, combined with the discovery of cocaine in his inner pocket, "would suggest that the defendant was a buyer, but he further opined, without objection, that the quantity of cocaine in the defendant's pocket, the cellular telephone, and the fifty-six dollars found during the patfrisk were consistent with possession with intent to distribute." Id. at 262. According to the police officer's testimony, "street sales typically involve amounts of cocaine up to one gram; the defendant had 13.98 grams, almost one half ounce of cocaine." Ibid. Despite the absence of paraphernalia indicative of drug dealing or items indicative of personal consumption, the critical additional evidence was supplied by another police witness.

"Testifying as an expert, he identified the North Common Street area where the defendant was first seen behind the dumpster as a high drug crime area. He described typical street level cocaine transactions in Lynn as involving one gram, one-half gram, or one-quarter gram bags, called

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' twists,' being sold for twenty to forty dollars. He also testified that larger quantities of cocaine, such as five to six grams, are amounts more typical of purchases by a 'mid level dealer,' and can be broken down into smaller twists for sale to individual users. He expressed the opinion that a one-half ounce of cocaine is 'not usually for personal use' because '[i]t's a lot of cocaine to have on hand' for one user, saying that the common practice of street-level users is to buy one or two small twists at a time because they do not have the money to buy larger quantities. He conceded that some people do acquire larger amounts for personal use, but in his experience on the streets of Lynn, one-half ounce of cocaine is 'an awful lot of cocaine' for that purpose. He estimated that the amount of cocaine found on the defendant would sell for about $600 as a single package, but could be divided into fifty-six separate one-quarter gram twists, sold on the street at twenty dollars each."

Id. at 262. [Note Dissent-22]

In Hernandez, supra at 264-265, we explained that the familiar and often cited axiom from Commonwealth v. Croft, 345 Mass. 143 , 145, (1962), quoting from Commonwealth v. O'Brien, 305 Mass. 393 , 400 (1940) ("When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof"), was not applicable: "This case does not involve such a small amount of drugs; the drug expert opined that a typical package sold on the street is one-quarter of one gram. Here, the defendant was in possession of a bag containing 13.98 grams, which, as the expert permissibly stated, can be broken down into fifty-six one-quarter gram street bags." Id. at 265. In other words, in Hernandez, based on the quantity of the cocaine and the police officer's expert testimony concerning typical street level transactions and the significance of this amount, the inference from the

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evidence that the defendant possessed the cocaine for personal use was not as likely as the inference that he possessed it with the intent to distribute it, and therefore the fact finder had a rational basis for choosing to draw the latter inference instead of the former inference. See Commonwealth v. Martino, 412 Mass. 267 , 272 (1992), quoting from Commonwealth v. Wilborne, 382 Mass. 241 , 245 (1981) ("To the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies' "); Commonwealth v. Gollman, 436 Mass. at 116-117. Here, on the other hand, considering the totality of the evidence, even if the two opinions contributed by Officer Wadlegger (the significance of the size and packaging of the three rocks of crack cocaine and the absence of a pipe) are given evidentiary weight, the inference of possession with intent to distribute and the inference of possession for personal use are inconsistent and equally plausible. [Note Dissent-23] See Commonwealth v. Croft, 345 Mass. at 145; Commonwealth v. Dostie, 425 Mass. 372 , 376 (1997) ("[A] jury may not use conjecture or guesswork to choose between alternative inferences"; rather, "each inference must be a reasonable and logical conclusion from the prior inference"); Commonwealth v. Rodriguez, 456 Mass. at 583 ("inference . . . may be plausible, but cannot bear the weight of proof beyond a reasonable doubt" where inconsistent conclusion "equally inferable"). And, without Officer Wadlegger's opinions, the speculative leap required to reach the conclusion that the defendant's possession was with the intent to distribute would be even greater.

The question in this case is not the plausibility or implausibility of any hypothetical theory of innocence, but simply whether the evidence the Commonwealth presented was constitutionally sufficient to permit a rational finding beyond a reasonable doubt that the defendant possessed the three rocks of crack cocaine with the intent to distribute. The stubborn facts and the reasonable inferences that may be drawn from them in this case are inadequate as an evidentiary foundation to support a conclusion

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beyond a reasonable doubt of intent to distribute. See Commonwealth v. Rodriguez, 456 Mass. at 583.

For the above reasons, the defendant's conviction should be reversed and the case should be remanded to the Superior Court for entry of a finding of guilty on so much of the indictment as charges unlawful possession of cocaine and resentencing. See Commonwealth v. Reid, 29 Mass. App. Ct. 537 , 540 (1990).