COMMONWEALTH vs. MARIA BORIA.

IRELAND, J. A District Court jury convicted the defendant of possession with intent to distribute a Class B substance (cocaine) (G. L. c. 94C, § 32A [c]), and possession with intent to distribute within 1,000 feet of a school (G. L. c. 94C, § 32J). [Note 1] At the close of the Commonwealth's case against her, the defendant moved for a required finding of not guilty. The judge denied the motion. The defendant appealed, claiming that the judge erred in denying her motion, and that the prosecutor improperly referred to facts not in evidence in closing argument, thereby creating a substantial risk of a miscarriage of justice. The Appeals Court, in an unpublished opinion pursuant

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to its rule 1:28, affirmed the defendant's convictions. 57 Mass. App. Ct. 1106 (2003). We granted the defendant's application for further appellate review. Because we conclude that the evidence, viewed in a light most favorable to the Commonwealth, Commonwealth v. Cordle, 412 Mass. 172, 175 (1992), was insufficient for the jury to find the defendant guilty beyond a reasonable doubt of actual or constructive possession of the cocaine seized in a search, we reverse the convictions. [Note 2]

1. Facts. The jury could have found the following facts. At the outset, we note that there is a dearth of evidence in this case, a point addressed more fully below, see note 5, infra.

Pursuant to a search warrant, on October 20, 2000, several police officers went to an apartment in Brockton, knocked on the door, and announced themselves. When no one answered, they forced the door open with a metal ram. Present in the apartment were two men and the defendant. The defendant was sitting on the living room floor and the television was on. Police secured the three individuals, including the defendant, and searched them. No cocaine (or other incriminating evidence) was found on the defendant. [Note 3] The defendant told one of the officers that she lived in the apartment and that she was the girl friend of one of the men.

The police officers searched the living room and the kitchen. Inside a video cassette recorder (VCR) located in the living room, they found nine small plastic bags containing cocaine. In the kitchen, they found various items that, according to trial testimony, are used in processing cocaine for distribution. [Note 4]

One officer searched a closet in the living room and two items found there were introduced in evidence. One was an address book containing the defendant's name and telephone number on the page for the letter "B." The other was an "AFDC/RRP" application from the Department of Public

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Welfare (AFDC application), dated August 2, 2000, containing the defendant's name, signature, date of birth, and social security number. The address on the AFDC application was the same as the address of the apartment that was searched. One detective found a notebook with documentation that looked like it related to "people who owed money." The notebook was not introduced in evidence, nor was there any evidence that it belonged to the defendant.

2. Denial of the defendant's motion for a required finding of not guilty. We evaluate the denial of a motion for a required finding of not guilty to determine whether "the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' " Commonwealth v. Pope, 406 Mass. 581, 584 (1990), quoting Commonwealth v. Clary, 388 Mass. 583, 588 (1983).

In this case, because incriminating evidence was found in the apartment but not on the defendant herself, the issue before us is whether the Commonwealth proved, beyond a reasonable doubt, that the defendant had constructive possession of the drugs. Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), S.C., 410 Mass. 1005 (1991). Proof of constructive possession requires the Commonwealth to show "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). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Brzezinski, supra at 409, quoting Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). However, "presence in an area where contraband is found 'alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] .' " Commonwealth v. Brzezinski, supra at 409-410, quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is

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not enough to prove constructive possession. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225-227 (1993); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 437-438 (1991), and cases cited.

In order for there to be sufficient evidence to prove constructive possession, "presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.' " Commonwealth v. Brzezinski, supra at 410, quoting Commonwealth v. Albano, supra. Other incriminating evidence is required because "the peril is that the [constructive possession] doctrine may be used in narcotics prosecutions as support for preexisting suspicions rather than as an abstraction fostering fair analysis." Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 238 (1997).

Commonwealth v. Alcantara, 53 Mass. App. Ct. 591 (2002), discussed in the Appeals Court's unpublished memorandum, is inapposite. There, when the master bedroom was searched, police found two pagers, a large amount of cash hidden in a curtain, and in a dresser, documents identifying Alcantara, thereby linking him to that bedroom. Therefore, it was reasonable to infer that the defendant was the one who had dominion and control of the crack cocaine found under a kick plate of the bathroom sink and in a pill bottle bearing his name. Id. at 592, 597.

The facts in this case are more in keeping with Commonwealth v. Brown, supra, and Commonwealth v. Booker, supra. In the Brown case, the defendant lived with others in the apartment that was searched, and her personal belongings and personal papers were found there. In addition, "if she had eyes" she would have known that drugs were being prepared, sold by passing them under the door of the apartment, and that the door was barricaded when the police executed their search warrant. Id. at 225-226. The Appeals Court held, however, that the evidence was insufficient to support her conviction where, inter alia, no cocaine or cash was found on Brown's person or in her belongings, the bedroom in which the police found her personal things did not contain drugs, Brown had no key to the premises, none of the furniture was hers, and the duration of her stay was not established. Id. at 226-227.

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Similarly, in the Booker case, the Appeals Court held the evidence was insufficient where, inter alia, the defendant shared an apartment with "at least one other person," was not present when the contraband was discovered in a common area, and she displayed no consciousness of guilt. Commonwealth v. Booker, supra at 438.

In this case, the defendant was linked to the apartment (by her AFDC application and her statement that she lived in the apartment) but there was no evidence linking her to the cocaine or related paraphernalia. [Note 5] Contraband found in proximity to a defendant's personal effects may provide a link between a defendant and the contraband, if other evidence shows that "the defendant has a particular relationship" to that location within the apartment (emphasis added). Commonwealth v. Pratt, 407 Mass. 647, 652 (1990), quoting Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986). However, to establish the defendant's "relationship" to contraband located in a common area sufficient to permit an inference of control over the contraband, there must be a more particular link to the defendant than merely (1) her presence in the living room where cocaine was hidden in a VCR, and (2) her AFDC application being

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found in the living room closet. See Commonwealth v. Pratt, supra; Commonwealth v. Booker, supra at 438 (contrasting finding contraband "in a common area, the living room," with facts in Commonwealth v. Rarick, supra, where defendant particularly linked to areas where drugs found). See also Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 504-507 (1998) (affirming conviction of possession of drugs and firearms found in bedroom where evidence supported inference that defendant occupied the room, but reversing conviction of possession of sawed-off shotgun found in front bedroom with no link to defendant); Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 555-558 (1991) (affirming conviction of lesser included offense of possession of cocaine, but vacating defendant's trafficking conviction based on contraband found in bedroom to which defendant had no link).

Here, what the Commonwealth showed was only the defendant's presence where contraband was found, at most, allowing the reasonable inference of awareness. Such evidence is not the "supplement[]" to incriminating evidence required to "tip the scale in favor of sufficiency" to show an ability and intent to control the drugs. Commonwealth v. Brzezinski, supra at 409-410, quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). See Commonwealth v. Brown, supra; Commonwealth v. Booker, supra. Suspicion alone also is not enough. See Commonwealth v. Gonzalez, supra at 238; Commonwealth v. Caterino, 31 Mass. App. Ct. 685, 689-690 (1991).

3. Conclusion. Based on the meager evidence it presented against the defendant, when the Commonwealth rested its case, it had not established any basis for a belief, beyond a reasonable doubt, that the defendant possessed the cocaine seized by police officers. Accordingly, the judgments of the District Court are reversed, the verdicts set aside, and judgments are to be entered for the defendant.

So ordered.