Opinion
18-P-1536
08-24-2020
COMMONWEALTH v. HENOCK TEMESGHEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of two counts of unlawful distribution of a controlled class A substance in violation of G. L. c. 94C, § 32 (a). On appeal, the defendant argues that there was insufficient evidence to support the convictions. Specifically, he argues that the Commonwealth failed to prove that the substance underlying the convictions was, in fact, heroin.
The Commonwealth also charged the defendant with two counts of human trafficking, but the judge declared a mistrial on those charges after the jury was unable to reach a unanimous verdict. The judge later accepted the defendant's change of plea and the defendant pleaded guilty to one count, which the Commonwealth had amended from human trafficking to deriving support from prostitution.
Background. We recite the material facts adduced at trial, in the light most favorable to the Commonwealth. See Commonwealth v. Javier, 481 Mass. 268, 270 (2019). As relevant here, the Commonwealth presented the testimony of two women, A.S. and C.G., to prove the unlawful distribution charges. A.S. met the defendant in November 2014 and, starting in December, purchased cocaine and heroin from him nearly every day. It was not unusual for A.S. to consume "a couple of grams a day" of heroin. A.S. had regularly used heroin for many years, and testified that the feeling she experienced while using the substance she purchased from the defendant was consistent with her prior experiences with heroin.
Later that month, A.S. moved into the Farrington Inn in Brighton where the defendant sold her heroin in exchange for money A.S. earned, at the defendant's suggestion, through performing sex acts solicited through the Internet. The heroin that the defendant sold A.S. at the Farrington Inn was a brown powder packaged in plastic baggies. While using it, A.S. believed that she was consuming heroin and the feeling she experienced was consistent with previous times she had used the drug. Although it only gave her "a little bit of relief," she was then using heroin around ten times per day and the limited relief was consistent with her prior experience of developing a tolerance from frequent heroin use. The defendant continued to sell A.S. heroin and crack until she left the Farrington Inn in late January 2015. A.S. had been sober since the time she left the hotel, including at the time of her testimony.
C.G. met the defendant at a party in December 2014, where the defendant gave her between twenty and forty dollars' worth of a substance. She immediately used the substance and believed it to be heroin. She had extensive experience with heroin throughout her adult life and was thus familiar with the drug. Later that evening, the defendant gave C.G. more heroin. The heroin he provided was a brown, rock-like substance that C.G. recognized as "re-rock." After using it, C.G. experienced sensations similar to previous times she used heroin and believed the substance to be heroin. Following the party, C.G. began to stay at the Round House Hotel where, in exchange for money she earned from performing sex acts solicited through the Internet as directed by the defendant, she purchased "heroin" from the defendant "[e]very day, multiple times a day."
C.G. moved to the Farrington Inn in early January 2015, where she met A.S. and began sharing a room with her. The morning after C.G.'s arrival to the hotel, the defendant provided both women with heroin. A.S. saw C.G. immediately "[t]ie off and put [the defendant's heroin] into the needle and do it." Upon injecting it, C.G. could tell it was heroin. During the time both women resided at the hotel, A.S. saw the defendant provide C.G. heroin on a daily basis. Despite C.G.'s drug use, she was sober at the time of her testimony.
Discussion. The defendant argues that the judge improperly denied his initial and renewed motions for required findings of not guilty on the distribution charges because the Commonwealth failed to put forth sufficient evidence to establish that the substance he distributed was heroin. We disagree.
"In a case involving a narcotics offense, the Commonwealth must prove beyond a reasonable doubt that the substance at issue '"is a particular drug" because such proof is an element of the crime charged.'" Commonwealth v. MacDonald, 459 Mass. 148, 153 (2011), quoting Commonwealth v. Vasquez, 456 Mass. 350, 361 (2010). "Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence." Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). For instance, "an experienced user of a controlled substance [may] testify that a substance that [she] saw and used was a particular drug." Id. In Dawson, the court held that the testimony of a cocaine user was sufficient to establish that a substance was cocaine where the witness based his belief on the substance's appearance and the consistency of his "physiological and psychological reaction" to the substance with his prior experiences using cocaine. See id. at 466.
Here, the Commonwealth relied on the testimony of A.S. and C.G. to prove that the substance the defendant sold to A.S. and C.G. on various occasions was heroin. Both A.S. and C.G. were qualified to testify to the identity of the substance as they had extensive experience with heroin use prior to meeting the defendant. Also, the women's belief that the substance the defendant sold them was heroin was based on reliable indicia.
To the extent the defendant argues that A.S. and C.G. were not qualified to testify, we perceive no substantial risk of a miscarriage of justice arising from the judge permitting them to testify. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). Their prior substance use was an appropriate qualification for them to testify about the identity of the substances at issue. See Commonwealth v. Cantres, 405 Mass. 238, 246 (1989).
The substance the defendant sold to A.S. was a brown powder packaged in baggies, and the substance he sold to C.G. was a brown, rock-like substance she knew as "re-rock." Based on what the women believed heroin to look like from past experiences, the women believed the substance they received from the defendant to be heroin. C.G. also witnessed the defendant package drugs in a manner consistent with heroin distribution. After consuming the substance they received from the defendant, A.S. and C.G. both experienced feelings consistent with their previous heroin usage. Specifically, injecting the drugs alleviated their heroin withdrawal symptoms.
The defendant takes issue with C.G.'s statement that, on one instance of use, she experienced feelings that were consistent with "[s]ome of [her] previous experiences, not all of them." He contends that the statement equally supports the inconsistent inferences that the substance distributed by the defendant was heroin or was not heroin. This argument, however, fails to view the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and ignores the significant amount of additional evidence that tends to prove that the substance was heroin.
The defendant contends that, since A.S. was using a variety of substances during the time she bought drugs from the defendant, the jury would have to rely on impermissible speculation in order to find that it was heroin that caused the sensations to which she testified. The credibility of a witness and the weight to be attributed to her testimony, however, is solely for the jury to decide. See Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). Moreover, C.G. provided ample corroborative evidence from which the jury could infer that the substance was, in fact, heroin.
Viewing the evidence in total, a rational juror reasonably could infer beyond a reasonable doubt that the substance underlying the distribution conviction was, in fact, heroin. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Judgments affirmed.
By the Court (Maldonado, Blake & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 24, 2020.