Facts: This is an appeal from the
defendant’s conviction of possession of cocaine with intent to distribute and
an accompanying school zone offense. On January 1, 2009, a state trooper
noticed the defendant weaving in and out of the speed lane on the highway. The
trooper pulled the defendant over and directed him to roll down his window. The
trooper smelt alcohol on the defendant and observed a ¾ empty bottle of whisky
and a case of bear in the backseat of the defendant’s car. The trooper ordered
the defendant out of the vehicle, who had difficulty complying and kept his
left hand in his pocket, despite being told to take it out. The trooper placed
the defendant under arrest, took his hand from his pocket. In the defendant’s
hand was a clear plastic bag containing five smaller clear plastic bags
containing cocaine, which weighed 3.16 grams. In a police dog search of the
defendant’s car, the dogs discovered 2 additional open bags of cocaine in the
defendant’s wallet containing a combined total of .14 grams of cocaine.
Issue: Did the
judge err in denying the defendant’s motion for a required finding of not
guilty? Yes, no jury could have found that the defendant had the intent to
distribute without employing speculation or guesswork. Therefore, on the count
of the complaint charging possession of cocaine with intent to distribute is
vacated, while the verdict of the lesser-included offense of possession of
cocaine stands.
Reasoning: The
court reasoned that the amount of drugs in the defendant’s possession was not enough
to infer intent to distribute, but that certain indicia may be considered in
assessing the defendant’s intent to distribute such as distinctive packaging, possession
of large quantities of drugs, or the presence other items used to manufacture
or distribute drugs. The court stated that the Commonwealth’s evidence in the
present case was ambiguous and lacked evidence of specific intent. The court
further reasoned that while expert testimony may be used to meet the
Commonwealth’s burden, in the instant case, the trooper’s opinion of the
defendant’s intention was wholly speculative.
Judgment: On the
count of possession of cocaine with intent to distribute, the portion of the
verdict “with intent to distribute” is set aside, but the lesser-included
offense of possession of cocaine is to stand. The case is remanded to District
Court for resentencing on the lesser offense.
On the count the complaint charging the violation within a
school zone, the judgment is reversed, verdict set aside, and judgment entered
for the defendant.
Note: The court declined to address the defendant’s
remaining claims including those in relation to the school zone charge, as it
could not stand in light of the reversal of the conviction of possession with
intent to distribute. (KL)
