Commonwealth v. Mgaresh (Lawyers Weekly No. 11-023-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1218 Appeals Court COMMONWEALTH vs. AHAMAD F. MGARESH. No. 11‑P‑1218. Middlesex. October 12, 2012. ‑ February 12, 2013. Present: Cypher, Katzmann, & Milkey, JJ. Controlled Substances. “School Zone” Statute. Practice, Criminal, Instructions to jury. Joint Enterprise. Evidence, Constructive possession, Joint venturer. Complaint received and sworn to in the Malden Division of the District Court Department on March 13, 2009. The case was tried before Lee G. Johnson, J. Travis J. Jacobs for the defendant. Alexandra Grange Watson, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Ahamad F. Mgaresh, of distribution of cocaine in a school zone in violation of G. L. c. 94C, § 32A, and G. L. c. 94C, § 32J. The defendant appeals the convictions, claiming that the evidence was insufficient to support the convictions and that the judge erred in not instructing the jury on the theory of joint venture. We affirm the convictions because the jury could have found the defendant guilty on either a theory of constructive possession or joint venture liability, and there was no error in the jury instruction. The jury could have found the following facts. An undercover police officer, Detective Grace, called the defendant and arranged to purchase $ 200 worth of cocaine. The detective arrived at the prearranged location and met a woman, later identified as Nancy Joseph, who indicated that she was talking on the telephone with the defendant. Joseph handed Detective Grace three plastic baggies containing a gross weight of 1.95 grams of cocaine, and Detective Grace handed Joseph $ 200. Joseph was arrested as she attempted to leave the location. Later, when the defendant arrived at the Everett police station to post bail for Joseph, Detective Grace, who had previously met the defendant on multiple occasions, identified him as the person he had called to arrange the cocaine purchase. While the defendant was in the lobby of the police station, the police called the telephone number that Detective Grace had called to arrange the purchase of the cocaine. The defendant immediately checked his cellular telephone (cell phone). The police officers briefly questioned the defendant and asked him for his cell phone. The police officers called the number again and verified that this was indeed the cell phone that was called by […]