Superior Court (P2/12-475A), Stephen P. Nugent, Associate Justice.
For State: Virginia M. McGinn, Department of Attorney General.
For Defendant: Lara E. Montecalvo, Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Paul A. Suttell, Chief Justice.
The defendant, Francisco Maria, was found guilty by a jury of possession of cocaine with intent to deliver. He now appeals from the judgment of conviction sentencing him to a term of fifteen years' incarceration, with five years to serve and ten years suspended, with probation. He argues that the trial justice erred by denying his motion for judgment of acquittal as well as by not instructing the jury on the lesser-included offense of simple possession. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Procedural History
On February 7, 2012, defendant was charged with one count of possessing cocaine with the intent to deliver it. The defendant was tried by a jury over three consecutive days in March and April 2014 in the Providence County Superior Court. The state presented six witnesses; their pertinent testimony and the evidence admitted at trial are summarized below.
In June 2011, Michael Naylor was a detective with a local Drug Enforcement Agency (DEA) task force. Sergeant Naylor testified that, during May and June 2011, he conducted surveillance of an apartment building located on First Avenue in East Greenwich. Sergeant Naylor testified that, on June 1, 2011, he observed a "Hispanic male arrive in a gold Acura, " enter the specific apartment under surveillance, "stay for awhile, " and then exit the apartment with a female who had been the target of the surveillance at that apartment. Sergeant Naylor identified defendant as the Hispanic male whom he had seen at the apartment building on First Avenue on June 1, 2011. However, Sgt. Naylor also testified that, on June 1, 2011, he had not known defendant's identity. To ascertain the identity of the Hispanic male he had observed at the East Greenwich apartment building, Sgt. Naylor testified, he had "requested that one of the East Greenwich police officers stop the vehicle and identify the driver." Sergeant Naylor admitted that defendant's vehicle was subsequently pulled over using a "pretext stop" for the sole purpose of ascertaining defendant's identity. He further testified that he subsequently confirmed that the gold Acura was registered to defendant and that defendant owned residential property located on Montgomery Avenue in Providence (the target property). Sergeant Naylor also testified that, from May 18, 2011, through June 2011, he observed defendant at the East Greenwich property approximately fifteen times and that he was in contact with detectives from the Cranston Police Department during the surveillance operations conducted in June 2011. Sergeant Naylor also testified that the female target of the East Greenwich apartment's surveillance drove a Nissan Maxima.
Warren Henseler, a detective in the special investigations unit of the Cranston Police Department and a member of the Federal Bureau of Investigation's "Safe Streets Violent Crimes Task Force, " testified that, in June 2011, he was investigating the distribution of cocaine in the city of Providence. On June 3, 2011, based on information received from a confidential informant (CI), Det. Henseler conducted undercover surveillance of the target property. Detective Henseler testified that, during the surveillance, he saw an individual known to him as Michael White exit a vehicle that was driven by the CI and parked near the target property. Detective Henseler saw White meet with defendant in front of the house, walk up the driveway towards the house, then disappear from his view for approximately five minutes before both men returned to the detective's line of vision. Detective Henseler further testified that he then saw White depart in the vehicle driven by the CI and defendant remain at the target property. Detective Henseler testified that he had seen defendant and White walk and talk only, and that he had not observed an actual transaction for the sale of drugs. When the vehicle with the CI and White drove away from the target property, Det. Henseler followed it to the City of Warwick. Detective Henseler testified that White was dropped off at a residence and that he continued following the CI's vehicle to the DEA's office in Providence.
Ronald Fuoroli, a detective in the narcotics unit of the Cranston Police Department, testified regarding his undercover surveillance of the target property on June 23, 2011. Detective Fuoroli testified that he saw defendant arrive at the target property in a gold Acura, park across the street, and walk up the driveway towards the house with a cooler on his shoulder. Detective Fuoroli further testified that he saw defendant leave the target property half an hour later in the same vehicle, then return to the target property approximately five minutes later. Detective Fuoroli then saw defendant exit the gold Acura and meet up with White-who had arrived in a vehicle driven by a CI shortly before defendant returned. The two men met on the street, then proceeded to walk together up the driveway of the target property towards the house. Detective Fuoroli lost sight of the two men for "two to three minutes" before White reappeared into his view and White and the CI drove away. After White and the CI drove away, Det. Fuoroli observed defendant departing in the gold Acura. Detective Fuoroli further testified that he followed the gold Acura and he saw the vehicle pull over to the side of a road where he met with someone in "either a green or gray Maxima."
Kevin Antonucci, a detective sergeant and commanding officer of the narcotics unit with the Cranston Police Department, testified about the execution of a search warrant for the target property on June 29, 2011. Detective Antonucci testified that he was one of the law-enforcement officers who had conducted the search of the master bedroom in the residence. From the master bedroom, Det. Antonucci seized a passport issued by the Dominican Republic to defendant, bank statements with defendant's name and address, and a digital scale. From a dresser drawer, Det. Antonucci seized "nine clear plastic bags containing what [he] believed to be cocaine" as well as "some empty bags." Detective Antonucci also seized a "large machete-type knife" from under the bed. He further testified that he turned over all of the items seized to Det. Juan Robles of the Providence Police Department, who, according to Det. Antonucci, served as the "evidence custodian" during the execution of the search warrant. Although Det. Antonucci testified that he had searched for physical evidence or records of sale, he stated that he had not found any evidence of the actual sale of illegal substances such as ledgers or receipts.
Juan Robles, a police officer with the Providence Police Department's narcotics unit and part-time member of the DEA's task force, testified that he was also present on June 29, 2011, during the execution of the search warrant at the target property. Officer Robles testified that his role during the execution of the search warrant was to "keep an eye on everybody while the search was being done, and at the same time try to speak with [defendant]." Officer Robles further testified that he observed a detective conduct a search of defendant's person and seize narcotics from defendant's pocket. One of the bags seized from defendant's pocket contained a straw within ...