MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of possession with intent to distribute heroin and possession with intent to distribute cocaine.
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On appeal, the defendant challenges (i) the denial of his motion to suppress evidence seized from his home, (ii) the denial of his motion for a mistrial, and (iii) the sufficiency of the evidence as to his intent to distribute cocaine. We discern in the defendants claims no cause to disturb the judgments and affirm, addressing each claim in turn.
1. Motion to suppress. The defendant contends that evidence seized from his home pursuant to a search warrant should have been suppressed because the warrant was not supported by probable cause. The law is settled, however, that “a controlled buy supervised by police provides probable cause to issue a search warrant.” Commonwealth v. Villella, 39 Mass. App. Ct. 426, 427 (1995). Furthermore, “a controlled buy conducted by an intermediary who was not subject to search before or after the buy but was under police surveillance during the buy provide[s] probable cause to issue a search warrant.” Id. at 428, citing Commonwealth v. Tshudy, 34 Mass. App. Ct. 955 (1993).
In the present case, the two controlled buys detailed in Officer Brian Guineys affidavit in support of the warrant established probable cause to search the defendants home. In the first controlled buy, police observed the defendant leave his home, meet with the confidential informant (CI) and an intermediary at a prearranged location, and conduct what appeared to be a hand-to-hand transaction with the intermediary.
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In the second controlled buy, forty-eight hours before the affidavit was submitted in support of the application for the warrant,
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police observed the CI and the intermediary enter the defendants home and exit after a short period of time. After each controlled buy, the CI turned over to police heroin that the CI reported purchasing from the defendant through the intermediary. The controlled buys corroborated the information that the CI had supplied to Officer Guiney and provided probable cause that evidence of drug distribution would be located in the defendants home.
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2. Motion for a mistrial. The defendant also claims that a mistrial should have been granted because the jury was exposed to prejudicial testimony from Officer Guiney.
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We review the denial of a motion for a mistrial for an abuse of discretion. See Commonwealth v. Bryant, 482 Mass. 731, 739 (2019). “Where a party seeks a mistrial in response to the jurys exposure to inadmissible evidence, the judge may correctly rely on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant.” Id. at 740, citing Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).
We discern no abuse of discretion in the judges decision to deny the defendants motion for a mistrial. When Officer Guiney made each of the challenged statements, defense counsel moved to strike the testimony, and the judge instructed the jury to disregard it. The judge also gave a thorough and forceful curative instruction when the jury reconvened after the third statement. See Bryant, 482 Mass. at 740 (no abuse of discretion in denying request for mistrial where judge immediately struck improper testimony and gave forceful curative instruction). “We presume that the jurors followed the judges prompt and strongly worded instruction to disregard” the challenged testimony. Id. Moreover, the judge instructed the jury at both the beginning and the conclusion of trial that they were not to consider any testimony that he struck or told them to disregard. See id.
3. Sufficiency of the evidence. Finally, the defendant argues that the judge should have allowed his motion for a required finding on the charge of possession with intent to distribute cocaine because the evidence was insufficient to show intent to distribute. “Challenges to the sufficiency of the evidence are evaluated under the Latimore standard, that is, whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Witkowski, 487 Mass. 675, 679 (2021), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Viewed in the light most favorable to the Commonwealth, the evidence was sufficient for the jury to find that the defendant intended to distribute cocaine. Though the “cocaine possessed by the defendant is not of an amount that alone may raise an inference of an intent to distribute,”
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there was “[m]ore probative evidence (i.e., ‘indicia’ or ‘plus factors’)” present here. Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012). See id. (indicia of intent to distribute include “distinctive packaging indicative or suggestive of distribution; ․ the presence of implements or paraphernalia indicative of the drug trade; and the presence of cash in combination with pagers or other accoutrements of the drug trade” [quotation and citation omitted]).
The heroin and cocaine found on the defendants person were packaged in corner-cut plastic baggies.
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Police also found $614 in cash in his wallet. In addition, police seized from his bedroom knotted plastic baggies containing heroin and cocaine, a box of plastic baggies, two digital scales, and $1,000 in cash.
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The “absence of implements or paraphernalia for personal use” further indicates that the defendant intended to distribute the drugs rather than use them personally. Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010). Taken together, the evidence was sufficient for the jury to conclude that the defendant intended to distribute cocaine.
Judgments affirmed.
FOOTNOTES
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. The defendant pleaded guilty to possession with intent to distribute cocaine as a subsequent offense.
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. Before each controlled buy, police searched the CI to ensure that the CI did not have any weapons, drugs, or money and provided the CI with money to use in the transaction.
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. The affidavit was dated October 13, 2017, and the warrant was executed one week later on October 20, 2017.
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. The defendant argues that the information furnished by the CI did not establish the CIs basis of knowledge or veracity under the Aguilar-Spinelli standard. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). We need not decide whether the CIs information failed to meet these requirements, as the controlled buys compensated for any arguable deficiency regarding them. See Commonwealth v. Warren, 418 Mass. 86, 89 (1994).
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. Officer Guiney testified on direct examination that he observed twenty grams of heroin and five grams of cocaine on the defendants bed. On cross examination, Officer Guiney testified that police routinely conduct a Narcan test with evidence they seize and that in this case the test revealed “drugs.” He also testified that he did not believe the defendant had any source of income other than selling drugs.
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. Police found three plastic baggies containing heroin and cocaine on the defendants person. Officer Guiney testified that based on his training and experience, each plastic baggie appeared to contain half a gram or a gram of narcotics. Police also discovered five grams of cocaine in the defendants bedroom.
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. The Commonwealths expert witness testified that knotted, corner-cut plastic baggies are commonly used to package narcotics for distribution.
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. Expert testimony described the presence of digital scales as associated with the drug trade.