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17-P-1127 Appeals Court

COMMONWEALTH vs. ANDREW WOODS.

No. 17-P-1127.

Worcester. November 8, 2018. - February 7, 2019.

Present: Green, C.J., Meade, & Sacks, JJ.

Firearms. Controlled Substances. Evidence, Constructive 

possession. Armed Home Invasion. Malicious Injury to 

Property. Malice. Practice, Criminal, Required finding.

Indictments found and returned in the Superior Court 

Department on March 20, 2015.

The cases were tried before Richard T. Tucker, J.

Deborah Bates Riordan for the defendant.

Michelle R. King, Assistant District Attorney, for the 

Commonwealth.

GREEN, C.J. The defendant appeals from his convictions of 

various charges arising from the discovery of a loaded firearm 

and drugs in a closet in the apartment in which he was arrested.1 

 

1 The defendant was convicted of: (i) armed home invasion, 

G. L. c. 265, § 18C; (ii) trafficking in cocaine between thirtysix and one hundred grams, G. L. c. 94C, § 32E (b); (iii) 
2

Among his claims on appeal, the defendant contends that (1) the 

evidence was insufficient to establish that he constructively 

possessed the loaded firearm and drugs; (2) his conviction of 

possession of a loaded firearm must be reversed, because the 

jury were not instructed that they must find that the defendant 

knew that the firearm was loaded; (3) his conviction of 

possession of ammunition is duplicative of his conviction of 

possession of a loaded firearm; (4) the evidence was 

insufficient to establish the use of force or threat element of 

the charge of armed home invasion; and (5) the evidence was 

insufficient to support his conviction of malicious destruction 

of property over $250, both because it did not establish that he 

acted with malice and because there was no evidence that the 

property damage was more than $250. 

We agree with the Commonwealth's concession that the 

defendant's conviction of possession of ammunition is 

duplicative of his conviction of possession of a loaded firearm, 

and we also agree that the evidence was insufficient to support 

 

possession of a firearm in a felony, G. L. c. 265, § 18B; (iv) 

carrying a firearm without a license, G. L. c. 269, § 10 (a); 

(v) carrying a loaded firearm without a license, G. L. c. 269, 

§ 10 (n); (vi) possession of ammunition without an FID card, 

G. L. c. 269, § 10 (h) (1); (vii) possession of a class A 

substance with intent to distribute, G. L. c. 94C, § 32 (a); 

(viii) malicious destruction of property over $250, G. L. 

c. 266, § 127; and (ix) resisting arrest, G. L. c. 268, § 32B.
3

his conviction of malicious destruction of property over $250. 

Accordingly, on the charge of unlawful possession of ammunition, 

the judgment is vacated, the verdict is set aside, and the 

indictment is to be dismissed. On the charge of malicious 

destruction of property over $250, the judgment is reversed, the 

verdict is set aside, and judgment shall enter for the defendant

on that count. We otherwise discern in the defendant's various 

arguments no cause for relief, and affirm the remaining 

judgments of conviction.

Background. On the morning of December 23, 2014, a team 

from the Massachusetts fugitive apprehension task force went to 

190 Blossom Street in Fitchburg to serve an arrest warrant on an 

individual they understood to be living in apartment 3 at that 

address (the only apartment unit on the third floor).2 The team 

entered the building through the unlocked front door and began 

climbing the stairs; as they reached the second floor landing 

they noticed an open apartment door on their left, and then 

heard a loud bang -- followed by a woman's screams for help --

coming from the third floor. The team raced up the stairs to 

the third floor, arriving ten to fifteen seconds after hearing 

the loud bang. When they arrived, they found the apartment door 

off its hinges and lying on the kitchen floor, and the door 

 

2 The building is a three-story apartment building.
4

frame damaged; a hole in the door suggested it had been kicked 

in.

Lauren Wiener was the tenant of the third floor apartment,

where she and her husband had moved about three months earlier.

Neither she nor her husband was the target of the arrest warrant 

the task force had come to serve.3 She had been sleeping in her 

bedroom at around 9:00 A.M. when she was awakened by a crash. 

She began screaming. At the time, the apartment was dark, with 

the lights off and the shades pulled. After hearing the crash, 

Wiener saw a "dark figure" in her bedroom doorway, putting his 

finger to his lips while saying, "shhh." Wiener was "afraid for 

[her] life," and continued screaming for help. Wiener then saw 

the person move from her bedroom doorway into the living room.

As Trooper Amy Waterman approached the entrance to Wiener's 

apartment, she saw an individual moving quickly in the back of 

the living room, coming toward her. The man, later identified 

as the defendant, initially stopped and was cooperative; 

however, he quickly "threw an elbow to resist . . . attempts to 

arrest him, and then attempted to run out the way that 

[everyone] had come in, past the broken door." Several members 

of the task force physically wrestled with the defendant for 

 

3 Wiener's husband was not home at the time the team 

arrived. There is no indication in the evidence that the target 

of the arrest warrant was a resident of the apartment.
5

several minutes in an effort to place him in handcuffs. A 

search of the defendant yielded $2,293 in cash, three one

hundred dollar bills that were "smudged and off-center," and a 

"rock in a sock" makeshift weapon comprised of a sock containing 

heavy metal objects. On the floor, near the defendant, were 

three cellular telephones (cell phones) that the defendant 

acknowledged as his.

While Trooper Waterman went into the bedroom to speak with 

Wiener, who had been screaming and crying and was obviously 

frightened, another trooper stayed with the defendant, and other 

task force members conducted a protective sweep of the 

apartment. There were four doors in the living room: two 

closet doors, one door to the attic, and an exit door to the 

outside. When Worcester police Officer Robert Johnson looked in 

one of the closets, he observed a bag of empty soda bottles on 

the floor and a child's blue kick ball, slit open, sitting on a

wire rack above.4 Officer Johnson could see the handle of a 

firearm inside the kick ball; as soon as he saw the weapon he 

alerted other members of the task force. The firearm was loaded 

with a bullet in the chamber and a clip holding additional 

rounds of ammunition.

 

4 The other closet contained Wiener's pea coat, scarves, and 

her husband's work reflector vests.
6

After Officer Johnson alerted the team to the discovery of 

the firearm, police brought Wiener into the living room to look 

at the items in the closet. While standing in the living room, 

Wiener heard the defendant say repeatedly, "that's not mine," 

though she did not know to what he was referring. Wiener was 

then asked to look inside the closet. Inside the closet, she 

saw a blue ball that had not been in the closet when she last 

looked into it the previous night. Inside the blue ball, Wiener 

was able to see two smaller balls (a basketball and a tennis 

ball), a handgun, and what appeared to be drugs inside the 

smaller balls. Wiener had never seen the blue ball or its 

contents before that moment, and the ball and its contents did 

not belong to her or any other member of her household.

As the defendant was led out of the building, he asked 

Massachusetts State Trooper Darlene DeCaire to close the secondfloor door to his apartment, which she did. Task force members 

attempted to secure the defendant’s apartment while other 

members applied for a search warrant. However, while the task 

force members were waiting, the defendant's girlfriend, Alicia 

Ortiz, entered the apartment through an unknown door that she 

then locked, and would not let the task force members inside. 

At some point before the warrant was obtained, Ms. Ortiz left 

the apartment; she was not pat frisked or searched as she left. 
7

Once the search warrant was obtained, task force members 

searched the defendant's apartment. Inside they found a digital 

scale in a bedroom drawer. In a kitchen cabinet, they found a 

box of sandwich bags, one of which had a corner ripped off, and 

an empty gun holster. The gun found inside the blue ball "fit 

pretty well" into the holster found in the defendant's 

apartment. 

When police later examined the blue ball at the Leominster 

State police barracks, they determined that the gun was a 380-

caliber handgun, loaded with six rounds of ammunition. There 

was a smaller brown basketball inside the blue ball that was cut 

open, and the basketball contained a small purple tennis ball, 

also cut open. There were small plastic bags inside the 

basketball and tennis ball, some containing a "white-powder 

substance" and other bags holding a "tan powder substance." 

Five bags of white powder tested positive for cocaine, with a 

total weight of 94.36 grams. Two packages were positive for 

methylone, commonly referred to as "bath salts," and the tan 

powder tested positive for heroin.

Discussion. 1. Constructive possession. The defendant 

contends that the evidence was insufficient to establish that he 

possessed the blue ball (and the other items it contained) found 

in the closet of Wiener's apartment. In assessing the 

sufficiency of the evidence, we must decide "whether the 
8

evidence, in its light most favorable to the Commonwealth, 

notwithstanding the contrary evidence presented by the 

defendant, is sufficient . . . to permit the jury to infer the 

existence of the essential elements of the crime charged . . ." 

Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 392 (2009), 

quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). 

Because the defendant did not have actual physical possession of 

the blue ball when he was apprehended, the Commonwealth's case 

rested on the theory of constructive possession. "'Constructive 

possession' requires proof that the defendant had 'knowledge 

coupled with the ability and intention to exercise dominion and 

control.'" Commonwealth v. Than, 442 Mass. 748, 751 (2004), 

quoting Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). 

"Proof of possession of [contraband] may be established by 

circumstantial evidence, and the inferences that can be drawn 

therefrom." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 

(1985). "The defendant's mere presence in the area where 

contraband is found is insufficient to show 'the requisite 

knowledge, power, or intention to exercise control over the 

[contraband], but presence, supplemented by other incriminating 

evidence will serve to tip the scale in favor of sufficiency.'"

Commonwealth v. Schmeider, 58 Mass. App. Ct. 300, 303 (2003), 

quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). In 

the present case, several pieces of incriminating evidence 
9

suffice to tie the defendant to the blue ball found in Wiener's 

apartment closet. 

To begin with, the open door to the defendant's apartment 

immediately downstairs from Wiener's, coupled with evidence of a 

forced entry into Wiener's apartment, and the defendant's 

efforts to quiet Wiener's screams (by holding his finger to his 

lips and whispering "shhh") suggest an urgent and spontaneous 

series of actions by the defendant to flee from his apartment 

(and to hide in Wiener's) when the task force entered the 

apartment building. Wiener and her husband had no children, and 

no children's toys (other than the blue ball with the basketball 

and the tennis ball stored inside it) were found in Wiener's 

apartment. Wiener testified that she did not see the blue ball 

in the closet the evening before its discovery by the task 

force, and adamantly denied that it belonged to her or her 

husband.5

In addition, police found a gun holster in the defendant's 

apartment into which the handgun found in the blue ball fit 

"pretty well." They also found in the defendant's apartment 

plastic baggies including one with a cut corner, and a digital 

 

5 Though the defendant also denied that the ball was his

when he was apprehended at the scene, the jury were free to 

credit Wiener's denial and discredit the defendant's.
10

scale; both items were described in expert testimony as 

indicative of the drug trade.6 

Finally, though Wiener and her husband had no children, the 

defendant and his girlfriend each had a child. The defendant's 

girlfriend's child lived in their apartment and the defendant's 

child visited on weekends. Children's toys were seen by task 

force members in the defendant's apartment, permitting an 

inference that the defendant had converted three balls 

previously used as children's toys into storage compartments for 

the drugs and handgun found in Wiener's closet.

2. Armed home invasion. There is likewise no merit in the 

defendant's challenge to the sufficiency of the evidence on the 

charge of armed home invasion. In order to convict the 

defendant of that charge, the Commonwealth was required to 

establish that: 

"[T]he defendant (1) 'knowingly enter[ed] the dwelling 

place of another'; (2) 'knowing or having reason to know 

that one or more persons are present within' (or entered 

without such knowledge but then remained in the dwelling 

place after acquiring or having reason to acquire such 

knowledge); (3) 'while armed with a dangerous weapon'; and 

(4) 'use[d] force or threaten[ed] the imminent use of force 

upon any person within such dwelling place whether or not 

injury occur[red], or intentionally cause[d] any injury to 

any person within such dwelling place.'"

 

6 Expert testimony also described the presence of multiple 

cell phones (such as the three found next to the defendant at 

the time of his arrest) as associated with the drug trade.
11

Commonwealth v. Smith, 458 Mass. 1012, 1013 (2010), quoting 

Commonwealth v. Doucette, 430 Mass. 461, 465-466 (1999).

In the present case, the Commonwealth proceeded on two 

separate theories: that the defendant threatened Wiener with 

the imminent use of force after he forcibly entered her 

apartment and directed her to be silent, and that he used actual 

force against the task force members who thereafter entered 

Wiener's apartment.7 We are persuaded that the evidence sufficed 

to support a guilty verdict on either theory.

Following the defendant's forcible, violent entry into her 

apartment while she was asleep, by her account Wiener was 

frightened for her life (and her fear was objectively 

reasonable).8 In such circumstances, a rational finder of fact 

could construe the defendant's directive to Wiener that she be 

silent as an implicit threat of violence against her if she did 

not comply. In any event, there is no serious dispute that the 

defendant used actual force against the task force members as 

they attempted to take him into custody.9 That the task force 

 

7 The defendant challenges only the sufficiency of the 

evidence on the element of threat or use of force.

8 We note that the Commonwealth was not required to show 

that Wiener was actually placed in fear. See Commonwealth v. 

Dunn, 43 Mass. App. Ct. 58, 62 (1997).

9 For the first time on appeal, the defendant contends that, 

because the task force members were not listed as victims on the 

indictment for armed home invasion, the Commonwealth could not 
12

members were not in the apartment when the defendant entered it 

is of no consequence. See Commonwealth v. Martinez, 85 Mass. 

App. Ct. 288, 291 (2014).

3. Loaded firearm. As the Commonwealth acknowledges, the 

jury instruction on the charge of possession of a loaded firearm 

was deficient, insofar as it did not instruct the jury that, to 

return a verdict of guilty, they must find that the defendant 

knew that the firearm was loaded. See Commonwealth v. Brown, 

479 Mass. 600, 608 (2018).10 Though the defendant did not object 

to the instruction, the absence of instruction on an element of 

the charged offense can often give rise to a substantial risk of 

a miscarriage of justice. See, e.g., Commonwealth v. Redmond, 

53 Mass. App. Ct. 1, 8 (2001). In the circumstances of the 

present case, "[h]aving reviewed the charge and the evidence as 

a whole," id., we discern no such risk.

 

pursue that theory at trial. To the contrary, "'[i]n a criminal 

case, any . . . objection based upon defects . . . in the 

complaint or indictment, other than a failure to show 

jurisdiction in the court or to charge an offense, shall only be 

raised prior to trial . . . .' Failing to object to such a 

defect prior to trial ordinarily waives any argument pertaining 

to that defect." Commonwealth v. Lamont L., 438 Mass. 842, 845 

(2003), quoting G. L. c. 277, § 47A. The defendant was on 

notice of the Commonwealth's alternative theory before trial 

began and raised no objection. The claim is accordingly waived.

10 We note that the trial judge and the parties did not have

the benefit of the Brown decision at the time of trial.
13

In particular, we observe that the defendant was convicted 

of the charge of possession of ammunition. On that charge, the 

jury were instructed clearly that a required element for a 

verdict of guilty was that the "defendant knew that he possessed 

that ammunition." As the defendant acknowledges, the only 

ammunition for which he was charged was that located within the 

firearm. Because the jury found that the defendant knowingly 

possessed the ammunition within the firearm, the failure to 

instruct the jury that they were required to find that he knew 

the handgun was loaded with ammunition in order to return a 

verdict of guilty on the charge of possession of a loaded 

firearm was of no significance.11

4. Malicious destruction of property. We agree with the 

defendant that the evidence was insufficient to satisfy the 

element of malice on the charge of malicious destruction of 

property. "To prove a violation of G. L. c. 266, § 127, as 

 

11 As the Commonwealth concedes, the defendant's conviction 

on the lesser included offense of possession of ammunition is 

duplicative of his conviction of possession of loaded firearm, 

in the circumstances of this case, where the only ammunition at 

issue was that within the firearm. See Commonwealth v. Johnson, 

461 Mass. 44, 54 (2011). Accordingly, on the indictment 

charging unlawful possession of ammunition under G. L. c. 269, 

§ 10 (h), the judgment is vacated, the verdict is set aside, and 

the indictment is to be dismissed. Because the defendant's 

sentence on this conviction did not increase the amount of time 

of the defendant's incarceration, we do not remand for 

resentencing.
14

amended by St. 1994, c. 168, § 4, the Commonwealth must prove 

that the [defendant] 'destroy[ed] or injure[d] the personal 

property, dwelling house or building of another . . . .' If the 

destruction or injury is 'wilful and malicious,' the permissible 

penalty is greater than if it is merely 'wanton,' which is a 

separate crime requiring different proof. See Commonwealth v. 

Schuchardt, 408 Mass. 347, 352 (1990)." Commonwealth v. Morris 

M., 70 Mass. App. Ct. 688, 691 (2007). The terms "wilful" and 

"malicious" represent two distinct elements of the crime, both 

of which must be proved beyond a reasonable doubt. See Redmond, 

53 Mass. App. Ct. at 4. "The word 'wilful' means intentional 

and by design in contrast to that which is thoughtless or 

accidental. Malice, on the other hand, refers to a state of 

mind of cruelty, hostility or revenge." Nolan & Santoro, 

Criminal Law § 427, at 438 (2001).

In the present case, the evidence clearly sufficed to show 

that the defendant acted wilfully (that is to say, 

intentionally) when he broke down the door to Wiener's apartment 

to gain entry. However, the wilful commission of an unlawful or 

even destructive act does not, by itself, suffice to prove 

malice under G. L. c. 266, § 127. See Redmond, 53 Mass. App. 

Ct. at 4. In the circumstances of the present case, the 

evidence establishes instead that the defendant's acts in 

breaking down the door were wanton -- that he acted "heedlessly 
15

and in reckless disregard of the rights of others." Morris M.,

70 Mass. App. Ct at 692, quoting Nolan & Santoro, supra at 440. 

There is no evidence that the defendant was motivated by animus 

or hostility toward Wiener; instead, his destruction of her door 

was by all appearances an incidental consequence of his 

ultimately fruitless efforts to evade the approaching task 

force. And though the defendant's actions were wanton, he was 

not charged with wanton destruction of personal property, and it 

is not a lesser included offense of malicious destruction of 

property. See Schuchardt, 408 Mass. at 352; Redmond, supra at 

5.

Commonwealth v. Cimino, 34 Mass. App. Ct. 925 (1993), on 

which the Commonwealth relies, is not to the contrary. In that 

case, the defendant was convicted of malicious destruction of 

property based on his destruction of car windows by shooting 

through them with a BB gun. What made the shootings malicious 

rather than wanton is that destruction of the windows was the

defendant's principal purpose in shooting at them. See id. at 

927. Compare Redmond, 53 Mass. App. Ct. at 4-5 (evidence of 

malicious destruction was insufficient where destruction of 

property was not designed to intimidate or overpower its owner, 
16

but rather was incidental means to carry out defendant's goal of 

theft).12

Conclusion. On the charge of unlawful possession of 

ammunition, the judgment is vacated, the verdict is set aside, 

and the indictment is to be dismissed. On the charge of 

malicious destruction of property over $250, the judgment is 

reversed, the verdict is set aside, and judgment shall enter for 

the defendant on that count. The remaining judgments are 

affirmed.

So ordered.

 

12 Our conclusion that the evidence was insufficient to 

satisfy the element of malice obviates any need to address the 

defendant's contention that the evidence was insufficient to 

establish that the amount of damage exceeded $250.