v.
Kayla M. PROIA.
[*825]
Following a jury trial, the defendant, Kayla Proia, was convicted of one count of possession of a class A substance. G. L. c. 94C, § 34. The defendant moved for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(a),
[*289] The defendant's motion for a required finding of not guilty was again denied.
On appeal, the defendant argues that testimony relating to a prior search of her apartment was erroneously admitted at trial. The defendant further argues that the Commonwealth failed to present sufficient evidence to convict her of possession of a class A substance. The defendant also claims that the prosecutor made improper remarks in his closing argument and that the judge did not remain impartial during the jury empanelment process. For the reasons set forth below, we affirm.
Background . The jury could have found the following facts.
1. January, 2015, search of the defendant's apartment . In January, 2015, a search warrant (January warrant) was executed at the defendant's apartment (January search or first search). Although the January warrant is not included in the record on appeal, it is inferable from the evidence concerning the second warrant, discussed below, that Alan Carey 1 was named in the January warrant and was the target of the police investigation. While conducting the January search, the police found approximately seventeen grams of heroin on top of the defendant's kitchen cabinets, as well as a scale. The defendant was not arrested or charged with any crime stemming from the January search of her apartment, although she was present in the apartment for the duration of that search. Instead, the defendant was advised by the police that "she [*826] shouldn't be hanging around" Carey. 2 Carey was subsequently arrested and charged with drug-related offenses based on the discovery of the heroin in the defendant's kitchen during the January search.
2. February, 2015, search of the defendant's apartment . On February 13, 2015, the police again executed a search warrant at the defendant's apartment. Carey was the target of the search and his name appeared on the search warrant. The defendant was not referenced in the warrant application, or the warrant itself, and was not a target of the police investigation.
Upon arriving at the defendant's residence, the police knocked on the door of the apartment and announced themselves. The apartment was breached after no one answered the door. After entering the defendant's apartment, the police found Carey, along with a three month old child, in the defendant's bedroom. After being read the Miranda rights, Carey stated that the defendant resided at the apartment, and that although he is not supposed to be there, he occasionally spent time at the apartment. When questioned about whether there were any drugs present in the apartment, Carey informed the police that "he had drugs under [the defendant's] dresser." He then directed the police to one of two dressers located in the room, under "which nine little knotted clear plastic baggies [containing] a brown, rock-like substance" were found. The police questioned Carey about the contents of the baggies, with Carey replying that they contained heroin. 3 Police also located a box of clear sandwich baggies in the living room of the apartment, a digital scale in a [*290] container located in the kitchen of the apartment, and $226 in cash located in a separate container in the kitchen.
The defendant was not in the apartment during the execution of the February search warrant. Both the defendant and Carey testified that, approximately one hour after letting Carey into the apartment, the defendant asked him to watch their infant daughter while the defendant picked up their son from the bus stop. The search of the defendant's apartment began while the defendant was away from the residence picking up her son. Upon returning to the apartment, the defendant was immediately approached by police and placed under arrest. No drugs were found on the [*827] defendant's person. The police informed the defendant that drugs were found under her dresser and that Carey said the drugs were his. The defendant responded by stating that the drugs were not hers and that they belonged to Carey. The defendant was subsequently charged with one count of possession of a class A substance. G. L. c. 94C, § 34. 4
Discussion . 1. Evidence of the first search of the defendant's apartment . During trial, the Commonwealth sought to introduce testimony relating to the January search of the defendant's apartment. The defendant objected. At a sidebar conversation following her objection, defense counsel stated, "I'd object. I think it's terribly prejudicial, and has nothing to do with the police [inaudible]." 5 The judge admitted the testimony after concluding that the testimony "goes to [the defendant's] state of mind." At the time the testimony was proffered, the judge provided the jury with a limiting instruction that confined the use of the testimony to the issue of the defendant's knowledge. The defendant did not object to the limiting instruction or request that any alternative or additional instruction be given to the jury.
On appeal, the defendant argues that the judge erred in allowing testimony concerning the January search of the defendant's apartment in evidence on the basis that it was prior bad act evidence and its probative value was outweighed by the risk of unfair prejudice to the defendant. We disagree.
The defendant's objection was not sufficient to put the judge on notice as to the nature of her objection beyond challenging the evidence as not being relevant to the case before the jury. "When objecting, counsel should state the specific ground of the objection unless it is apparent from the context."
Commonwealth
v.
Marshall
,
Prior bad act evidence "is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged."
Crayton
,
Here, the Commonwealth, proceeding on a theory that the defendant constructively possessed the heroin found in her bedroom, was required to prove, among other things, that the defendant had knowledge of the drugs located under her dresser. See, e.g.,
Commonwealth
v.
Frongillo (No. 1)
,
Additionally, the prejudicial effect of the testimony was greatly reduced by the circumstances surrounding the first search of the defendant's apartment. As was made clear through the testimony of all witnesses at trial, Carey, who admitted to being a heroin dealer at trial, was arrested after the first search of the defendant's apartment, while the defendant was not charged with any crime. Instead, the defendant was given advice by a police detective on the scene, which highlighted the fact that the defendant was not suspected of any wrongdoing at the time of the first search of her apartment. Therefore, [*292] the introduction of the testimony concerning the first search of the apartment was, at best, minimally prejudicial to the defendant.
Any prejudice to the defendant was further mitigated by the judge's strong, unobjected-to limiting instruction.
8
"We generally 'presume that a jury understand and follow limiting instructions, ... and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless.' "
Crayton
,
The judge's decision to admit the prior bad act evidence did not constitute error. 9
2. Sufficiency of the evidence . The defendant next argues that insufficient evidence was presented to convict her beyond a reasonable doubt of possession of a class A substance. G. L. c. 94C, § 34. We disagree.
Because the defendant did not make a motion for a required finding until the close of all evidence, we consider whether the evidence presented during the entirety of the trial, when viewed in the light most favorable to the Commonwealth, was "sufficient so that the [fact finder] might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt."
Commonwealth
v.
Dustin
,
The Commonwealth proceeded on a theory that the defendant constructively possessed the contraband found under her dresser. In order to prove that a defendant constructively possessed contraband, the evidence must be sufficient to permit the jury to infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it.
Frongillo (No. 1)
,
[*293]
Commonwealth
v.
LaPerle
,
Where contraband is found in a home or apartment, this may be accomplished in one of two ways: by linking the defendant to the contraband via "other incriminating evidence,"
Commonwealth
v.
Brzezinski
,
a.
Proximity plus other incriminating evidence
. In some cases, the particular location where contraband was found cannot be linked to the defendant. This is often the case when the contraband at issue is found in a common area of a shared dwelling. See, e.g.,
Boria
,
b.
Particular relationship between the defendant and the location of contraband
. Alternatively, in other cases, the jury may infer constructive possession upon a showing that the defendant occupied a particular area of the dwelling in which the contraband was found. This concept is best illustrated by this court's opinion in
Clarke
,
The defendant argued that there was insufficient evidence to convict him of possessing the drugs and weapons found in the rear bedroom, as well as the shotgun found in the front bedroom.
Id
. at 504-505,
As
Clarke
demonstrates, upon a showing that the defendant has a "particular relationship" to the location within a home or apartment in which the contraband is found, the defendant is adequately linked to that contraband, and the jury may reasonably infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it.
Id
. at 506,
The present case fits squarely into this second category of cases. There was evidence that the defendant resided in a two-bedroom apartment with her son, who was seven years old at the time of trial, and her daughter, who was one year old at the time of trial. One bedroom was occupied exclusively by the defendant's daughter. In the other bedroom, where the drugs were found, and which the defendant admitted she occupied, there were two dressers, one used by the defendant and one used by her son. Under the defendant's dresser, the police found nine knotted, clear plastic baggies containing heroin. Carey did not reside in the apartment, and there was no evidence that he had any personal belongings in the apartment. The evidence presented thus linked the defendant to the particular location within the apartment in which the contraband was found, and the jury were free to infer that the defendant was in constructive possession of the drugs located under her dresser as a result. See
Clarke
,
3. Prosecutor's closing argument . In his closing argument, the prosecutor described the defendant as being "sort of willfully blind about the drugs that were in her home," and further suggested that the defendant was "very much aware of what was [*835] going on in her home." The prosecutor continued: "I would suggest that the heroin that was located was located [ sic ] in her bedroom underneath her dresser and that if she's portraying to you today that she didn't know of it, she's trying to blind you. She at the very least was willfully blind I would suggest." The defendant argues for the first time on appeal that the prosecutor's statement likely misled the jury as to the knowledge element of constructive possession. We disagree.
Because the defendant did not object to the prosecutor's closing statement at trial, we review for a substantial risk of a miscarriage of justice.
Commonwealth
v.
Pearce
,
Here, the defendant testified that she had no knowledge of the drugs that she was charged with possessing. The prosecutor was thus entitled to argue to the jury that the defendant was not being truthful in her testimony, and he did so by suggesting that the defendant was, at a minimum, "willfully blind" to the fact that drugs were being stored in her apartment. The prosecutor then went on to argue that the evidence showed that the defendant had actual knowledge of the drugs located under her dresser. We do not believe that the prosecutor's closing argument, taken as a whole, indicated to the jury that "willful blindness" was sufficient to satisfy the knowledge element of constructive possession. Although it would have been preferable to simply argue that the defendant's testimony that she was unaware that drugs were present in her apartment had a hollow ring to it in view of the defendant's presence in the apartment when the January warrant was executed, we regard the statements in question as a comment on the evidence, not a statement about the law. 13
4.
Jury selection
. At sidebar, after speaking with a juror during jury empanelment, the judge described the juror as "kind of kooky," and, presumably speaking to the Commonwealth, went
[*836]
on to state: "You have two peremptories."
14
Immediately after the judge's comments, the Commonwealth used a peremptory challenge to remove the juror from the jury
[*297]
panel. On appeal, the defendant argues that the judge's statement tainted the jury empanelment process because the judge was acting as an advocate for the Commonwealth, as opposed to an "impartial arbiter." As the defendant did not object at the time of the judge's comments, we review for a substantial risk of a miscarriage of justice.
Commonwealth
v.
Freeman
,
A trial judge has broad discretion to determine whether a juror is able to stand indifferent and may dismiss a juror for cause sua sponte, or at the request of either party. See G. L. c. 234A, § 39, inserted by St. 1982, c. 298, § 1 ("The court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice");
Commonwealth
v.
Clark
,
Judgment affirmed .
The status of the relationship between Carey and the defendant is unclear. The defendant and Carey have children together, but both parties testified that Carey does not live with the defendant beyond occasionally spending the night in her apartment. At trial, the defendant indicated that she and Carey were no longer in a romantic relationship.
There is evidence in the record indicating that Carey was banned from entering the defendant's apartment after the January warrant had been executed.
The parties stipulated prior to trial that the substance found by police was heroin.
Carey was also charged with drug-related offenses as a result of the February search of the defendant's apartment.
It is the defendant's burden to reconstruct the record of an inaudible sidebar if the information is relevant to her claims. See
Commonwealth
v.
Sargent
,
As stated above, the defendant did not object to the judge's limiting instruction given at trial.
We take this opportunity to note the importance of placing on the record a judge's weighing of the probative value and prejudicial effect of evidence when a prior bad act objection is raised. While we are able to infer from the conversation taking place between the judge and the parties in the present case that the judge considered both the probative value and prejudicial effect of this evidence, it is helpful not only to this court, but also to the parties at trial, for a judge's reasoning concerning such evidentiary determinations to be clearly stated. See, e.g.,
Commonwealth
v.
Dew
,
The judge instructed the jury as follows: "Any time uncharged conduct is testified to, the [d]etective is testifying to prior to the date of uncharged conduct, that uncharged conduct is not in any way involved in this case. In other words, the [d]efendant is not charged with anything regarding that particular incident. You may not consider that evidence as any substantive or any proof in the case that we're hearing today, which means the later search with the evidence that we've heard already. The only issue that it really may go to, and it's up to you whether it does because at the end of the day if an issue goes to you, you decide it's [ sic ] value, is whether or not it addresses any knowledge of any type of drugs on the premises by the [d]efendant, and that's it. But it is not-that is-she's not charged so they're not considering any-as the proof of the case that is actually before you."
We note that the testimony set forth at trial consisted of a single act of uncharged criminal conduct. This is not an instance where the prior bad act evidence overwhelmed the case. Contrast
Commonwealth
v.
Dwyer
,
Two other men were in the living room of the apartment during the execution of the warrant, but neither was arrested at that time.
Clarke
,
In
Rarick
,
Contrast
Sespedes
,
Even if we were to assume that the statement constituted a misstatement of the law, any prejudice to the defendant was cured by the judge's proper jury instruction relating to constructive possession. See
Commonwealth
v.
Horn
,
The defendant had already used one of her two peremptory challenges prior to the judge's comments at sidebar, while the Commonwealth had yet to use either of its peremptory challenges at that point.