Commonwealth v. Lovering , 89 Mass. App. Ct. 76 ( 2016 )

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14-P-1914 Appeals Court
COMMONWEALTH vs. ALBERT LOVERING.
No. 14-P-1914.
Middlesex. December 4, 2015. - February 17, 2016.
Present: Cypher, Wolohojian, & Carhart, JJ.
Firearms. Evidence, Constructive possession. Abuse Prevention.
Practice, Criminal, Required finding.
Complaint received and sworn to in the Waltham Division of
the District Court Department on October 11, 2011.
The case was tried before Maurice R. Flynn, III, J.
Kimberly M. Peterson for the defendant.
Michael Shiposh, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. The question presented is whether there was
sufficient evidence to prove beyond a reasonable doubt that the
defendant had constructive possession of a firearm on the
specific date of September 11, 2011. We agree with the
defendant that the evidence was insufficient to prove that he
constructively possessed the gun on the date charged in the
2
complaint. We accordingly reverse his conviction of possessing
a firearm without a firearm identification card, G. L. c. 269,
§ 10(h). However, because the evidence was sufficient to prove
that the defendant owned the gun, we affirm his convictions of
violating the gun storage statute, G. L. c. 140, § 131L, and of
violating an abuse prevention order by failing to surrender the
gun, G. L. c. 209A, § 7.1
We review the denial of a motion for a required finding of
not guilty by asking whether any rational fact finder, when
viewing the evidence in the light most favorable to the
Commonwealth, could find all material elements of the offense
beyond a reasonable doubt. See Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). "Circumstantial evidence is competent to
establish guilt beyond a reasonable doubt." Commonwealth v.
Merola, 405 Mass. 529, 533 (1989). However, "[i]t is not enough
for the appellate court to find that there was some record
evidence, however slight, to support each essential element of
the offense. Nor may a conviction rest upon the piling of
inference upon inference or conjecture and speculation."
Commonwealth v. Armand, 411 Mass. 167, 170 (1991) (citation and
quotation omitted).
1
The defendant was sentenced to concurrent terms of six
months in the house of corrections on each charge.
3
Taken in the light most favorable to the Commonwealth, the
evidence showed the following. The defendant's wife found a
loaded Walther PPK handgun (gun) on September 11, 2011, while
dusting the apartment she had shared with the defendant for
approximately twelve years.2 The gun was in a leather pouch
which was, in turn, contained in an old wooden box among the
defendant's other personal belongings on the floor of the living
room. The gun was of a sort issued by the Nazi government; the
defendant collected Nazi memorabilia.
Almost one month earlier, on August 18, 2011, the wife had
obtained an abuse prevention order requiring the defendant to
stay away from the apartment and allowing him to return to pick
up his belongings only with a police escort. It was
uncontroverted at trial that the defendant had not returned to
the apartment since the order was entered.3 The Commonwealth
2
The defendant did not allow the wife to clean the
apartment, saying that he did not want her to break his things.
If the wife went near the defendant's possessions, he would not
talk to her for several days.
3
Given the terms of the protective order, his presence in
the apartment without a police escort would have constituted
criminal trespass. See Commonwealth v. Gordon, 407 Mass. 340,
347 (1990).
4
introduced no evidence as to the defendant's whereabouts on
September 11.4
The defendant was charged with possessing a firearm without
a firearm identification card, G. L. c. 269, § 10(h), on
September 11, 2011 (the date of its discovery). Because the
defendant did not have actual possession of the gun on that
date, the Commonwealth proceeded on a theory of constructive
possession. "To permit a finding of constructive possession
there must be evidence sufficient to infer that the defendant
not only had knowledge of the item[], but had the ability and
intention to exercise dominion and control over [it]."
Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 680 (2006).
The evidence was sufficient to allow the jury to find that
defendant had knowledge of the firearm,5 but not that he had the
ability to exercise dominion and control over it on the date
charged. Although the gun was found among the defendant's
personal effects, he no longer lived in the apartment. See
4
The defendant has represented to us on appeal that he was
incarcerated on September 11. We do not rest our decision on
this basis since the information is not in the record.
5
Evidence that the firearm was found underneath the
defendant's belongings, that it was of Nazi vintage, and that
defendant collected Nazi memorabilia provided the jury a
sufficient basis to infer that the defendant had knowledge of
the firearm on September 11, 2011. See Frongillo, supra at 681-
682 (sufficient evidence to infer knowledge of firearms found in
a closet containing men's clothing in an apartment where
defendant spent a great deal of time).
5
Commonwealth v. Boria, 440 Mass. 416, 420 (2003) (where dwelling
is shared by defendant and one or more other persons
"[c]ontraband found in proximity to a defendant’s personal
effects may provide a link between a defendant and the
contraband"). Moreover, the defendant had not been in proximity
of the gun for almost a month, there was no evidence as to when
(if ever) he might return to the apartment, and there was no
evidence that he was anywhere near the gun on September 11. See
Commonwealth v. Duffy, 4 Mass. App. Ct. 655, 660 (1976);
Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991);
Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000)
(each noting that the defendant's absence at the time contraband
was discovered and each concluding that there was insufficient
evidence of constructive possession).
Even though, as discussed above, there was insufficient
evidence to support a finding that the defendant constructively
possessed the firearm on September 11, there was sufficient
evidence to infer that the defendant owned the firearm on that
date: the wife told the responding officer that "it was her
husband’s [firearm]," the gun was located among the defendant's
other possessions in the apartment he had lived in for twelve
years, and the defendant collected Nazi memorabilia like the
Nazi-issued firearm in this case.
6
As a result, there was sufficient evidence that the
defendant violated the gun storage statute, which imposes
liability on owners of firearms, not only those having actual or
constructive possession.6 Under the gun storage statute, it is
"unlawful to store or keep any firearm . . . in any place unless
such weapon is secured in a locked container or equipped with a
tamper-resistant mechanical lock or other safety device,
properly engaged so as to render such weapon inoperable by any
person other than the owner or other lawfully authorized user."
G. L. c. 140, § 131L. The statute "applies to weapons when they
are neither carried nor under the control of their owner or
other authorized user." Commonwealth v. Patterson, 79 Mass.
App. Ct. 316, 318 (2011).
For the same reason, there was sufficient evidence that the
defendant violated an abuse prevention order by failing "to
surrender all firearms, rifles, shotguns, machine guns and
ammunition which he then controls, owns or possesses." G. L.
c. 209A, § 3B.
We therefore affirm the judgments on the charges of
violating the gun storage statute and of violating an abuse
prevention order. On the charge of possessing a firearm without
a firearm identification card, the judgment is reversed, the
6
The defendant does not contend the gun was properly
stored.
7
verdict is set aside, and a new judgment shall enter for the
defendant.
So ordered.