Opinion
16-P-246
03-10-2017
COMMONWEALTH v. Letitia BROUSSEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant Letitia Brousseau appeals after her conviction by a District Court jury on two counts of carrying a loaded firearm without a license and one count of carrying a firearm without a license, arguing error in the denial of her motion for required findings of not guilty. We affirm.
Background . Based on the evidence at trial, the jury could have found that, in the evening of October 8, 2013, the defendant was one of two passengers in a sport utility vehicle (SUV) that was being driven by Frank Simmons. Fall River police Detective John Lapointe and Massachusetts State police Trooper Marc Lavoie stopped the SUV for going through several stop signs and observed the occupants moving around and looking back at them. Lavoie approached Simmons, who was "extremely nervous." "[H]e was physically shaking; he wouldn't make any eye contact with [Lavoie]," and he was "just more nervous than [Lavoie] typically would see [in] someone who encountered the police." Lavoie placed Simmons under arrest after he observed, on the floor between Simmons's feet, a golf ball-sized plastic baggie containing an off-white substance.
While Lavoie was interacting with the driver, Lapointe went to the front passenger side and observed that the defendant's pants were unbuttoned and unzipped. Her hands were "somewhat over that area," and her back was leaning up against and obscuring the center console. Based upon "the way she was seated low in the vehicle," the officers' observations of the occupants "as they moved around [and] detected [their] presence, and ... the fact that her pants were undone or unzipped and she was slouched down in the vehicle," Lapointe grew suspicious that the defendant was trying to hide something. Lapointe removed the defendant from the SUV and handcuffed her. He returned to the SUV to retrieve the defendant's purse, which had been at her feet and was open, and observed two glassine bags containing what he believed to be heroin. Lavoie returned to the SUV and, while he was speaking to the back seat passenger, he observed two firearms inside an open center console. Both guns were loaded, functioning firearms.
A criminal complaint issued charging the defendant with various drug and firearm offenses. The Commonwealth filed a nolle prosequi with respect to six counts, leaving for trial charges of one of the counts of possession with intent to distribute a class B drug, two counts of carrying a loaded firearm without a license, possession of a class A substance, and carrying a firearm without a license. The trial judge allowed the defendant's motion for required findings of not guilty on the drug charges, but he denied the motion with respect to the firearm charges. The defendant presented no evidence, and the jury found her guilty of unlawfully carrying a loaded firearm (two counts), see G. L. c. 269, § 10(n ), and of unlawfully carrying a firearm, see G. L. c. 269, § 10(a ).
The complaint charged two counts of possession with intent to distribute a class B substance, conspiracy to violate the drug laws, possession of a large capacity firearm, possession of a large capacity firearm while in commission of a felony, use of a firearm in a felony, two counts of carrying a loaded firearm without a license, possession of a class B substance, possession of a class A substance, and carrying a firearm without a license.
Discussion . The defendant argues that her motion for required findings of not guilty on the gun charges should have been allowed because "conflicting inferences of equal force and probability could be drawn from the several 'X' supplemental incriminatory factors beyond her mere presence." However, "[i]n reviewing the denial of a motion for a required finding of not guilty, ... we ‘look at the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Ruano , 87 Mass. App. Ct. 98, 101 (2015), quoting from Commonwealth v. Belle Isle , 44 Mass. App. Ct. 226, 229 (1998). See Commonwealth v. Latimore , 378 Mass. 671, 677 (1979).
"Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Romero , 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Brzezinski , 405 Mass. 401, 409 (1989). "In the light most favorable to the Commonwealth, the evidence [in this case] supported an inference of the defendant's awareness of the [firearms]." Commonwealth v. Hamilton , 83 Mass. App. Ct. 406, 411 (2013). Lapointe, a twenty-eight-year veteran of the police department, thought that the defendant was hiding something based on her movements after the SUV was stopped and the position in which she was sitting when he approached; the defendant was slouched in her seat and facing the door, blocking the console from view. As soon as she was removed from the SUV, Lavoie observed that the console against which she had been leaning was open and contained two firearms. The jury could infer from this testimony that the defendant knew the console contained firearms and was leaning against it to block it from Lapointe's view. Contrast Commonwealth v. Boria , 440 Mass. 416, 420 n.5 (2003) ("[T]he defendant displayed no behavior that would allow an inference of consciousness of guilt").
The jury were not required to infer that the back seat passenger placed the guns in the console after the defendant was removed from the SUV, because Lapointe testified that he issued an exit order to the defendant "[a]t about the same time that Lavoie [was] going back to the" vehicle after having removed Simmons, and Lavoie did not testify to any movements by the back seat passenger that would support an inference that he placed the guns in the console while Lavoie was standing at the driver's side.
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Attempts to conceal contraband do "permit an inference of unlawful possession," and "proximity supplemented by other evidence can tip the scale in favor of sufficiency." Commonwealth v. Whitlock , 39 Mass. App. Ct. 514, 519 (1995). See Commonwealth v. Albano , 373 Mass. 132, 134 (1977). There was evidence that the defendant was moving around after the SUV was stopped and that the driver was extremely nervous. The defendant's pants were unbuttoned and unzipped as she slouched against the console, supporting an inference that she recently removed contraband therefrom or sought to secrete contraband there. There was contraband in plain view on the floor between the driver's feet, and contraband plainly was visible in the defendant's purse. "These additional indicia of criminal activity provided a link between" the defendant's positioning in the car and the guns. Commonwealth v. Romero , supra at 655-656. Contrast id . at 657 (defendant "made no attempt to conceal the firearm from" police officer). "The evidence placed this case in the category of automobile decisions in which a defendant's proximity, access, and collateral conduct ... permitted the inference of an intention to exercise control over contraband or forbidden weaponry in the vehicle." Commonwealth v. Crapps , 84 Mass. App. Ct. 442, 445 (2013). "The inferences drawn by the jury need only be reasonable, not necessary," and the jury "need not find [the defendant's] control to have been exclusive." Commonwealth v. Elysee , 77 Mass. App. Ct. 833, 846, 847-848 (2010). The motion for required findings as to the gun charges properly was denied.
Judgments affirmed .