Opinion
No. 16–P–146.
12-29-2016
COMMONWEALTH v. John JACKSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of carrying a firearm without a license, G.L. c. 269, § 10(a), and carrying a loaded firearm, G.L. c. 269, § 10(n). He appeals, asserting that the judge erred in denying his motion for a required finding of not guilty on both charges, as there was insufficient evidence presented at trial to prove the gun had a barrel of less than sixteen inches. We affirm.
Discussion. We review the denial of a motion for a required finding of not guilty to determine "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. James, 424 Mass. 770, 784 (1997), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Here, each underlying charge, G.L. c. 269, §§ 10(a ) and (n ), requires that the Commonwealth prove the gun in question meets the legal definition of a "firearm" under G.L. c. 140, § 121. The defendant's sole argument on appeal is that there was insufficient evidence to prove the requirement in G.L. c. 140, § 121, that the gun's barrel was less than sixteen inches. See Commonwealth v. White, 452 Mass. 133, 136 (2008).
While the gun was never recovered, sufficient circumstantial evidence regarding the length of its barrel was presented at trial to sustain the judge's denial of the defendant's motion. In Commonwealth v. Naylor, 73 Mass.App.Ct. 518, 525 (2009), this court concluded that circumstantial evidence surrounding a shooting, "including the close proximity of the two vehicles and the absence of any statement by either victim of having seen a barrel," was sufficient to allow a jury to reasonably infer that the gun's barrel was less than sixteen inches. Similarly, in Commonwealth v. Manning, 44 Mass.App.Ct. 695, 707 (1998), this court concluded that testimony the gun was fired with only one hand, was in the defendant's pocket, which covered the entire gun but its mouth, and was a "handgun" was sufficient circumstantial evidence to show that the gun's barrel was less than sixteen inches. Likewise, in Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977), the Supreme Judicial Court concluded that testimony that the gun was a "revolver" and "handgun" was sufficient to establish that its barrel was less than sixteen inches.
The present case is analogous to the above cases in which circumstantial evidence has satisfactorily proven the length of a gun's barrel. In the defendant's interview with police, he described the gun as a ".25" and said he carried it hidden in the pocket of his shorts. A ballistician also testified that the shell casing from the scene was from a "pistol." Taken as a whole, this evidence was sufficient to allow the jury to conclude that the gun's barrel was less than sixteen inches.
A videotape of the interview was shown to the jury.
The pair of shorts was submitted into evidence, allowing the jury to view the size of its pockets.
In support of his argument, the defendant cites just one case with precedential value, Commonwealth v. DeJesus, 44 Mass.App.Ct. 349 (1998). That case is distinguishable from the one before us, as the only evidence regarding the length of the barrel in DeJesus was testimony indistinctly describing the weapon as a "shotgun" and the prosecution conceded that this was insufficient to prove the length of the gun's barrel. Id. at 351–352.
Conclusion. As the evidence was sufficient to establish the length of the gun barrel, the judge did not err in denying the defendant's motion for required findings of not guilty on the charges.
Judgments affirmed.