Opinion
18-P-1359
10-01-2019
COMMONWEALTH v. Jacob KLAPMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions on charges of possession of a firearm without a license and possession of a loaded firearm without a license, see G. L. c. 269, § 10 (a ) and (n ), the defendant claims error in the denial of his motion for a required findings of not guilty. The defendant contends the motion was erroneously denied because the Commonwealth did not present sufficient evidence to prove he constructively possessed the firearm. At oral argument, the Commonwealth conceded there was insufficient evidence introduced at trial to show that the defendant had knowledge that the firearm was loaded, in accordance with Commonwealth v. Brown, 479 Mass. 600 (2008), and Commonwealth v. Mitchell, 95 Mass. App. Ct. 406 (2019). We agree and now reverse the defendant's conviction of possession of a loaded firearm without a license. Accordingly, we affirm only the conviction of possession of a firearm without a license.
We review the evidence in the light most favorable to the Commonwealth to determine if it would "satisfy a rational trier of fact of each element of the offense beyond a reasonable doubt." Commonwealth v. Brown, 401 Mass. 745, 747 (1988). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The defendant contends the only evidence connecting him to the firearm was his ownership and operation of the vehicle, and therefore the evidence was insufficient to prove his knowledge of the firearm and his ability and intent to exercise dominion and control over it. However, evidence that the defendant owned and was present in the vehicle was "augmented by additional inculpatory evidence" which warranted a reasonable inference that the defendant constructively possessed the firearm. Commonwealth v. Romero, 464 Mass. 648, 654 (2013).
Officer Graham testified that as he approached the vehicle he observed the defendant, who was in the driver's seat, "completely turn his body to the right, use his right arm to lift the center console and [ ] put something very large inside the center console, then [ ] shut it," in one "fluid movement." Officer Graham explained that gaining access to the lower console required lifting both the upper and lower consoles, and further explained that the defendant's movement involved both the upper and lower consoles. The object the defendant placed inside was "definitely larger than his hand," and the only other items found in the lower console with the firearm were coins.
Graham testified that "the movement was actually placing the item in this one. The whole thing comes up." Though the transcript reflects that Graham indicated on the photograph the object of that reference, the effect of Graham's indication has not been made a part of the record. See Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1613 (2019). In any event, the following question and answer clarified his meaning:
"Q: So when that movement ... happened, was it just one that came up? Was it two? How does it work?
A: Both. Like, the whole -- the whole thing moves straight up."
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Viewed in its totality, the evidence supports an inference that the defendant placed the firearm in the lower portion of the center console, and therefore had knowledge and control over it, allowing a rational fact finder to conclude the elements of constructive possession were met. See Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989).
The passenger's conflicting testimony does not render the Commonwealth's evidence insufficient. The weight and credibility of a witness's testimony are matters for the jury to decide. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978). See also Commonwealth v. Casale, 381 Mass. 167, 175-176 (1980) ("That another might have had [ ] an opportunity [to perform the act] goes only to the weight of the evidence, which is a matter for the jury").
As to the defendant's conviction of possession of a loaded firearm without a license, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. As to the defendant's conviction of possession of a firearm without a license, the judgment is affirmed.
So ordered.
reversed in part; affirmed in part