Opinion
10-P-2272
03-14-2012
COMMONWEALTH v. RHONDO ROBINSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Boston Municipal Court, the defendant was convicted of one count of possession of a firearm without a license, one count of possession of a firearm without a firearm identification (FID) card, and one count of unlawful possession of a loaded firearm. He now appeals.
Discussion. The defendant claims that the trial judge improperly denied his motion for required findings of not guilty because the Commonwealth lacked sufficient evidence to prove that he had constructive possession of the firearm. We disagree. 'When considering a motion for a required finding of not guilty, [an appellate court] must 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. Kater, 432 Mass. 404, 410 (2000), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). A conviction may be supported by circumstantial evidence and the inferences drawn from that evidence, provided the inferences are reasonable. See Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Possession implies power and control of the firearm, or, in the case of constructive possession, proof that the defendant (1) had knowledge of the firearm, and (2) had the ability and intention to exercise dominion and control over it. Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). In determining the sufficiency of the evidence of possession, courts look for presence coupled with 'plus' factors. Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001).
Here, the jury reasonably could infer that the defendant had knowledge of the firearm. He was in the vehicle at the time the driver threatened to shoot a pedestrian, and the defendant witnessed Boston police Officer Lysander Wright approach the car and ask specifically about the threat. See Commonwealth v. Barbosa, 77 Mass. App. Ct. 340, 342-343 (2010), S. C., 461 Mass. 431 (2012).
The driver was tried with the defendant and was convicted of possession of a firearm without a license, unlawful possession of a loaded firearm, possession of ammunition without an FID card, as well as related charges. He is not a party to this appeal.
Additionally, the evidence was sufficient to show that the defendant not only knew that the firearm was in the car, but exercised dominion and control by throwing it out of the moving car. See Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 386 (2003) (possession of firearm established where 'the evidence showed that the defendant had fled from the scene as soon as the police had arrived, that he had attempted to discard something from his pocket as he ran, that he ultimately ran behind a twelve-foot high building . . ., and that a loaded gun was subsequently found on the roof of that building'). See also Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) ('Evidence, such as flight from the scene . . . or attempts to conceal or dispose of contraband, do . . . permit an inference of unlawful possession'). Here, during the high-speed chase in which the driver was attempting to escape the police, Officer Wright observed something come out of the passenger's side window. Shortly thereafter, the officers searched the area for whatever had been thrown from the car, and recovered a firearm and, fifty feet away, a black Red Sox hat with a red 'B' on it. The jury reasonably could conclude that during the chase, it was the defendant who threw the firearm out of the passenger's side window. The jury also reasonably could conclude that it was not the driver who threw the firearm out of the window, as he was in a high-speed chase and was unlikely to have made the awkward movements to reach over toward the passenger's side of the vehicle and throw out the firearm. See Commonwealth v. Groves, 25 Mass. App. Ct. 933, 937 (1987) ('during the chase, . . . it would have been difficult for [the driver] at the same time to throw [the gun] from a window '). It was also unlikely that the rear seat passenger (who entered the car after the defendant had threatened to shoot the pedestrian and was not shown to have any knowledge of the firearm) would have been the occupant of the car who tossed the firearm out the window. Moreover, the jury reasonably could conclude that the hat the officer found near the firearm was inconsistent with the hats described for the other two people in the vehicle, and belonged to the defendant. Where the circumstantial evidence supports an inference that the defendant tossed the firearm out the window, it supports an inference that he possessed the firearm. Furthermore, the reasonable inference from the other incriminating evidence was sufficient for the jury to find constructive possession. See Commonwealth v. Horton, 63 Mass. App. Ct. 571, 578 (2005).
The officer testified on cross-examination that he could not see into the car during the chase, and that he could not see the occupants moving around, where their hands were, or what the occupants were doing inside the vehicle.
In his police report, Officer Wright stated that the three passengers wore black hats. When he told the driver that he had found his hat, the driver stated that his hat was in the car and that it was a black Red Sox hat with a black 'B' on it. Wright did not ascertain whether there was a hat in the car. Wright testified that the rear seat passenger's hat matched her Celtics shirt.
We discern no merit to the defendant's claim that he at most had only momentary control over the firearm in an effort to get rid of it, and that thus there was insufficient evidence to establish constructive possession. The Commonwealth need only establish that the defendant had knowledge of the firearm, and had the ability and intention to exercise dominion and control over it. See Commonwealth v. Than, 442 Mass. 748, 751 (2004); Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 210-211 (2002).
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Claiming that it can be inferred that the driver had control over the firearm, the defendant contends that it was as possible to conclude that the driver or the rear seat passenger threw the firearm out of the passenger's side window as it was to conclude that he threw the firearm out the window. Hence, the defendant contends that the evidence was not sufficient to convict him. The 'equal and inconsistent' concept does not apply here. See Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998) (concept applies 'to situations in which any view of the Commonwealth's evidence, however favorable, still requires a leap of conjecture with respect to essential elements of the crime charged in order to obtain a conviction'). The defendant argues that a leap of conjecture was required here. We disagree. It was the jury's province to resolve conflicting inferences from circumstantial evidence. See Commonwealth v. White, 452 Mass. 133, 136 (2008).
Judgments affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),