Opinion
16–P–1066
05-23-2017
COMMONWEALTH v. Jabree DAUGHERTY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant argues that his various firearm convictions should be reversed because there was insufficient evidence of his constructive possession. Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), we conclude that the facts (together with the reasonable inferences to be drawn from them), were sufficient to support the convictions, and we therefore affirm.
The defendant was convicted by a jury of unlawful possession of a firearm, G. L. c. 269, § 10(a ), unlawful possession of a loaded firearm, G. L. c. 269, § 10(n ), and receiving a firearm with a defaced serial number, G. L. c. 269, § 11C.
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At approximately 1:00 A.M. , two officers on patrol observed a car with a defective taillight driving around the area. They followed, and stopped the car after they saw it fail to come to a complete stop at a red light before turning right. Three men were in the car, with the defendant seated in the rear, directly behind the front passenger seat. After one officer asked the driver for his driver's license and registration through the open window, the officer shone his flashlight into the car and saw a black semi-automatic firearm with laser sights resting within one foot of the defendant's left foot. The weapon was in open view. Across the roof of the car, he told the other officer (who was standing on the opposite side of the car) that a gun was present and to remove the defendant from the car. That officer then opened the back passenger door and instructed the defendant to get out. The defendant did not comply, instead asking, "Why am I the only one getting out?" The officer had to instruct the defendant three times before the defendant cooperated. Once back-up arrived, the driver and the front seat passenger were also removed from the car. The front seat passenger had a gun tucked into his waistband. A third gun was visible between the driver's seat and the center console, directly next to the right thigh of the driver. In short, the car contained three men: one had a gun in his waistband, each of the other two had a gun directly next to him. It is a fair inference from these facts that each man "had" a gun, as that term is used in common speech, or, put otherwise, that each gun was associated with the man next to it.
The question is whether that inference, together with the other evidence viewed favorably to the Commonwealth, was sufficient to support the required elements of constructive possession, namely, "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). The defendant concedes the evidence was sufficient to establish his knowledge of the gun located in open view next to his foot and also to establish his ability to control that gun. However, he argues that the evidence was insufficient to establish his intent to exercise dominion and control. Constructive possession "may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).
Although it is true, as the defendant notes, that "[p]resence alone cannot show the requisite knowledge, power, or intention to exercise control over [contraband]," that is not the end of the analysis because "presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ " Romero, supra, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). This is not a case of mere presence. The gun was not concealed in a closed compartment of the car or hidden from view. The gun was next to the defendant and in open view. The defendant was the only occupant of the back seat and the gun was on the back floor one foot away from him. The front passenger had a gun in his waistband; another gun was next to the driver. The location and placement of the three men and of the three guns permitted the jury to infer that each gun was associated with, or under control of, the person closest to it. The defendant's question to the officer as to why he was being treated differently could be interpreted to indicate that he knew he differed in no meaningful way from the other two men, one of whom had a gun in his waistband. In addition, the defendant's refusal to comply with the officer's first two instructions to get out of the car demonstrated consciousness of guilt. Accordingly, the jury were entitled to conclude that the gun on the floor was constructively possessed by the defendant.
Judgments affirmed.