Opinion
No. 11–P–1622.
2012-11-9
COMMONWEALTH v. Peter GORDON.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury of one count of assault by means of a dangerous weapon, G.L. c. 265, § 15A( b ), and one count of unlawful possession of a large capacity weapon, G.L. c. 269, § 10( m ).
He argues on appeal that the evidence was insufficient to support the assault conviction because the victim failed to identify him in a photo array or at trial. As to the possession charge, he argues that the evidence was insufficient to identify him as the person who threw the firearm out of the bathroom window, and that it was insufficient to prove that he knew that the firearm was a “large capacity weapon.” We examine the record evidence “in the light most favorable to the prosecution,” to determine whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). It does not matter that the victim did not identify the defendant in the courtroom or in a photo array.
The two convictions at issue on appeal arise from an incident on December 26, 2009. The defendant was also tried and acquitted of armed home invasion, G.L. c. 265, § 18C, possession of a firearm during the commission of a felony, G.L. c. 265, § 18B, and two counts assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( b ), all arising from a separate but connected incident on December 19, 2009.
The victim testified that the two people meeting with Shereen Vezina followed him into the bathroom. Vezina in turn identified those two people as the defendant and codefendant. Moreover, Officer Romano testified that the defendant was in the bathroom, together with the codefendant and victim. He also identified the defendant in court. Nothing more was needed to sufficiently identify the defendant.
Although not presented in the Commonwealth's case-in-chief, it is worth noting that the defendant himself testified that he was present in the bathroom with the codefendant and the victim.
There was also ample evidence to permit the jury to find that the defendant was the man who threw the gun out the window. Officer Romano testified that the codefendant came out of the bathroom and then went back in. The victim testified that that man then gave the gun to the second man to get rid of by throwing it out the window. It matters not that the victim could not identify either man by name. The second man was identified by Officer Romano as the defendant. Taken together, this testimony was sufficient to permit the jury to find that the defendant was the person who threw the gun out the window.
Finally, the Commonwealth was not required to prove that the defendant had specific knowledge that the firearm was a “large capacity weapon.” Instead, the Commonwealth was required to prove only that (1) the defendant knowingly possessed the firearm, and (2) that the firearm met the requirements of a large capacity weapon as defined by G.L. c. 140, § 121. See Commonwealth v. Young, 453 Mass. 707, 713 nn. 9 & 10 (2009); G.L. c. 269 § 10( m ). The defendant suggests that his “one-time, passing involvement” with the firearm makes his situation different. We see no such exception in the law. See Commonwealth v. Bacon, 374 Mass. 358, 361 (1978) (“[I]n gun cases, all an accused need know is that he is carrying a gun”); Commonwealth v. O'Connell, 432 Mass. 657, 663 (2000) (“Commonwealth need not prove that the defendant knew ... the physical characteristics of the firearm he possessed”).
Judgments affirmed.