Opinion
14-P-707
06-05-2015
COMMONWEALTH v. PEDRO NIEVES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of carrying a firearm without a license and possession of ammunition without a valid firearm identification card based on a theory of constructive possession. On appeal, the defendant asserts that the Commonwealth failed to present evidence sufficient to prove that he had the ability and intent to exercise control over the firearm and ammunition found by the police during a search of the vehicle he was driving. We affirm.
The defendant also was found guilty of providing a false name to officers while operating a motor vehicle. On appeal, he does not raise any argument as to that conviction. He was acquitted of possessing alcohol while under the age of twenty-one.
Background. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the jury could have found the following facts. At approximately 11:45 A.M. on March 27, 2011, Detectives Greg Scott and Frank Fitzpatrick of the Andover police department were on patrol in an unmarked vehicle when their attention was drawn to a two-door Honda Civic in the parking lot of the La Quinta hotel primarily because the vehicle was missing a front license plate. The detectives observed three individuals sitting inside: the defendant, the defendant's girlfriend, and a man later identified as Alexis O'Toole. A fourth individual, Julio Vega, was entering the vehicle through the driver's side door. Vega was carrying shoe boxes which he placed in the rear passenger area of the vehicle behind the defendant, who was sitting in the driver's seat. The detectives approached the vehicle and identified themselves as police. Detective Fitzpatrick asked the defendant for his license and registration. The defendant identified himself by name, Josiah Guzman, and date of birth, February 27, 1992. He explained that he did not have a license with him, he had recently purchased the vehicle, and he had not yet registered it. Detective Scott learned from dispatch that there was no entry in the mobile registry of motor vehicles system matching the name and date of birth provided by the defendant and the officers ordered the defendant to exit the vehicle. The defendant asked to speak with Detective Fitzpatrick, and while they were speaking, Detective Scott observed that one of the backseat passengers grew "extremely nervous." The defendant informed Detective Fitzpatrick that there was a gun and bullets in the vehicle, and that he did not want to get in trouble. In response to the detective's questions regarding the location of the gun, the defendant specified that the gun was in a bag in the back and indicated that it was in Vega's possession. Detective Fitzpatrick relayed this information to Officer Scott, who, along with a third officer who had arrived on the scene, ordered the three passengers out of the vehicle and proceeded to search it.
There were several shopping bags containing new clothes and shoe boxes in the vehicle. The firearm at issue, a Smith and Wesson .357 revolver, was found under some clothing inside a shopping bag located in the rear passenger area of the vehicle. The ammunition (forty-nine bullets) was hidden underneath a pair of shoes in a shoe box found in the rear driver's side passenger floor or seat. The detectives also retrieved a diaper bag from the trunk of the vehicle, in which they found the defendant's wallet and his driver's license, which identified the defendant as Pedro Nieves.
The defendant, Vega, and O'Toole were arrested and transported to the police station where the defendant again acknowledged that he knew the firearm and the ammunition were in the vehicle and claimed that Vega had placed the items in the vehicle -- against his express wishes -- moments before the police approached. The defendant also told the detectives that he had gone shopping, although he did not explicitly state that the shopping bag or shoe box in which the contraband was discovered were his.
The defendant's girlfriend was not arrested on the basis that all three men told the police that she had nothing to do with the firearm.
Discussion. At trial, the Commonwealth had the burden to prove, with respect to each offense, that the defendant had "knowledge [of the firearm and ammunition] coupled with the ability and intention to exercise dominion and control. Although the elements of constructive possession may be proven entirely by reasonable inferences from circumstantial evidence, mere presence in the area of contraband, without more, is insufficient to prove constructive possession. Rather, presence must be supplemented by other incriminating evidence, [which] will serve to tip the scale in favor of sufficiency." Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846 (2010) (citations and quotations omitted). See Commonwealth v. Romero, 464 Mass. 648, 656-657 (2013) (Commonwealth must proffer evidence establishing "particular link" between defendant and firearm to permit inference that defendant intended to control firearm).
The defendant concedes that the Commonwealth proved he had knowledge of the firearm and ammunition. He asserts, however, that the evidence was insufficient to establish his ability and intention to exercise dominion and control because the items would have been difficult for the defendant to access from the driver's seat and the defendant did not attempt to conceal the items from the detectives, but rather informed Detective Fitzpatrick that the items were in the vehicle.
Based on the evidence, the jury would have been warranted in finding that the gun and ammunition were in close proximity to the defendant in an area over which the defendant had control (although not exclusive control) and because the defendant knew exactly where the items were hidden, the jury could reasonably infer that the defendant intended to exercise such control. See Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 210-212 (2002) (finding that defendant sitting in front passenger seat had access to and therefore ability to control firearm found on floor behind him). In addition, the items were discovered in a vehicle that the defendant was driving and purported to own. See Commonwealth v. Romero, supra at 658 (ownership and operation of vehicle are relevant in assessing defendant's intent to exercise dominion and control over specific contraband found within vehicle).
Moreover, while the defendant claimed that the items were placed in the car by Vega, and there was evidence to support this assertion, the jury were not required to draw this inference. Rather, given the evidence that the defendant had been shopping, the jury could infer that the shopping bag and shoe box in which the contraband was discovered belonged to him or were placed in the vehicle prior to Vega's entry. In any event, even assuming that the shopping bag and shoe box belonged to Vega, the jury was not required to find that the defendant had exclusive control over the items in order to determine that the defendant possessed the requisite intent to control. See Commonwealth v. Elysee, supra. Finally, the jury would have been warranted in finding that the defendant's deceptive conduct (giving the police a false name and claiming that he did not have a license with him) was the product of his consciousness of guilt. See id. at 847. This additional incriminating evidence tipped the scale in favor of sufficiency. Contrast Commonwealth v. Romero, supra at 656-658.
Judgments affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 5, 2015.