Opinion
15-P-1072
05-06-2016
COMMONWEALTH v. RONNY MANUEL ROSARIO.
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-waived trial, a District Court judge found the defendant guilty of carrying a firearm without a license, carrying a loaded firearm without a license, and two counts of assault and battery on a police officer. The firearm charges related to a handgun that was found in the car the defendant was driving. His primary claim on appeal is that there was insufficient evidence to establish that he constructively possessed the gun. We affirm.
The defendant was also convicted of leaving the scene of an accident that involved property damage, and resisting arrest. Those convictions are encompassed by his generalized notice of appeal, but he advances no argument as to them and so we affirm them without further discussion. The defendant was acquitted of receiving stolen property and disorderly conduct, and found not responsible for the alleged civil infraction of driving without possession of a license.
Background. We review the evidence, including reasonable inferences that can be drawn from the evidence, in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). In the early morning hours of October 2, 2013, two Springfield police officers on routine patrol observed the defendant -- who was alone in the car -- sideswipe a parked car and then drive off. When the officers stopped the defendant directly thereafter, he became belligerent, but then agreed to exit the car to perform field sobriety tests. When one of the officers asked the defendant about white powder he observed under the defendant's nostrils, the defendant shoved the officer with both hands. During the struggle that ensued, the defendant "was kicking" the officers and made various threatening comments to them. The police eventually were able to gain control of the defendant and to arrest him.
After the defendant's arrest, the officers conducted an inventory search of the car, and during that search they found the loaded gun lodged between the passenger seat and the center console. As revealed by photographs of the car's interior that were introduced as exhibits, a gun in this position was within the defendant's easy reach. Further details regarding the location where the gun was found are reserved for later discussion.
Discussion. To establish constructive possession, the Commonwealth had to prove the defendant's knowledge of the gun, and his ability and intent to control it. Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323 (2010). A fact finder may infer a defendant's knowledge of contraband that is located in his plain view. See, e.g., Commonwealth v. Daley, 423 Mass. 747, 752 (1996) (defendant car driver's knowledge could be inferred from location of contraband "plainly visible" on the floor in front of the driver's seat). If the defendant's knowledge of the gun were established, then his ability and intent to control it can be inferred from the fact that it was found in close proximity to him inside the car in which he was the driver. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998). Accordingly, as both parties have framed the issues, the case principally turns on whether a rational fact finder could have concluded on this trial record that the gun was in the defendant's plain view.
The Commonwealth also argues that the defendant's behavior after the police stopped him showed consciousness of his guilt that he possessed the firearm. The defendant counters that especially in light of the fact that the defendant had already been stopped for leaving the scene of an accident, his bellicose posture reveals nothing about whether he knew about the gun (in fact, the defendant asserts that his behavior is inconsistent with such knowledge). Without resolving whether the defendant's behavior could be taken as evidence that he knew about the gun, we note that we do not rely on such an argument in concluding that the evidence was sufficient.
The defendant argues that because of the particular placement of the gun between the passenger seat and the center console, no rational fact finder could have found that the gun was in his plain view. In support of that argument, the defendant highlights that the placement of the gun here was similar to that of the gun in Commonwealth v. Snow, 76 Mass. App. Ct. 116, 118 (2010), where we concluded that evidence of constructive possession was insufficient to support the jury's verdict. Although the question is close, for the reasons set forth below, we ultimately agree with the Commonwealth that there are material circumstances that distinguish this case from Snow.
The defendant also relies on Commonwealth v. Almeida, 381 Mass. 420, 422-423 (1980) (insufficient evidence that defendant constructively possessed gun found in center console of borrowed vehicle). However, in Almeida, there was no evidence that the gun was "easily visible." Id. at 423.
In Snow, the gun had been wedged between the seat and center console in a location difficult to spot. As the trooper who found the gun during a careful search of the car's interior testified, "if his 'attention was focused anywhere [other] than looking right down [into the crevice between the seat and the console he] wouldn't have seen that gun.'" Ibid. (second alteration in original). The gun there was located below the tops of the driver's seat and console such that the officer who retrieved it "had to 'reach into that crevice and pull it out.'" Ibid. Moreover, in Snow, the defendant not only was driving someone else's car (as was true here), but he also was serving as the designated driver to ferry several friends home, one of whom was the actual owner of the car (thus strengthening the inference that the defendant may well not have known that the gun was there). Id. at 117.
Here, the officer who found the gun testified that he readily was able to observe it once he leaned into the passenger side of the car. He described the gun both as being "flush" with the seat and as being "[j]ust an inch or two" below it. The officer also indicated that he did not have to move the seat in any way to see the gun, and that, in order to retrieve it, he "didn't have to shove [his] arm down into, between the center console and the seat." Instead, the gun "was easily lifted up out of there."
Specifically, he testified that "I simply leaned into the vehicle and looked down where valuables are usually kept in a center console, wallets, cell phones and the, the firearm was right there in between the seat."
At the scene, the officers placed the gun inside a plastic bag and then placed the bag so as "to replicate where the firearm was." A photograph of the bag in place was admitted in evidence. The precise import of this exhibit is unclear, because the top of the bag protrudes well above the seat but one cannot discern from the photograph the "height" of the gun inside the bag. Neither in the trial court nor on appeal has the Commonwealth argued that the photograph supports a finding that the gun protruded above the seat.
As the defendant points out, at an earlier point in his testimony, the officer appears to have acknowledged that he had to "manipulate or move the seat cushions in order to get down in that area where [he] recovered" the gun. To the extent that portions of the officer's testimony cannot be reconciled, it was for the fact finder to resolve where the truth lay. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003).
We additionally note that the officer acknowledged that he had testified at an earlier hearing that the gun was not found in "plain view." No context for that earlier testimony was provided. We note that the term "plain view" is used in different respects in different contexts. The testifying officer here readily acknowledged that the gun could not be seen when he was standing outside the car, and any prior admission that the gun was not in "plain view" may simply have focused on what the officers could see from their vantage point. Whether the gun was in the plain view of the defendantthe key question on whether there was evidence of his knowledge of the gunis a different question.
Having reviewed the trial testimony and examined the exhibits showing the interior of the car, we conclude that a rational fact finder could have found that the gun was in the defendant's plain view. Because the defendant's ability to exercise dominion and control of the gun was also established, and his intent to do so can be inferred under the circumstances of this case, we conclude that the evidence of constructive possession was sufficient.
We reach this conclusion even while appreciating that the gun was found on the passenger's side of the center console.
The defendant also argues that there was insufficient evidence to support one of the two convictions of assault and battery on a police officer. Specifically, the defendant argues that there was no proof that he intentionally committed an unjustified touching of Officer Denault, one of the two arresting officers. There is no merit to this claim, because there was testimony by the other arresting officer that during the defendant's lengthy struggle with them, the defendant "was kicking Officer Denault and myself." The fact that the testifying officer could not recall where exactly those kicks landed is beside the point.
Judgments affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: May 6, 2016.