Opinion
No. 16–P–109.
01-06-2017
COMMONWEALTH v. Eric ROSARIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Arguing that the Commonwealth's evidence of constructive possession was insufficient, the defendant appeals the finding that he is a youthful offender by virtue of having committed larceny of a motor vehicle, as a subsequent offense, in violation of G.L. c. 266, § 28(a ). We affirm.
"The crime of possession of a stolen motor vehicle under G.L. c. 266, § 28(a ), requires proof that (1) the motor vehicle is stolen; (2) the defendant possessed the motor vehicle, and (3) the defendant knew that the motor vehicle was stolen." Commonwealth v. Aponte, 71 Mass.App.Ct. 758, 760 (2008). See Commonwealth v. Ramos, 470 Mass. 740, 750 (2015). The defendant here challenges only the sufficiency of the evidence with respect to the second element, that of possession. More specifically, he argues that neither the evidence nor the reasonable inference to be drawn from it, permitted the judge to find he was anything more than a passive passenger in the car. Taking the evidence in the light most favorable to the Commonwealth as we must, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), we disagree.
The defendant waived his right to trial by jury.
Possession "may be joint and constructive, and it may be proven by circumstantial evidence." Commonwealth v. Namey, 67 Mass.App.Ct. 94, 98 n. 7 (2006), quoting from Commonwealth v. Brown, 50 Mass.App.Ct. 253, 257 (2000). "Actual and constructive possession, however, require ‘knowledge plus ability and intention to control.’ " Commonwealth v. Namey, supra, quoting from Commonwealth v. Fernandez, 48 Mass.App.Ct. 530, 532 (2000). "A person's presence in a vehicle as a passenger, without more, is insufficient to prove that he possessed the vehicle." Commonwealth v. Darnell D., 445 Mass. 670, 673 (2005). See Commonwealth v. Campbell, 60 Mass.App.Ct. 215, 217 (2003).
This is not a case of mere presence alone. The defendant was one of two men in a stolen car driven at high speed at 3:30 There was no affirmative evidence as to whether the defendant was the driver or whether he was the passenger. A police officer pursued in his cruiser. The car did not stop, but led the police on a chase that ended when the two men in coordinated fashion leapt from the car while it was still moving. The defendant fled. With the help of a police canine, he was located crouching in a nearby river and breathing heavily. The circumstances strongly indicated consciousness of guilt. In addition, the car—which had obvious and visible signs of having been stolen, including a damaged ignition and missing key—contained a milk crate, an object often used as a jack to steal tires from vehicles. See Commonwealth v. Namey, supra at 99–100. The evidence of joint and constructive possession was sufficient.
Judgment affirmed.