Opinion
10-P-1395
08-09-2011
COMMONWEALTH v. ALANDER GOODEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of unlawful possession of a firearm. The firearm in question was recovered during an inventory search of a vehicle in which the defendant had been sitting. The gun was hidden under the gear shift cover in the console area between the driver and passenger seats. The sole issue on appeal is whether the Commonwealth's evidence was sufficient to establish the defendant's guilt on a theory of constructive possession.
The jury found the defendant not guilty of unlawful possession of a loaded firearm and unlawful possession of ammunition. Additionally, various motor vehicle charges were dismissed at the request of the Commonwealth.
At trial, the Commonwealth bore the burden of proving that 'the defendant had knowledge of the [gun], coupled with the ability and intention to exercise dominion and control over it.' Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 935 (1998). Although the elements of constructive possession may be proven entirely by reasonable inferences from circumstantial evidence, see Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002), as the defendant correctly notes, mere presence of a defendant in the area of contraband, without more, is insufficient to prove constructive possession. Commonwealth v. Gonzalez, 452 Mass. 142, 147 (2008). 'Rather, presence must be ' supplemented by other incriminating evidence, [which] will serve to tip the scale in favor of sufficiency." Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 780 (2009), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409- 410 (1989).
The evidence in this case, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671 (1979), was sufficient to support a finding of constructive possession beyond a reasonable doubt. First, where the defendant was observed sitting in the driver's seat and had the key to the vehicle (which belonged to his girlfriend) in his pocket, the jury would have been warranted in finding that the defendant had recently operated the vehicle and, therefore had control over it. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416 (1996) ('defendant's control over the car supports an inference that he was acquainted with its contents').
Second, the jury could infer that the defendant had control over the area where the gun was hidden based on evidence that a fingerprint matching the defendant's left middle finger was found on the inside of the gear shift cover. The defendant's intent to exercise control over the firearm could also be inferred from the fact that the gun was loaded. See Commonwealth v. Sadberry, 44 Mass. App. Ct. at 936.
Finally, the jury could infer the defendant's consciousness of guilt from his deceptive conduct including crawling out of the car, falsely stating to the police that he had not been inside the car, attempting to leave the scene by stating that he needed to use a bathroom, and his generally nervous demeanor. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846-847 (2010) (holding that deceptive interactions with the police may be considered a product of consciousness of guilt).
Judgment affirmed.
By the Court (Cohen, Katzmann & Vuono, JJ.),