Opinion
No. 11–P–2051.
2013-05-10
COMMONWEALTH v. Lonnie WADE.
By the Court (VUONO, GRAINGER, & WOLOHOJIAN).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of unlawful possession of a firearm, G.L. c. 269, § 10( a ), and possession of ammunition without a firearm identification card, G.L. c. 269, § 10( h ).
The defendant filed a motion for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence. On appeal, he claims that the judge erred in denying these motions. We affirm.
The defendant also was convicted of reckless endangerment of a child, G.L. c. 265, § 13L, but that conviction is not before us. He was acquitted of possession of a defaced firearm in the commission of a felony, G.L. c. 269, § 11B, and assault with a dangerous weapon, G.L. c. 265, § 15B( b ). After the jury returned their verdicts, the defendant pleaded guilty to a subsequent offender charge related to the firearm conviction.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), the jury could have found the following. On April 22, 2009, the defendant was driving a car on Route 1A in Foxboro when another vehicle cut off his path of travel. The defendant reacted by waiving a gun at the occupants (a driver and one passenger) of the vehicle. The passenger, Erin Murphy, alerted the police by calling “911” and provided the defendant's license plate number to the dispatcher. The police responded quickly and located the defendant as he was approaching an intersection. Upon seeing the police, the defendant made a sharp turn into an unpaved parking lot and then fled from the car before it came to a full stop. The defendant was carrying a briefcase, which he discarded in a wooded area before he was apprehended. The firearm and ammunition upon which the convictions rested were found in the briefcase. “In order to sustain a conviction for unlawful possession of a firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm.” Commonwealth v. Hubbard, 69 Mass.App.Ct. 232, 237 (2007). Constructive possession requires proof that the defendant has knowledge of the weapon and the ability and intention to exercise dominion and control over it. See Commonwealth v. Blevins, 56 Mass.App.Ct. 206, 210–211 (2002).
In this case, Murphy's testimony that she observed the defendant brandish a gun, coupled with the fact that a firearm was recovered from a briefcase that the defendant had discarded while fleeing from the police, was sufficient to establish the defendant's actual or constructive possession of a firearm beyond a reasonable doubt.
The defendant argues that the evidence was not sufficient because Murphy's testimony was not credible. However, determinations of witness credibility lie exclusively within the province of the trier of fact. Commonwealth v. Ianello, 401 Mass. 197, 202 (1987). Thus, contrary to the defendant's claim, the jury were entitled to accept Murphy's testimony. See Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009).
Nor are we persuaded by the defendant's claim that the Commonwealth's case deteriorated after the defense case was presented. The defendant testified on his own behalf and explained that he took the gun from a drug dealer and stored it in the briefcase to protect himself and others. The state of the evidence at the close of all the evidence is reviewed only “to determine whether the Commonwealth's position as to proof deteriorated after it closed its case.” Commonwealth v. Morgan, 449 Mass. 343, 349 (2007), quoting from Commonwealth v. Sheline, 391 Mass. 279, 283 (1984). “Deterioration only occurs where the Commonwealth's evidence of necessary elements ‘is later shown to be incredible or conclusively incorrect.’ “ Commonwealth v. Gomez, 450 Mass. 704, 710 (2008), quoting from Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006). “Where, as here, the evidence at trial ‘turns solely on the credibility of [the defendant's] witnesses,’ the Commonwealth's case cannot deteriorate.” Gomez, supra at 710–711, quoting from Commonwealth v. Platt, 440 Mass. 396, 404 (2003).
Judgments affirmed.