The defendant, Eric Romero, was convicted of carrying a firearm without a license in violation of G. L. c. 269, § 10 {a), based on a theory of constructive possession. On appeal, he asserts that the Commonwealth failed to present evidence sufficient to establish as a matter of law that he had
We conclude at the outset that the trial judge did not err in admitting the defendant’s extrajudicial statements. We further conclude that although the evidence proffered by the Commonwealth was adequate to establish that the defendant knew the firearm was present in the motor vehicle he was operating and that he had the ability to exercise control over the weapon, the evidence was insufficient to prove he had the requisite intention to control the firearm. Consequently, the defendant is entitled to a directed verdict of not guilty.
1. Background. The jury could have found the following facts. On April 23, 2008, just after 4:30 p.m., the defendant drove to his girl friend’s house on Chestnut Street in Waltham to pick her up for a night out. While he waited outside, her brother, Eduardo Alvarez, approached the defendant’s vehicle and showed him his firearm. The defendant looked at the firearm,
Meanwhile, Officer Dennis M. Deveney, Jr., of the Waltham police department was patrolling in the area. At approximately 1:30 a.m., his attention was drawn to the defendant’s motor vehicle, a two-door sports coupe, parked on a dimly lit section of Chestnut Street. As Deveney drove past the vehicle, he observed several individuals sitting inside, but due to the way the occupants were sitting, he could only see the “tops of their torso[s] and their heads.” Deveney also noticed that the interior dome light turned off as he passed. This observation prompted Deveney to return to Chestnut Street, where he parked his cruiser thirty feet behind the defendant’s vehicle so that he could make further observations.
Deveney began to walk down Chestnut Street, stopping three to five feet behind the vehicle. He waited for about one minute, trying to determine what the occupants were doing. The front passenger’s side window was open and Deveney heard music playing. He watched as the occupant sitting behind the driver reached toward the front seat. He also observed the defendant, who was sitting in the driver’s seat, look from side to side, while Alvarez, who was sitting in the front passenger seat, examined an object in his hand. Based on these observations, Deveney shone his flashlight into the vehicle and asked the occupants, “What’s going on guys?” Looking panicked, Alvarez turned toward Deveney and immediately dropped the object he was holding into his lap. Deveney directed his flashlight to the object and saw that it was a black handgun, at which point he called for backup and awaited its arrival before removing the occupants from the vehicle.
Soon thereafter, Deveney read the defendant the Miranda warnings, and the defendant agreed to speak with him. During their conversation, the defendant acknowledged that he knew
2. Discussion, a. Admissibility of the defendant’s out-of-court statement. Because it is relevant to our later analysis, we first consider whether the judge correctly admitted in evidence the defendant’s statement to Deveney that Alvarez showed him a gun earlier in the day. The defendant argues that this statement is inadmissible because it is (1) hearsay, (2) irrelevant to any material issue, and (3) overly prejudicial. The Commonwealth responds that the statement is admissible as circumstantial evidence that the defendant knew the firearm was in his vehicle as well as for its truth as an admission of a party opponent. We agree with the Commonwealth.
Hearsay is an out-of-court statement offered by a witness at trial or hearing to prove the truth of the matter asserted. Mass. G. Evid. § 801(c) (2012). See Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001). Here, however, the out-of-court statements at issue were uttered by the defendant and qualify as admissions of a party opponent
b. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-329 (1979). General Laws c. 269, § 10 (a), provides: “Whoever . . . knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded . . . without ... (2) having in effect a license to carry firearms issued under [G. L. c. 140, § 131] . . . shall be punished by imprisonment in the state prison . . . .” In order to sustain a conviction, 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), and that he did so knowingly. See Commonwealth v. Gouse, 461 Mass. 787, 795 (2012).
We begin by considering whether the defendant knew that the firearm was in his vehicle. In making its case, the Commonwealth principally relies on the facts that the defendant held title to the vehicle and that the weapon was in plain view. By contrast, the defendant argues that, due to its small size, the firearm was not in plain view and that the defendant’s statement to Deveney did not support an inference that he was aware of the weapon’s presence.
We agree with the Appeals Court that the evidence was sufficient to support the inference that the defendant knew of the firearm. Although the defendant’s knowledge of the firearm could not be proved based solely on the fact that he and the firearm were in the same vehicle, see Albano, supra, the fact that Alvarez was openly handling the firearm in the front passenger seat, a position immediately adjacent to the defendant, see id. at 135, makes it is reasonable to infer that the defendant knew of the firearm’s presence. See Commonwealth v. Gonzalez, 452 Mass. 142, 147 (2008) (presence of three small packets of cocaine as well as larger quantities of heroin and cocaine in
We turn next to the defendant’s ability to control the weapon. The Commonwealth argues that the defendant’s proximity to the firearm inside his own vehicle, coupled with the defendant’s behavior, suggests an ability to control the weapon. The defendant counters by urging that the distance of twelve to eighteen inches between the defendant and Alvarez was enough to preclude an ability to control the firearm. On this point, the Appeals Court concluded that an “owner or operator of a motor vehicle, who has knowledge of the presence of a firearm, unquestionably has the ability to exercise dominion and control over that firearm” (emphasis added). Romero, supra at 796.
Although we agree that the evidence was sufficient to support the inference that the defendant had the ability to exercise control over the firearm, we do not adopt the Appeals Court’s overly expansive rule. There are certainly instances where one’s ability to control a firearm does not follow “unquestionably” from one’s ownership or operation of a vehicle. We need not speculate on what those situations might be, however, because in this case the defendant’s proximity to the firearm, coupled with Alvarez’s willingness to let him handle the weapon earlier in the day, are sufficient to support the inference that the defendant had the ability to exercise control over the firearm. See Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 683-684 (2006); Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 625-626, 628 (2000).
This brings us to the determinative issue whether the evidence was sufficient to establish that the defendant intended to exercise “dominion and control” over the firearm. See Brzezinski, supra, quoting Commonwealth v. Rosa, supra. We reiterate that, without more, presence alone is insufficient to establish an intention to exercise control. Albano, supra. Rather, the defendant’s presence in the vehicle must be augmented by additional inculpa-tory evidence. Id.
The Appeals Court isolated several “plus factors” that
We begin with the weight given to the defendant’s ownership of the vehicle. We have never squarely addressed how one’s proprietary interest relates to that individual’s intent to exercise control over contraband. However, a review of our leading cases reveals an unstated requirement that for one’s ownership interest to have significance in this regard there must be additional incriminatory evidence that links that interest to the particular contraband at issue.
In Brzezinski, supra at 410, we noted: “Not only was the defendant present in the apartment at the time the contraband was found, but the apartment was rented to him and his girl friend” (emphasis added). However, our analysis did not stop there. We went on to cite additional evidence that connected his proprietary interest to the drugs, such as “$450 inside the defendant’s underwear . . . $100 in his pants pocket ... a triple beam scale . . . test tubes used for testing the quality of cocaine, tubes used for snorting cocaine, devices used to sift cocaine, and books on cocaine.” Id. These additional indicia of
By contrast, in Commonwealth v. Sespedes, 442 Mass. 95, 100-102 (2004), we reversed the denial of the defendant’s motion for required findings of not guilty because the only evidence linking the defendant to an apartment where police discovered drags was his presence at the scene and the fact that he possessed a set of keys that unlocked the apartment. We concluded that “[t]he ability to exercise control over the premises and the defendant’s brief presence in them is insufficient ... to imply constructive possession of the hidden contraband.” Id. at 101. Unlike our decision in the Brzezinski case, there was no additional evidence linking the defendant’s access to the apartment to the drags located inside. See Commonwealth v. Boria, 440 Mass. 416, 418-420 (2003) (fact that defendant living in place where two others also present and drugs in plain view and being sold not sufficient to support inference of intent to control where there was no additional incriminatory evidence).
Here, in order to “establish the defendant’s ‘relationship’ to contraband located in a common area sufficient to permit an inference of control over the contraband, there must be a more particular link to the defendant” other than his presence and ownership. Commonwealth v. Boria, supra at 420-421, citing Commonwealth v. Pratt, supra. Although the defendant was the owner of the vehicle and was present in the vehicle, there was nothing specifically connecting him to the firearm. The defendant was not wearing a holster sized to fit the firearm, see Commonwealth v. Escalera, supra at 649 (holster found in defendant’s bedroom sized to fit two handguns recovered from basement where drugs located), nor was he carrying ammunition that
We have similar reservations regarding the defendant’s operation of the vehicle. In Commonwealth v. Jefferson, 461 Mass. 821, 827-828 (2012), we held that the evidence adduced at trial was sufficient to support convictions of unlawful possession of a firearm based on a theory of joint constructive possession.
Here, by contrast, the nature of the defendant’s operation did
Our extended discussion of the defendant’s ownership and operation of the vehicle stems from a concern that naked reliance on these factors comes “perilously close to endorsing guilt by presence at the scene of contraband, a concept we have disavowed.” Commonwealth v. Sespedes, supra at 102. We do not intimate that ownership and operation are never relevant in assessing one’s intent to exercise control over specific contraband. However, they are insufficient in the absence of additional evidence connecting the individual’s ownership or operation to the contraband. To conclude otherwise would risk imposing a “new rule of strict liability for owner/operators of automobiles and premises regardless of what their actual intent to possess a weapon or contraband might be.” Romero, supra at 807 (Trainor, J., dissenting). Such a standard of liability would potentially subject owners of property or vehicles to criminal prosecution by “simply tolerating the presence of a weapon or contraband within the limits of their proprietary interest.” Id.
Our assessment regarding the defendant’s intent to control the firearm is not altered after taking into consideration the defendant’s proximity to the weapon, evidence more relevant in the circumstances of this case to whether the defendant had the ability to control the firearm, than his intention to exercise that control.
Because neither the defendant’s ownership or operation nor his proximity to the firearm, alone or in combination, is sufficient to support his conviction, the sufficiency of the evidence rests on the location, time of the encounter, and behavior of the passengers. However, these considerations are inapposite. As the dissent in the Appeals Court decision correctly points out, Romero, supra at 810 (Trainor, J., dissenting), our decision in Commonwealth v. Albano, 373 Mass. 132, 134-136 (1977),
3. Conclusion. Because we conclude that the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that the defendant unlawfully possessed a firearm in violation of G. L. c. 269, § 10 (a), we reverse his conviction and direct that a verdict of not guilty be entered.
So ordered.
We acknowledge the amicus brief of the Committee for Public Counsel Services.
Because we dispose of the case on this ground, we do not address whether the judge’s admission of the ballistician’s report without his in-court testimony or the application of the “equal and inconsistent” doctrine independently entitles the defendant to relief.
“An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt.” Mass. G. Evid. § 801(d)(2)(A) (2012), quoting Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957).
The defendant’s argument that his out-of-court statement to Officer Dennis M. Deveney, Jr., is inadmissible under the rule preventing admission of “extrajudicial accusatory statements made in the presence of [the] defendant. . . where the defendant has denied the accusations [or remained silent],” Commonwealth v. Locke, 335 Mass. 106, 115 (1956), is unavailing. That rule
The defendant’s statement was also admissible for the nonhearsay purpose of showing his state of mind at the time of his arrest, that is, that he knew the firearm was in his vehicle because he had seen Alvarez with it earlier in the day. Commonwealth v. Montanez, 439 Mass. 441, 447-448 (2003), quoting P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 8.2.6 (7th ed. 1999) (“statements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true”).
In the circumstances of this case, where the defendant is the operator of a motor vehicle in which a firearm is discovered (not on his person), the elements of constructive possession of the firearm are essentially identical to the elements of knowingly having the firearm under one’s control in a motor vehicle. See Commonwealth v. Albano, 373 Mass. 132, 134 (1977).
“The holding of a valid license ... is an affirmative defense” to the charge of unlawfully possessing a firearm; the Commonwealth is not required to prove that the defendant did not have a firearm license. Commonwealth v. Jones, 372 Mass. 403, 406 (1977). “[T]he burden is on the defendant to come forward with evidence of the defense . . . [and if] such evidence is presented . . . the burden [shifts to] the prosecution to persuade the trier of facts
We reversed the defendants’ convictions on other grounds. Commonwealth v. Jefferson, 461 Mass. 821, 832 (2012).
Although the jury were not instructed, nor was the defendant tried, on the related theory of joint venture, we note that that theory of liability is equally inapplicable in this case. Despite the Appeals Court’s suggestion that the occupants might be engaged in “surreptitious criminal activity,” Commonwealth v. Romero, 80 Mass. App. Ct. 791, 798 (2011), there is no evidence to support such a conclusion. Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (to establish joint venture liability Commonwealth required to prove beyond reasonable doubt that defendant “knowingly participated in the commission of the crime charged, with the intent required for that offense”).