Commonwealth v. Ferreira

• Decision Date: 17 January 2019
• Docket Number: 18-P-1168
• Citation: 94 Mass.App.Ct. 1117,122 N.E.3d 1100 (Table)
• Parties: COMMONWEALTH v. Michael K. FERREIRA.
• Court: Appeals Court of Massachusetts

94 Mass.App.Ct. 1117

122 N.E.3d 1100 (Table)

COMMONWEALTH

v.Michael K. FERREIRA.

18-P-1168

Appeals Court of Massachusetts.

Entered: January 17, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Michael Ferreira, appeals from his convictions of carrying a firearm without a license, possession of a firearm without a firearm identification (FID) card, and possession of ammunition without an FID card. See G. L. c. 269, § 10 (a ), (h ). The defendant contends that there was insufficient evidence of his knowledge and control of a firearm found inside a sweatshirt, behind the passenger seat of the car in which he was riding. We agree that there was insufficient evidence supporting the defendant's knowledge of the firearm, and reverse.

At around 2 A.M. on April 9, 2017, the defendant and a woman were traveling in a car on Lincoln Street in Worcester. The woman, who owned the car, was driving; the defendant was riding in the passenger seat. A State trooper driving behind the car saw it commit multiple marked lane violations, in addition to bumping into a curb at a rotary. The trooper followed the car for approximately one-half mile; once he activated his cruiser's lights, the driver pulled over "relatively quickly." After forming the opinion that the driver was intoxicated, the trooper placed her under arrest. As the defendant only provided a Brazilian passport as identification, the trooper called for a tow truck and conducted an inventory search of the car. He discovered a folded sweatshirt behind the passenger seat and immediately after touching the sweatshirt recognized that a firearm was wrapped within it. After neither the driver nor the passenger could provide the trooper with a license to carry a firearm, the defendant was arrested. He was subsequently convicted of the firearm and ammunition charges on a theory of constructive possession.

On review of the denial of a motion for a required finding of not guilty, "we view the evidence in the light most favorable to the Commonwealth" and "determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. St. Louis, 473 Mass. 350, 360 (2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "[T]he Commonwealth may submit a case wholly on circumstantial evidence, and inferences drawn from that evidence ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Woods, 466 Mass. 707, 713 (2014), quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989). However, a conviction cannot rest on the "piling of inference upon inference or conjecture and speculation." Commonwealth v. Lovering, 89 Mass. App. Ct. 76, 77 (2016), quoting Commonwealth v. Armand, 411 Mass. 167, 170 (1991).

"To convict a defendant on a theory of constructive possession, the Commonwealth must prove beyond a reasonable doubt that the defendant had knowledge of the contraband, coupled with the ability and intention to exercise dominion and control over it." Commonwealth v. Humphries, 76 Mass. App. Ct. 702, 704 (2010), citing Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Mere presence is insufficient to prove constructive possession; the Commonwealth must present additional evidence to "tip the scale in favor of sufficiency." Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977).

The Commonwealth argues that there was sufficient additional incriminating evidence, beyond the defendant's presence in the car, to support constructive possession. The Commonwealth points out that the firearm was discovered behind the seat in which the defendant was sitting, that the defendant's seat had been reclined, that he was not wearing his seatbelt, that the firearm was wrapped in a sweatshirt which was similar to -- but larger than -- a sweatshirt the female driver was wearing at the time of the stop, and that the officer found the sweatshirt-wrapped firearm resting on top of a bag of trash behind the passenger seat. The Commonwealth argues that this evidence supports a conclusion that upon seeing that a police car was following, the defendant...