Commonwealth v. Lovering
Decision Date | 17 February 2016 |
Docket Number | No. 14–P–1914.,14–P–1914. |
Citation | 89 Mass.App.Ct. 76,46 N.E.3d 69 |
Parties | COMMONWEALTH v. Albert LOVERING. |
Court | Appeals Court of Massachusetts |
Kimberly M. Peterson, Wilmington, for the defendant.
Michael Shiposh, Assistant District Attorney, for the Commonwealth.
Present: CYPHER, WOLOHOJIAN, & CARHART, JJ.
WOLOHOJIAN
, J.
.1
We review the denial of a motion for a required finding of not guilty by asking whether any rational fact finder, when viewing the evidence in the light most favorable to the Commonwealth, could find all material elements of the offense beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979)
. “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). However, Commonwealth v. Armand, 411 Mass. 167, 170, 580 N.E.2d 1019 (1991) (citation and quotation omitted).
Taken in the light most favorable to the Commonwealth, the evidence showed the following. The defendant's wife found a loaded Walther PPK handgun (gun) on September 11, 2011, while dusting the apartment she had shared with the defendant for approximately twelve years.2 The gun was in a leather pouch which was, in turn, contained in an old wooden box among the defendant's other personal belongings on the floor of the living room. The gun was of a sort issued by the Nazi government; the defendant collected Nazi memorabilia.
Almost one month earlier, on August 18, 2011, the wife had obtained an abuse prevention order requiring the defendant to stay away from the apartment and allowing him to return to pick up his belongings only with a police escort. It was uncontroverted at trial that the defendant had not returned to the apartment since the order was entered.3 The Commonwealth introduced no evidence as to the defendant's whereabouts on September 11.4
The defendant was charged with possessing a firearm without a firearm identification card, G.L. c. 269, § 10(h )
, on September 11, 2011 (the date of its discovery). Because the defendant did not have actual possession of the gun on that date, the Commonwealth proceeded on a theory of constructive possession. “To permit a finding of constructive possession there must be evidence sufficient to infer that the defendant not only had knowledge of the item[ ], but had the ability and intention to exercise dominion and control over [it].” Commonwealth v. Frongillo, 66 Mass.App.Ct. 677, 680, 850 N.E.2d 1060 (2006)
.
The evidence was sufficient to allow the jury to find that defendant had knowledge of the firearm,5 but not that he had the ability to exercise dominion and control over it on the date charged. Although the gun was found among the defendant's personal effects, he no longer lived in the apartment. See Commonwealth v. Boria, 440 Mass. 416, 420, 798 N.E.2d 1017 (2003)
(. ) Moreover, the defendant had not been in proximity of the gun for almost a month, there was no evidence as to when (if ever) he might return to the apartment, and there was no evidence that he was anywhere near the gun on September 11. See Commonwealth v. Duffy, 4 Mass.App.Ct. 655, 660, 357 N.E.2d 330 (1976) ; Commonwealth v. Booker, 31 Mass.App.Ct. 435, 438, 578 N.E.2d 815 (1991) ; Commonwealth v. Delarosa, 50 Mass.App.Ct. 623, 628, 740 N.E.2d 1014 (2000) ( ).
Even though, as discussed above, there was insufficient evidence to support a finding that the defendant constructively possessed the firearm on September 11, there was sufficient evidence to infer that the defendant owned the firearm on that date: the wife told the responding officer that “it was her husband's [firearm],” the gun was located among the defendant's other possessions in the apartment he had lived in for twelve years, and the defendant
collected Nazi memorabilia like the Nazi-issued firearm in this case.
As a result, there was sufficient evidence that the defendant violated the gun storage statute, which imposes liability on owners of firearms, not only those having actual or constructive possession.6 Under the gun storage statute, it is “unlawful to store or...
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