Opinion
No. 15–P–1667.
12-01-2016
COMMONWEALTH v. Tyrone FLEURIMONT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two firearm related offenses and one motor vehicle related offense after a bench trial in the District Court. On appeal he argues that his motion to suppress evidence was erroneously denied and, alternatively, asserts that the evidence was insufficient to support his firearm convictions. We reverse the judgments as to the two firearm offenses and affirm the judgment as to the motor vehicle offense.
The defendant was convicted of unlicensed possession of a firearm, first offense, in violation of G.L. c. 269, § 10, unlicensed possession of a loaded firearm in violation of G.L. c. 269, § 10, and operation of a motor vehicle with a suspended license, subsequent offense, in violation of G.L. c. 90, § 23. Additional counts were dismissed at various points before or after the trial.
We review the defendant's claim of insufficient evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). It is undisputed that the defendant had possession and control of the motor vehicle in which the gun was discovered. Coupled with the remaining evidence relied upon by the Commonwealth, this is insufficient to allow a finding that that the defendant had knowledge (and, consequently, is also insufficient to establish an intent to exercise control) of the firearm.
The defendant double parked a motor vehicle, lights flashing and engine running, at Logan Airport. He locked the motor vehicle, left it unattended, and walked into the terminal. As a result, the motor vehicle was towed to the central parking garage at Logan. The defendant had returned to the motor vehicle with a female before it was towed. The tow truck driver found a roll of approximately $200 to $300 in the cup holder forward of the center console between the front seats; that money was given to the defendant before the motor vehicle was towed.
At the garage the tow truck driver discovered a firearm in the closed, but unlocked, center console while searching for a working pen to complete paperwork related to the tow. The driver called his supervisor, who in turn notified the State police. The trooper who responded to the call ascertained that the defendant's driver's license had been suspended and that the defendant and the female were at the garage at that time to retrieve the motor vehicle. The trooper approached the defendant and the female, removed the firearm from his pocket, and asked them if they knew about the firearm. Neither replied.
It is well established that mere presence in the vicinity of contraband does not satisfy a charge of constructive possession. This is true even if an individual has uncontroverted knowledge that the article exists and is located nearby. Commonwealth v. Booker, 31 Mass.App.Ct. 435, 437 (1991), citing Commonwealth v.. Deagle, 10 Mass.App.Ct. 563, 566–568 (1980). Unlike the case of Commonwealth v. Albano, 373 Mass. 132, 135 (1977), the gun here was completely out of sight. And unlike Commonwealth v. Blevins, 56 Mass.App.Ct. 206, 211 (2002), there was no evidence of the defendant's recent use of a handgun.
On this record there is insufficient evidence to support the underlying element of knowledge. We are unpersuaded that the defendant's claim of ownership of money placed in the open cup holder between the front seats can support an inference of knowledge of the contents of the adjacent closed console. See Commonwealth v. Almeida, 381 Mass. 420, 422–423 (1980) (wallet placed by defendant in closed console with firearm inside does not support an inference of knowledge of firearm). Similarly, the defendant's use of a motor vehicle without more fails to allow a finding that he knew the existence of a gun in a closed compartment in the motor vehicle. See Commonwealth v. Snow, 76 Mass.App.Ct. 116, 120–121 (2010), quoting from Commonwealth v. Bienvenu, 63 Mass.App.Ct. 632, 638 (2005) (distinguishing presence in vehicle from ownership of vehicle, the latter of which adds " ‘an additional incriminatory factor’ beyond mere presence").
Our conclusion does not require us to address the defendant's complaint of error in the denial of his motion to suppress evidence.
As to unlicensed possession of a firearm, first offense, and unlicensed possession of a loaded firearm, the judgments are reversed, the findings are set aside, and judgments shall enter for the defendant. As to operating a motor vehicle with a suspended license, subsequent offense, the judgment is affirmed.
So ordered.