Opinion
18-P-1573
03-05-2020
COMMONWEALTH v. Andre A. TRIPP.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the District Court, the defendant was convicted of possessing ammunition without a firearm identification card. G. L. c. 269, § 10 (h ) (1). On appeal, he argues that the evidence of constructive possession, and specifically of his intent to exercise control over the ammunition, was insufficient. We affirm.
Viewing the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the judge could have found the following facts. Police investigating an armed robbery executed a search warrant at an apartment on Henry Avenue in Lynn. Inside the apartment were the defendant, along with a woman named Jaleka Johnson and other persons. The defendant and Johnson sat on the living room couch while police searched the rest of the apartment. In one of the three bedrooms, police found several items of significance. These included (1) a laundry bag inside of which was a box of ammunition along with male and female clothing; (2) a shoebox inside of which was a magazine containing ammunition and, directly underneath the magazine, a piece of mail from a lawyer's office, addressed to the defendant at the Henry Avenue address; (3) underneath the mattress, a prescription bottle bearing the defendant's name and the Henry Avenue address, as well as a BB gun; and (4) a handgun holster inside a piece of luggage. The bedroom was cluttered and contained men's and women's clothing. Police found nothing identified with the defendant in any other part of the apartment.
The defendant's brief identifies Johnson as his girlfriend.
Constructive possession requires proof that the defendant had knowledge of, and the ability and intention to exercise dominion and control over, the ammunition. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Here, the defendant concedes that the evidence was sufficient to prove his knowledge and ability to control. He argues only that there was insufficient evidence of his intent to control.
"[U]pon a showing that the defendant has a particular relationship to the location within a home or apartment in which the contraband is found, the defendant is adequately linked to that contraband, and the [fact finder] may reasonably infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it" (quotation and citation omitted). Commonwealth v. Proia, 92 Mass. App. Ct. 824, 833 (2018) (discovery of drugs under dresser used by defendant was sufficient to prove her constructive possession of those drugs). Here, the discovery of ammunition in close proximity to a piece of mail addressed to the defendant at the apartment being searched, and in the same bedroom as a prescription bottle bearing the defendant's name and the apartment's address, was sufficient to prove the defendant's particular relationship to the areas in which the ammunition was found. Moreover, no evidence linked the defendant to any other part of the three-bedroom apartment. The evidence as a whole sufficed to prove the defendant's intention to exercise dominion and control over the ammunition. See id. at 832-834.
This case is unlike Commonwealth v. Delarosa, 50 Mass. App. Ct. 623 (2000), and Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677 (2006), relied on by the defendant. In Delarosa, supra at 625-626 and 628, the evidence was insufficient to show a defendant's constructive possession of a gun found in a hidden compartment in a bedroom closet. The court reasoned that there was no "evidence, such as clothing or papers, of a personal connection between the defendant" and the room where the hidden compartment was found. Id. at 628. Similarly, in Frongillo (No. 1), supra at 684, the evidence was insufficient to prove a defendant's intent to control guns and ammunition found in an apartment's closets, where "[e]xcept for [some] unidentified men's clothing, there were no other personal effects connecting the defendant to the guns and ammunition." Here, in contrast, the mail and the prescription bottle bearing the defendant's name and the apartment's address directly linked him to the bedroom where the ammunition was found, and more particularly to the shoebox containing some of that ammunition.
The defendant also argues that this case lacks certain indicia of constructive possession present in other cases, such as an attempt to flee or to interfere with a search, furtive movements, or statements showing consciousness of guilt. But none of the cases the defendant cites held that such elements are essential to proving constructive possession.
Judgment affirmed.