In the recent case of Commonwealth v. Romero, the Massachusetts Appeals Court issued a split-decision where the defendant, charged with Massachusetts Gun Crimes, challenged his conviction based on insufficient evidence for "constructive possession".
The defendant in the case was in the driver's seat of a parked car - he was the owner and operator in the car - along with three other passengers who were sitting in the car as well. At 1:30 a.m., a police officer drove past the car and testified that, as he drove by, he could only see the top of 4 peoples' heads because they were crouching down in their seats. Upon seeing this, the officer turned around and parked behind the defendant's car.
As the officer began to approach the car, from about 3 feet away, he testified he could see in the car and from his vantage point one of the rear passengers reach towards the front of the car through the two front seats, this while the defendant/driver was looking side to side and also looking at the front seat passenger, who was looking at an object in his hand.
When the officer shined the flashlight into the car, the front seat passenger dropped the object in his lap, which turned out to be a gun. The defendant denied any knowledge of the gun being in the car. At trial, the defendant testified that when he picked up the front seat passenger, he showed him a gun and that he had touched it.
In his appeal, the defendant challenged the sufficiency of the evidence at trial as to Unlawful Possession of a Firearm based on "constructive possession".
Under Massachusetts criminal law, in order to prove "constructive possession", the Commonwealth must establish knowledge on the part of the defendant, coupled with the ability and intent to exercise dominion and control over the object. The court has recognized that mere presence, without more, is not enough to demonstrate knowledge or ability to and intent to exercise dominion and control, but could be inferred with the presence of other incriminating evidence.
The Appeals Court in this case rejected the defendant's challenge that there was insufficient evidence of knowledge and held that because the gun was on the lap of the front seat passenger and the defendant was sitting next to him, the evidence was sufficient.
With regard to whether there was sufficient evidence of "ability and intent to exercise control" of the gun, the Appeals Court was divided. Unfortunately, the majority relied on several "plus factors", in addition to mere presence, that warranted the inference that the defendant intended to exercise control over the firearm. Among the "plus factors" the Appeals Court relied upon were (1) ownership of the vehicle; (2) the defendant was the operator of the car; and (3) the defendant's proximity to the person who had the gun, which was in plain view (and not hidden). The court also noted other "incriminatory factors" that suggested "intent", including that the occupants were slouching down, the location of the incident on a dark street; and the time of night.
In reaching its decision, the majority of the Appeals Court reasoned that:
"an owner and 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...if the owner and operator of the car chooses not to exclude a passenger who he knows has a weapon, it is a reasonable inference that the owner and operator also has the intent to exercise dominion and control over the firearm as he does over the car itself."
I believe the dissent, however, correctly pointed out that the majority in this decision essentially created a new strict liability for vehicle owners or operators, even if they truly had not intent to possess a weapon or any other unlawful object. The dissent cautioned that "courts may now punish an owner or operator of an automobile, or a property owner, for simply tolerating the presence of a weapon or contraband within the limits of their proprietary interest."
Moving forward, one would hope that a further appeal is taken and the matter is review by the Massachusetts Supreme Court.
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