Commonwealth v. Kent Blane Daniels.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-327

COMMONWEALTH

vs.

KENT BLANE DANIELS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Kent Blane Daniels, was convicted of carrying a

loaded firearm without a license, carrying a firearm without a

license, and possession of ammunition without a firearm

identification (FID) card. On appeal, the defendant claims that

(1) the evidence was insufficient, (2) certain evidence was

admitted in error, and (3) the motion judge erred in denying his

motion to suppress evidence. We affirm in part and reverse in

part.

Discussion. 1. Sufficiency of the evidence. a.

Possession of a firearm. The defendant claims that there was

insufficient evidence to prove beyond a reasonable doubt that he
constructively possessed the firearm found under the driver's

seat in the car that he was driving. In reviewing the

sufficiency of the evidence, the "question is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In the

absence of actual possession, proof of constructive possession

requires a showing that the defendant had "knowledge coupled

with the ability and intention to exercise dominion and control"

over the firearm. Commonwealth v. Than, 442 Mass. 748, 751

(2004), quoting Commonwealth v. Sespedes, 442 Mass. 95, 99

(2004). Whether the defendant had knowledge is a matter of fact

that can be inferred "from all the facts and circumstances

developed at the trial." Commonwealth v. Summers, 93 Mass. App.

Ct. 260, 262 (2018), quoting Commonwealth v. Casale, 381 Mass.

167, 173 (1980). The ability to control may also be inferred by

the defendant's proximity to the firearm. See Commonwealth v.

Sadberry, 44 Mass. App. Ct. 934, 936 (1998).

Here, an Ayer police officer stopped the car that the

defendant was driving after learning that the owner's license

was suspended, and the inspection sticker was expired. The

defendant was not the owner; the registered owner was in the

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front passenger seat. The defendant provided the officer with a

Florida identification. The officer returned to his police

cruiser to ascertain whether the defendant had a valid driver's

license in any State. As he was returning to the driver's side

window, the officer "observed [the defendant's] right hand

coming up from the mat, like the floorboard" such that "[h]is

right hand [was] behind his right leg, on its way out." The

officer asked the defendant to get out of the car, and the

defendant complied. The defendant was asked about weapons, and

another officer located and secured a knife on the defendant's

person. After the defendant was placed under arrest for driving

without a license, the police found a loaded firearm under the

driver's seat.

Viewing the evidence in the light most favorable to the

Commonwealth, a rational trier of fact could infer the

defendant's knowledge of and intent to control the firearm based

on his actions of reaching down into the area where the firearm

was ultimately found. And, because the defendant was sitting in

the driver's seat directly over where the firearm was recovered,

he "had easy access to it and thus the ability to exercise

control over it." Sadberry, 44 Mass. App. Ct. at 936. See

Commonwealth v. Horton, 63 Mass. App. Ct. 571, 578 (2005)

(kicking at area where handgun was discovered sufficient to

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support finding that defendant had control over gun). On these

facts, the evidence sufficed.

b. Possession of a loaded firearm and ammunition. The

defendant additionally argues -- and the Commonwealth concedes -

- that there was insufficient evidence to support the

convictions of carrying a loaded firearm without a license and

possession of ammunition without an FID card. Notwithstanding

the Commonwealth's concession, we conduct our own independent

review of the claim. See Commonwealth v. Poirier, 458 Mass.

1014, 1015 (2010).

"To convict the defendant of unlawful possession of a

loaded firearm, the Commonwealth [is] required to prove that the

defendant knowingly possessed a firearm that was loaded with

ammunition." Commonwealth v. Galarza, 93 Mass. App. Ct. 740,

748 (2018), quoting Commonwealth v. Johnson, 461 Mass. 44, 52

(2011). That is, "the Commonwealth must prove that the

defendant knew the firearm he or she possessed was loaded."

Commonwealth v. Brown, 479 Mass. 600, 601 (2018).

Here, the ammunition in the firearm was the only evidence

the Commonwealth presented that the firearm was loaded. Because

"the defendant 'could not have discerned whether the gun was

loaded merely by looking at it,' and the Commonwealth presented

no evidence that the defendant knew it was loaded," the evidence

was insufficient. Brown, 479 Mass. at 605, quoting Commonwealth

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v. Brown, 91 Mass. App. Ct. 286, 293 (2017). Further,

"[p]ossession of ammunition without [an FID] card is a lesser

included offense of unlawful possession of a loaded firearm."

Galarza, 93 Mass. App. Ct. at 748. The only ammunition found

here was inside the firearm itself. Consequently, neither

conviction can stand.

2. Knife testimony. The defendant contends that the judge

erred in allowing testimony that a knife was found on the

defendant's person at the time of his arrest. He claims it was

irrelevant and prejudicial. Because the defendant objected to

the admission of this evidence, we review for prejudicial error.

See Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022).

Passing on the question of error, we conclude that the defendant

was not prejudiced by this evidence.

"An error is not prejudicial if it did not influence the

jury, or had but very slight effect." Commonwealth v. Schoener,

491 Mass. 706, 720 (2023), quoting Teixeira, 490 Mass. at 742.

In weighing the risk of unfair prejudice, we "tak[e] into

account the effectiveness of any limiting instruction,"

Commonwealth v. Chalue, 486 Mass. 847, 866 (2021), the

application of which "ordinarily renders any potentially

prejudicial evidence harmless" (citation omitted). Commonwealth

v. Crayton, 470 Mass. 228, 251 (2014). Here, after the officer

testified that he "observed a . . . knife get pulled from [the

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defendant's] pocket," the judge immediately instructed the jury

not to consider it "as a substitute for proof that the defendant

committed the crimes charged," or "as proof the defendant is a

criminal personality or a bad character." As "[w]e presume that

the jury followed the judge's instructions," this mitigated any

risk of prejudice to the defendant. Commonwealth v. Bryant, 482

Mass. 731, 737 (2019). Moreover, the testimony regarding the

knife was brief, and did not "overwhelm" the case. See

Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 n.9 (2018).

3. Motion to suppress.1 The defendant argues that the

motion judge erred in denying his motion to suppress the firearm

and ammunition because they were discovered as a result of an

unreasonable warrantless search of the car. Specifically, he

claims that the search was not justified as a search incident to

arrest or an inventory search, or on the ground that the firearm

would have been inevitably discovered. As discussed supra, we

conclude that the police were justified in performing a

protective sweep of the driver's side area of the car.

"When reviewing a ruling on a motion to suppress, 'we

accept the [motion] judge's subsidiary findings of fact absent

1 We base our review of the motion to suppress on the facts
presented at the motion to suppress hearing but consider the
trial evidence on the other issues raised on appeal. See
Johnson, 461 Mass. at 48.

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clear error but conduct an independent review of [the] ultimate

findings and conclusions of law.'" Commonwealth v. Almonor, 482

Mass. 35, 40 (2019), quoting Commonwealth v. Tremblay, 480 Mass.

645, 652 (2018). We "leave to the [motion] judge the

responsibility of determining the weight and credibility to be

given . . . testimony presented at the motion hearing."

Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting

Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However,

"[w]e review independently the application of constitutional

principles to the facts found" (citation omitted). Commonwealth

v. Amado, 474 Mass. 147, 151 (2016).

A search of the interior of a car, limited in scope to a

protective end, see Commonwealth v. Manha, 479 Mass. 44, 49

(2018), is permissible where "a reasonably prudent [officer] in

[the officer's] position would be warranted in the belief that

the safety of the police or that of other persons was in

danger."2 Commonwealth v. Daniel, 464 Mass. 746, 752 (2013),

quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). This

concern "extend[s] to threats that might arise from retrieval of

2 While the defendant contends that the Commonwealth did not
raise protective sweep as a ground to support the search before
the motion judge, we observe that the defendant introduced the
issue of officer safety in his motion to suppress and therefore
we may consider it. See Mass. R. Crim. P. 13 (a) (2), as
appearing in 442 Mass. 1516 (2004).

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a weapon in the vehicle by an occupant who was not placed under

arrest." Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129

(2010).

Here, the motion judge found facts that, viewed in their

totality, warranted a concern for officer safety. An officer

"saw the [d]efendant bringing his right hand up from under the

driver's seat floorboards," and the officer "did not know what

the [d]efendant had touched or moved under the seat." See

Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (gestures

"suggestive of the occupant's retrieving or concealing an

object, raise legitimate safety concerns to an officer

conducting a traffic stop"). Further, the officer testified

that as he was placing the defendant under arrest, "[h]is

muscles started to tense up," and a knife was then found on his

person. And, although the defendant was restrained at the time

of the search, there were three other unrestrained passengers

still in the car, including an adult female in the front

passenger seat and a teenager in the rear. See Graham, 78 Mass.

App. Ct. at 129. This constellation of facts justified a

protective sweep of the area from which a weapon could be

located. Compare Commonwealth v. Goewey, 452 Mass. 399, 401

(2008) (production of expired identification, nervousness, and

"what reasonably appeared to be furtive movements [as if to hide

or retrieve something]" warranted concern for officer safety).

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Conclusion. On the count of the complaint charging

carrying a firearm without a license, the judgment is affirmed.

On the counts of the complaint charging carrying a loaded

firearm without a license and possession of ammunition without

an FID card, the judgments are reversed, the verdicts are set

aside, and judgments shall enter for the defendant.

So ordered.

By the Court (Blake, C.J.,
Vuono, Meade, Shin &
Hand, JJ.3),

Clerk

Entered: January 24, 2025.

3 The panelists are listed in order of seniority.

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