COMMONWEALTH v. NORRIS N., a Juvenile.

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-1030

COMMONWEALTH

vs.

NORRIS N., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the juvenile was adjudicated delinquent

for carrying a firearm without a license in violation of G. L.

c. 269, § 10 (a), and for possession of a class B controlled

substance in violation G. L. c. 94C, § 34. As a result, the

judge committed the juvenile on both counts to the Department of

Youth Services until the age of eighteen. On appeal, the

juvenile challenges the sufficiency of the evidence on both

adjudications, and claims errors in the judge's admission of

certain opinion testimony, in his refusal to exclude certain

testimony, and by permitting a police officer to identify him as

a passenger in a car and the person depicted in surveillance

video footage. We affirm.
1. Sufficiency of the evidence. The juvenile claims that

there was insufficient evidence that he carried a firearm

without a licence to do so and that he possessed cocaine found

in his jacket. We disagree.

When analyzing whether the record evidence is sufficient to

support a conviction, an appellate court is not required to "ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt." Commonwealth v.

Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting

Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).

Nor are we obligated to "reread the record from [the juvenile]'s

perspective." Palmariello v. Superintendent of M.C.I. Norfolk,

873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).

See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008).

Rather, the relevant "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, 319 (1979).

When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.

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at 677-678. To sustain the juvenile's delinquency adjudication

for carrying a firearm, the Commonwealth was required to prove

that the juvenile "(1) knowingly (2) had in [his] possession

(3) a firearm (4) without a license." Duncan, 71 Mass. App. Ct.

at 153. The juvenile challenges only the sufficiency of the

evidence as to the element of possession.

In the light most favorable to the Commonwealth, the jury

were entitled to find that at approximately 9 P.M. on the night

in question, the police responded to a "shots fired" call

involving a black Infiniti. After receiving the dispatch, the

police saw the Infiniti in which there were two people; the

fourteen year old juvenile was in the passenger seat. When the

police activated their lights and siren to make a stop, the

Infiniti "took off at a high rate of speed," and the police

pursued it.

The Infiniti pulled into the driveway of a parking lot for

a housing community on Annunciation Road, and the juvenile

jumped from the car and ran toward an apartment building.

Officer Nicholas Cubarney ran after the juvenile. As the

juvenile fled, he was holding onto something near his waist on

his right side while his left arm moved normally as would occur

when running. As Cubarney followed the juvenile into the

building and up the stairway, he heard a door close on what he

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believed to be the third floor. There was no one else in the

stairwell as he chased the juvenile up to the sixth floor.

Detective Juan Diaz and his partner arrived at the apartment

building to assist and recovered the firearm from a windowsill

on the third-floor landing; Diaz did not see any people, other

than police, in the apartment building.

From these circumstances, the jury were entitled to infer

that as the juvenile ran from the police, he was clutching a

firearm in his waistband to keep it from falling, and that once

inside the apartment building, while still evading the police,

he deposited the gun on the third-floor windowsill before

continuing to his apartment on the sixth floor. See

Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (inferences

drawn by fact finder "need only be reasonable and possible and

need not be necessary or inescapable"). Given the short time

frame of the pursuit, the lack of any other people seen in the

building, and the gun being left in plain view, the jury could

also properly infer that no one else could have left it there

without it being detected or removed. See Commonwealth v.

Jefferson, 461 Mass. 821, 826 (2012); Commonwealth v. Polanco,

92 Mass. App. Ct. 764, 772-773 (2018).

In conjunction with the above, from the juvenile's flight

from the police and from his change of clothing after that

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flight, the jury could also infer his consciousness of guilt,

which further tips the scale toward there being sufficient

evidence of possession. See Commonwealth v. Doucette, 408 Mass.

454, 461 (1990).1

The juvenile also claims the evidence was insufficient to

support his delinquency adjudication for possession of cocaine.

In particular, he asserts that there was insufficient proof that

he had knowledge of the cocaine found in the jacket because

there was no evidence that the jacket belonged to him.

Reviewing the evidence in the light most favorable to the

Commonwealth, we are not persuaded.2

1 Relying on Commonwealth v. Warren, 475 Mass. 530, 540
(2016), the juvenile claims that his flight from the police must
be discounted as consciousness of guilt evidence. While the
Supreme Judicial Court has held, with respect to the analysis of
reasonable suspicion for an investigatory stop, that a Black
man's flight from the police is not necessarily probative of
consciousness of guilt, the court has not completely eliminated
such flight as a factor in the reasonable suspicion analysis.
See Commonwealth v. Karen K., 491 Mass. 165, 180 (2023);
Commonwealth v. Evelyn, 485 Mass. 691, 708-709 (2020); Warren,
supra. Here, however, where we are evaluating the sufficiency
of the evidence, which requires us to view the evidence in the
light most favorable to the Commonwealth, see Latimore, 378
Mass. at 677; where the car in which the juvenile was a
passenger sped away from a police cruiser that had activated its
lights and sirens; where defense counsel argued in summation
that the juvenile "had every reason to run from the police"
because he had cocaine in his jacket pocket; and where the jury
were properly instructed on consciousness of guilt, an inference
of consciousness of guilty was warranted.

2 In a letter pursuant to Mass. R. A. P. 16 (l), as
appearing in 481 Mass. 1628 (2019), provided to the panel one

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To prove that the juvenile possessed a class B controlled

substance in violation G. L. c. 94C, § 34, the Commonwealth was

required to prove knowledge of the controlled substance3 plus an

ability and intention to control. Commonwealth v. Fernandez, 48

Mass. App. Ct. 530, 532 (2000). "[P]hysical possession

necessarily entails the ability to control, and would ordinarily

entail knowledge as well." Id. Here, Officer Kylie Langton,

who was present when the juvenile was removed from his

apartment, had the responsibility of searching the juvenile

during the booking process. Langton testified that "[i]nside

his jacket was a small plastic bag with a rocklike substance.

Known to be crack cocaine." This testimony, which was not

disputed, permitted the jury to conclude that the juvenile

possessed the substance found in his jacket.

day before oral argument, the Commonwealth conceded that there
was insufficient evidence to prove that the juvenile possessed
the cocaine. The Commonwealth had argued in its brief that a
portion of the footage from the body worn camera (BWC), exhibit
10, supported the adjudication of delinquency; the letter agreed
with the juvenile that this portion of the video recording was
not shown to the jury. Our independent review of the record,
apart from the BWC, leads us to conclude there was sufficient
evidence and, therefore, we do not accept the concession. See
Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010)
(notwithstanding confession of error, appellate court must
conduct independent review).

3 The juvenile does not challenge that the substance in
question was cocaine.

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On cross-examination, defense counsel asked, "Because it

was March, a jacket was found for him to bring, because it was

cold outside," and Langton answered, "Correct." From this one-

word response, and from the fact that the juvenile does not

appear to be wearing the same jacket in the video footage of him

running from Officer Cubarney, the juvenile claims that the

police merely found a random jacket in the apartment and placed

it on him. However, that argument does not view the evidence in

the light most favorable to the Commonwealth. Even if this

contradicted Langton's testimony that the jacket belonged to the

juvenile, it would not change the sufficiency equation. Under

the Latimore standard, "we do not weigh the supporting evidence

against conflicting evidence." Commonwealth v. Semedo, 456

Mass. 1, 8 (2010). "That contradictory evidence exists is not a

sufficient basis for granting a motion for a required finding of

not guilty." Commonwealth v. Merry, 453 Mass. 653, 662 (2009).

The Commonwealth was not required to exclude "every reasonable

hypothesis of innocence" (citation omitted). Commonwealth v.

Arias, 29 Mass. App. Ct. 613, 620 (1990).

Of course the jury were free to believe a random jacket in

the juvenile's apartment, that just happened to contain cocaine,

was given to the juvenile, the evidence of the juvenile's

possession of the cocaine was also supported by his theory of

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the case. Although not a substitute for evidence, in defense

counsel's closing argument she admitted that the juvenile

possessed the cocaine.4 Defense counsel told the jury that the

juvenile "had every reason to run from the police that night.

But not because of a gun. Because he was a [fourteen]-year-old

kid with cocaine in his pocket. And he was scared." Given that

defense counsel herself suggested to the jury to draw the

inference that the juvenile did in fact possess cocaine, and the

evidence that it was "his" jacket, the permissibility of the

jury's conclusion becomes even more plain. Once the jury

ascribed to the juvenile possession of the cocaine, the

inference that he had knowledge and the ability and intention to

exercise control over it was also reasonable and possible.5 See

Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980)

(inference of knowledge based on circumstantial evidence need

4 Defense counsel moved for a required finding of not
guilty, and renewed that motion after the defense rested, but
offered no argument in court, or in the motions themselves, that
the jacket in question was not his.

5 The juvenile claims he could not exercise control over the
cocaine in the jacket because he was handcuffed and in custody
at the time. However, he cites no authority for this argument,
and we treat it as waived. See Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1628 (2019). In any event, as the jacket
was his, he exercised control over the cocaine in it prior to
his arrest. If a defendant's ability or intent to control
contraband was to be measured from a point after an arrest, the
Commonwealth could never meet its burden.

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only be "reasonable and possible; it need not be necessary or

inescapable"). Accordingly, there was sufficient evidence

supporting the delinquency adjudication for possession of

cocaine.

2. Opinion testimony. The juvenile also claims that

Officer Cubarney's testimony, which described what was occurring

in a surveillance video recording as it was shown to the jury,

specifically, that the juvenile was holding onto something in

his waistband or hooded sweatshirt, was tantamount to an

improper opinion of the juvenile's delinquency. We disagree.

"Provided that a witness does not directly offer an opinion

regarding the defendant's guilt or innocence in a criminal case,

[] we have no rule in Massachusetts prohibiting an opinion that

touches on an ultimate issue" (citation omitted). Commonwealth

v. Canty, 466 Mass. 535, 543 (2013). See Commonwealth v.

Moreno, 102 Mass. App. Ct. 321, 325-326 (2023). See also

Mass. G. Evid. § 704 (2025) ("An opinion is not objectionable

just because it embraces an ultimate issue").

As stated above, Officer Cubarney testified that the

juvenile was "running with one left arm freely moving, as one

would jog, while simultaneously the right arm is holding onto

something in [his] waistband area or in [his] hooded sweatshirt

area." He neither stated that the juvenile was unlawfully

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carrying a firearm, nor that he was guilty of that crime. In

other words, Cubarney did not offer an opinion on the ultimate

issue. See Commonwealth v. MacDonald, 459 Mass. 148, 163-164

(2011). There was no error.

The juvenile further claims that Cubarney's testimony was

also an improper lay opinion about what was portrayed in the

surveillance video recording because it invaded the province of

the jury. We disagree.

"A lay opinion . . . is admissible only where it is '(a)

rationally based on the perception of the witness; (b) helpful

to a clear understanding of the witness's testimony or the

determination of a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge.'" Canty,

466 Mass. at 541, quoting Mass. G. Evid. § 701 (2013). A

judge's decision to admit a lay opinion is reviewed for an abuse

of discretion. Commonwealth v. Brum, 492 Mass. 581, 593-594

(2023).

Here, the surveillance video recordings show the juvenile

running and holding with one hand something near his waist on

his right side. Cubarney's nontechnical and nonscientific

testimony was intended to draw the jury's attention to this

important aspect of the surveillance footage, and it was

properly admitted to assist "the jury in evaluating the

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evidence." Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017).

See Commonwealth v. Grier, 490 Mass. 455, 476 (2022). There was

no abuse of discretion.6

3. "Shots fired" testimony. The juvenile further claims

that, over objection, the judge improperly permitted Officer

Cubarney to testify that he and his partner were responding to a

dispatch of "shots fired" prior to their pursuit of the black

Infiniti. We disagree.

To avoid putting an officer in a "false position of seeming

just to have happened upon the scene[,] he should be allowed

some explanation of his presence and conduct." Commonwealth v.

Doyle, 83 Mass. App. Ct. 384, 389–390 (2013), quoting

Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). The

prosecution may introduce "carefully circumscribed extrajudicial

statements in criminal trials to explain the state of police

knowledge." Rosario, supra. See Commonwealth v. Bradshaw, 385

Mass. 244, 269–270 (1982) (prosecutor "entitled to present as

full a picture as possible of events surrounding the incident").

6 Contrary to the juvenile's claim, the prosecutor properly
argued in closing -- without reference to Cubarney's testimony -
- that the jury could infer from the surveillance footage and
photographs that the juvenile ran "with his hand pinned" to his
waistband because he was carrying a firearm. See Commonwealth
v. Kozec, 399 Mass. 514, 516 (1987) (prosecutors may argue
"forcefully for a conviction based on the evidence and on
inferences that may reasonably be drawn from the evidence").

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Because this type of testimony carries with it the risk of

misuse, in an exercise of discretion, a judge must weigh the

probative value of the evidence against any unfair prejudicial

effect it might have on the jury. See Commonwealth v. West, 487

Mass. 794, 805 (2021); Mass. G. Evid. § 403 (2025). Under this

standard we do not disturb a judge's decision "absent a clear

error of judgment in weighing the relevant factors" (quotation

and citation omitted). Commonwealth v. Yat Fung Ng, 491 Mass.

247, 264 (2023).

Here, the judge properly allowed Cubarney to testify that

he was responding to a dispatch of "shots fired" to put in

context for the jury the manner in which the police responded.

It was relevant and necessary to explain why Cubarney, and the

other responding officers had their service weapons drawn when

they arrived at the apartment building, and when they entered

the juvenile's apartment. Also, the testimony contained no

details, was limited to Cubarney's knowledge, and it did not

implicate the juvenile, who was not charged with discharging a

weapon. See Rosario, 430 Mass. at 509-510. Contrast

Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 440 (2006)

(statement functional equivalent of informing jury that witness

identified defendant as cocaine supplier). There was no abuse

of discretion. See Commonwealth v. Rupp, 57 Mass. App. Ct. 377,

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383-384 (2003) (proper to admit testimony that police responded

to 911 call "[r]egarding a firearm" to explain police show of

force).

4. Identification of the juvenile. Finally, the juvenile

claims that the judge improperly permitted Officer Cubarney,

over objection, to identify the juvenile as the passenger in the

black Infiniti and as the person depicted on the surveillance

video footage. We disagree.

The decision to admit witness identification testimony is

committed to the sound discretion of the trial judge. See

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328 (2000).

Identification testimony of a police officer carries "the

potential for inappropriate prejudice to the defendant" because

it may suggest that the officer knew the defendant from prior

arrests or convictions. Id. at 327. Here, Officer Cubarney's

identification of the juvenile as the passenger was not unduly

prejudicial. He testified, without further explanation, that he

"recognize[d]" the juvenile. The jury were not made aware of

how Cubarney knew the juvenile, which was only disclosed at voir

dire, discussed below. In any event, as the arresting officer

who was also an eyewitness to the crime, Cubarney could

permissibly identify the juvenile in court. See Commonwealth v.

Crayton, 470 Mass. 228, 242 (2014).

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Relative to the surveillance video footage, "[a] lay

witness is permitted to identify an individual depicted in a

video recording or photograph if that testimony would assist the

[fact finder] in making their own independent identification."

Commonwealth v. Pina, 481 Mass. 413, 429 (2019). "The general

rule is that a witness's opinion concerning the identity of a

person depicted in a surveillance photograph is admissible if

there is some basis for concluding that the witness is more

likely to correctly identify the defendant from the photograph

than is the jury." Id. at 429-430, quoting Commonwealth v.

Vacher, 469 Mass. 425, 441 (2014).

In determining whether a witness's identification of a

person appearing in a photograph or video recording is

admissible, we consider several factors, including (1) the

quality of the images, (2) the level of familiarity of the

witness with the person depicted in the video recording, and

(3) whether the suspect was disguised in the video recording or

has altered his appearance since the time of the crime. See

Pleas, 49 Mass. App. Ct. at 325-326.

Here, after a lengthy voir dire, the judge credited

Cubarney's testimony concerning his knowledge of the juvenile.

Cubarney was familiar with the juvenile prior to the incident

because he had viewed the juvenile's social media postings.

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Cubarney had viewed more than seventy-five photographs and video

recordings of the juvenile on Snapchat, a mobile application.

Cubarney had also previously identified the juvenile in a Boston

Regional Intelligence Center "be on the lookout" alert that was

distributed to identify a suspect in a March 12, 2021 "shots

fired" incident. This was ample evidence for the judge to

conclude, as he did, that Cubarney had "a solid foundation" to

testify that he recognized the juvenile. Contrast Commonwealth

v. Fisher, 492 Mass. 823, 851 (2023) (officer interacted with

defendant once and saw him in one video recording that officer

watched multiple times); Commonwealth v. Belnavis, 104 Mass.

App. Ct. 798, 802-803 (2024) (officers' encounters with

defendant were infrequent, sporadic, and unmemorable).

In addition, the quality of the surveillance video footage

was poor, and the juvenile's appearance was altered since the

time of the crime. By the time of trial, the juvenile had aged

three years and changed his hairstyle. The judge could

reasonably conclude that Cubarney was "in a better position than

the jury to identify the [juvenile]," Pina, 481 Mass. at 430,

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and that his testimony would be helpful to the jury. There was

neither error, nor an abuse of discretion.7

Adjudications of delinquency
affirmed.

By the Court (Meade,
Massing & Brennan, JJ.8),

Clerk

Entered: February 26, 2026.

7 Having determined there was no error in this case, we need
not address the juvenile's cumulative error argument.

8 The panelists are listed in order of seniority.

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