Commonwealth v. Jovino Rivera.

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

22-P-923

COMMONWEALTH

vs.

JOVINO RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a five-day jury trial, the defendant was

convicted of possessing a firearm without a license in violation

of G. L. c. 269, § 10 (a). He then pleaded guilty to a

sentencing enhancement for having been previously convicted of

three violent crimes. See G. L. c. 269, § 10G (c). On appeal,

the defendant claims that there was insufficient evidence to

prove that he possessed the firearm discovered at the scene. We

affirm.

Background. We recite the facts in the light most

favorable to the Commonwealth, reserving additional facts for

later discussion. See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979). The defendant and his girlfriend had a domestic

dispute at her family member's apartment. The landlord,

overhearing the dispute from her upstairs apartment, called 9-1-
1 to report the disturbance. Shortly after, the landlord

"look[ed] out the front window" and saw the defendant on the

street with his girlfriend, "struggling over something" that was

"black, triangular, [and in] a [black] gun holster."

Eventually, the landlord saw the defendant pull a "revolver

. . . [with] a silver barrel . . . [and] a dark handle" out of

the holster. The landlord called 9-1-1 a second time,

explaining that the defendant, "an Hispanic male" and "older

gentleman" with "somewhat gray and white hair" wearing "a t-

shirt and shorts" had a gun, and that he was taking the gun, in

its holster, down an alleyway between the two houses directly

across the street from her apartment. Minutes later, the

defendant returned to the street empty-handed.

By the time the first police officer arrived at the scene,

a group of people had joined the defendant on the street. Of the

people outside, only the defendant matched the description given

in the 9-1-1 call. When confronted by the officer, the

defendant insisted that he "never had a gun" and had been

holding a carjack. The defendant then took the officer up a

driveway adjacent to the alleyway and showed him a carjack lying

on the ground. The officer showed the carjack to the landlord,

who -- affronted -- denied that it was what she had seen from

her window, reiterating that "[i]t was a revolver, silver,

wooden handle in a black holster."

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Additional officers arrived at the scene and searched the

alleyway. Near the back of the alleyway, hidden inside a gas

grill, the officers discovered a black revolver with a wooden

handle in a black holster. A ballistics expert later determined

that the gun was a functioning firearm, meaning capable of

firing a bullet.

At trial, the defense theory was that the defendant never

possessed a gun, only a carjack. The Commonwealth's evidence

included the gun and holster and a recording of the second 9-1-1

call. The defendant's main argument was that the silver-

barreled gun described by the landlord could not have been the

same, black-barreled gun discovered in the grill. At the close

of the Commonwealth's case and at the close of all the evidence,

the judge denied motions for a required finding of not guilty,

and the jury ultimately found the defendant guilty.

Discussion. "The standard for evaluating a motion for a

required finding of not guilty 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.

James, 424 Mass. 770, 784 (1997), quoting Latimore, 378 Mass. at

677. "To sustain a conviction under G. L. c. 269, § 10 (a), the

Commonwealth must prove[, among other elements,] that the

defendant knowingly possessed a firearm." Commonwealth v.

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DeJesus, 489 Mass. 292, 298 (2022), quoting Commonwealth v.

White, 452 Mass. 133, 136 (2008).1 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). "This proof 'may be established by circumstantial

evidence, and the inferences that can be drawn therefrom.'"

Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015),

quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).

Here, the circumstantial evidence supported the inferences that

the defendant knew about the gun and had the ability and intent

to exercise control over it.

The jury reasonably could infer that the defendant

possessed the same firearm that was later discovered in the

grill. The landlord, who had seen the defendant on at least

fifty prior occasions, immediately identified him to police as

"the man who had a gun" and described with particularity his

physical appearance, his "old school revolver" in a black

1 The Commonwealth must also prove that the firearm had the
capacity to discharge a shot or bullet. See G. L. c. 269, 10
(a); G. L. c. 140, § 121. The jury's verdict was supported by
the ballistics expert's testimony that the firearm was capable
of discharging a bullet. See Commonwealth v. Nieves, 43 Mass.
App. Ct. 1, 2 (1997) (burden "requires only that the
Commonwealth present some competent evidence from which the jury
reasonably can draw inferences that the weapon will fire").

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holster, and the location of the alleyway where she saw him

retreat with the gun. See Commonwealth v. Brown, 50 Mass. App.

Ct. 253, 257 (2000) ("direct evidence" of actual possession

includes eyewitness observation). She saw him walk into the

alleyway with the gun and return to the street empty-handed.

This evidence directly supported the inference that the

defendant possessed a firearm when he went into the alleyway.

See Commonwealth v. Williams, 422 Mass. 111, 120-121 (1996)

(jury could infer possession from "eyewitness testimony that the

defendant had a firearm in his possession").

Where the landlord described a revolver with a "wooden"

handle, in a "black holster," being taken into an alleyway, the

jury could reasonably conclude that the only gun discovered in

that same alleyway -- a revolver with a wooden handle in a black

holster -- was the same gun that the landlord had seen. See

Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977) (eyewitness

descriptions of weapon and ballistics expert's testimony that

lack of shell casings was consistent with weapon's being

revolver sufficient to support conviction of unlawful carrying);

White, 452 Mass. at 136 (evidence sufficient to infer possession

of gun found inside air vent in hallway of car wash where

eyewitness saw defendant holding gun when he entered hallway and

not holding it when he emerged).

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The jury also heard that it was light outside and the

landlord could see the scene from her window. See Commonwealth

v. Ayala, 481 Mass. 46, 52-53 (2018) (reliability of eyewitness

identification supported by evidence that crime scene

sufficiently illuminated at time of shooting, eyewitness

recognized defendant from prior encounter, and eyewitness

successfully identified defendant from photo array). The jury

were free to resolve any inconsistencies concerning the color of

the gun's barrel in favor of the Commonwealth. See Commonwealth

v. Watkins, 473 Mass. 222, 229-230 (2015); Commonwealth v. Ruci,

409 Mass. 94, 97 (1991).

The evidence further permitted the jury to infer that the

defendant lied to police about the weapon being a carjack, and

that he had deliberately hidden the gun in the grill. See

Commonwealth v. Robles, 423 Mass. 62, 71 (1996) ("[f]alse

statements to police may be considered as consciousness of guilt

if there is other evidence tending to prove the falsity of the

statements"); Commonwealth v. Whitlock, 39 Mass. App. Ct. 514,

519 (1995) (evidence of "attempts to conceal or dispose of

contraband . . . permit an inference of unlawful possession").

We are satisfied that a rational juror could reasonably

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infer from the evidence that the defendant possessed the gun

found in the grill.

Judgment affirmed.

By the Court (Massing,
Hershfang & D'Angelo, JJ.2),

Clerk

Entered: April 20, 2023.

2 The panelists are listed in order of seniority.

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