Commonwealth v. Kristen A. Vazquez.

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

25-P-1308

COMMONWEALTH

vs.

KRISTEN A. VAZQUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the District Court, the

defendant, Kristen A. Vazquez, was convicted of carrying a

firearm without a license and carrying a loaded firearm without

a license. On appeal, the defendant argues that the judge erred

in denying her motion for a required finding of not guilty

because the Commonwealth did not prove that she possessed and

controlled the firearm or that she knew the firearm was loaded.

We agree and reverse.

Background. On October 15, 2022, at around 2 A.M.,

Lieutenant Julio Toledo was parked in an unmarked police car in

downtown Springfield, when the police car was hit by a car

driven by the defendant. In addition to the defendant, there
were two passengers in the car: a woman in the backseat and a

man in the front passenger seat (passenger). As Toledo

approached the defendant's car, he saw the passenger "reaching

towards the driver's side, down and away, and [he] couldn't see

[the passenger's] left hand." The defendant immediately got out

of her car and said, "I know I hit your car." Toledo told her

to get back in the car and asked how much she had to drink that

night; seconds later, Toledo asked her to step back out.

Toledo told another officer, who had recently arrived on

the scene, to have the passenger step out of the car, and "pat

him down for [the officers'] safety," and warned him to "watch

[the passenger's] left hand." The defendant then leaned into

the car and repeated what Toledo said to the passenger; Toledo

interpreted the defendant's movements as trying to block his

view of the inside of the car. An officer pat frisked the

passenger and "then [the passenger] abruptly, suddenly, without

warning entered a full sprint to the alleyway." When both the

defendant and the passenger were outside of the car, the woman

in the backseat was moving a blanket and "making exaggerated

movements towards the front of the [car]." The woman was later

asked to get out of the car and "back away from the traffic

stop." The passenger and the woman were never identified.

As Toledo administered a field sobriety test, an officer

searched the passenger side and center console of the car, and

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after the officer did not find anything, Toledo said "its not in

the center console?" The defendant told Toledo that she had

just picked up the car that morning and did not have anything in

it. Toledo resumed the field sobriety tests and arrested the

defendant for operating under the influence.

Toledo then conducted an inventory search of the car and

found a firearm in between the driver's seat and the center

console. Toledo commented that the passenger's hand "was over

there," and another officer said, "that explains why your boy

took off." Toledo testified that he knew the firearm was loaded

when he found it because the external indicator was raised,

which "warn[s] the handler of the weapon that the firearm is, in

fact, loaded."

As relevant here, the defendant was charged with carrying a

firearm without a license and carrying a loaded firearm without

a license.1 The Commonwealth called Toledo as its only witness,

and his body-worn camera footage was entered in evidence. At

the close of the Commonwealth's evidence, the defendant filed a

motion for a required finding of not guilty (motion), and

renewed the motion after the close of all evidence; the motion

was denied each time.

1The defendant admitted to sufficient facts for operating a
motor vehicle while under the influence of alcohol. The judge
also found the defendant responsible for possession of a class B
controlled substance.

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The judge found the defendant guilty. After filing a

notice of appeal, the defendant moved for reconsideration in the

District Court. After hearing, the judge denied that motion.

Discussion. 1. Sufficiency of the evidence. a.

Possession of the firearm. The defendant argues that the

Commonwealth's evidence established that the firearm at issue

was possessed and controlled by another, and therefore, the

judge erred in denying the motion. "In reviewing the denial of

a motion for a required finding of not guilty . . . 'we view the

evidence in the light most favorable to the Commonwealth in

order to determine whether the evidence was sufficient to

satisfy a rational trier of fact of each element of the offense

beyond a reasonable doubt.'" Commonwealth v. Snow, 76 Mass.

App. Ct. 116, 118 (2010), quoting Commonwealth v. Brown, 401

Mass. 745, 747 (1988). Here, "the Commonwealth's case rested on

a theory of constructive possession." Commonwealth v. Sespedes,

442 Mass. 95, 99 (2004). 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 Sespedes, supra.

The Commonwealth argues that there was sufficient evidence

to prove that the defendant intended to exercise dominion and

control over the firearm because it was located "in a position

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easily accessible to the defendant alone," and her "behavior

during the stop indicate[d] that she was attempting to prevent

the [firearm]'s discovery." However, "in order to 'establish

the defendant's "relationship" to contraband located in a common

area sufficient to permit an inference of control over the

contraband, there must be a more particular link to the

defendant' other than [her] presence and ownership" of the car.

Commonwealth v. Romero, 464 Mass. 648, 656 (2013), quoting

Commonwealth v. Boria, 440 Mass. 416, 420-421 (2003).

Although the firearm was found on the driver's side of the

car, there was insufficient evidence for a trier of fact to

conclude, beyond a reasonable doubt, that the defendant intended

to control and possess the firearm. See Romero, 464 Mass. at

656-657. Apart from the firearm's location, there is little

evidence of a "special connection" between the defendant and the

firearm. See Commonwealth v. Summers, 93 Mass. App. Ct. 260,

264 (2018). The defendant's proximity to the firearm is more

relevant "to whether the defendant had the ability to control

the firearm, than [her] intention to exercise that control."

Romero, supra at 658.

"[W]hen the defendant is present at or near the scene where
the contraband is found . . . the behavior of the defendant
generally provides a basis upon which the court determines
whether there was sufficient evidence relating to
possession, including evidence of consciousness of guilt
revealed by suspicious movements or actions, attempted

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flight, and proximity to contraband in plain view or
hidden."

Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 683 n.13

(2006).

Here, Toledo did not see the defendant "make movements"

towards the area where the firearm was found that would suggest

she had an intent to control the firearm. Contrast Commonwealth

v. Cotto, 69 Mass. App. Ct. 589, 594 (2007) (gun found where

defendant had been "shoving his feet" and this "conduct allowed

the jury to infer a 'personal connection' between the defendant

and the firearm"); Commonwealth v. Horton, 63 Mass. App. Ct.

571, 578 (2005) (officers saw defendant reach down and kick

below driver's seat, where handgun was found, these facts helped

support finding that he had control). Notably, it was the

passenger who made "furtive movements" towards where the firearm

was found. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 39

(2020) ("Furtive is defined as 'done by stealth' or 'secret'"

[citation omitted]).

The defendant remained at the scene, while the passenger

fled "abruptly and spontaneously." "Flight is often considered

a 'plus' factor supporting an inference that the occupant

intended to exercise dominion and control over the illegal

contraband." Summers, 93 Mass. App. Ct. at 264. Additionally,

the defendant cooperated with the police, including during the

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field sobriety tests. "[A]n inference of unlawful possession

. . . may be drawn from the defendant's actions at the scene."

Commonwealth v. Antonio, 45 Mass. App. Ct. 937, 938 (1998).

Here, "the factual considerations cited by the Commonwealth shed

little light on the defendant's intent." Romero, 464 Mass. at

659. Contrast Summers, supra at 265 ("[t]he combination of the

defendant's location in the Kia, his adjacency to the backpack,

the ruse he created, his flight from the scene, and his

statements upon his arrest provide[d]" sufficient evidence of

intent to control firearm).

On this record, there was insufficient evidence to satisfy

any rational trier of fact beyond a reasonable doubt that the

defendant had the intention to exercise dominion and control

over the firearm.2 See Commonwealth v. Latimore, 378 Mass. 671,

677-678 (1979) ("it is not enough for the appellate court to

[conclude] that there was some record evidence, however slight,

to support each essential element of the offense; it must [hold]

that there was enough evidence that could have satisfied a

rational trier of fact of each such element beyond a reasonable

doubt").

Because we determine that there was insufficient evidence
2

as to the defendant's intention to exercise dominion and control
over the firearm, it is unnecessary to discuss the separate
requirement of knowledge.

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b. Possession of a loaded firearm. The defendant

additionally argues that there was insufficient evidence to

support the conviction of carrying a loaded firearm without a

license. "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).

However, "in order to be convicted under G. L. c. 269,

§ 10 (n), an individual must first have been convicted under

G. L. c. 269, § 10 (a) or (c)." Commonwealth v. Brown, 479

Mass. 600, 604 (2018). Because we hold that there was

insufficient evidence to convict the defendant of carrying a

firearm without a license, the defendant's conviction of

carrying a loaded firearm without a license must also be

reversed. See Commonwealth v. Taylor, 486 Mass. 469, 475 (2020)

(carrying a loaded firearm without a license "is not a

freestanding crime").

Conclusion. On the counts of the complaint charging

carrying a firearm without a license and carrying a loaded

firearm without a license, the judgments are reversed, the

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findings are set aside, and judgments shall enter for the

defendant.

So ordered.

By the Court (Blake, C.J.,
Shin & Wood, JJ.3),

Clerk

Entered: May 18, 2026.

3 The panelists are listed in order of seniority.

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