Commonwealth v. Jovino Rivera. ( 2023 )

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."
2
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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