Commonwealth Finds Conviction for Carrying an Unlicensed Firearm is Reversible when no Evidence is Presented to show the Defendant had the Requisite Intention

May 3, 2013
By Parker Scheer LLP on May 3, 2013 2:30 PM |

Where the defendant was convicted of carrying an unlicensed firearm, the conviction is reversed when no evidence has been presented to show that defendant had the requisite intention to control the firearm.

While the defendant waited for his girlfriend outside her apartment, her brother Eduardo Alvarez went up to the defendant and showed him his firearm. The defendant checked out the firearm, even touching it, but ultimately gave it back to Alvarez. After the date, the defendant drove Alvarez and his brothers around in his new car. While later sitting in the car in front of the apartment and listening to music, Officer Deveney, who could only see the "tops of their torso[s] and their heads," saw the defendant look from side to side. Alvarez was observed examining an object in his hand. When Officer Deveney flashed his flashlight into the car, Alvarez turned toward Deveney and immediately dropped the object he was holding into his lap. Deveney saw the object was a black handgun.

After being Mirandized, the defendant admitted that he knew Alvarez had a firearm but was unaware he had the firearm on him while in the defendant's car. The defendant also told Officer Deveney that Alvarez had shown him a firearm earlier that day and that he had handled the weapon. The defendant was placed under arrest and later convicted of carrying an unlicensed firearm.

While the Appeals Court held that the trial judge did not err in admitting the defendant's extrajudicial statements and the defendant had the ability to exercise dominion and control over the firearm, the court held that the "evidence was insufficient to establish that the defendant intended to exercise 'dominion and control' over the firearm ... presence alone is insufficient to establish an intention to exercise control. ... Rather, the defendant's presence in the vehicle must be augmented by additional inculpatory evidence."

"The defendant was not wearing a holster sized to fit the firearm ... nor was he carrying ammunition that matched the weapon. ... Moreover, he made no attempt to conceal the firearm from [Officer] Deveney. ... Additionally, the defendant did not manifest any outward signs that the firearm belonged to him or that he intended to control the firearm. His vehicle was legally parked on the side of the road directly outside his girl friend's residence. The defendant made no attempt to evade Officer Deveney or manipulate the vehicle in any way to dispose of the weapon. At best, the fact that the defendant was the operator of the vehicle served only to put him in the proximity of the firearm and did not provide evidentiary support for the proposition that he intended to control the firearm."

"Because neither the defendant's ownership or operation nor his proximity to the firearm, alone or in combination, is sufficient to support his conviction, the sufficiency of the evidence rests on the location, time of the encounter, and behavior of the passengers. Here, the factual considerations cited by the Commonwealth shed little light on the defendant's intent. Accordingly, we conclude that the evidence was insufficient to support the defendant's conviction of unlawful possession of a firearm based on a theory of constructive possession." Commonwealth v. Romero.

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