Commonwealth v. Lovering (Lawyers Weekly No. 11-017-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1914 Appeals Court COMMONWEALTH vs. ALBERT LOVERING. No. 14-P-1914. Middlesex. December 4, 2015. – February 17, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Firearms. Evidence, Constructive possession. Abuse Prevention. Practice, Criminal, Required finding. Complaint received and sworn to in the Waltham Division of the District Court Department on October 11, 2011. The case was tried before Maurice R. Flynn, III, J. Kimberly M. Peterson for the defendant. Michael Shiposh, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The question presented is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant had constructive possession of a firearm on the specific date of September 11, 2011. We agree with the defendant that the evidence was insufficient to prove that he constructively possessed the gun on the date charged in the complaint. We accordingly reverse his conviction of possessing a firearm without a firearm identification card, G. L. c. 269, § 10(h). However, because the evidence was sufficient to prove that the defendant owned the gun, we affirm his convictions of violating the gun storage statute, G. L. c. 140, § 131L, and of violating an abuse prevention order by failing to surrender the gun, G. L. c. 209A, § 7.[1] We review the denial of a motion for a required finding of not guilty by asking whether any rational fact finder, when viewing the evidence in the light most favorable to the Commonwealth, could find all material elements of the offense beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). ”Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Merola, 405 Mass. 529, 533 (1989). However, “[i]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense. Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation.” Commonwealth v. Armand, 411 Mass. 167, 170 (1991) (citation and quotation omitted). Taken in the light most favorable to the Commonwealth, the evidence showed the following. The defendant’s wife found a loaded Walther PPK handgun (gun) on September 11, 2011, while dusting the apartment she had shared with the defendant for approximately twelve years.[2] The gun was in a leather pouch which was, in turn, contained in an old wooden […]