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Commonwealth v. Lovering

Appeals Court of Massachusetts, Middlesex

February 17, 2016

Commonwealth
v.
Albert Lovering

         Argued December 4, 2015.

         Corrected February 26, 2016.

          Complaint received and sworn to in the Waltham Division of the District Court Department on October 11, 2011.

         The case was tried before Gregory C. Flynn, J.

          Kimberly M. Peterson for the defendant.

          Michael Shiposh, Special Assistant District Attorney, for the Commonwealth.

         Present: Cypher, Wolohojian, & Carhart, JJ.

          OPINION

          [46 N.E.3d 71] 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, ยง 131L, and of violating an abuse prevention order by failing to surrender the gun,

Page 77

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, 393 N.E.2d 370 (1979). " Circumstantial evidence is competent to establish guilt beyond a reasonable doubt." Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (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, 580 N.E.2d 1019 (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 box among the defendant's other personal belongings on the floor of the living room. The gun was of a sort issued by the Nazi government; the defendant collected Nazi memorabilia.

         Almost one month earlier, on August 18, 2011, the wife had obtained an abuse prevention order requiring the defendant to stay away from the apartment and allowing him to return to pick up his belongings only with a police escort. It was uncontroverted at trial that the defendant had not returned to the apartment since the order was entered.[3] ...


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