December 4, 2015.
February 26, 2016.
Complaint received and sworn to in the Waltham Division of
the District Court Department on October 11, 2011.
case was tried before Gregory C. Flynn, J.
Kimberly M. Peterson for the defendant.
Michael Shiposh, Special Assistant District Attorney, for the
Cypher, Wolohojian, & Carhart, JJ.
N.E.3d 71] Wolohojian, J.
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.
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).
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. 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.
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. ...