Heard: September 7, 2017.
received and sworn to in the Taunton Division of the District
Court Department on August 3, 2015.
case was heard by Paula J. Clifford, J.
J. Galibois, II, for the defendant.
P. Kidd, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Trainor, Vuono, Wolohojian, Milkey,
Blake, & Singh, JJ. 
a jury-waived trial in the District Court, the defendant,
Charles E. Summers, was convicted of carrying a firearm
without a license and unlawful possession of
ammunition. The defendant appeals, contending that the
evidence that he possessed these items was insufficient as a
matter of law. We affirm.
the evidence, and the reasonable inferences to be drawn from
it, in the light most favorable to the Commonwealth, see
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), the Commonwealth presented the
following facts. At 10:15 A.M- on August 3, 2015, Taunton
police Officer Brett Collins pulled over a Kia Spectra
automobile after "it failed to stop at [a] stop
sign." As he approached the vehicle, Officer Collins saw
the defendant, who was the sole occupant of the back seat,
turn and look at him. He also observed a woman in the
driver's seat and a man in the front passenger seat.
Officer Collins recognized the defendant as someone with whom
he was familiar, and the two exchanged greetings. On the seat
next to the defendant was a cellular telephone.
Collins obtained identification from the two people in the
front compartment of the Kia, but not from the defendant. As
Officer Collins "ran" the information in his
cruiser, he learned that there was an outstanding warrant for
the front seat passenger, Michael MacNamara. Officer Collins
then noticed that the defendant was out of the Kia and
walking toward him, holding a cellular telephone. The
defendant told the officer that his son had fallen or was
hurt and asked if he could leave. After getting Officer
Collins's permission, the defendant began walking away
from the area where the Kia was stopped. Immediately upon the
defendant's departure from the scene, MacNamara began to
yell and gesture toward the rear of the Kia, where the
backpack containing the firearm eventually was located. The
defendant then began to run and Officer Collins was unable to
to the Kia, Officer Collins found that MacNamara had left the
scene as well. The driver, who was still seated, directed the
officer to the back of the Kia. On the floor of the back
seat, behind the driver, was a backpack. Officer Collins
opened the backpack, and found a .45 caliber Sig Sauer P220
handgun, a magazine for the gun, as well as .45 caliber
bullets inside a sock that was tied at one end.
following month, on September 1, 2015, the defendant was
arrested on a warrant for firearm-related charges arising out
of this incident. The defendant asked what the charges
stemmed from. When advised what they were, the defendant said
that "he didn't understand why he was being charged
with the gun because the person who was in the car with him
had a record as long as his" and had also "fled
like he did."
analyzing whether the record evidence is sufficient to
support a conviction, an appellate court is not required to
"ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt"
(emphasis in original). Commonwealth v.
Velasquez, 48 Mass.App.Ct. 147, 152 (1999), quoting
from Jackson v. Virginia, 443 U.S.
307, 318-319 (1979). See Commonwealth v.
Hartnett, 72 Mass.App.Ct. 467, 475 (2008). Rather,
the relevant "'question 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' (emphasis in original)."
Commonwealth v. Latimore, 378
Mass. at 677, quoting from Jackson v.
Virginia, supra. See Commonwealth v.
Pixley, 77 Mass.App.Ct. 624, 630 (2010).
the Commonwealth's case against the defendant was
presented on the theory of constructive possession, which
requires the Commonwealth to establish the defendant's
"knowledge coupled with the ability and intention to
exercise dominion and control." Commonwealth
v. Sespedes, 442 Mass. 95, 99 (2004),
quoting from Commonwealth v.
Brzezinski, 405 Mass. 401, 409 (1989). A
defendant's "knowledge or intent is a matter of
fact, which is often not susceptible of proof by direct
evidence, so resort is frequently made to proof by inference
from all the facts and circumstances developed at the
trial." Commonwealth v.
Casale, 381 Mass. 167, 173 (1980). In constructive
possession cases, a defendant's presence alone is not
enough to show the ability and "intention to exercise
control over the firearm, but presence, supplemented by other
incriminating evidence, 'will serve to tip the scale in
favor of sufficiency.'" Commonwealth
v. Albano, 373 Mass. 132, 134 (1977),
quoting from United States v.
Birmley, 529 F.2d 103, 108 (6th Cir. 1976).
defendant relies predominantly on Commonwealth
v. Romero, 464 Mass. 648, 652-659 (2013)
(evidence of defendant's presence in automobile, which he
owned and in which firearm was being passed around,
insufficient to establish constructive possession). However,
while the defendant's presence in the Kia itself,
"without more, is not sufficient evidence . . .[, ]
[p]resence in the same vehicle supplemented by other
incriminating evidence, . . . may suffice."
Commonwealth v. Sinforoso, 434
Mass. 320, 327 (2001), quoting from Commonwealth
v. Garcia, 409 Mass. 675, 686-687 (1991) .
Here, we have significantly more than mere presence.
in its totality, the evidence was sufficient to prove beyond
a reasonable doubt that the defendant knew of the firearm and
ammunition, and that he had the ability and intention to
exercise control over them. The defendant was the sole rear
seat passenger in the Kia Spectra. He was seated behind the
front seat passenger and directly adjacent to the backpack,
which was on the floor behind the driver. The defendant's
cellular telephone was on the seat next to him, showing some
intent to exercise dominion and control over the back seat
compartment. The backpack was a mere two to three feet from the
defendant, well within his reach. He had the most ready access
to it. See Commonwealth v.
Sadberry, 44 Mass.App.Ct. 934, 936 (1998) (gun's
location near defendant in car was proper consideration on
question of dominion and control).
It is a
fair inference from MacNamara's behavior --including
shouting and yelling to Officer Collins and pointing to the
back of the Kia -- that he was reacting to the sudden
realization that the defendant, having found a pretext to get
permission from Officer Collins to leave the scene, had left
the firearm and ammunition behind. In fact, a rational fact
finder could find that it was MacNamara's protestations
that caused the defendant to shift from leaving the scene, to
fleeing the scene. Such a fact finder also could find that
MacNamara, by affirmatively and eagerly ...