COMMONWEALTH v. FONTAINE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, after a jury trial, of carrying an unlicensed firearm, carrying an unlicensed loaded firearm, unlawfully possessing ammunition, armed robbery while masked, and attempted armed robbery while masked. He raises two arguments on appeal. First, he contends that the evidence was insufficient to prove beyond a reasonable doubt that he was one of the people who committed the robbery from which the charges stem. Second, he contends that the ammunition conviction is duplicative of the conviction for carrying a loaded firearm. The Commonwealth concedes, as it must, that the ammunition conviction, G. L. c. 269, § 10 (h), is duplicative of the loaded firearm conviction, G. L. c. 269, § 10 (n), and we accordingly vacate that conviction.² See Commonwealth v. Johnson, 461 Mass. 44, 54 (2011). The remaining convictions are affirmed because, as we explain, there was sufficient evidence to permit the jury to find beyond a reasonable doubt that the defendant was one of the robbers.

Taken in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following. At around midnight on August 11, 2012, two men carrying firearms robbed the T&E Mini Mart located in the Dorchester section of Boston by forcing the storeowner at gun point to hand over the money from the cash register. One of the robbers was wearing a mask. The masked robber forced the storeowner downstairs to the basement where the storeowner's band was rehearsing. The other robber followed. Once in the basement, the two robbers forced the musicians to empty their pockets and to place their money, cell phones, and jewelry, into a backpack. One musician managed to hide undetected under the stairs and to call 911. The others were ordered to lay on the ground. The robbers then left.

The 911 call was made at 12:10 a.m.; police were dispatched one minute later, and arrived within minutes. The victims described one robber as a black man, five foot six inches to five foot seven inches tall, weighing around 150 pounds, wearing a gray thermal shirt with a black mask and carrying a pump shotgun; the other man was described as being black, stockier in build, and wearing a blue shirt.

One of the stolen cell phones had a tracking feature that the police were able to use to begin tracking that phone at 12:26 a.m., when it was in motion around Seaver Street and Columbia Road. The phone continued to move until it came to rest at Seaver and Glenarm Streets at 12:31 a.m. Police arrived at that location a few minutes later and found a building where the door to an apartment appeared to have been kicked in. They entered the apartment and saw a gray thermal shirt, a “boonie cap,” a white plastic bag similar to the kind used at T&E Mini Mart, and a black mask -- all sitting on top of a couch.³ Subsequent deoxyribonucleic acid (DNA) testing showed that the defendant's DNA was included as a contributor to a mixture of a DNA profile on the mask, and partially included as a contributor to a mixture of a DNA profile collected from the gray thermal shirt.

The defendant, a five foot six inch black man, was located in a basement bedroom. He did not live at this address, and had no explanation for his presence other than that he knew that someone identified as “OG” lived there. Cash was strewn atop a bureau in the bedroom, and one of the stolen wallets was in an open drawer of the same bureau. A search executed pursuant to a warrant the following morning located a loaded .45 caliber handgun in a kitchen closet. On top of that gun was a bag with additional phones that had been stolen from the musicians. A backpack containing more than $1,000 in cash, and two wallets, keys, and rings that had been stolen from the musicians was located in a kitchen cabinet.

Relying heavily on Commonwealth v. Anitus, 93 Mass. App. Ct. 104 (2018), the defendant argues that insufficient evidence supported his convictions because nothing more than DNA evidence connected him to the robbery and that there was nothing to suggest when his DNA may have been deposited on the mask and the gray thermal shirt. Whatever other infirmities this argument may have, its primary one is that the DNA evidence in this case was merely one of many pieces of evidence connecting the defendant to the robbery. Among other things, police found the defendant twenty-five minutes after the robbery, surrounded by the proceeds of the robbery and the tools with which it was committed, at the precise location to which the goods were taken from the robbery. In addition, the defendant had no explanation for his presence at that location, and was of the same height and race as the masked robber. It is true the defendant was the only person tied to the robbery by DNA evidence, but this does not mean that DNA evidence was the only evidence tying the defendant to the crime.

The defendant also argues that the DNA evidence had little probative value because there was no evidence as to when his DNA was deposited on the mask and shirt. He contends that, although he may have touched the mask and shirt at some point in time, another person may have worn them to commit the robbery. It was certainly open to the defendant to argue this set of inferences to the jury. However, this was not the only conclusion the jury could reach, especially given the additional evidence we described above tying the defendant to the robbery. The fact that competing inferences could be drawn does not mean that there was insufficient evidence to support the one the jury ultimately credited. See Cramer v. Commonwealth, 419 Mass. 106, 110 (1994) (jury to decide between conflicting inferences).

On the charge of unlawful possession of ammunition, the conviction is vacated, the verdict is set aside, and the indictment is to be dismissed. The judgments on the remaining convictions are affirmed.

So ordered.

Vacated in part; affirmed in part

FOOTNOTES

2.   Although the Commonwealth concedes that the convictions are duplicative, it argues that, because the ammunition conviction was filed, it is not before us. This would certainly be true if the record showed that the conviction was filed with the defendant's consent. Here, although the defendant did not object to the judge filing the conviction, the judge neither sought nor obtained an affirmative statement of consent. Nor did the judge follow the procedures of Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009), which, among other things, require a written consent from the defendant as to the filing of the conviction “and any time limit or events regarding removal from the file.” In these circumstances, we see no impediment to vacating the indisputably duplicative filed conviction. See Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.1 (1992) (“Because the record does not reflect the defendant's consent to two convictions' being placed on file we shall consider them”).

3.   A shotgun was under one of the couch cushions.