COMMONWEALTH v. DASILVA (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a joint trial in the Superior Court, the defendants, Ian Percival and Jonathan DaSilva, were both convicted of two counts of possession of a firearm without a license.³ The sole issue on appeal concerns the sufficiency of the Commonwealth's evidence. For the reasons that follow, we affirm.

Background. Because the defendants challenge the sufficiency of the evidence, we recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On the afternoon of March 27, 2018, three Boston police officers, Brendan Lyons, Christopher Holt, and Robert Lumbum, were on patrol on Church Street in the Dorchester section of Boston in an unmarked police cruiser when they saw a vehicle fail to stop at a stop sign. The officers turned on the cruiser's lights and siren to make a traffic stop. The vehicle did not stop, and the officers gave chase. There were no cars between the cruiser and the vehicle; however, the officers lost sight of the vehicle for two or three seconds when it took a sharp left onto High Street.

The officers continued their pursuit and, when they saw the vehicle again, the front passenger's side window was open. The driver of the vehicle, who was later identified as Percival, continued at a high rate of speed and made a series of additional turns before stopping. The officers approached the car and noticed that the front passenger window was now closed. Percival was removed from the car, as was DaSilva, who was in the front passenger seat.⁴

A few minutes after the stop, another police officer, Antoine Jose Ramos, arrived to provide assistance. He retraced the path of the chase to search for any items that may have been thrown from the vehicle. He walked for about four minutes and then found two firearms in front of a residence located at 28 High Street. One of the firearms was found in the driveway, and the other was found on the front step of the house. The magazine of the second firearm had been ejected. The location of the firearms was consistent with where they would have landed had they been thrown from the open front passenger's side window of the vehicle as it passed by 28 High Street, where the police briefly lost sight of the car. Both firearms were damaged. The firearm retrieved from the driveway had scratches on the barrel end, and the firearm found on the front step had scratches on the corners and on the front and back, and also on the sight.

Discussion. In evaluating the sufficiency of evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The defendants' primary argument is that the evidence demonstrated only that they were present in a vehicle containing firearms and, therefore, the evidence was insufficient to establish joint or constructive possession. While we recognize the issue to be close, we conclude that the evidence was sufficient as a matter of law to support the defendants' convictions.

To prove constructive possession (which was the Commonwealth's theory here), the Commonwealth must present evidence to prove beyond a reasonable doubt that each defendant had “knowledge coupled with the ability and intention to exercise dominion and control” over the firearms (citation omitted). Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). While it is true that presence in a vehicle containing a firearm is not enough to prove constructive possession, presence together with “other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency’ ” (citation omitted). Commonwealth v. Albano, 373 Mass. 132, 134 (1977).

Here, both firearms were found along the path traveled by the vehicle, which was followed closely by the police. In addition, the firearms were damaged and found lying not far from the street supporting an inference that the firearms had been thrown from the vehicle. The front passenger window of the car was open at one point during the chase and then closed when the vehicle stopped, supporting an inference that the firearms were thrown from the front seat of the car, where DaSilva was sitting. While no one saw anyone throw the firearms from the vehicle, a jury could reasonably infer from the location of the firearms, namely that they were in plain view on a driveway and front step of a residence, that they had only recently landed there. Furthermore, a rational trier of fact could infer that Percival sped away when the police initiated the stop for a reason and that reason was to discard the firearms so that they would not be found during a motor vehicle stop.

This evidence, viewed as a totality in the light most favorable to the Commonwealth, would permit a rational jury to conclude beyond a reasonable doubt that the defendants knew there were firearms in the vehicle and that DaSilva threw them from the window just after the vehicle made a left onto High Street. It further permitted the jury to conclude that Percival and DaSilva knowingly had joint actual or constructive possession or control of the firearms. See Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012) (evidence sufficient to prove both driver and front seat passenger in car jointly possessed firearm that was found damaged along their flight path even though no one had seen firearm being thrown from vehicle).⁵ Accordingly, the evidence was sufficient to support the convictions of unlawful possession of firearms.

Judgments affirmed.

FOOTNOTES

3.   The jury acquitted each defendant of the following additional charges stemming from the same incident: two counts of carrying a loaded firearm, one count of unlawful possession of a large capacity feeding device, and one count of receiving a firearm with defaced identification number. In addition, the Commonwealth requested that the judge dismiss the second subsequent offense portion of the indictment charging DaSilva with possession of a firearm without a license after the parties agreed to a joint sentence recommendation. Percival, who had been charged with a fourth subsequent offense for possession of a firearm without a license, pleaded guilty to so much of the indictment that charged him with a second subsequent offense after the parties agreed to a joint sentence recommendation.

4.   There also were two individuals in the backseat. These two passengers are not defendants in this case.

5.   We are not persuaded by Percival's argument that the Commonwealth's evidence of joint venture was insufficient because it failed to establish which defendant possessed the firearms before they were thrown. Here, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove that the defendants jointly possessed the firearms.