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Appeals Court of Massachusetts.



Decided: April 08, 2021

By the Court (Lemire, Ditkoff & Grant, JJ.1)


The defendant, Dwight Clarke, was convicted of unlawful possession of a firearm, subsequent offense, and resisting arrest. Clarke received an enhanced sentence for the firearm offense under the Massachusetts Armed Career Criminals Act (MACCA). On appeal, Clarke challenges the sufficiency of the evidence underlying these convictions. Clarke also challenges the constitutionality of his enhanced sentence, arguing that his prior youthful offender adjudication cannot serve as a predicate “violent crime” under the MACCA. We reverse in part and affirm in part.

Background. Around 12:20 a.m. on November 29, 2016, police officers were called to investigate a vehicle parked near 157 Bowdoin Street in Springfield, Massachusetts. When the officers arrived, the driver of a vehicle matching the description provided made a three-point turn and drove away from the marked police cruiser. The officers discovered that the vehicle's inspection sticker was invalid and initiated a traffic stop on Florida Street, the next parallel street over from Bowdoin Street. The officers used a spotlight to illuminate the stopped vehicle and noticed Clarke, in the front passenger's seat, move towards the middle console of the car. Before the officers left their cruiser, Clarke exited the vehicle and ran away from them before disappearing between two houses, heading in the direction of Bowdoin Street. As he ran, Clarke was “holding at his waistband.”

The officers stayed with the driver and radioed for assistance to pursue Clarke. Responding uniformed police officers spotted Clarke running at high speed through the backyard of 151 Bowdoin Street. They immediately gave chase on foot through several private backyards. After Clarke ran into and broke a chain link fence, an officer yelled at Clarke, telling him to stop and that he was under arrest. Although the officer was close enough to make out Clarke's facial features, Clarke continued to flee towards Worthington Street. An officer intercepted Clarke at the corner of Bowdoin and Worthington Streets, at which time he submitted to the arrest. Clarke was wearing only one shoe when captured.

After the arrest, multiple police officers swept the area lying between the initial traffic stop and where the foot chase began, along what officers presumed to be Clarke's flight path. Officers found a shoe that matched the one worn by Clarke and “later on” discovered a handgun approximately fifteen to twenty meters away on an adjacent property. Neither the addresses of the properties nor the precise location of the handgun in relation to the shoe were established at trial. No witnesses observed Clarke with the handgun nor was he seen on the property where it was found. Subsequent tests established that the handgun was functional. Clarke did not have a firearm license.

A jury found Clarke guilty of unlawful possession of a firearm, G. L. c. 269, § 10 (a), subsequent offense, and resisting arrest, G. L. c. 268, § 32B. After a jury-waived trial on the subsequent offense, the judge found Clarke guilty as an armed career criminal under the MACCA, G. L. c. 269, § 10G (a), and imposed an enhanced sentence of three to four years in prison.2 The judge imposed a one-year sentence (concurrent) for resisting arrest. Clarke asks the court to vacate his convictions for unlawful possession of a firearm and resisting arrest, or, in the alternative, to vacate the finding of guilt under the MACCA.

Discussion. 1. Unlawful possession of a firearm. We review Clarke's conviction to determine “whether, after viewing the evidence [and all permissible inferences to be drawn therefrom] in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of [G. L. c. 269, § 10 (a)] beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). We conclude that the evidence presented failed to meet this standard.

Here, the Commonwealth was required to prove beyond a reasonable doubt that Clarke knowingly possessed a firearm outside of his place of residence or business without having a license to carry a firearm. G. L. c. 269, § 10 (a). Commonwealth v. Taylor, 486 Mass. 469, 473 (2020). The only issue in dispute is whether possession permissibly could be inferred from circumstantial evidence. See Commonwealth v. Ashford, 486 Mass. 450, 454–455 (2020), quoting Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (jury can infer element of offense provided it does not “pil[e] ‘inference upon inference’ ”); Commonwealth v. O'Brien, 305 Mass. 393, 400–401 (1940) (courts determine whether inferences are permissible). While possession may be established by “reasonable and possible” inferences, Ashford, 486 Mass. at 455, we rely on our own “experience and common sense” to determine whether proposed inferences are too remote. Commonwealth v. Gouse, 461 Mass. 787, 795 (2012) (permissibility not determined by bright line rules but court's own independent judgment). See Ashford, 486 Mass. at 454–455, quoting Commonwealth v. Lopez, 484 Mass. 211, 216 (2020) (essential elements cannot “rest in surmise, conjecture, or guesswork”); O'Brien, 305 Mass. at 401 (“if, upon all the evidence, the question of ․ guilt ․ is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand”).

The Commonwealth's case relied on three key facts: first, Clarke moved towards the center console of the vehicle during the traffic stop; second, Clarke held onto his waistband as he fled; and, third, a functional handgun was discovered approximately fifteen to twenty meters from where officers found a shoe matching the one worn by Clarke. It certainly is possible that Clarke retrieved the handgun from the console, tucked it into his waistband (an area commonly used to conceal firearms), and then discarded it as he ran. Likewise, it is possible that the handgun was located along Clarke's actual flight path based on its proximity to the shoe. Nevertheless, we do not believe that an inference of possession, however plausible, was permissible based on the vague testimonial and scant documentary evidence offered at trial, especially with respect to how the officers found the shoe and “later on” found the handgun on a property that was either 175 Bowdoin Street or a property adjacent to and behind it, where Clarke was neither observed nor placed by other evidence.

In comparable cases, our courts have deemed insufficient relatively stronger circumstantial evidence. See, e.g., Commonwealth v. French, 476 Mass. 1023, 1025 (2017) (fingerprints on window removed during break-in insufficient where window was accessible to passersby before and after break-in); Commonwealth v. Morris, 422 Mass. 254, 257, 259–260 (1996) (fingerprint on robbery mask insufficient despite defendant's association with robbers, calls to robbers from his residence, access to vehicle resembling getaway vehicle); Commonwealth v. Fancy, 349 Mass. 196, 200–201 (1965) (association with other defendants, access to stolen whisky, providing false name to police insufficient proof of larceny or conspiracy to commit larceny). The question would be considerably closer had the Commonwealth presented any additional evidence to suggest possession. See Gouse, 461 Mass. at 795, quoting Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) (“presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency”). For instance, testimony from residents along the presumed flight path regarding whether they had seen the handgun or any firearm in the area before the arrest, indicia of consciousness of guilt,3 visual aids showing the presumed flight path and location of the handgun in relation to the shoe, or other physical evidence tying Clarke to the handgun (e.g., fingerprints, ammunition or other firearm paraphernalia on Clarke's person or in the stopped vehicle) might have sufficed. See, e.g., Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012) (firearm's shattered handle and conspicuous placement on sidewalk along flight path with no other apparent source sufficient to infer defendant threw it from vehicle while fleeing police); Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552–553 (2015) (location of firearm along observed flight path from police, lying to police, shedding and concealing clothing in garbage cans sufficient to infer possession).

As it was, the jury could reach a guilty verdict only by stringing together multiple uncorroborated and layered inferences regarding the origin of the handgun and Clarke's actions when he was out of sight of the officers; such speculation cannot satisfy the burden of proof beyond a reasonable doubt. See Ashford, 486 Mass. at 454–455 (knowing possession could not be inferred where defendant denied owning loaded firearm in his vehicle despite expert establishing that defendant was more likely to carry loaded firearm for protection); O'Brien, 305 Mass. at 401–402 (evidence of fraudulent conversion insufficient where Commonwealth failed to exclude other possible means of loss, presented no proof of account falsification or other suspicious behavior). Thus, we must vacate Clarke's conviction for unlawful possession of a firearm as well as his dependent conviction as an armed career criminal under the MACCA.4

2. Resisting arrest. To prove resisting arrest, the Commonwealth was required to show that Clarke “knowingly prevent[ed] or attempt[ed] to prevent a police officer, acting under color of his official authority, from effecting an arrest of the [defendant by] ․ means which create[d] a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B (a). We conclude that the evidence was sufficient in this regard. See Latimore, 378 Mass. at 677. See also Commonwealth v. Hart, 467 Mass. 322, 328 (2014) (resisting arrest requires “intensely factual, nuanced inquiry” regarding defendant's behavior and police response).

Taken in the light most favorable to the Commonwealth, the facts show that the arrest began the moment the police officer yelled at Clarke that he was under arrest for breaking the fence. See Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting Commonwealth v. Cook, 419 Mass. 192, 198 (1994) (defining arrest as [1] “actual or constructive seizure,” [2] done “with the intention to effect an arrest,” [3] “so understood by the person detained”); Commonwealth v. Grant, 71 Mass. App. Ct. 205, 209–210 (2008) (at least some objective communication of intent to arrest is required). Even if Clarke did not hear the officer, a reasonable person in his position -- chased on foot by multiple uniformed police officers through a residential area in the middle of the night after fleeing a traffic stop and damaging private property -- would objectively understand that the officers intended to arrest him. Cf. Commonwealth v. Quintos Q., 457 Mass. 107, 110–111 (2010) (no resisting arrest where officers failed to communicate intent and reasonable person would not believe he was under arrest).

In the alternative, Clarke argues that his flight did not create a “substantial risk of causing bodily injury” to the officers, a relatively low threshold under our case law. See, e.g., Grandison, 433 Mass. at 144–145 (substantial risk of being “struck or otherwise injured” when defendant briefly wrested his arm from arresting officer). Accepting, arguendo, Clarke's contention that the risked injury must be more than “a stubbed toe,” “skinned knee,” or “scratched ․ elbow,” the facts amply demonstrate that such a risk existed. See id. at 145. See also Commonwealth v. Montoya, 457 Mass. 102, 106 (2010) (substantial risk created by fence at precipice of canal “which presented a tripping hazard, especially in the dim light, as well as from the canal itself” twenty-five feet down). The nature of the flight -- at high speed in the dark, through private property and over obstacles, such as unstable fences -- was enough to put officers at risk of tripping, falling, colliding with, or otherwise being injured by unknown and obscured objects. See Montoya, 457 Mass. at 105-106; Grandison, 433 Mass. at 145. Accord G. L. c. 265, §§ 13J (a), 13K (a), 39 (b) (defining “bodily injury” as including burns, bone fractures, head or internal organ injuries). We affirm.

Conclusion. On the charge of unlawful possession of a firearm, subsequent offense, the judgment is reversed, the verdict and finding of guilt are set aside, and judgment shall enter for the defendant. The remaining judgment on resisting arrest is affirmed.

So ordered.

Affirmed in part; reversed in part


2.   Citing Commonwealth v. Baez, 480 Mass. 328, 329, 331 (2018), the judge accepted as a predicate “violent crime” Clarke's youthful offender adjudication for assault by means of a dangerous weapon.

3.   We follow the Supreme Judicial Court in discounting Clarke's flight from the police as probative of consciousness of guilt. See Commonwealth v. Evelyn, 485 Mass. 691, 708–709 (2020), citing Commonwealth v. Warren, 475 Mass. 530, 539-540 (2016).

4.   Because we vacate Clarke's convictions under G. L. c. 269, §§ 10 (a), 10G (a), we need not reach his constitutional challenges to the MACCA.

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