COMMONWEALTH v. TAVARES DEPINA (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Betson P. Tavares-Depina, appeals from his conviction of unlawful possession of a loaded firearm. See G. L. c. 269, § 10 (n).² On appeal, the defendant contends that there was insufficient evidence to prove he knew that the firearm was loaded. We affirm.

Discussion. We summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Brown, 479 Mass. 600, 602 (2018). In the early morning hours of September 4, 2017, a 911 caller driving through the Dorchester neighborhood of Boston alerted the police that he was being followed by another car and had been threatened with a gun by a man named Betson. The caller said that Betson had threatened to kill him. The 911 caller also provided the make and model of the car, a burgundy Honda Accord, and the license plate number.³

Seconds after an alert was issued, Boston police officers spotted a burgundy Honda Accord matching the description and license plate given by the 911 caller. The officers stopped the car, which was driven by the defendant.⁴ A subsequent search of the car revealed a loaded firearm tucked under the front passenger seat, within reach of the driver. The butt of the gun was visible from behind the seat. There were no fingerprints on the gun or the cartridges, but the passenger's fingerprint was found on the magazine.

“In reviewing a claim of insufficient evidence, we ask ‘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.’ ” Brown, 479 Mass. at 608, quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On appeal, the defendant concedes that the evidence was sufficient to prove that he possessed a firearm but contends that the evidence was insufficient to prove that he knew the firearm was loaded.

The defendant's argument reduces to a claim that there is no direct evidence of knowledge. “Where there is no direct evidence that a defendant knew a gun was loaded, a jury rationally may infer that fact from circumstantial evidence.” Commonwealth v. Ashford, 486 Mass. 450, 454 (2020). See G. L. c. 269, § 10 (n). The circumstantial evidence here was compelling. The 911 caller stated that he had been threatened by a man with a gun and gave the defendant's name in response to a question regarding the gun. The gun was found under the passenger seat of the car within the defendant's reach. From this, a rational jury could infer that the defendant carried the gun for purposes of doing harm to the caller, and therefore knew the gun was loaded. See, e.g., Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200-201 (2018). The evidence was sufficient.

Judgment affirmed.

FOOTNOTES

2.   The defendant was also convicted of unlawful possession of ammunition, G. L. c. 269, § 10 (h), and unlawful possession of a firearm, G. L. c. 269, § 10 (a). He was acquitted of assault by means of a dangerous weapon. See G. L. c. 265, § 15B (b). At the request of the Commonwealth, the judge set aside the verdict of unlawful possession of ammunition as duplicative of the conviction of unlawful possession of a loaded firearm. The defendant does not appeal from the conviction of unlawful possession of a firearm.

3.   The caller said, “Somebody's following me, and then he's texting me, and then he -- he said he's gonna kill me. They got -- they have a gun.” When the 911 operator asked the caller if he saw a gun, the caller responded, “Yeah, it's Betson, his name is Betson.” The caller did not appear at trial, and the 911 recording was admitted (over objection) as an excited utterance. No argument is made on appeal that admitting the recording was an abuse of discretion.

4.   The passenger was tried as a codefendant.