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16-P-1343                                           Appeals Court

              COMMONWEALTH   vs.   CHARLES E. SUMMERS.


                          No. 16-P-1343.

        Bristol.      September 7, 2017. - May 25, 2018.

   Present:   Green, C.J., Trainor, Vuono, Wolohojian, Milkey,
                       Blake, & Singh, JJ.1


Firearms. Evidence, Firearm, Constructive possession.
     Practice, Criminal, Required finding.



     Complaint received and sworn to in the Taunton Division of
the District Court Department on August 3, 2015.

    The case was heard by Paula J. Clifford, J.


     Robert J. Galibois, II, for the defendant.
     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.




    1  This case was initially heard by a panel comprised of
Justices Vuono, Wolohojian, Milkey, Blake, and Singh. After
circulation of a majority and a dissenting opinion to the other
justices of the Appeals Court, the panel was expanded to include
Chief Justice Green and Justice Trainor. See Sciaba Constr.
Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993).
                                                                          2


       BLAKE, J.        Following 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.2      The defendant appeals, contending that the evidence

that he possessed these items was insufficient as a matter of

law.       We affirm.

       Background.        Taking 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.

       Officer Collins obtained identification from the two people

in the front compartment of the Kia, but not from the defendant.




       The defendant was acquitted of defacing a firearm serial
       2

number.
                                                                    3


As Officer Collins "ran" the information in his cruiser, he

learned that there was an outstanding warrant for the front seat

passenger, Michael MacNamara.3   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 catch him.

     Returning 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.




     3 There also was a warrant outstanding for the defendant,
although there is no indication that Officer Collins was aware
of it at the time.
                                                                   4


    The 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."

    Discussion.    When 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).

    Here, the Commonwealth's case against the defendant was

presented on the theory of constructive possession, which

requires the Commonwealth to establish the defendant's
                                                                      5


"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).

    The 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
                                                                     6


v. Garcia, 409 Mass. 675, 686-687 (1991).    Here, we have

significantly more than mere presence.

     Taken 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 backpack4 was a mere two to three feet from the

defendant, well within his reach.5    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




     4 Nothing personal or identifiable to the defendant was
found in the backpack.

     5   The defendant is six feet, seven inches tall.
                                                                    7


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 drawing Officer Collins's attention to

the backpack, made certain that the officer both found the

contraband, and knew that they belonged to the defendant.

    In addition, a rational fact finder could find that the

defendant engineered what can reasonably be construed to be a

ruse, which allowed him to flee the scene and avoid being

connected to the contraband.   "False statements to police may be

considered as consciousness of guilt if there is other evidence

tending to prove the falsity of the statements."   Commonwealth

v. Vick, 454 Mass. 418, 424 (2009), quoting from Commonwealth v.

Robles, 423 Mass. 62, 71 (1996).   Here, Officer Collins allowed

the defendant to leave the scene as he claimed he had a hurt or

injured child.   However, when Officer Collins was alerted by

MacNamara to the backpack, the defendant ran from the scene and

Officer Collins was unable to see or locate him.   Indeed, it

took approximately one month for the defendant to be arrested.

The actions of the defendant may reasonably lead to the

conclusion that the story of an injured child was just that, a

story.
                                                                     8


    The fact that there was an outstanding warrant for the

defendant for a motor vehicle violation does not alter the

result.   Officer Collins and the defendant were acquainted with

one another and exchanged pleasantries during the initial

encounter.     Officer Collins had not previously arrested the

defendant, and there was no reason to believe that the officer

was somehow targeting the defendant to arrest him on the

outstanding warrant.     Officer Collins only asked the driver and

MacNamara for identification, and agreed to let the defendant

leave when he asked permission to do so.

    Ultimately, the defendant's claim of an injured child

allowed him to flee the scene.     This effort to escape from the

Kia and to leave the scene is redolent of guilt.     Indeed, it is

the defendant's behavior after the police arrived that permits

an inference of the defendant's intent to exercise dominion and

control of the contraband prior to the arrival of the police.

Contrast Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781

(1991) (defendant's response to police negated link to

contraband).

    Flight is often considered a "plus" factor supporting an

inference that the occupant intended to exercise dominion and

control over the illegal contraband.     See Commonwealth v. Namey,

67 Mass. App. Ct. 94, 98-102 (2006).     See also Commonwealth v.

Sabetti, 411 Mass. 770, 778 (1992) (evidence of constructive
                                                                   9


possession sufficient where defendant attempted to flee,

demonstrating consciousness of guilt); Commonwealth v.

Jefferson, 461 Mass. 821, 826 (2012) (reasonable jury could

infer that defendant fled to throw away contraband that he

feared police would find during stop).   It is also notable that

of the three people in the Kia, the defendant was the only

person who initially neither stayed at the scene nor tried to

draw the attention of Officer Collins to the backpack.

Constructive possession "may be inferred from circumstantial

evidence which, in terms of practical experience of the conduct

of human beings, points to such a finding."   Commonwealth v.

Brown, 34 Mass. App. Ct. 222, 225 (1993).

    Additionally, the defendant's actions and statements when

he was arrested provide a further basis for the fact finder to

infer that the defendant constructively possessed the firearm

and ammunition.   The defendant stated that he did not

"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."   From such statements, a

rational fact finder could infer that the defendant knew there

was a firearm and ammunition in the backpack, and that he

possessed it (whether on his own or jointly with one of the

other occupants of the Kia).   The defendant persisted in his

efforts, which began with the pretext at the scene, to blame
                                                                    10


others or, at the very least, to distance himself from the

contraband.   Collectively, this evidence provides a "particular

link," Commonwealth v. Boria, 440 Mass. 416, 420 (2003), between

the contraband and the defendant.    Contrast Commonwealth v.

Romero, 464 Mass. at 658 (no additional evidence linking

defendant's access to vehicle to firearm inside).    It also

constitutes further consciousness of guilt evidence that tips

the scale in favor of sufficiency.     See Commonwealth v. Elysee,

77 Mass. App. Ct. 833, 846-847 (2010) ("nonresponsive and

deceptive interactions" with police were indicative of

consciousness of guilt).

    A rational fact finder, employing common sense, see

Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976), could

reasonably find that the defendant had the requisite ability and

intent to exercise dominion and control over the firearm and

ammunition.   See Commonwealth v. McIntosh, 78 Mass. App. Ct. 37,

41 (2010) ("Intent to exercise dominion and control can be

inferred from the defendant's conduct").    As has been stated in

the context of a joint venture, "[t]he line that separates mere

knowledge of unlawful conduct and participation in it, is 'often

vague and uncertain.   It is within the province of the [fact

finder] to determine from the evidence whether a particular

defendant [has] crossed that line.'"    Commonwealth v. Longo, 402
                                                                  11


Mass. 482, 487 (1988), quoting from Commonwealth v. Cerveny, 387

Mass. 280, 287 (1982).

    The combination of the defendant's location in the Kia, his

adjacency to the backpack, the ruse he created, his flight from

the scene, and his statements upon his arrest provides a

sufficient basis on which a rational fact finder could infer

that the backpack -- and thus the firearm and ammunition --

belonged to the defendant.

                                   Judgments affirmed.
    VUONO, J. (dissenting, with whom Wolohojian and Singh, JJ.,

join).   I agree with the majority that, viewed in the light most

favorable to the Commonwealth, the evidence sufficed to prove

beyond a reasonable doubt that the defendant possessed the

requisite knowledge of the firearm and ammunition and that he

had the ability to control those items.     Because I conclude that

the evidence was insufficient to establish beyond a reasonable

doubt that the defendant intended to exercise dominion and

control over the firearm and ammunition, I would reverse the

convictions.

    The Supreme Judicial Court has emphasized that, in

constructive possession cases, the question whether there is

sufficient proof of intent to exercise dominion and control over

the weapon or contraband is a distinct inquiry that must be

satisfied by proof beyond a reasonable doubt.     See Commonwealth

v. Romero, 464 Mass. 648, 653-654 (2013).     Romero, like this

case, involved the discovery of a firearm in a vehicle with

multiple occupants.     The firearm in question was being looked at

by the person sitting next to the defendant, who was the driver

and owner of the car.    The court held that the defendant's

proximity to the firearm in plain view in his own vehicle

coupled with evidence that the defendant had handled the firearm

earlier in the day supported the inference that the defendant

knew of the firearm and had the ability to control it, but did
                                                                   2


not support an inference that the defendant had the intent to

exercise dominion and control over the firearm.   Ibid.    The

court reasoned that, despite the defendant's proximity to the

firearm, intent to control could not be inferred from knowledge

and the ability to control.   Id. at 655-659.

    As Romero demonstrates, where a firearm is found in

proximity to multiple individuals in a vehicle but not in the

actual possession of any of them, proving that each of them

individually (or jointly) intended to exercise dominion and

control over the firearm is neither an empty nor necessarily

simple exercise.   Such intent is generally proven by

circumstantial evidence, and the reasonable inferences that can

be drawn therefrom.   Id. at 653.

    For example, this court's cases hold that the intent to

exercise dominion and control over a firearm or contraband may

be inferred from evidence tending to show a defendant's special

connection to the item or to the place where it is located.      See

Commonwealth v. Valentin, 55 Mass. App. Ct. 667, 671 (2002)

(defendant's intent to control gun found in open view in

backpack in vehicle that defendant was driving inferred where

backpack also contained defendant's paystub and work shirt).

Contrast Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct.

677, 684-686 (2006) (firearms and ammunition found in closets of
                                                                    3


apartment occasionally occupied by defendant warranted inference

of knowledge and ability to control but not intent to control).

    Such intent also may be inferred when the defendant makes

an attempt to conceal or hide the item in question, or makes a

gesture toward it to suggest that he had an intent to exercise

control over it.   See Commonwealth v. Brzezinski, 405 Mass. 401,

410 (1989) (defendant responded to police entry by running into

closet containing cocaine and drug paraphernalia); Commonwealth

v. Horton, 63 Mass. App. Ct. 571, 578 (2005) (defendant reached

below his leg and kicked at something below driver's seat in

front of him where gun was ultimately found); Commonwealth v.

McIntosh, 78 Mass. App. Ct. 37, 41-42 (2010) (defendant ran to

bedroom and proceeded directly to bed where firearm was

discovered, and attempted to prevent others from entering room).

Contrast Commonwealth v. Ramos, 51 Mass. App. Ct. 901, 902-903

(2001) (although knowledge of shotgun was established by fact

part of it was protruding from under mattress across from where

defendant was sitting, neither ability nor intent to control

shotgun was established due to absence of personal belongings

connecting defendant to premises).

    Here, there was no evidence of a special connection between

the defendant and the firearm or its location.   Apart from being

a passenger in the car, there was no link between the defendant

and the vehicle.   Moreover, the defendant's only link to the
                                                                   4


backpack was that it was located on the floor of the back seat

within his reach.1   There was no evidence that the backpack,

which was located in an area accessible to all three occupants

of the vehicle, and was not open,2 belonged to the defendant.3

Nor was there evidence that the defendant made any gesture




     1 The majority posits that by placing his cellular telephone
on the seat next to him the defendant "[demonstrated] some
intent to exercise dominion and control over the back seat
compartment." Ante at         . This proposition places too
much weight on an innocuous gesture. In any event, even if the
defendant exercised control over the back seat when he put his
telephone down, it does not follow that he also intended to
exercise control over the backpack, which was on the floor.

     2 The majority suggests that the defendant "had the most
ready access to [the backpack]." Ante at         . While it is
true that the defendant was the only person sitting in the back
seat, there is no evidence that the defendant's access to the
backpack was superior to that of the front seat passenger or
even the driver. Commonwealth v. Sadberry, 44 Mass. App. Ct.
934 (1998), upon which the majority relies is distinguishable.
In Sadberry, a gun was found under the defendant's seat in the
vehicle he was operating. The gun smelled of burnt gun powder
and had been fired by one of the passengers. We observed that
the question whether the defendant intended to exercise dominion
and control over the gun was a close one, but we concluded that
evidence of the defendant's presence in the car with two loaded
guns, one of which was in plain view, ski masks, gloves, and
black clothing, sufficed to establish an intent to control the
firearm. Id. at 936.

     3 As the majority acknowledges, there was no evidence that
the defendant had a personal connection to any of the items
found in the backpack. Officer Collins testified that a number
of items were retrieved from the backpack, but there was no
evidence that any of the items were tied to the defendant. In
addition, the ammunition was in a sock which, as Officer Collins
acknowledged on cross examination, would not fit the defendant.
                                                                    5


toward the backpack which would indicate ownership or an attempt

to hide or conceal it.

     Despite the absence of evidence connecting the defendant to

the firearm, the Commonwealth argues that it met its burden of

proof because it introduced evidence of the defendant's presence

in the car "supplemented by other incriminating evidence" from

which the fact finder reasonably could infer that the defendant

had the intent to control the firearm.     Commonwealth v.

Sinforoso, 434 Mass. 320, 327 (2001) (quotation omitted).     The

additional inculpatory evidence on which the Commonwealth

primarily relies is the behavior of the front seat passenger,

Michael MacNamara, and the defendant's conduct in creating a

ruse that enabled him to flee from the scene.4    Even viewed in

the light most favorable to the Commonwealth, this evidence

combined with the defendant's presence in the car and his

proximity to the backpack is not sufficient to withstand a

motion for a required finding of not guilty.

         Officer Collins testified that, while he was obtaining

information about the driver and MacNamara, the defendant

approached his cruiser and informed him that his son fell or was


     4 Although we consider all of the evidence in its totality
in determining whether the Commonwealth has met its burden of
proof, we note that the Commonwealth does not argue that the
defendant's comment to the police questioning the basis for the
charges establishes anything more than knowledge of the firearm.
                                                                    6


hurt and asked if he could leave.    Upon receiving permission to

go, the defendant began to walk away as Officer Collins started

to get out of his car.   At this point, MacNamara "hopped" out of

the car, shouted, and made a gesture toward the back of the car.

To be sure, MacNamara's behavior demonstrates that he knew of

the gun and, as the Commonwealth argues, it is reasonable to

infer that he did not want to be held responsible for it (hence

the reason for his own flight).     However, MacNamara's reaction

sheds little light on the defendant's intent to control the

firearm.   There may be instances when a defendant's intent may

be inferred from the behavior of a codefendant or a joint

venturer, but this case does not present one.5    The most that




     5 The Commonwealth argues that the judge could draw the
reasonable inference that the defendant heard MacNamara shouting
and, as the majority states, this "caused the defendant to shift
from leaving the scene, to fleeing the scene." Ante at          .
According to the Commonwealth, this "shift" points to the
defendant's guilt and constitutes additional evidence that tips
the scale in favor of sufficiency. We reject this "argument
because it piles inference upon inference[,] which cannot form
the basis of a conviction." Commonwealth v. Ramos, supra at 903
n.2. Furthermore, we see no support in the evidence for the
majority's supposition that the defendant began to run "when
Officer Collins was alerted by MacNamara to the backpack." Ante
at        . Officer Collins testified only that he saw
MacNamara standing and pointing over the roof of the car toward
the back seat. He then returned to his cruiser, at which time
he saw the defendant running. Officer Collins left the scene in
his cruiser and attempted to locate the defendant without
success. By the time Officer Collins had returned, MacNamara
had fled. Officer Collins had no knowledge of the backpack
until the driver, who had remained, showed it to him.
                                                                     7


reasonably can be inferred from MacNamara's reaction is his own

knowledge of the firearm.

     This brings me to the defendant's conduct following the

stop.    I agree that the evidence supports the inference that the

defendant created a ruse so that he could leave and that he did,

in fact, flee.    There is no doubt that these facts allow for the

inference of consciousness of guilt.6   But that alone does not

suffice.    Instead, I must ask whether this evidence reasonably

permits the specific inference that the defendant intended to

exercise dominion and control over the firearm.    Given the

limited incriminatory evidence with respect to the defendant, I

cannot conclude with confidence that an inference of intent to

exercise dominion and control over the firearm is reasonable

here.    See Commonwealth v. Sespedes, 442 Mass. 95, 102 (2004),

citing Commonwealth v. Amparo, 43 Mass. App. Ct. 922, 924 (1997)

(consciousness of guilt evidence, including flight upon police

arrival, may have indicated knowledge of presence of contraband

but did not establish intent to control it where there was no

established connection between defendant and apartment);


     6 It bears noting that the cases cited by the majority in
support of the proposition that "flight is often considered a
plus factor supporting an inference that the occupant [of a
motor vehicle] intended to exercise dominion and control over
the illegal contraband," ante at        , are distinguishable in
so far as each case involved considerably more direct evidence
of guilt.
                                                                    8


Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781-782 (1991)

(defendant's flight from police, away from apartment containing

contraband, insufficient to establish intent to control without

any other connection to apartment).

     As the Commonwealth acknowledges, there was an outstanding

warrant for the defendant's arrest at the time the vehicle was

stopped.7   This supports an alternate inference that the

defendant fled because of the warrant.    See Commonwealth v.

Fancy, 349 Mass. 196, 201 (1965) (weight attributed to

consciousness of guilt evidence weakened considerably by fact of

outstanding warrant, giving defendant additional motive for

concealing his identity).   It is true that "[t]o the extent that

conflicting inferences are possible from the evidence, 'it is

for the jury to determine where the truth lies.'"    Commonwealth

v. Martino, 412 Mass. 267, 272 (1992), quoting from Commonwealth

v. Wilborne, 382 Mass. 241, 245 (1981).   At the same time,

however, under the familiar Latimore standard, "to sustain the

denial of a directed verdict, it is not enough for the appellate




     7 As regards the warrant, I agree with the majority that
there was no evidence that Officer Collins knew of the warrant
or "target[ed] the defendant to arrest him on the outstanding
warrant." Ante at         . In any event, whether Officer
Collins was aware of the outstanding warrant has no bearing on
the question of the defendant's motive. What matters is that
there was an equally plausible alternative reason that explains
the defendant's conduct.
                                                                      9


court to find there was some record evidence, however slight, to

support each essential element of the offense; it must find that

there was enough evidence that could have satisfied a rational

trier of fact of each such element beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. at 677-678.   Furthermore,

"in carefully defined circumstances, a jury [are permitted] to

make an inference based on an inference to come to a conclusion

of guilt or innocence."   Commonwealth v. Dostie, 425 Mass. 372,

376 (1997).   However, "a jury may not use conjecture or

guesswork to choose between alternative inferences."   Ibid.     In

this case, the court does not have conflicting inferences that

can be resolved by the fact finder; the court has alternative

inferences that can only be resolved by resorting to conjecture

and speculation.

     In sum, I conclude that the Commonwealth failed to

establish the defendant's intent to exercise dominion and

control over the firearm and ammunition.   In my view, the

evidence in this case is weaker than what was presented in

Romero and the cases upon which the Commonwealth relies.

Accordingly, the defendant's motion for a required finding of

not guilty should have been allowed.
     SINGH, J. (concurring in the dissent).   Although I join in

the dissent, I write separately to express my concern over the

majority's use of consciousness of guilt evidence to meet a gap

in the essential elements of the crime charged, namely the

defendant's intent to exercise dominion and control over the

firearm and ammunition.   In this case, where the evidence failed

to establish the defendant's connection to the backpack

containing the firearm and ammunition and also failed to show

any manifestation of the defendant's intent to control the

contraband, the most powerful evidence the Commonwealth

presented was the defendant's flight from the scene.1   See

Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) ("Flight is

perhaps the classic evidence of consciousness of guilt").

However, consciousness of guilt "evidence must be probative of

the defendant's feelings of guilt concerning the crime of which

he is accused."   Commonwealth v. Morris, 465 Mass. 733, 738

(2013), quoting from Commonwealth v. Villafuerte, 72 Mass. App.

Ct. 908, 908 (2008).

     Here, the defendant fled before the officer gave any

indication that he was suspicious of any criminal conduct or had


     1 As noted by the dissent, ante at        , the behavior of
the other occupants of the car and the statements made by the
defendant one month after the incident were probative, at most,
only of the defendant's knowledge of the presence of the firearm
and ammunition within the closed backpack.
                                                                    2


even seen the backpack.    The officer had stopped the Kia for a

civil motor vehicle infraction and was checking identifications

when the defendant made an excuse to leave the area.    Arguably,

the defendant's flight was more probative of the defendant's

desire to avoid apprehension on the outstanding warrant than it

was of his knowing possession of the firearm and ammunition in

the backpack.2   See Commonwealth v. Fancy, 349 Mass. 196, 201

(1965) (weight attributed to consciousness of guilt evidence

"weakened considerably" by fact of outstanding warrant, giving

defendant additional motive for concealing his identity);

Commonwealth v. Handy, 30 Mass. App. Ct. 776, 782 n.6 (1991)

(evidence of flight alone is insufficient foundation for

conviction, particularly where defendant had at least one other

motive for his actions).

     In any event, the defendant's flight from the scene, even

if understood to be related to the firearm and ammunition,

cannot make up for an absence of evidence on each of the

elements of constructive possession.    While consciousness of

guilt evidence may support other evidence of guilt, it may not

supplant the evidence concerning the necessary elements of the

crime.   See Commonwealth v. Mazza, 399 Mass. 395, 400 (1987)




     2  As an officer testified regarding the defendant:    "he's
had warrants for him for my 16 years as a policeman."
                                                                    3


(consciousness of guilt evidence cannot obscure failure of

proof); Commonwealth v. Gonzalez, 475 Mass. 396, 413 (2016).

See also United States v. Otero-Mendez, 273 F.3d 46, 53 (1st

Cir. 2001) (evidence of flight may be introduced as probative of

guilty mind "if there is an adequate factual predicate creating

an inference of guilt of the crime charged" [quotation

omitted]).

     Here, the necessary element of the defendant's intent to

exercise dominion and control over the firearm and ammunition

was missing.     See Commonwealth v. Romero, 464 Mass. 648, 653-654

(2013).     The defendant's flight could not be used to meet this

gap in the evidence –- unless the flight itself allowed for an

inference of the defendant's intent to exercise dominion and

control.3    See Commonwealth v. Salemme, 395 Mass. 594, 602-603

(1985) (defendant's flight could not compensate for absence of

evidence as to whether defendant fired shot).     Here, the

defendant's flight away from the car does not allow a reasonable




     3 In my view, the language of cases suggesting that a
defendant's presence near contraband, supplemented by certain
"plus factors," Commonwealth v. Ortega, 441 Mass. 170, 174
(2004), may "tip the scale," Commonwealth v. Boria, 440 Mass.
416, 419 (2003), in favor of sufficiency for constructive
possession, tends to obscure the proper focus of the analysis.
It is not a simple matter of adding up factors; rather, the
factors must be viewed with respect to the reasonable inferences
that may be drawn therefrom. See Commonwealth v. Romero, 464
Mass. at 654-655.
                                                                     4


inference that he intended to control the firearm and ammunition

contained within the backpack, which he left behind in the car.4

See Black's Law Dictionary 594 (10th ed. 2014) ("dominion" means

"control"); id. at 403 ("control" means "to exercise power or

influence over").   See also Commonwealth v. Whitlock, 39 Mass.

App. Ct. 514, 519 (1995) (constructive possession requires

"evidence of dominating influence over the contraband").

     The Commonwealth's case essentially consisted of the

defendant's flight from a car from which a closed backpack

containing a firearm and ammunition were later recovered.    It is

well established that proximity to contraband alone cannot

establish all of the elements of possession.   See Commonwealth

v. Albano, 373 Mass. 132, 134 (1977).   A conclusion of




     4 The cases relied on by the majority to support its
position that flight "is often considered a plus factor
supporting an inference that the occupant intended to exercise
dominion and control" are inapposite. Ante at         . In
Commonwealth v. Namey, 67 Mass. App. Ct. 94, 99-101 (2006), the
defendant was charged with possession of a stolen motor vehicle
in which he was a passenger. His intent to control the stolen
motor vehicle was inferred, not from his flight from the car,
but rather from his actual use of the motor vehicle with the
driver to prepare to commit other crimes. Contrast Commonwealth
v. Darnell D., 445 Mass. 670, 673-674 (2005) (passenger's intent
to control stolen motor vehicle not established by consciousness
of guilt in abandoning car, evading police, and lying about his
whereabouts). Likewise, while both Commonwealth v. Sabetti, 411
Mass. 770, 778 (1992), and Commonwealth v. Jefferson, 461 Mass.
821, 826 (2012), involved flight in the constructive possession
analysis, neither relied on flight to establish the element of
intent to exercise dominion and control.
                                                                   5


constructive possession based on proximity to contraband is

"forged entirely of suspicion."   Commonwealth v. Gonzalez, 42

Mass. App. Ct. 235, 240 (1997).   Nor can a conviction rest

solely on evidence of consciousness of guilt.   See Commonwealth

v. Paniaqua, 413 Mass. 796, 803 n.7 (1992).   This is so because

"there are numerous reasons why an innocent person might flee."

Commonwealth v. Toney, 385 Mass. 575, 585 n.6 (1982).5   See

Commonwealth v. Nadworny, 396 Mass. 342, 371 (1985)

(consciousness of guilt evidence is equivocal in nature).

     Where a conviction is premised on these two elements,

necessarily involving conjecture, I cannot accept that guilt has

been proven beyond a reasonable doubt.6




     5 Indeed, "the probative value of flight 'as circumstantial
evidence of guilt depends on the degree of confidence with which
four inferences can be drawn: (1) from the defendant's behavior
to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the
crime charged; and (4) from consciousness of guilt concerning
the crime charged to actual guilt of the crime charged.'" 2
McCormick on Evidence § 263, at 314 (7th ed. 2013), quoting from
United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977).
See United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005)
(for flight to demonstrate guilt, each link in "chain of
inferences" must be supported).

     6 As juries have long been instructed, "it is not sufficient
to establish a probability, though a strong one arising from the
doctrine of chances, that the fact charged is more likely to be
true than the contrary; but the evidence must establish the
truth of the fact to a reasonable and moral certainty."
Commonwealth v. Webster, 5 Cush. 295, 320 (1850).
