Commonwealth v. Eutichio P. Calore.

• Court: Massachusetts Appeals Court
• Decided: February 6, 2025
• Docket: 24-P-0466
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-466

COMMONWEALTH

vs.

EUTICHIO P. CALORE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of one

count of carrying a firearm without a license in violation of

G. L. c. 269, § 10 (a), and one count of possession of

ammunition without a firearms identification card in violation

of G. L. c. 269, § 10 (h) (1). On appeal, he challenges the

sufficiency of the evidence as it relates to the element of

possession. We affirm.

We evaluate the sufficiency of the evidence to determine

"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"

(citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The evidence may be direct or circumstantial, and

we draw all reasonable inferences in favor of the Commonwealth."

Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting

Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

When evaluating for sufficiency, the evidence must be

reviewed with specific reference to the substantive elements of

the offense. See Latimore, 378 Mass. at 677–678. To convict

the defendant of unlawful possession of a firearm under G. L.

c. 269, § 10 (a), the Commonwealth must establish that the

defendant "'knowingly' posses[ed] a firearm outside of [his]

residence or place of business without also having a license to

carry a firearm." Commonwealth v. Guardado, 491 Mass. 666, 682

(2023), quoting Commonwealth v. Powell, 459 Mass. 572, 588

(2011), cert. denied, 565 U.S. 1262 (2012). And, as to the

charge of unlawful possession of ammunition under G. L. c. 269

§ 10 (h) (1), the Commonwealth must prove that the defendant

knowingly possessed ammunition that met the legal definition

without a valid firearms identification card. "The Commonwealth

may prove possession by circumstantial evidence." Commonwealth

v. Santana, 420 Mass. 205, 215 (1995), citing Commonwealth v.

Garcia, 409 Mass. 675, 686 (1991).

Focusing on the element of possession, the defendant

contends that there was insufficient evidence to prove that he

had actual or constructive possession of the firearm or

2 ammunition. We disagree. Here, the permissible inferences

drawn from the evidence most favorable to the Commonwealth amply

support the jury's finding that the defendant had constructive,

if not actual, possession of the firearm and ammunition. At

trial, a witness testified that she saw the driver of a truck

with a distinctive white and black color pattern, point an item

"which appeared to be a gun," out of the driver's side of the

truck window. She described the person holding the gun with his

left hand, making a "pull[ing]" motion with his right hand, and

pointing the firearm out the window. The witness described the

person as being a lighter-skinned Spanish individual, wearing a

fluffy gray jacket with a furry hood. Video footage obtained

from a neighbor's home confirmed the presence of the truck and

an audible bang, which the Commonwealth's ballistician testified

as consistent with the noise of a fired gun. Further, officers

of the Billerica Police Department stopped the vehicle in the

vicinity shortly after the incident. The defendant, who was the

operator of the black and white truck, was wearing a puffy gray

jacket with a fluffy hood. The police officer saw the defendant

pass an unidentified object to the passenger. The police found

a gun with live rounds of ammunition in the waistband of the

passenger as well as a spent shell casing with the same make and

caliber as the gun in the rear passenger seat underneath a

sweatshirt.

3 From all of this evidence, the jury were free to conclude

that the defendant possessed the gun and ammunition. It does

not matter whether the evidence is viewed through the lens of

actual as opposed to constructive possession because they are

not different theories. Commonwealth v. Fernandez, 48 Mass.

App. Ct. 530, 532 (2000). "Rather, they are simply two possible

ways of defining the same legal principle[;] [t]he essential

elements of either sort of possession are knowledge plus ability

and intention to control" (citation omitted). Commonwealth v.

Duncan, 71 Mass. App. Ct. 150, 154 (2008). In sum, there was

sufficient evidence, apart from mere presence in the truck where

the gun and ammunition were found, from which a jury could have

concluded that the defendant possessed the firearm and

ammunition.

Finally, we acknowledge that the jury found the defendant

not guilty of the charge of discharging a firearm within 500

feet of a building yet convicted him of the unlawful possession

of a firearm. It is well settled that inconsistent factual

verdicts, without more, do not invalidate a conviction.

"[F]actual inconsistencies in verdicts 'do not afford a ground

for setting aside a conviction as long as the evidence is

sufficient to support a conviction on the count on which the

guilty verdict was reached.'" Commonwealth v. Resende, 476

4 Mass. 141, 147 (2017), quoting Commonwealth v. Pease, 49 Mass.

App. Ct. 539, 542 (2000).

Judgments affirmed.

By the Court (Massing, Walsh & Brennan, JJ.1),

Clerk

Entered: February 6, 2025.

1 The panelists are listed in order of seniority.