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-327
COMMONWEALTH
vs.
KENT BLANE DANIELS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Kent Blane Daniels, was convicted of carrying a
loaded firearm without a license, carrying a firearm without a
license, and possession of ammunition without a firearm
identification (FID) card. On appeal, the defendant claims that
(1) the evidence was insufficient, (2) certain evidence was
admitted in error, and (3) the motion judge erred in denying his
motion to suppress evidence. We affirm in part and reverse in
part.
Discussion. 1. Sufficiency of the evidence. a.
Possession of a firearm. The defendant claims that there was
insufficient evidence to prove beyond a reasonable doubt that he constructively possessed the firearm found under the driver's
seat in the car that he was driving. In reviewing the
sufficiency of the evidence, the "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."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In the
absence of actual possession, proof of constructive possession
requires a showing that the defendant had "knowledge coupled
with the ability and intention to exercise dominion and control"
over the firearm. Commonwealth v. Than, 442 Mass. 748, 751
(2004), quoting Commonwealth v. Sespedes, 442 Mass. 95, 99
(2004). Whether the defendant had knowledge is a matter of fact
that can be inferred "from all the facts and circumstances
developed at the trial." Commonwealth v. Summers, 93 Mass. App.
Ct. 260, 262 (2018), quoting Commonwealth v. Casale, 381 Mass.
167, 173 (1980). The ability to control may also be inferred by
the defendant's proximity to the firearm. See Commonwealth v.
Sadberry, 44 Mass. App. Ct. 934, 936 (1998).
Here, an Ayer police officer stopped the car that the
defendant was driving after learning that the owner's license
was suspended, and the inspection sticker was expired. The
defendant was not the owner; the registered owner was in the
2 front passenger seat. The defendant provided the officer with a
Florida identification. The officer returned to his police
cruiser to ascertain whether the defendant had a valid driver's
license in any State. As he was returning to the driver's side
window, the officer "observed [the defendant's] right hand
coming up from the mat, like the floorboard" such that "[h]is
right hand [was] behind his right leg, on its way out." The
officer asked the defendant to get out of the car, and the
defendant complied. The defendant was asked about weapons, and
another officer located and secured a knife on the defendant's
person. After the defendant was placed under arrest for driving
without a license, the police found a loaded firearm under the
driver's seat.
Commonwealth, a rational trier of fact could infer the
defendant's knowledge of and intent to control the firearm based
on his actions of reaching down into the area where the firearm
was ultimately found. And, because the defendant was sitting in
the driver's seat directly over where the firearm was recovered,
he "had easy access to it and thus the ability to exercise
control over it." Sadberry, 44 Mass. App. Ct. at 936. See
Commonwealth v. Horton, 63 Mass. App. Ct. 571, 578 (2005)
(kicking at area where handgun was discovered sufficient to
3 support finding that defendant had control over gun). On these
facts, the evidence sufficed.
b. Possession of a loaded firearm and ammunition. The
defendant additionally argues -- and the Commonwealth concedes -
- that there was insufficient evidence to support the
convictions of carrying a loaded firearm without a license and
possession of ammunition without an FID card. Notwithstanding
the Commonwealth's concession, we conduct our own independent
review of the claim. See Commonwealth v. Poirier, 458 Mass.
1014, 1015 (2010).
"To convict the defendant of unlawful possession of a
loaded firearm, the Commonwealth [is] required to prove that the
defendant knowingly possessed a firearm that was loaded with
ammunition." Commonwealth v. Galarza, 93 Mass. App. Ct. 740,
748 (2018), quoting Commonwealth v. Johnson, 461 Mass. 44, 52
(2011). That is, "the Commonwealth must prove that the
defendant knew the firearm he or she possessed was loaded."
Commonwealth v. Brown, 479 Mass. 600, 601 (2018).
Here, the ammunition in the firearm was the only evidence
the Commonwealth presented that the firearm was loaded. Because
"the defendant 'could not have discerned whether the gun was
loaded merely by looking at it,' and the Commonwealth presented
no evidence that the defendant knew it was loaded," the evidence
was insufficient. Brown, 479 Mass. at 605, quoting Commonwealth
4 v. Brown, 91 Mass. App. Ct. 286, 293 (2017). Further,
"[p]ossession of ammunition without [an FID] card is a lesser
included offense of unlawful possession of a loaded firearm."
Galarza, 93 Mass. App. Ct. at 748. The only ammunition found
here was inside the firearm itself. Consequently, neither
conviction can stand.
2. Knife testimony. The defendant contends that the judge
erred in allowing testimony that a knife was found on the
defendant's person at the time of his arrest. He claims it was
irrelevant and prejudicial. Because the defendant objected to
the admission of this evidence, we review for prejudicial error.
See Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022).
Passing on the question of error, we conclude that the defendant
was not prejudiced by this evidence.
"An error is not prejudicial if it did not influence the
jury, or had but very slight effect." Commonwealth v. Schoener,
491 Mass. 706, 720 (2023), quoting Teixeira, 490 Mass. at 742.
In weighing the risk of unfair prejudice, we "tak[e] into
account the effectiveness of any limiting instruction,"
Commonwealth v. Chalue, 486 Mass. 847, 866 (2021), the
application of which "ordinarily renders any potentially
prejudicial evidence harmless" (citation omitted). Commonwealth
v. Crayton, 470 Mass. 228, 251 (2014). Here, after the officer
testified that he "observed a . . . knife get pulled from [the
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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-327
COMMONWEALTH
vs.
KENT BLANE DANIELS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Kent Blane Daniels, was convicted of carrying a
loaded firearm without a license, carrying a firearm without a
license, and possession of ammunition without a firearm
identification (FID) card. On appeal, the defendant claims that
(1) the evidence was insufficient, (2) certain evidence was
admitted in error, and (3) the motion judge erred in denying his
motion to suppress evidence. We affirm in part and reverse in
part.
Discussion. 1. Sufficiency of the evidence. a.
Possession of a firearm. The defendant claims that there was
insufficient evidence to prove beyond a reasonable doubt that he constructively possessed the firearm found under the driver's
seat in the car that he was driving. In reviewing the
sufficiency of the evidence, the "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."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In the
absence of actual possession, proof of constructive possession
requires a showing that the defendant had "knowledge coupled
with the ability and intention to exercise dominion and control"
over the firearm. Commonwealth v. Than, 442 Mass. 748, 751
(2004), quoting Commonwealth v. Sespedes, 442 Mass. 95, 99
(2004). Whether the defendant had knowledge is a matter of fact
that can be inferred "from all the facts and circumstances
developed at the trial." Commonwealth v. Summers, 93 Mass. App.
Ct. 260, 262 (2018), quoting Commonwealth v. Casale, 381 Mass.
167, 173 (1980). The ability to control may also be inferred by
the defendant's proximity to the firearm. See Commonwealth v.
Sadberry, 44 Mass. App. Ct. 934, 936 (1998).
Here, an Ayer police officer stopped the car that the
defendant was driving after learning that the owner's license
was suspended, and the inspection sticker was expired. The
defendant was not the owner; the registered owner was in the
2 front passenger seat. The defendant provided the officer with a
Florida identification. The officer returned to his police
cruiser to ascertain whether the defendant had a valid driver's
license in any State. As he was returning to the driver's side
window, the officer "observed [the defendant's] right hand
coming up from the mat, like the floorboard" such that "[h]is
right hand [was] behind his right leg, on its way out." The
officer asked the defendant to get out of the car, and the
defendant complied. The defendant was asked about weapons, and
another officer located and secured a knife on the defendant's
person. After the defendant was placed under arrest for driving
without a license, the police found a loaded firearm under the
driver's seat.
Commonwealth, a rational trier of fact could infer the
defendant's knowledge of and intent to control the firearm based
on his actions of reaching down into the area where the firearm
was ultimately found. And, because the defendant was sitting in
the driver's seat directly over where the firearm was recovered,
he "had easy access to it and thus the ability to exercise
control over it." Sadberry, 44 Mass. App. Ct. at 936. See
Commonwealth v. Horton, 63 Mass. App. Ct. 571, 578 (2005)
(kicking at area where handgun was discovered sufficient to
3 support finding that defendant had control over gun). On these
facts, the evidence sufficed.
b. Possession of a loaded firearm and ammunition. The
defendant additionally argues -- and the Commonwealth concedes -
- that there was insufficient evidence to support the
convictions of carrying a loaded firearm without a license and
possession of ammunition without an FID card. Notwithstanding
the Commonwealth's concession, we conduct our own independent
review of the claim. See Commonwealth v. Poirier, 458 Mass.
1014, 1015 (2010).
"To convict the defendant of unlawful possession of a
loaded firearm, the Commonwealth [is] required to prove that the
defendant knowingly possessed a firearm that was loaded with
ammunition." Commonwealth v. Galarza, 93 Mass. App. Ct. 740,
748 (2018), quoting Commonwealth v. Johnson, 461 Mass. 44, 52
(2011). That is, "the Commonwealth must prove that the
defendant knew the firearm he or she possessed was loaded."
Commonwealth v. Brown, 479 Mass. 600, 601 (2018).
Here, the ammunition in the firearm was the only evidence
the Commonwealth presented that the firearm was loaded. Because
"the defendant 'could not have discerned whether the gun was
loaded merely by looking at it,' and the Commonwealth presented
no evidence that the defendant knew it was loaded," the evidence
was insufficient. Brown, 479 Mass. at 605, quoting Commonwealth
4 v. Brown, 91 Mass. App. Ct. 286, 293 (2017). Further,
"[p]ossession of ammunition without [an FID] card is a lesser
included offense of unlawful possession of a loaded firearm."
Galarza, 93 Mass. App. Ct. at 748. The only ammunition found
here was inside the firearm itself. Consequently, neither
conviction can stand.
2. Knife testimony. The defendant contends that the judge
erred in allowing testimony that a knife was found on the
defendant's person at the time of his arrest. He claims it was
irrelevant and prejudicial. Because the defendant objected to
the admission of this evidence, we review for prejudicial error.
See Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022).
Passing on the question of error, we conclude that the defendant
was not prejudiced by this evidence.
"An error is not prejudicial if it did not influence the
jury, or had but very slight effect." Commonwealth v. Schoener,
491 Mass. 706, 720 (2023), quoting Teixeira, 490 Mass. at 742.
In weighing the risk of unfair prejudice, we "tak[e] into
account the effectiveness of any limiting instruction,"
Commonwealth v. Chalue, 486 Mass. 847, 866 (2021), the
application of which "ordinarily renders any potentially
prejudicial evidence harmless" (citation omitted). Commonwealth
v. Crayton, 470 Mass. 228, 251 (2014). Here, after the officer
testified that he "observed a . . . knife get pulled from [the
5 defendant's] pocket," the judge immediately instructed the jury
not to consider it "as a substitute for proof that the defendant
committed the crimes charged," or "as proof the defendant is a
criminal personality or a bad character." As "[w]e presume that
the jury followed the judge's instructions," this mitigated any
risk of prejudice to the defendant. Commonwealth v. Bryant, 482
Mass. 731, 737 (2019). Moreover, the testimony regarding the
knife was brief, and did not "overwhelm" the case. See
Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 n.9 (2018).
3. Motion to suppress.1 The defendant argues that the
motion judge erred in denying his motion to suppress the firearm
and ammunition because they were discovered as a result of an
unreasonable warrantless search of the car. Specifically, he
claims that the search was not justified as a search incident to
arrest or an inventory search, or on the ground that the firearm
would have been inevitably discovered. As discussed supra, we
conclude that the police were justified in performing a
protective sweep of the driver's side area of the car.
"When reviewing a ruling on a motion to suppress, 'we
accept the [motion] judge's subsidiary findings of fact absent
1 We base our review of the motion to suppress on the facts presented at the motion to suppress hearing but consider the trial evidence on the other issues raised on appeal. See Johnson, 461 Mass. at 48.
6 clear error but conduct an independent review of [the] ultimate
findings and conclusions of law.'" Commonwealth v. Almonor, 482
Mass. 35, 40 (2019), quoting Commonwealth v. Tremblay, 480 Mass.
645, 652 (2018). We "leave to the [motion] judge the
responsibility of determining the weight and credibility to be
given . . . testimony presented at the motion hearing."
Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting
Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However,
"[w]e review independently the application of constitutional
principles to the facts found" (citation omitted). Commonwealth
v. Amado, 474 Mass. 147, 151 (2016).
A search of the interior of a car, limited in scope to a
protective end, see Commonwealth v. Manha, 479 Mass. 44, 49
(2018), is permissible where "a reasonably prudent [officer] in
[the officer's] position would be warranted in the belief that
the safety of the police or that of other persons was in
danger."2 Commonwealth v. Daniel, 464 Mass. 746, 752 (2013),
quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). This
concern "extend[s] to threats that might arise from retrieval of
2 While the defendant contends that the Commonwealth did not raise protective sweep as a ground to support the search before the motion judge, we observe that the defendant introduced the issue of officer safety in his motion to suppress and therefore we may consider it. See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004).
7 a weapon in the vehicle by an occupant who was not placed under
arrest." Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129
(2010).
Here, the motion judge found facts that, viewed in their
totality, warranted a concern for officer safety. An officer
"saw the [d]efendant bringing his right hand up from under the
driver's seat floorboards," and the officer "did not know what
the [d]efendant had touched or moved under the seat." See
Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (gestures
"suggestive of the occupant's retrieving or concealing an
object, raise legitimate safety concerns to an officer
conducting a traffic stop"). Further, the officer testified
that as he was placing the defendant under arrest, "[h]is
muscles started to tense up," and a knife was then found on his
person. And, although the defendant was restrained at the time
of the search, there were three other unrestrained passengers
still in the car, including an adult female in the front
passenger seat and a teenager in the rear. See Graham, 78 Mass.
App. Ct. at 129. This constellation of facts justified a
protective sweep of the area from which a weapon could be
located. Compare Commonwealth v. Goewey, 452 Mass. 399, 401
(2008) (production of expired identification, nervousness, and
"what reasonably appeared to be furtive movements [as if to hide
or retrieve something]" warranted concern for officer safety).
8 Conclusion. On the count of the complaint charging
carrying a firearm without a license, the judgment is affirmed.
On the counts of the complaint charging carrying a loaded
firearm without a license and possession of ammunition without
an FID card, the judgments are reversed, the verdicts are set
aside, and judgments shall enter for the defendant.
So ordered.
By the Court (Blake, C.J., Vuono, Meade, Shin & Hand, JJ.3),
Clerk
Entered: January 24, 2025.
3 The panelists are listed in order of seniority.