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
25-P-1308
COMMONWEALTH
vs.
KRISTEN A. VAZQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant, Kristen A. Vazquez, was convicted of carrying a
firearm without a license and carrying a loaded firearm without
a license. On appeal, the defendant argues that the judge erred
in denying her motion for a required finding of not guilty
because the Commonwealth did not prove that she possessed and
controlled the firearm or that she knew the firearm was loaded.
We agree and reverse.
Background. On October 15, 2022, at around 2 A.M.,
Lieutenant Julio Toledo was parked in an unmarked police car in
downtown Springfield, when the police car was hit by a car
driven by the defendant. In addition to the defendant, there were two passengers in the car: a woman in the backseat and a
man in the front passenger seat (passenger). As Toledo
approached the defendant's car, he saw the passenger "reaching
towards the driver's side, down and away, and [he] couldn't see
[the passenger's] left hand." The defendant immediately got out
of her car and said, "I know I hit your car." Toledo told her
to get back in the car and asked how much she had to drink that
night; seconds later, Toledo asked her to step back out.
Toledo told another officer, who had recently arrived on
the scene, to have the passenger step out of the car, and "pat
him down for [the officers'] safety," and warned him to "watch
[the passenger's] left hand." The defendant then leaned into
the car and repeated what Toledo said to the passenger; Toledo
interpreted the defendant's movements as trying to block his
view of the inside of the car. An officer pat frisked the
passenger and "then [the passenger] abruptly, suddenly, without
warning entered a full sprint to the alleyway." When both the
defendant and the passenger were outside of the car, the woman
in the backseat was moving a blanket and "making exaggerated
movements towards the front of the [car]." The woman was later
asked to get out of the car and "back away from the traffic
stop." The passenger and the woman were never identified.
As Toledo administered a field sobriety test, an officer
searched the passenger side and center console of the car, and
2 after the officer did not find anything, Toledo said "its not in
the center console?" The defendant told Toledo that she had
just picked up the car that morning and did not have anything in
it. Toledo resumed the field sobriety tests and arrested the
defendant for operating under the influence.
Toledo then conducted an inventory search of the car and
found a firearm in between the driver's seat and the center
console. Toledo commented that the passenger's hand "was over
there," and another officer said, "that explains why your boy
took off." Toledo testified that he knew the firearm was loaded
when he found it because the external indicator was raised,
which "warn[s] the handler of the weapon that the firearm is, in
fact, loaded."
As relevant here, the defendant was charged with carrying a
firearm without a license and carrying a loaded firearm without
a license.1 The Commonwealth called Toledo as its only witness,
and his body-worn camera footage was entered in evidence. At
the close of the Commonwealth's evidence, the defendant filed a
motion for a required finding of not guilty (motion), and
renewed the motion after the close of all evidence; the motion
was denied each time.
1The defendant admitted to sufficient facts for operating a motor vehicle while under the influence of alcohol. The judge also found the defendant responsible for possession of a class B controlled substance.
3 The judge found the defendant guilty. After filing a
notice of appeal, the defendant moved for reconsideration in the
District Court. After hearing, the judge denied that motion.
Discussion. 1. Sufficiency of the evidence. a.
Possession of the firearm. The defendant argues that the
Commonwealth's evidence established that the firearm at issue
was possessed and controlled by another, and therefore, the
judge erred in denying the motion. "In reviewing the denial of
a motion for a required finding of not guilty . . . 'we view the
evidence in the light most favorable to the Commonwealth in
order to determine whether the evidence was sufficient to
satisfy a rational trier of fact of each element of the offense
beyond a reasonable doubt.'" Commonwealth v. Snow, 76 Mass.
App. Ct. 116, 118 (2010), quoting Commonwealth v. Brown, 401
Mass. 745, 747 (1988). Here, "the Commonwealth's case rested on
a theory of constructive possession." Commonwealth v. Sespedes,
442 Mass. 95, 99 (2004). 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 Sespedes, supra.
The Commonwealth argues that there was sufficient evidence
to prove that the defendant intended to exercise dominion and
control over the firearm because it was located "in a position
4 easily accessible to the defendant alone," and her "behavior
during the stop indicate[d] that she was attempting to prevent
the [firearm]'s discovery." However, "in order to 'establish
the defendant's "relationship" to contraband located in a common
area sufficient to permit an inference of control over the
contraband, there must be a more particular link to the
defendant' other than [her] presence and ownership" of the car.
Commonwealth v. Romero, 464 Mass. 648, 656 (2013), quoting
Commonwealth v. Boria, 440 Mass. 416, 420-421 (2003).
Although the firearm was found on the driver's side of the
car, there was insufficient evidence for a trier of fact to
conclude, beyond a reasonable doubt, that the defendant intended
to control and possess the firearm. See Romero, 464 Mass. at
656-657. Apart from the firearm's location, there is little
evidence of a "special connection" between the defendant and the
firearm. See Commonwealth v. Summers, 93 Mass. App. Ct. 260,
264 (2018). The defendant's proximity to the firearm is more
relevant "to whether the defendant had the ability to control
the firearm, than [her] intention to exercise that control."
Romero, supra at 658.
"[W]hen the defendant is present at or near the scene where the contraband is found . . .
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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
25-P-1308
COMMONWEALTH
vs.
KRISTEN A. VAZQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant, Kristen A. Vazquez, was convicted of carrying a
firearm without a license and carrying a loaded firearm without
a license. On appeal, the defendant argues that the judge erred
in denying her motion for a required finding of not guilty
because the Commonwealth did not prove that she possessed and
controlled the firearm or that she knew the firearm was loaded.
We agree and reverse.
Background. On October 15, 2022, at around 2 A.M.,
Lieutenant Julio Toledo was parked in an unmarked police car in
downtown Springfield, when the police car was hit by a car
driven by the defendant. In addition to the defendant, there were two passengers in the car: a woman in the backseat and a
man in the front passenger seat (passenger). As Toledo
approached the defendant's car, he saw the passenger "reaching
towards the driver's side, down and away, and [he] couldn't see
[the passenger's] left hand." The defendant immediately got out
of her car and said, "I know I hit your car." Toledo told her
to get back in the car and asked how much she had to drink that
night; seconds later, Toledo asked her to step back out.
Toledo told another officer, who had recently arrived on
the scene, to have the passenger step out of the car, and "pat
him down for [the officers'] safety," and warned him to "watch
[the passenger's] left hand." The defendant then leaned into
the car and repeated what Toledo said to the passenger; Toledo
interpreted the defendant's movements as trying to block his
view of the inside of the car. An officer pat frisked the
passenger and "then [the passenger] abruptly, suddenly, without
warning entered a full sprint to the alleyway." When both the
defendant and the passenger were outside of the car, the woman
in the backseat was moving a blanket and "making exaggerated
movements towards the front of the [car]." The woman was later
asked to get out of the car and "back away from the traffic
stop." The passenger and the woman were never identified.
As Toledo administered a field sobriety test, an officer
searched the passenger side and center console of the car, and
2 after the officer did not find anything, Toledo said "its not in
the center console?" The defendant told Toledo that she had
just picked up the car that morning and did not have anything in
it. Toledo resumed the field sobriety tests and arrested the
defendant for operating under the influence.
Toledo then conducted an inventory search of the car and
found a firearm in between the driver's seat and the center
console. Toledo commented that the passenger's hand "was over
there," and another officer said, "that explains why your boy
took off." Toledo testified that he knew the firearm was loaded
when he found it because the external indicator was raised,
which "warn[s] the handler of the weapon that the firearm is, in
fact, loaded."
As relevant here, the defendant was charged with carrying a
firearm without a license and carrying a loaded firearm without
a license.1 The Commonwealth called Toledo as its only witness,
and his body-worn camera footage was entered in evidence. At
the close of the Commonwealth's evidence, the defendant filed a
motion for a required finding of not guilty (motion), and
renewed the motion after the close of all evidence; the motion
was denied each time.
1The defendant admitted to sufficient facts for operating a motor vehicle while under the influence of alcohol. The judge also found the defendant responsible for possession of a class B controlled substance.
3 The judge found the defendant guilty. After filing a
notice of appeal, the defendant moved for reconsideration in the
District Court. After hearing, the judge denied that motion.
Discussion. 1. Sufficiency of the evidence. a.
Possession of the firearm. The defendant argues that the
Commonwealth's evidence established that the firearm at issue
was possessed and controlled by another, and therefore, the
judge erred in denying the motion. "In reviewing the denial of
a motion for a required finding of not guilty . . . 'we view the
evidence in the light most favorable to the Commonwealth in
order to determine whether the evidence was sufficient to
satisfy a rational trier of fact of each element of the offense
beyond a reasonable doubt.'" Commonwealth v. Snow, 76 Mass.
App. Ct. 116, 118 (2010), quoting Commonwealth v. Brown, 401
Mass. 745, 747 (1988). Here, "the Commonwealth's case rested on
a theory of constructive possession." Commonwealth v. Sespedes,
442 Mass. 95, 99 (2004). 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 Sespedes, supra.
The Commonwealth argues that there was sufficient evidence
to prove that the defendant intended to exercise dominion and
control over the firearm because it was located "in a position
4 easily accessible to the defendant alone," and her "behavior
during the stop indicate[d] that she was attempting to prevent
the [firearm]'s discovery." However, "in order to 'establish
the defendant's "relationship" to contraband located in a common
area sufficient to permit an inference of control over the
contraband, there must be a more particular link to the
defendant' other than [her] presence and ownership" of the car.
Commonwealth v. Romero, 464 Mass. 648, 656 (2013), quoting
Commonwealth v. Boria, 440 Mass. 416, 420-421 (2003).
Although the firearm was found on the driver's side of the
car, there was insufficient evidence for a trier of fact to
conclude, beyond a reasonable doubt, that the defendant intended
to control and possess the firearm. See Romero, 464 Mass. at
656-657. Apart from the firearm's location, there is little
evidence of a "special connection" between the defendant and the
firearm. See Commonwealth v. Summers, 93 Mass. App. Ct. 260,
264 (2018). The defendant's proximity to the firearm is more
relevant "to whether the defendant had the ability to control
the firearm, than [her] intention to exercise that control."
Romero, supra at 658.
"[W]hen the defendant is present at or near the scene where the contraband is found . . . the behavior of the defendant generally provides a basis upon which the court determines whether there was sufficient evidence relating to possession, including evidence of consciousness of guilt revealed by suspicious movements or actions, attempted
5 flight, and proximity to contraband in plain view or hidden."
Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 683 n.13
(2006).
Here, Toledo did not see the defendant "make movements"
towards the area where the firearm was found that would suggest
she had an intent to control the firearm. Contrast Commonwealth
v. Cotto, 69 Mass. App. Ct. 589, 594 (2007) (gun found where
defendant had been "shoving his feet" and this "conduct allowed
the jury to infer a 'personal connection' between the defendant
and the firearm"); Commonwealth v. Horton, 63 Mass. App. Ct.
571, 578 (2005) (officers saw defendant reach down and kick
below driver's seat, where handgun was found, these facts helped
support finding that he had control). Notably, it was the
passenger who made "furtive movements" towards where the firearm
was found. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 39
(2020) ("Furtive is defined as 'done by stealth' or 'secret'"
[citation omitted]).
The defendant remained at the scene, while the passenger
fled "abruptly and spontaneously." "Flight is often considered
a 'plus' factor supporting an inference that the occupant
intended to exercise dominion and control over the illegal
contraband." Summers, 93 Mass. App. Ct. at 264. Additionally,
the defendant cooperated with the police, including during the
6 field sobriety tests. "[A]n inference of unlawful possession
. . . may be drawn from the defendant's actions at the scene."
Commonwealth v. Antonio, 45 Mass. App. Ct. 937, 938 (1998).
Here, "the factual considerations cited by the Commonwealth shed
little light on the defendant's intent." Romero, 464 Mass. at
659. Contrast Summers, supra at 265 ("[t]he 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 provide[d]" sufficient evidence of
intent to control firearm).
On this record, there was insufficient evidence to satisfy
any rational trier of fact beyond a reasonable doubt that the
defendant had the intention to exercise dominion and control
over the firearm.2 See Commonwealth v. Latimore, 378 Mass. 671,
677-678 (1979) ("it is not enough for the appellate court to
[conclude] that there was some record evidence, however slight,
to support each essential element of the offense; it must [hold]
that there was enough evidence that could have satisfied a
rational trier of fact of each such element beyond a reasonable
doubt").
Because we determine that there was insufficient evidence 2
as to the defendant's intention to exercise dominion and control over the firearm, it is unnecessary to discuss the separate requirement of knowledge.
7 b. Possession of a loaded firearm. The defendant
additionally argues that there was insufficient evidence to
support the conviction of carrying a loaded firearm without a
license. "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).
However, "in order to be convicted under G. L. c. 269,
§ 10 (n), an individual must first have been convicted under
G. L. c. 269, § 10 (a) or (c)." Commonwealth v. Brown, 479
Mass. 600, 604 (2018). Because we hold that there was
insufficient evidence to convict the defendant of carrying a
firearm without a license, the defendant's conviction of
carrying a loaded firearm without a license must also be
reversed. See Commonwealth v. Taylor, 486 Mass. 469, 475 (2020)
(carrying a loaded firearm without a license "is not a
freestanding crime").
Conclusion. On the counts of the complaint charging
carrying a firearm without a license and carrying a loaded
firearm without a license, the judgments are reversed, the
8 findings are set aside, and judgments shall enter for the
defendant.
So ordered.
By the Court (Blake, C.J., Shin & Wood, JJ.3),
Clerk
Entered: May 18, 2026.
3 The panelists are listed in order of seniority.