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-1030
COMMONWEALTH
vs.
NORRIS N., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the juvenile was adjudicated delinquent
for carrying a firearm without a license in violation of G. L.
c. 269, § 10 (a), and for possession of a class B controlled
substance in violation G. L. c. 94C, § 34. As a result, the
judge committed the juvenile on both counts to the Department of
Youth Services until the age of eighteen. On appeal, the
juvenile challenges the sufficiency of the evidence on both
adjudications, and claims errors in the judge's admission of
certain opinion testimony, in his refusal to exclude certain
testimony, and by permitting a police officer to identify him as
a passenger in a car and the person depicted in surveillance
video footage. We affirm. 1. Sufficiency of the evidence. The juvenile claims that
there was insufficient evidence that he carried a firearm
without a licence to do so and that he possessed cocaine found
in his jacket. We disagree.
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." Commonwealth v.
Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting
Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).
Nor are we obligated to "reread the record from [the juvenile]'s
perspective." Palmariello v. Superintendent of M.C.I. Norfolk,
873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).
See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (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." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.
2 at 677-678. To sustain the juvenile's delinquency adjudication
for carrying a firearm, the Commonwealth was required to prove
that the juvenile "(1) knowingly (2) had in [his] possession
(3) a firearm (4) without a license." Duncan, 71 Mass. App. Ct.
at 153. The juvenile challenges only the sufficiency of the
evidence as to the element of possession.
In the light most favorable to the Commonwealth, the jury
were entitled to find that at approximately 9 P.M. on the night
in question, the police responded to a "shots fired" call
involving a black Infiniti. After receiving the dispatch, the
police saw the Infiniti in which there were two people; the
fourteen year old juvenile was in the passenger seat. When the
police activated their lights and siren to make a stop, the
Infiniti "took off at a high rate of speed," and the police
pursued it.
The Infiniti pulled into the driveway of a parking lot for
a housing community on Annunciation Road, and the juvenile
jumped from the car and ran toward an apartment building.
Officer Nicholas Cubarney ran after the juvenile. As the
juvenile fled, he was holding onto something near his waist on
his right side while his left arm moved normally as would occur
when running. As Cubarney followed the juvenile into the
building and up the stairway, he heard a door close on what he
3 believed to be the third floor. There was no one else in the
stairwell as he chased the juvenile up to the sixth floor.
Detective Juan Diaz and his partner arrived at the apartment
building to assist and recovered the firearm from a windowsill
on the third-floor landing; Diaz did not see any people, other
than police, in the apartment building.
From these circumstances, the jury were entitled to infer
that as the juvenile ran from the police, he was clutching a
firearm in his waistband to keep it from falling, and that once
inside the apartment building, while still evading the police,
he deposited the gun on the third-floor windowsill before
continuing to his apartment on the sixth floor. See
Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (inferences
drawn by fact finder "need only be reasonable and possible and
need not be necessary or inescapable"). Given the short time
frame of the pursuit, the lack of any other people seen in the
building, and the gun being left in plain view, the jury could
also properly infer that no one else could have left it there
without it being detected or removed. See Commonwealth v.
Jefferson, 461 Mass. 821, 826 (2012); Commonwealth v. Polanco,
92 Mass. App. Ct. 764, 772-773 (2018).
In conjunction with the above, from the juvenile's flight
from the police and from his change of clothing after that
4 flight, the jury could also infer his consciousness of guilt,
which further tips the scale toward there being sufficient
evidence of possession. See Commonwealth v. Doucette, 408 Mass.
454, 461 (1990).1
The juvenile also claims the evidence was insufficient to
support his delinquency adjudication for possession of cocaine.
In particular, he asserts that there was insufficient proof that
he had knowledge of the cocaine found in the jacket because
there was no evidence that the jacket belonged to him.
Reviewing the evidence in the light most favorable to the
Commonwealth, we are not persuaded.2
1 Relying on Commonwealth v. Warren, 475 Mass. 530, 540 (2016), the juvenile claims that his flight from the police must be discounted as consciousness of guilt evidence. While the Supreme Judicial Court has held, with respect to the analysis of reasonable suspicion for an investigatory stop, that a Black man's flight from the police is not necessarily probative of consciousness of guilt, the court has not completely eliminated such flight as a factor in the reasonable suspicion analysis. See Commonwealth v. Karen K., 491 Mass. 165, 180 (2023); Commonwealth v. Evelyn, 485 Mass. 691, 708-709 (2020); Warren, supra. Here, however, where we are evaluating the sufficiency of the evidence, which requires us to view the evidence in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 677; where the car in which the juvenile was a passenger sped away from a police cruiser that had activated its lights and sirens; where defense counsel argued in summation that the juvenile "had every reason to run from the police" because he had cocaine in his jacket pocket; and where the jury were properly instructed on consciousness of guilt, an inference of consciousness of guilty was warranted.
2 In a letter pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), provided to the panel one
5 To prove that the juvenile possessed a class B controlled
substance in violation G. L. c. 94C, § 34, the Commonwealth was
required to prove knowledge of the controlled substance3 plus an
ability and intention to control. Commonwealth v. Fernandez, 48
Mass. App. Ct. 530, 532 (2000). "[P]hysical possession
necessarily entails the ability to control, and would ordinarily
entail knowledge as well." Id. Here, Officer Kylie Langton,
who was present when the juvenile was removed from his
apartment, had the responsibility of searching the juvenile
during the booking process. Langton testified that "[i]nside
his jacket was a small plastic bag with a rocklike substance.
Known to be crack cocaine." This testimony, which was not
disputed, permitted the jury to conclude that the juvenile
possessed the substance found in his jacket.
day before oral argument, the Commonwealth conceded that there was insufficient evidence to prove that the juvenile possessed the cocaine. The Commonwealth had argued in its brief that a portion of the footage from the body worn camera (BWC), exhibit 10, supported the adjudication of delinquency; the letter agreed with the juvenile that this portion of the video recording was not shown to the jury. Our independent review of the record, apart from the BWC, leads us to conclude there was sufficient evidence and, therefore, we do not accept the concession. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010) (notwithstanding confession of error, appellate court must conduct independent review).
3 The juvenile does not challenge that the substance in question was cocaine.
6 On cross-examination, defense counsel asked, "Because it
was March, a jacket was found for him to bring, because it was
cold outside," and Langton answered, "Correct." From this one-
word response, and from the fact that the juvenile does not
appear to be wearing the same jacket in the video footage of him
running from Officer Cubarney, the juvenile claims that the
police merely found a random jacket in the apartment and placed
it on him. However, that argument does not view the evidence in
the light most favorable to the Commonwealth. Even if this
contradicted Langton's testimony that the jacket belonged to the
juvenile, it would not change the sufficiency equation. Under
the Latimore standard, "we do not weigh the supporting evidence
against conflicting evidence." Commonwealth v. Semedo, 456
Mass. 1, 8 (2010). "That contradictory evidence exists is not a
sufficient basis for granting a motion for a required finding of
not guilty." Commonwealth v. Merry, 453 Mass. 653, 662 (2009).
The Commonwealth was not required to exclude "every reasonable
hypothesis of innocence" (citation omitted). Commonwealth v.
Arias, 29 Mass. App. Ct. 613, 620 (1990).
Of course the jury were free to believe a random jacket in
the juvenile's apartment, that just happened to contain cocaine,
was given to the juvenile, the evidence of the juvenile's
possession of the cocaine was also supported by his theory of
7 the case. Although not a substitute for evidence, in defense
counsel's closing argument she admitted that the juvenile
possessed the cocaine.4 Defense counsel told the jury that the
juvenile "had every reason to run from the police that night.
But not because of a gun. Because he was a [fourteen]-year-old
kid with cocaine in his pocket. And he was scared." Given that
defense counsel herself suggested to the jury to draw the
inference that the juvenile did in fact possess cocaine, and the
evidence that it was "his" jacket, the permissibility of the
jury's conclusion becomes even more plain. Once the jury
ascribed to the juvenile possession of the cocaine, the
inference that he had knowledge and the ability and intention to
exercise control over it was also reasonable and possible.5 See
Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980)
(inference of knowledge based on circumstantial evidence need
4 Defense counsel moved for a required finding of not guilty, and renewed that motion after the defense rested, but offered no argument in court, or in the motions themselves, that the jacket in question was not his.
5 The juvenile claims he could not exercise control over the cocaine in the jacket because he was handcuffed and in custody at the time. However, he cites no authority for this argument, and we treat it as waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). In any event, as the jacket was his, he exercised control over the cocaine in it prior to his arrest. If a defendant's ability or intent to control contraband was to be measured from a point after an arrest, the Commonwealth could never meet its burden.
8 only be "reasonable and possible; it need not be necessary or
inescapable"). Accordingly, there was sufficient evidence
supporting the delinquency adjudication for possession of
cocaine.
2. Opinion testimony. The juvenile also claims that
Officer Cubarney's testimony, which described what was occurring
in a surveillance video recording as it was shown to the jury,
specifically, that the juvenile was holding onto something in
his waistband or hooded sweatshirt, was tantamount to an
improper opinion of the juvenile's delinquency. We disagree.
"Provided that a witness does not directly offer an opinion
regarding the defendant's guilt or innocence in a criminal case,
[] we have no rule in Massachusetts prohibiting an opinion that
touches on an ultimate issue" (citation omitted). Commonwealth
v. Canty, 466 Mass. 535, 543 (2013). See Commonwealth v.
Moreno, 102 Mass. App. Ct. 321, 325-326 (2023). See also
Mass. G. Evid. § 704 (2025) ("An opinion is not objectionable
just because it embraces an ultimate issue").
As stated above, Officer Cubarney testified that the
juvenile was "running with one left arm freely moving, as one
would jog, while simultaneously the right arm is holding onto
something in [his] waistband area or in [his] hooded sweatshirt
area." He neither stated that the juvenile was unlawfully
9 carrying a firearm, nor that he was guilty of that crime. In
other words, Cubarney did not offer an opinion on the ultimate
issue. See Commonwealth v. MacDonald, 459 Mass. 148, 163-164
(2011). There was no error.
The juvenile further claims that Cubarney's testimony was
also an improper lay opinion about what was portrayed in the
surveillance video recording because it invaded the province of
the jury. We disagree.
"A lay opinion . . . is admissible only where it is '(a)
rationally based on the perception of the witness; (b) helpful
to a clear understanding of the witness's testimony or the
determination of a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge.'" Canty,
466 Mass. at 541, quoting Mass. G. Evid. § 701 (2013). A
judge's decision to admit a lay opinion is reviewed for an abuse
of discretion. Commonwealth v. Brum, 492 Mass. 581, 593-594
(2023).
Here, the surveillance video recordings show the juvenile
running and holding with one hand something near his waist on
his right side. Cubarney's nontechnical and nonscientific
testimony was intended to draw the jury's attention to this
important aspect of the surveillance footage, and it was
properly admitted to assist "the jury in evaluating the
10 evidence." Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017).
See Commonwealth v. Grier, 490 Mass. 455, 476 (2022). There was
no abuse of discretion.6
3. "Shots fired" testimony. The juvenile further claims
that, over objection, the judge improperly permitted Officer
Cubarney to testify that he and his partner were responding to a
dispatch of "shots fired" prior to their pursuit of the black
Infiniti. We disagree.
To avoid putting an officer in a "false position of seeming
just to have happened upon the scene[,] he should be allowed
some explanation of his presence and conduct." Commonwealth v.
Doyle, 83 Mass. App. Ct. 384, 389–390 (2013), quoting
Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). The
prosecution may introduce "carefully circumscribed extrajudicial
statements in criminal trials to explain the state of police
knowledge." Rosario, supra. See Commonwealth v. Bradshaw, 385
Mass. 244, 269–270 (1982) (prosecutor "entitled to present as
full a picture as possible of events surrounding the incident").
6 Contrary to the juvenile's claim, the prosecutor properly argued in closing -- without reference to Cubarney's testimony - - that the jury could infer from the surveillance footage and photographs that the juvenile ran "with his hand pinned" to his waistband because he was carrying a firearm. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutors may argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence").
11 Because this type of testimony carries with it the risk of
misuse, in an exercise of discretion, a judge must weigh the
probative value of the evidence against any unfair prejudicial
effect it might have on the jury. See Commonwealth v. West, 487
Mass. 794, 805 (2021); Mass. G. Evid. § 403 (2025). Under this
standard we do not disturb a judge's decision "absent a clear
error of judgment in weighing the relevant factors" (quotation
and citation omitted). Commonwealth v. Yat Fung Ng, 491 Mass.
247, 264 (2023).
Here, the judge properly allowed Cubarney to testify that
he was responding to a dispatch of "shots fired" to put in
context for the jury the manner in which the police responded.
It was relevant and necessary to explain why Cubarney, and the
other responding officers had their service weapons drawn when
they arrived at the apartment building, and when they entered
the juvenile's apartment. Also, the testimony contained no
details, was limited to Cubarney's knowledge, and it did not
implicate the juvenile, who was not charged with discharging a
weapon. See Rosario, 430 Mass. at 509-510. Contrast
Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 440 (2006)
(statement functional equivalent of informing jury that witness
identified defendant as cocaine supplier). There was no abuse
of discretion. See Commonwealth v. Rupp, 57 Mass. App. Ct. 377,
12 383-384 (2003) (proper to admit testimony that police responded
to 911 call "[r]egarding a firearm" to explain police show of
force).
4. Identification of the juvenile. Finally, the juvenile
claims that the judge improperly permitted Officer Cubarney,
over objection, to identify the juvenile as the passenger in the
black Infiniti and as the person depicted on the surveillance
video footage. We disagree.
The decision to admit witness identification testimony is
committed to the sound discretion of the trial judge. See
Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328 (2000).
Identification testimony of a police officer carries "the
potential for inappropriate prejudice to the defendant" because
it may suggest that the officer knew the defendant from prior
arrests or convictions. Id. at 327. Here, Officer Cubarney's
identification of the juvenile as the passenger was not unduly
prejudicial. He testified, without further explanation, that he
"recognize[d]" the juvenile. The jury were not made aware of
how Cubarney knew the juvenile, which was only disclosed at voir
dire, discussed below. In any event, as the arresting officer
who was also an eyewitness to the crime, Cubarney could
permissibly identify the juvenile in court. See Commonwealth v.
Crayton, 470 Mass. 228, 242 (2014).
13 Relative to the surveillance video footage, "[a] lay
witness is permitted to identify an individual depicted in a
video recording or photograph if that testimony would assist the
[fact finder] in making their own independent identification."
Commonwealth v. Pina, 481 Mass. 413, 429 (2019). "The general
rule is that a witness's opinion concerning the identity of a
person depicted in a surveillance photograph is admissible if
there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph
than is the jury." Id. at 429-430, quoting Commonwealth v.
Vacher, 469 Mass. 425, 441 (2014).
In determining whether a witness's identification of a
person appearing in a photograph or video recording is
admissible, we consider several factors, including (1) the
quality of the images, (2) the level of familiarity of the
witness with the person depicted in the video recording, and
(3) whether the suspect was disguised in the video recording or
has altered his appearance since the time of the crime. See
Pleas, 49 Mass. App. Ct. at 325-326.
Here, after a lengthy voir dire, the judge credited
Cubarney's testimony concerning his knowledge of the juvenile.
Cubarney was familiar with the juvenile prior to the incident
because he had viewed the juvenile's social media postings.
14 Cubarney had viewed more than seventy-five photographs and video
recordings of the juvenile on Snapchat, a mobile application.
Cubarney had also previously identified the juvenile in a Boston
Regional Intelligence Center "be on the lookout" alert that was
distributed to identify a suspect in a March 12, 2021 "shots
fired" incident. This was ample evidence for the judge to
conclude, as he did, that Cubarney had "a solid foundation" to
testify that he recognized the juvenile. Contrast Commonwealth
v. Fisher, 492 Mass. 823, 851 (2023) (officer interacted with
defendant once and saw him in one video recording that officer
watched multiple times); Commonwealth v. Belnavis, 104 Mass.
App. Ct. 798, 802-803 (2024) (officers' encounters with
defendant were infrequent, sporadic, and unmemorable).
In addition, the quality of the surveillance video footage
was poor, and the juvenile's appearance was altered since the
time of the crime. By the time of trial, the juvenile had aged
three years and changed his hairstyle. The judge could
reasonably conclude that Cubarney was "in a better position than
the jury to identify the [juvenile]," Pina, 481 Mass. at 430,
15 and that his testimony would be helpful to the jury. There was
neither error, nor an abuse of discretion.7
Adjudications of delinquency affirmed.
By the Court (Meade, Massing & Brennan, JJ.8),
Clerk
Entered: February 26, 2026.
7 Having determined there was no error in this case, we need not address the juvenile's cumulative error argument.
8 The panelists are listed in order of seniority.