PLAIN VIEW CAN ESTABLISH CONSTRUCTIVE POSSESION

In Commonwealth v. Rosario, a District Court judge found the defendant guilty of carrying a firearm without a license, carrying a loaded firearm without a license, and two counts of assault and battery on a police officer.  The firearm charges related to a handgun that was found in the car the defendant was driving. His primary claim on appeal is that there was insufficient evidence to establish that he constructively possessed the gun.   The facts are that in the early morning hours of October 2, 2013, two Springfield police officers on routine patrol observed the defendant — who was alone in the car — sideswipe a parked car and then drive off.  When the officers stopped the defendant, he became belligerent, but then agreed to exit the car to perform field sobriety tests. When one of the officers asked the defendant about white powder he observed under the defendant’s nostrils, the defendant shoved the officer with both hands. During the struggle that ensued, the defendant was kicking the officers and made various threatening comments to them. The police eventually were able to gain control of the defendant and to arrest him.

After the defendant’s arrest, the officers conducted an inventory search of the car, and during that search they found the loaded gun lodged between the passenger seat and the center console. As revealed by photographs of the car’s interior that were introduced as exhibits, a gun in this position was within the defendant’s easy reach. Further details regarding the location where the gun was found are reserved for later discussion.

To establish constructive possession, the Commonwealth had to prove the defendant’s knowledge of the gun, and his ability and intent to control it. A fact finder may infer a defendant’s knowledge of contraband that is located in his plain view.  If the defendant’s knowledge of the gun were established, then his ability and intent to control it can be inferred from the fact that it was found in close proximity to him inside the car in which he was the driver.  Accordingly, as both parties have framed the issues, the case principally turns on whether a rational fact finder could have concluded on this trial record that the gun was in the defendant’s plain view.

The defendant, through counsel, argued that because of the particular placement of the gun between the passenger seat and the center console, no rational fact finder could have found that the gun was in his plain view.  The Court of Appeals noted that in this case the officer who found the gun testified that he readily was able to observe it once he leaned into the passenger side of the car and did not have to move the seat in any way to see the gun.  Therefore, a rational fact finder could have found that the gun was in the defendant’s plain view.  The court found that because the defendant’s ability to exercise dominion and control of the gun was also established, and his intent to do so can be inferred under the circumstances of this case, we conclude that the evidence of constructive possession was sufficient.

 

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