(dissenting, with whom Sikora, J., joins). Attempting to rationalize the imposition of criminal liability for crimes that include the element of “possession,” but where there is no actual possession, we have constructed terminology and inferences purportedly designed to direct our factual inquiries to those factors that will determine whether the defendant had the requisite knowledge, ability, and intent to possess the item. We *804have been applying the doctrine of constructive possession for many years but to very mixed reviews from prosecutors, defense attorneys, and legal scholars alike. 1 Forty years ago, a United States Court of Appeals judge faced with the difficulties of applying the legal fiction of constructive possession observed that:
“[t]he rhetorical legerdemain compounded in this area of law invokes abstractions which appear more designed to achieve a particular result in an individual case than to stabilize and formalize a workable index of objective standards. The more cases one reads on constructive possession the deeper is he plunged into a thicket of subjectivity. Successive cases enumerate a continuing reinterpretation which can only be described as judicial whimsy. To basic questions to which the answer should be ‘Always’, judicial hair-splitting settles for a wavering ‘Sometimes’. . . . Both prosecutor and defendant’s attorney present their cases with the unfortunate knowledge that the law of constructive possession is what we will say it is in our next opinion. . . . Lawyers in future cases, concerned as to the issue of constructive possession, will still find most trial and appellate courts simultaneously looking in both directions.”2
We are still faced with these very same difficulties in applying the doctrine, but I dissent not because of these difficulties. I respectfully dissent because I believe that the majority has not only misapplied the facts and reasonable inferences to the required elements of the crime, but it has added a significant new inference to our body of law, effectively making a defendant strictly liable for possessory offenses when knowledge is joined with a proprietary interest. Such an inference takes us even further from the historical and correct requirement of establishing the mens rea of intent to possess. The majority *805would render a defendant’s actual intent almost irrelevant, while effectively binding the jury’s verdict, under these circumstances.
Our case law has historically required three elements to prove constructive possession of a firearm. The Commonwealth must prove that the defendant had (1) knowledge of the presence of the firearm, (2) the ability to exercise control over the firearm, and (3) the intention to exercise control over the firearm. See, e.g., Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Review of the evidence persuades me that, although the evidence was sufficient to permit a reasonable inference that the defendant had knowledge of the firearm and an ability to control it, there was insufficient evidence on the element of his intent to do so.
Here, Sergeant Deveney observed the firearm in the defendant’s automobile, on the lap of his front seat passenger, while the defendant was sitting in the driver’s seat. This was sufficient to establish the defendant’s knowledge of the weapon. See Commonwealth v. Albano, 373 Mass. 132, 135 (1977) (“Knowledge may be inferred when the prohibited item is found in open view in an area over which the defendant has control”). Additionally, based on Sergeant Deveney’s testimony, one could infer that the gun was being passed around the interior of the vehicle. “Although not overwhelming, taken in the light most favorable to the Commonwealth, this evidence provided a sufficient basis for a juror to infer that the defendant knew about and had the ability to exercise dominion and control over [the firearm] . . . .” Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 681-682 (2006).
However, proof of the defendant’s intent to exercise dominion and control is nonexistent, except for the inference that the majority now considers to be dispositive. Upon review of the record, I have not identified sufficient “plus factors” of other incriminating evidence that would warrant the inference'that the defendant intended to exercise control over the firearm. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 226 (1993). First, although Sergeant Deveney observed both brothers handling and physically possessing the gun, he never observed the defendant touching the firearm. Furthermore, the defendant was parked in front of the Alvarez house, which supports the infer*806ence that the firearm was brought from there into the vehicle and would be returned to there. Most importantly, there was no evidence suggesting the presence of any past, present, or future collateral criminal activity that typically accompanies the possession of a firearm. See Albano, supra at 135-136. This is especially true here because no ammunition was found in the weapon, on anyone’s person, or in the automobile. The Commonwealth does not contradict any of this evidence nor offer an alternative theory of events.
The majority states that “[i]n addition to the defendant’s presence in the car and his knowledge of the gun, there was other incriminating evidence, i.e., ‘plus factors,’ to warrant the inference that the defendant intended to exercise control over the firearm.” See ante at 795-796. The majority elaborates on what it has determined to be four “plus factors,” which include, most significantly, the fact that the defendant was the owner and operator of the automobile. The majority also cites the defendant’s proximity to the weapon, the defendant’s behavior of slouching, and the time of night and the dimly lit street.
Owner or operator of the vehicle. The majority proposes that “[i]f the owner and operator of the car chooses not to exclude a passenger who he knows has a weapon, it is a reasonable inference that the owner and operator also has the intent to exercise dominion and control over the firearm as he does over the car itself.”3 Ante at 796. But why would the fact of the defendant’s proprietary interest in the automobile indicate, in any way, that he intended to possess the weapon actually possessed by another? The inference is appropriate when a defendant is alone in his automobile or premises, or where there is additional incriminating evidence independent of his proprietary interest. The cases cited by the majority almost universally require incriminatory evidence in addition to, and independent of, the concept of an owner/operator’s proprietary interest. This additional evidence, or “plus factors,” usually are associated with evidence of the owner/operator’s knowledge of, or participation in, collateral criminal activity.
*807The majority seems to be proposing a new rule of strict liability for owner/operators of automobiles and premises regardless of what their actual intent to possess a weapon or contraband might be. In all other circumstances, the reasonableness of an inference of intent to possess, when proving constructive possession, must ultimately be reasonable under the circumstances. The majority’s new rule dispenses with any concern for the defendant’s intent, the reasonableness of the inference, and ultimately any concern that the jury based its verdict on “conjecture” or “surmise.” See Commonwealth v. O’Brien, 305 Mass. 393, 401 (1940). The majority tells us that the jury is not bound by this permissible inference, but as a practical matter, how could the jury find otherwise? The majority holding, by dispensing with the need to prove intent to possess the firearm and, simultaneously, dispensing with the requirement that an inference be reasonable, has established a legal principle that elevates form over substance where defendants are charged with constructive possession because they have a proprietary interest in the automobile or property where the weapon is discovered. Courts may now punish an owner or operator of an automobile, or a property owner, for simply tolerating the presence of a weapon or contraband within the limits of their proprietary interest.
This is particularly so in this case where, other than the defendant’s knowledge of the presence of the weapon, there is no evidence of an intent to control. We know how the weapon arrived in the automobile and who was in possession of it. There was no evidence in the record that suggests that the defendant or any of the occupants had participated, or were about to participate, individually or jointly, in any criminal activity involving the gun. The gun was not loaded; no ammunition was in the automobile nor on anyone’s person. There is no explanation, through evidence or theory, as to why the defendant here would intend to possess the weapon. The Commonwealth does not dispute any of the attendant circumstances as offered by the defendant regarding how the weapon arrived in the parked automobile, why the car was parked where it was, and why it was there at that time of night. While the jury were clearly not bound to believe the defendant’s version of events, there was no other version of the facts proposed by the Commonwealth. *808Without evidence, or a theory to the contrary, the jury would have to rely on surmise or conjecture to believe anything different. The jury could only believe, as the Commonwealth argued, and the majority endorses, that knowledge of a weapon by an owner or operator allows, if not requires, an inference that he intended to control the weapon. This inference, of course, is regardless of the attendant circumstances or of any evidence regarding his actual intention to possess the firearm.4
The majority lists additional plus factors but these are either not plus factors or not incriminatory under the circumstances of this case.
Proximity of the weapon. The defendant’s proximity to the weapon is not a “plus factor” to support a reasonable inference of his intent to possess the weapon. The majority cites to two cases for this principle, neither of which support this view. In Commonwealth v. Sadberry, 44 Mass. App. Ct. 934 (1998), the court allowed the inference of the defendant’s knowledge of the firearm under the automobile’s front seat because the defendant, or one of his companions, had just fired the weapon in a schoolyard (while the defendant was at least present), the smell of burnt gunpowder was still evident in the automobile, and if the defendant did not place the weapon under the front seat, he was aware that his companion had. Id. at 935. The defendant’s ability to control the weapon was reasonably inferred from knowledge of and his proximity to it. Id. at 936. The Sadberry court however, unlike the majority here, did not then conflate knowledge and ability into proof of intent. Ibid. Rather, the court *809pointed to additional “plus factors” to show that “[w]hile his intent to do so is not easily susceptible of proof and is a close question, we again conclude that the evidence suffices to support a reasonable inference of his intent to do so, namely his prior activity before the stop and the presence in the car of the ski masks, gloves, black clothing, and two loaded guns, one of which was in plain view.” Ibid. Here the court recognized the necessity of specific evidence of intent in addition to, and separate from, evidence of knowledge and ability to control. The additional evidence here was of the collateral criminal activity involving the weapon immediately before the automobile stop. The defendant was also the operator of the automobile, and the court did not rely exclusively on the basis of proprietary interest in it.
Similarly, in Commonwealth v. Aiello, 49 Mass. App. Ct. 496 (2000), the defendant was operating a motor vehicle that, upon being stopped, was found to contain a controlled substance in the front passenger seat as well as in the back seat area. In addition, the automobile emitted “a strong odor of marijuana.” Id. at 497. While the court claimed to be more willing to infer control of the drugs to the driver rather than to a passenger based on knowledge alone, “some additional evidence beyond that of showing mere knowledge” and apparent proximity “was necessary here to warrant a reasonable inference of possession by the defendant.” Id. at 498. Proximity is not a plus factor with regard to intent to possess but is only evidence of a defendant’s ability to control the weapon, which is a necessary element of the crime.
Behavior of passengers. The majority next proposes that the occupants’ slouching posture allowed the jury to infer that they “were engaged in a surreptitious criminal activity that they endeavored to conceal from view.” Here, again, the majority conflates knowledge and ability with intent.5 The Commonwealth argued in Aiello, as the majority does here, “that there is such additional evidence by reason of ‘the defendant’s suspicious conduct, including looking back at the officers at least six times with half of his body sticking out of the window while the *810officers were checking for warrants.’ ” The court held, however, that suspicious behavior “does not provide the kind of additional evidence which is required to support a finding that the defendant was able to exercise control over the drugs. Moreover, there was no evidence that would warrant an inference of the required intent to exercise such control.” Id. at 498-499. See Commonwealth v. Prentice P., 57 Mass. App. Ct. 766, 769 (2003) (“a defendant may not be convicted solely on the basis of consciousness of guilt evidence even when that evidence is coupled with presence”). The defendant’s posture is indicative of nothing other than knowledge. His behavior is understandable, considering the circumstances, and is certainly not indicative of an intent to possess the firearm. The suspicious behavior here, at most, indicates the defendant’s knowledge of the firearm and, again, is not a factor indicating an intent to possess the firearm.
Location of incident and time. Lastly, the majority claims that “the defendant chose to park his car on the much darker Chestnut Street instead of the well-lit Moody Street with which it intersected” (emphasis supplied). Ante at 797. Nowhere in the record is there evidence, or even a credible allegation, that the defendant chose to park on the darker of the two streets. The evidence does show, however, that the defendant chose to park his automobile immediately in front of his girlfriend’s house, and had parked in almost the exact location three times that same day. The majority misreads Commonwealth v. Albano, 373 Mass. 132 (1977). There, the court held that a long list of unusual circumstances, including the time of night (i.e., 4:30 a.m.) of the incident, and the fact that the car’s registration plates were deliberately obstructed and the weapon was protruding out from under the defendant’s seat, was sufficient to infer that the defendant had knowledge of the presence of the firearm. Id. at 135. The decision had nothing to do with an inference of intent to possess the firearm, and the long list of attendant circumstances allowed an inference of the defendant’s knowledge, not his intent to possess the firearm.
In summary, the majority has transformed evidence of “knowledge” and “ability” into elements sufficient to prove constructive possession. The legal fiction that is constructive possession is now supplemented with an additional legal fiction claiming *811that a proprietary interest is conclusive proof of an intent to possess everything within the limits of the proprietary interest. The holding, therefore, dispenses with the historical requirement of proving “intent to possess” and will criminalize the behavior of an individual who never intended to touch, never mind possess, the firearm or contraband in question. The holding redefines “possession” in such a way that individuals who are trying to live within the limits of the law discover that they are in possession of a firearm, or other contraband, simply by becoming aware of it and having access to it.6,7 A temperate application of the concept of constructive possession is still an appropriate legal principle. When, for example, the proprietary interest is exclusive, i.e., the defendant is the only person having access to the weapon or contraband, his exclusive control does infer, appropriately, an intent to possess. When a defendant is not alone or does not have an exclusive proprietary interest in the area, i.e., other individuals have either access to, or actual possession of, the weapon or contraband, additional evidence of his intent to possess the items should be required. The defendant owned the automobile, but not the two brothers who were holding the firearm while in a parking space directly in front of their house, which the defendant had visited for the purpose of a social date with their sister. There is no evidence here that the defendant intended to possess the weapon. The evidence and common sense lead us to exactly the opposite conclusion.
Finally, regarding the legal concept of “equal and inconsistent,” a few observations are in order. The Supreme Judicial Court recently affirmed and clarified the application of the concept, stating that “evidence tending equally to support one proposition over the other applies only if the circumstances *812‘require []a leap of conjecture with respect to the essential elements of the crime charged.’ ” Commonwealth v. Merry, 453 Mass. 653, 663 (2009), quoting from Commonwealth v. Chongarlides, 62 Mass. App. Ct. 709, 712 (2004). I agree with the majority that appellate courts should not reweigh the evidence considered by a jury at trial. “It is not for [an appellate] court to consider any question of the weight of the evidence, but the only question before us is whether the jury could properly find the defendant guilty.” Commonwealth v. O’Brien, 305 Mass. 393, 401 (1940). The question here is not the weight of the evidence but its sufficiency, because “if, upon all the evidence, the question of the guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand.” Ibid. An appellate court should always have in mind a review of the sufficiency of the evidence because “it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The concept merely reinforces our requirement that each element of a crime must be proven beyond a reasonable doubt. If the evidence tends equally to prove an inconsistent alternative, it is necessary to determine whether the jury relied on “conjecture” or “surmise” or was in fact able to reach a verdict based upon proof beyond a reasonable doubt.
The concept of “equal and inconsistent” is not an “anachronistic canard” when correctly understood and appropriately applied.
See generally Whitebread & Steven, Constructive Possession in Narcotic Cases: To Have and Have Not, 58 Va. L. Rev. 751 (1972); McMurray, Hands Off the Gun — A Critique of United States v. Jameson and Constructive Possession Law in the Tenth Circuit, 85 Denv. U. L. Rev. 531 (2008).
United States v. Holland, 445 F.2d 701, 703-704 (D.C. Cir. 1971) (Tamm, 1, concurring).
The majority must be aware, however, that firearm possession is not inherently nor necessarily a crime and that the right to legally possess a firearm repudiates any notion that possessing a weapon is inherently wrong.
Considering a similar holding in the United States Court of Appeals for the Tenth Circuit, it was observed that “[t]o avoid injustice, it is necessary to impose an intent requirement. It is not unreasonable to conclude that a person sitting in a car knows if a gun is literally under his foot, and in such circumstances, the person clearly has access to the gun. But knowledge and access should not be enough to convict. Certainly the person has never taken actual possession, and if he lacks any intention to take possession of the item, then [G. L. c. 269, § 10(a),] is in no way implicated. On the other hand, if the person is mentally planning to use the gun at some point, then it seems reasonable to say that the person is possessing the gun. The question, of course, may be difficult to answer. But that difficulty does not mean that the court should take the burden away and let the prosecution infer intent from the mere fact of proximity. To the contrary, in the absence of evidence to show the defendant intended to exercise dominion and control, the government should not be allowed to prevail.” McMurray, 85 Denv. U. L. Rev. at 560-561.
Never mind apparently indicting an entire generation of young urban males based upon a commonly shared and otherwise innocent behavior.
This is not the first time that criminal liability for possession has been framed this way in the Commonwealth. The Legislature determined that an individual was in constructive possession of narcotics by being in the company of a person possessing narcotics and having knowledge that the person possessed the drugs (see G. L. c. 94, § 213, as added by St. 1960, c. 660, § 1). The statute, however, was repealed in 1971. St. 1971, c. 1071, § 2.
See Oliver Wendell Holmes, Jr., The Path of the Law, Harv. L. Rev. 457, 459 (1897) (the law must be framed in such a way as to enable even a “bad” man to “predict” the “material consequences” of his conduct; a man must know whether his conduct is within the law, or not).