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
22-P-471
COMMONWEALTH
vs.
GERARDO J. GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Roxbury Division of the
Boston Municipal Court, the defendant was found guilty of
unlawfully carrying a firearm.1 On appeal, the defendant
challenges the sufficiency of the evidence and argues that the
judge erred in requiring him to produce evidence of licensure as
an affirmative defense. We affirm.
Background. We set forth the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Colas, 486
Mass. 831, 833 (2021), citing Commonwealth v. Latimore, 378
1 The defendant was found not guilty of carrying a loaded
firearm, possession of ammunition without a firearm
identification, assault by means of a dangerous weapon, assault
and battery on a family or household member, and strangulation
or suffocation. Prior to trial, the Commonwealth dismissed
charges of possession with intent to distribute a class B
substance and possession of a firearm while committing a felony.
Mass. 671, 677 (1979). On October 9, 2021, the defendant and
his girlfriend, Liza Tyler, had an altercation in the street
outside of the defendant's grandmother's house. Sherry Brooks,
the girlfriend of the defendant's grandmother, witnessed the
altercation and heard Tyler yell in a nervous and scared voice,
"gun, gun," while the defendant held a black object in his hand.
At trial, she demonstrated the shape of the black object by
holding her hand with her finger pointed out and her thumb
pointed up. While observing the altercation, Brooks called the
police. Brooks saw most of the altercation from fifty to sixty
feet away and moved closer (thirty feet away) when the police
asked for the license plate number of the car. Brooks saw the
defendant take the gun out of the trunk of the car but did not
know where he put it after she saw him swing it at Tyler.
Brooks acknowledged that she was not wearing her glasses at that
time, and that she needs them to read and see clearly.
After Brooks called the police, Boston police officers
Raymond Soto and Jasmany Beato responded to 45 Keegan Street and
found the defendant and Tyler fighting behind a car in the
middle of the street. When the officers approached the car,
Tyler got in the driver's seat, and the defendant got in the
passenger seat. Tyler attempted to turn on the car, and the
officers ordered both individuals out of the car. The defendant
began to walk away and was detained. The officers conducted an
2
inventory search of the car, and Officer Soto found a firearm in
the glove compartment on the passenger side of the car.
Discussion. 1. Sufficiency of the evidence. "In
determining whether the Commonwealth met its burden to establish
each element of the offense charged, we apply the familiar
Latimore standard. . . . '[The] question is whether, after
viewing the evidence in the light most favorable to the
[Commonwealth], any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'"
Colas, 486 Mass. at 836, quoting Latimore, 378 Mass. at 677.
"The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713
(2014).
"[T]o convict the defendant of unlicensed carrying of a
firearm outside his residence or place of business, the
Commonwealth was required to prove that he 'knowingly ha[d] in
his possession; or knowingly ha[d] under his control in a
vehicle; a firearm, loaded or unloaded, as defined in section
one hundred and twenty-one of chapter one hundred and forty.'"
Commonwealth v. Watkins, 98 Mass. App. Ct. 419, 421 (2020),
quoting G. L. c. 269, § 10 (a). The Commonwealth may proceed
on a theory of constructive possession if it proves that the
3
defendant had "knowledge coupled with the ability and intention
to exercise dominion and control." Commonwealth v. Woods, 94
Mass. App. Ct. 761, 765 (2019), quoting Commonwealth v. Than,
442 Mass. 748, 751 (2004).
Viewed in the light most favorable to the Commonwealth, see
Latimore, 378 Mass. at 676-677, the testimony from Brooks and
Officer Soto, taken together, was sufficient to prove that the
defendant knowingly possessed a gun. Brooks testified that she
saw the defendant take a gun from the trunk of the car and swing
it at Tyler who was on the ground. She also testified that she
heard Tyler excitedly yelling, "gun, gun." To the extent that
the defendant argues that Brooks' testimony was unreliable
because she was not wearing her glasses, "questions of
credibility belong properly to the trier of fact." See
Commonwealth v. Martin, 467 Mass. 291, 315 (2014); see also
Commonwealth v. Semedo, 456 Mass. 1, 8 (2010) (reviewing court
does not consider credibility of witnesses in Latimore
analysis).
Additionally, Officer Soto's testimony, in conjunction with
where the gun was found, was sufficient to establish that the
defendant constructively possessed the gun. Although a
defendant's presence in an area where contraband is found,
alone, is insufficient to show constructive possession, it may
be sufficient when supplemented by additional incriminating
4
evidence as was the case here. See Woods, 94 Mass. App. Ct. at
765-766. Officer Soto saw the defendant enter the passenger
side of the car, and the gun was found in the glove compartment
in front of where he was seated. See Commonwealth v. Blevins,
56 Mass. App. Ct. 206, 211-212 (2002) (location of gun on floor
of car behind defendant gave defendant ability to exercise
control over it). Additionally, the defendant attempted to walk
away after Officer Soto gave the exit order. See Commonwealth
v. Summers, 93 Mass. App. Ct. 260, 264 (2018) ("Flight is often
considered a 'plus' factor supporting an inference that the
occupant intended to exercise dominion and control over the
illegal contraband.") Moreover, the defendant's actions were
also evidence of his consciousness of guilt. See Commonwealth
v. Watterson, 99 Mass. App. Ct. 746, 755 (2021), citing
Commonwealth v. Carrion, 407 Mass. 263, 277 (1990).
Accordingly, the evidence sufficed.
2. Licensure as an affirmative defense. The defendant
next claims that the judge violated his due process rights by
requiring him to prove that he had a license to possess a
firearm. The parties disagree as to the proper standard of
review. The defendant argues the question is whether the error,
if any, was harmless beyond a reasonable doubt.2 The
2 The defendant contends that an objection would have been futile
because at the time of his trial New York State Rifle & Pistol
5
Commonwealth contends that we review to determine whether any
error created a substantial risk of a miscarriage of justice.
We need not resolve this issue because under either standard, we
conclude that there was no error.
Since at least 1844, Massachusetts has recognized that a
license to carry is an affirmative defense to the crime of
illegal possession of a firearm. See St. 1844, c. 102;
Commonwealth v. Belou, 115 Mass. 139, 140 (1874). The Supreme
Judicial Court has long held this practice (which places the
burden of production of a license upon the defendant, and the
ultimate burden of proof of absence of a license beyond a
reasonable doubt on the Commonwealth) to be consistent with the
Second Amendment to the United States Constitution. See
Commonwealth v. Harris, 481 Mass. 767, 772 (2019); Commonwealth
v. Gouse, 461 Mass. 787, 801-802 (2012).
The defendant contends that his conviction must be reversed
because Massachusetts law that criminalizes possession of a
firearm without a proper license is unconstitutional. The
Ass'n v. Bruen, 142 S. Ct. 2111 (2022), had not been decided.
We also note that here, as in Commonwealth v. Gouse, 461 Mass.
787 (2012), the defendant did not challenge the
constitutionality of the State firearm licensing scheme. In
fact, he could not do so because the defendant never applied for
a license. See Commonwealth v. Powell, 459 Mass. 572, 589-590
(2011), cert. denied, 565 U.S. 1262 (2012) (defendant could not
challenge application for license where he did not apply for
one).
6
defendant argues that the recent Supreme Court of the United
States opinion in New York State Rifle & Pistol Ass'n v. Bruen,
142 S. Ct. 2111 (2022) (Bruen), now requires the Commonwealth to
prove beyond a reasonable doubt the absence of a firearm license
as an element of firearms prosecutions, here G. L. c. 269, § 10
(a). Bruen held that the Second and Fourteenth Amendments to
the Constitution protect an individual's right to bear arms
outside of the home, see Bruen, 142 S. Ct. at 2135, and that the
New York firearm licensing statute was unconstitutional because
it vested discretion in licensing authorities to deny
applications that satisfy statutory requirements but lack a
perceived "need or suitability." Id. at 2123. From this, the
defendant claims that the burden shifting procedure approved in
Gouse, supra, can no longer be applied; he posits that Gouse has
been abrogated by Bruen. We are not persuaded.3 Nothing in
Bruen suggests that the Second Amendment poses any challenges
for State assignment of the burdens of production. See id. at
2123. Citing McDonald v. Chicago, 561 U.S. 742 (2010), the
3 So far as we are aware, only a single court, the District of
Columbia Court of Appeals, has held that proof of something that
could otherwise be an affirmative defense must be made an
element of the offense where a presumption is created that
constitutionally protected conduct is unlawful. See Herrington
v. United States, 6 A.3d 1237, 1243-1244 (D.C. 2010) (concluding
that possessing "handgun ammunition" in home was
constitutionally protected conduct, such that government must
prove lack of registration as element of crime charged). And
Gouse, supra at 801-802, did not so hold.
7
concurring opinion in Bruen confirmed that the Second Amendment
right to bear arms does not prohibit laws that regulate who may
purchase, possess, and carry firearms. Bruen, 142 S. Ct. at
2162 (Kavanaugh, J., concurring). In fact, Bruen emphasized
that the Constitution does not prohibit licensing requirements
for carrying a firearm in public, provided that the licensing
criteria are objective. Id. at 2138 n.9. Bruen had no impact
on the allocation of the burdens of proof in the prosecution of
firearm offense, here G. L. c. 269, § 10 (a).
Having concluded that Bruen does not alter the allocation
of the burden of proof in firearm prosecutions, the issue of
licensure as an affirmative defense has been long settled in the
Commonwealth. And, the defendant's argument ignores the fact
that we have "no power to alter, overrule or decline to follow
the holding of cases the Supreme Judicial Court has decided."
Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003).
Nor are we inclined to do so here.
Judgment affirmed.
By the Court (Meade, Rubin &
Blake, JJ.4),
Clerk
Entered: February 13, 2023.
4 The panelists are listed in order of seniority.
8
Commonwealth v. Gerardo J. Gomez.
Combined Opinion