author: BLAKE, J.

text:
    COMMONWEALTH v. Charles E. SUMMERS.
    No. 16-P-1343
    Appeals Court of Massachusetts, Bristol..
    September 7, 2017 May 25, 2018
    Robert J. Galibois, II, Plymouth, for the defendant.
    Robert P. Kidd, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Trainor, Vuono, Wolohojian, Milkey, Blake, & Singh, JJ.

      This case was initially heard by a panel comprised of Justices Vuono, Wolohojian, Milkey, Blake, and Singh. After circulation of a majority and a dissenting opinion to the other justices of the Appeals Court, the panel was expanded to include Chief Justice Green and Justice Trainor. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993).

   BLAKE, J.

Following a jury-waived trial in the District Court, the defendant, Charles E. Summers, was convicted of carrying a firearm without a license and unlawful possession of ammunition. The defendant appeals, contending that the evidence that he possessed these items was insufficient as a matter of law. We affirm.

Background. Taking the evidence, and the reasonable inferences to be drawn from it, in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the Commonwealth presented the following facts. At 10:15 A.M. on August 3, 2015, Taunton police Officer Brett Collins pulled over a Kia Spectra automobile after "it failed to stop at [a] stop sign." As he approached the vehicle, Officer Collins saw the defendant, who was the sole occupant of the back seat, turn and look at him. He also observed a woman in the driver's seat and a man in the front passenger seat. Officer Collins recognized the defendant as someone with whom he was familiar, and the two exchanged greetings. On the seat next to the defendant was a cellular telephone.

Officer Collins obtained identification from the two people in the front compartment of the Kia, but not from the defendant. As Officer Collins "ran" the information in his cruiser, he learned that there was an outstanding warrant for the front seat passenger, Michael MacNamara. Officer Collins then noticed that the defendant was out of the Kia and walking toward him, holding a cellular telephone. The defendant told the officer that his son had fallen or was hurt and asked if he could leave. After getting Officer Collins's permission, the defendant began walking away from the area where the Kia was stopped. Immediately upon the defendant's departure from the scene, MacNamara began to yell and gesture toward the rear of the Kia, where the backpack containing the firearm eventually was located. The defendant then began to run and Officer Collins was unable to catch him.

Returning to the Kia, Officer Collins found that MacNamara had left the scene as well. The driver, who was still seated, directed the officer to the back of the Kia. On the floor of the back seat, behind the driver, was a backpack. Officer Collins opened the backpack, and found a .45 caliber Sig Sauer P220 handgun, a magazine for the gun, as well as .45 caliber bullets inside a sock that was tied at one end.

The following month, on September 1, 2015, the defendant was arrested on a warrant for firearm-related charges arising out of this incident. The defendant asked what the charges stemmed from. When advised what they were, the defendant said that "he didn't understand why he was being charged with the gun because the person who was in the car with him had a record as long as his" and had also "fled like he did."

Discussion. 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" (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152, 718 N.E.2d 398 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475, 892 N.E.2d 805 (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' (emphasis in original)." Commonwealth v. Latimore, 378 Mass. at 677, 393 N.E.2d 370, quoting from Jackson v. Virginia, supra. See Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630, 933 N.E.2d 645 (2010).

Here, the Commonwealth's case against the defendant was presented on the theory of constructive possession, which requires the Commonwealth to establish the defendant's "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, 442 Mass. 95, 99, 810 N.E.2d 790 (2004), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). A defendant's "knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). In constructive possession cases, a defendant's presence alone is not enough to show the ability and "intention to exercise control over the firearm, but presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.' " Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

The defendant relies predominantly on Commonwealth v. Romero, 464 Mass. 648, 652-659, 984 N.E.2d 853 (2013) (evidence of defendant's presence in automobile, which he owned and in which firearm was being passed around, insufficient to establish constructive possession). However, while the defendant's presence in the Kia itself, "without more, is not sufficient evidence ...[,] [p]resence in the same vehicle supplemented by other incriminating evidence, ... may suffice."

Commonwealth v. Sinforoso, 434 Mass. 320, 327, 749 N.E.2d 128 (2001), quoting from Commonwealth v. Garcia, 409 Mass. 675, 686-687, 569 N.E.2d 385 (1991). Here, we have significantly more than mere presence.

Taken in its totality, the evidence was sufficient to prove beyond a reasonable doubt that the defendant knew of the firearm and ammunition, and that he had the ability and intention to exercise control over them. The defendant was the sole rear seat passenger in the Kia Spectra. He was seated behind the front seat passenger and directly adjacent to the backpack, which was on the floor behind the driver. The defendant's cellular telephone was on the seat next to him, showing some intent to exercise dominion and control over the back seat compartment. The backpack was a mere two to three feet from the defendant, well within his reach. He had the most ready access to it. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936, 692 N.E.2d 103 (1998) (gun's location near defendant in car was proper consideration on question of dominion and control).

It is a fair inference from MacNamara's behavior-including shouting and yelling to Officer Collins and pointing to the back of the Kia-that he was reacting to the sudden realization that the defendant, having found a pretext to get permission from Officer Collins to leave the scene, had left the firearm and ammunition behind. In fact, a rational fact finder could find that it was MacNamara's protestations that caused the defendant to shift from leaving it, to fleeing it. Such a fact finder also could find that MacNamara, by affirmatively and eagerly drawing Officer Collins's attention to the backpack, made certain that the officer both found the contraband, and knew that the items belonged to the defendant.

In addition, a rational fact finder could find that the defendant engineered what can reasonably be construed to be a ruse, which allowed him to flee the scene and avoid being connected to the contraband. "False statements to police may be considered as consciousness of guilt if there is other evidence tending to prove the falsity of the statements." Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339 (2009), quoting from Commonwealth v. Robles, 423 Mass. 62, 71, 666 N.E.2d 497 (1996). Here, Officer Collins allowed the defendant to leave the scene as he claimed he had a hurt or injured child. However, when Officer Collins was alerted by MacNamara to the backpack, the defendant ran from the scene and Officer Collins was unable to see or locate him. Indeed, it took approximately one month for the defendant to be arrested. The actions of the defendant may reasonably lead to the conclusion that the story of an injured child was just that, a story.

The fact that there was an outstanding warrant for the defendant for a motor vehicle violation does not alter the result. Officer Collins and the defendant were acquainted with one another and exchanged pleasantries during the initial encounter. Officer Collins had not previously arrested the defendant, and there was no reason to believe that the officer was somehow targeting the defendant to arrest him on the outstanding warrant. Officer Collins only asked the driver and MacNamara for identification, and agreed to let the defendant leave when he asked permission to do so.

Ultimately, the defendant's claim of an injured child allowed him to flee the scene. This effort to escape from the Kia and to leave the scene is redolent of guilt. Indeed, it is the defendant's behavior after the police arrived that permits an inference of the defendant's intent to exercise dominion and control of the contraband prior to the arrival of the police. Contrast Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781, 573 N.E.2d 1006 (1991) (defendant's response to police negated link to contraband).

Flight is often considered a "plus" factor supporting an inference that the occupant intended to exercise dominion and control over the illegal contraband. See Commonwealth v. Namey, 67 Mass. App. Ct. 94, 98-102, 852 N.E.2d 116 (2006). See also Commonwealth v. Sabetti, 411 Mass. 770, 778, 585 N.E.2d 1385 (1992) (evidence of constructive possession sufficient where defendant attempted to flee, demonstrating consciousness of guilt); Commonwealth v. Jefferson, 461 Mass. 821, 826, 965 N.E.2d 800 (2012) (reasonable jury could infer that defendant fled to throw away contraband that he feared police would find during stop). It is also notable that of the three people in the Kia, the defendant was the only person who initially neither stayed at the scene nor tried to draw the attention of Officer Collins to the backpack. Constructive possession "may be inferred from circumstantial evidence which, in terms of practical experience of the conduct of human beings, points to such a finding." Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225, 609 N.E.2d 100 (1993).

Additionally, the defendant's actions and statements when he was arrested provide a further basis for the fact finder to infer that the defendant constructively possessed the firearm and ammunition.

The defendant stated that he did not "understand why he was being charged with the gun, because the person who was in the car with him had a record as long as his" and had also "fled like he did." From such statements, a rational fact finder could infer that the defendant knew there was a firearm and ammunition in the backpack, and that he possessed it (whether on his own or jointly with one of the other occupants of the Kia). The defendant persisted in his efforts, which began with the pretext at the scene, to blame others or, at the very least, to distance himself from the contraband. Collectively, this evidence provides a "particular link," Commonwealth v. Boria, 440 Mass. 416, 420, 798 N.E.2d 1017 (2003), between the contraband and the defendant. Contrast Commonwealth v. Romero, 464 Mass. at 658, 984 N.E.2d 853 (no additional evidence linking defendant's access to vehicle to firearm inside). It also constitutes further consciousness of guilt evidence that tips the scale in favor of sufficiency. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846-847, 934 N.E.2d 837 (2010) ("nonresponsive and deceptive interactions" with police were indicative of consciousness of guilt).

A rational fact finder, employing common sense, see Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32, 340 N.E.2d 524 (1976), could reasonably find that the defendant had the requisite ability and intent to exercise dominion and control over the firearm and ammunition. See Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41, 934 N.E.2d 1279 (2010) ("Intent to exercise dominion and control can be inferred from the defendant's conduct"). As has been stated in the context of a joint venture, "[t]he line that separates mere knowledge of unlawful conduct and participation in it, is 'often vague and uncertain. It is within the province of the [fact finder] to determine from the evidence whether a particular defendant [has] crossed that line.' " Commonwealth v. Longo, 402 Mass. 482, 487, 524 N.E.2d 67 (1988), quoting from Commonwealth v. Cerveny, 387 Mass. 280, 287, 439 N.E.2d 754 (1982).

The 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 provides a sufficient basis on which a rational fact finder could infer that the backpack-and thus the firearm and ammunition-belonged to the defendant.

Judgments affirmed.

VUONO, J. (dissenting, with whom Wolohojian and Singh, JJ., join).

I agree with the majority that, viewed in the light most favorable to the Commonwealth, the evidence sufficed to prove beyond a reasonable doubt that the defendant possessed the requisite knowledge of the firearm and ammunition and that he had the ability to control those items. Because I conclude that the evidence was insufficient to establish beyond a reasonable doubt that the defendant intended to exercise dominion and control over the firearm and ammunition, I would reverse the convictions.

The Supreme Judicial Court has emphasized that, in constructive possession cases, the question whether there is sufficient proof of intent to exercise dominion and control over the weapon or contraband is a distinct inquiry that must be satisfied by proof beyond a reasonable doubt. See Commonwealth v. Romero, 464 Mass. 648, 653-654, 984 N.E.2d 853 (2013). Romero, like this case, involved the discovery of a firearm in a vehicle with multiple occupants. The firearm in question was being looked at by the person sitting next to the defendant, who was the driver and owner of the car. The court held that the defendant's proximity to the firearm in plain view in his own vehicle coupled with evidence that the defendant had handled the firearm earlier in the day supported the inference that the defendant knew of the firearm and had the ability to control it, but did not support an inference that the defendant had the intent to exercise dominion and control over the firearm. Ibid. The court reasoned that, despite the defendant's proximity to the firearm, intent to control could not be inferred from knowledge and the ability to control. Id. at 655-659, 984 N.E.2d 853.

As Romero demonstrates, where a firearm is found in proximity to multiple individuals in a vehicle but not in the actual possession of any of them, proving that each of them individually (or jointly) intended to exercise dominion and control over the firearm is neither an empty nor necessarily simple exercise. Such intent is generally proven by circumstantial evidence, and the reasonable inferences that can be drawn therefrom. Id. at 653, 984 N.E.2d 853.

For example, this court's cases hold that the intent to exercise dominion and control over a firearm or contraband may be inferred from evidence tending to show a defendant's special connection to the item or to the place where it is located. See Commonwealth v. Valentin, 55 Mass. App. Ct. 667, 671, 774 N.E.2d 158 (2002) (defendant's intent to control gun found in open view in backpack in vehicle that defendant was driving inferred where backpack also contained defendant's paystub and work shirt). Contrast Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 684-686, 850 N.E.2d 1060 (2006) (firearms and ammunition found in closets of apartment occasionally occupied by defendant warranted inference of knowledge and ability to control but not intent to control).

Such intent also may be inferred when the defendant makes an attempt to conceal or hide the item in question, or makes a gesture toward it to suggest that he had an intent to exercise control over it. See Commonwealth v. Brzezinski, 405 Mass. 401, 410, 540 N.E.2d 1325 (1989) (defendant responded to police entry by running into closet containing cocaine and drug paraphernalia); Commonwealth v. Horton, 63 Mass. App. Ct. 571, 578, 827 N.E.2d 1257 (2005) (defendant reached below his leg and kicked at something below driver's seat in front of him where gun was ultimately found); Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41-42, 934 N.E.2d 1279 (2010) (defendant ran to bedroom and proceeded directly to bed where firearm was discovered, and attempted to prevent others from entering room). Contrast Commonwealth v. Ramos, 51 Mass. App. Ct. 901, 902-903, 744 N.E.2d 107 (2001) (although knowledge of shotgun was established by fact part of it was protruding from under mattress across from where defendant was sitting, neither ability nor intent to control shotgun was established due to absence of personal belongings connecting defendant to premises).

Here, there was no evidence of a special connection between the defendant and the firearm or its location. Apart from being a passenger in the car, there was no link between the defendant and the vehicle. Moreover, the defendant's only link to the backpack was that it was located on the floor of the back seat within his reach. There was no evidence that the backpack, which was located in an area accessible to all three occupants of the vehicle, and was not open, belonged to the defendant. Nor was there evidence that the defendant made any gesture toward the backpack which would indicate ownership or an attempt to hide or conceal it.

Despite the absence of evidence connecting the defendant to the firearm, the Commonwealth argues that it met its burden of proof because it introduced evidence of the defendant's presence in the car "supplemented by other incriminating evidence" from which the fact finder reasonably could infer that the defendant had the intent to control the firearm. Commonwealth v. Sinforoso, 434 Mass. 320, 327, 749 N.E.2d 128 (2001) (quotation omitted). The additional inculpatory evidence on which the Commonwealth primarily relies is the behavior of the front seat passenger, Michael MacNamara, and the defendant's conduct in creating a ruse that enabled him to flee from the scene. Even viewed in the light most favorable to the Commonwealth, this evidence combined with the defendant's presence in the car and his proximity to the backpack is not sufficient to withstand a motion for a required finding of not guilty.

Officer Collins testified that, while he was obtaining information about the driver and MacNamara, the defendant approached his cruiser and informed him that his son fell or was hurt and asked if he could leave. Upon receiving permission to go, the defendant began to walk away as Officer Collins started to get out of his car. At this point, MacNamara "hopped" out of the car, shouted, and made a gesture toward the back of the car. To be sure, MacNamara's behavior demonstrates that he knew of the gun and, as the Commonwealth argues, it is reasonable to infer that he did not want to be held responsible for it (hence the reason for his own flight). However, MacNamara's reaction sheds little light on the defendant's intent to control the firearm. There may be instances when a defendant's intent may be inferred from the behavior of a codefendant or a joint venturer, but this case does not present one. The most that reasonably can be inferred from MacNamara's reaction is his own knowledge of the firearm.

This brings me to the defendant's conduct following the stop. I agree that the evidence supports the inference that the defendant created a ruse so that he could leave and that he did, in fact, flee. There is no doubt that these facts allow for the inference of consciousness of guilt. But that alone does not suffice. Instead, I must ask whether this evidence reasonably permits the specific inference that the defendant intended to exercise dominion and control over the firearm. Given the limited incriminatory evidence with respect to the defendant, I cannot conclude with confidence that an inference of intent to exercise dominion and control over the firearm is reasonable here. See Commonwealth v. Sespedes, 442 Mass. 95, 102, 810 N.E.2d 790 (2004), citing Commonwealth v. Amparo, 43 Mass. App. Ct. 922, 924, 686 N.E.2d 201 (1997) (consciousness of guilt evidence, including flight upon police arrival, may have indicated knowledge of presence of contraband but did not establish intent to control it where there was no established connection between defendant and apartment);

Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781-782, 573 N.E.2d 1006 (1991) (defendant's flight from police, away from apartment containing contraband, insufficient to establish intent to control without any other connection to apartment).

As the Commonwealth acknowledges, there was an outstanding warrant for the defendant's arrest at the time the vehicle was stopped. This supports an alternate inference that the defendant fled because of the warrant. See Commonwealth v. Fancy, 349 Mass. 196, 201, 207 N.E.2d 276 (1965) (weight attributed to consciousness of guilt evidence weakened considerably by fact of outstanding warrant, giving defendant additional motive for concealing his identity). It is true that "[t]o the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies.' " Commonwealth v. Martino, 412 Mass. 267, 272, 588 N.E.2d 651 (1992), quoting from Commonwealth v. Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981). At the same time, however, under the familiar Latimore standard, "to sustain the denial of a directed verdict, it is not enough for the appellate court to find 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. at 677-678, 393 N.E.2d 370. Furthermore, "in carefully defined circumstances, a jury [are permitted] to make an inference based on an inference to come to a conclusion of guilt or innocence." Commonwealth v. Dostie, 425 Mass. 372, 376, 681 N.E.2d 282 (1997). However, "a jury may not use conjecture or guesswork to choose between alternative inferences." Ibid. In this case, the court does not have conflicting inferences that can be resolved by the fact finder; the court has alternative inferences that can only be resolved by resorting to conjecture and speculation.

In sum, I conclude that the Commonwealth failed to establish the defendant's intent to exercise dominion and control over the firearm and ammunition. In my view, the evidence in this case is weaker than what was presented in Romero and the cases upon which the Commonwealth relies. Accordingly, the defendant's motion for a required finding of not guilty should have been allowed.

SINGH, J. (concurring in the dissent).

Although I join in the dissent, I write separately to express my concern over the majority's use of consciousness of guilt evidence to meet a gap in the essential elements of the crime charged, namely the defendant's intent to exercise dominion and control over the firearm and ammunition. In this case, where the evidence failed to establish the defendant's connection to the backpack containing the firearm and ammunition and also failed to show any manifestation of the defendant's intent to control the contraband, the most powerful evidence the Commonwealth presented was the defendant's flight from the scene. See Commonwealth v. Carrion, 407 Mass. 263, 277, 552 N.E.2d 558 (1990) ("Flight is perhaps the classic evidence of consciousness of guilt"). However, consciousness of guilt "evidence must be probative of the defendant's feelings of guilt concerning the crime of which he is accused." Commonwealth v. Morris, 465 Mass. 733, 738, 991 N.E.2d 1081 (2013), quoting from Commonwealth v. Villafuerte, 72 Mass. App. Ct. 908, 908, 893 N.E.2d 73 (2008).

Here, the defendant fled before the officer gave any indication that he was suspicious of any criminal conduct or had even seen the backpack. The officer had stopped the Kia for a civil motor vehicle infraction and was checking identifications when the defendant made an excuse to leave the area. Arguably, the defendant's flight was more probative of the defendant's desire to avoid apprehension on the outstanding warrant than it was of his knowing possession of the firearm and ammunition in the backpack. See Commonwealth v. Fancy, 349 Mass. 196, 201, 207 N.E.2d 276 (1965) (weight attributed to consciousness of guilt evidence "weakened considerably" by fact of outstanding warrant, giving defendant additional motive for concealing his identity); Commonwealth v. Handy, 30 Mass. App. Ct. 776, 782 n.6, 573 N.E.2d 1006 (1991) (evidence of flight alone is insufficient foundation for conviction, particularly where defendant had at least one other motive for his actions).

In any event, the defendant's flight from the scene, even if understood to be related to the firearm and ammunition, cannot make up for an absence of evidence on each of the elements of constructive possession. While consciousness of guilt evidence may support other evidence of guilt, it may not supplant the evidence concerning the necessary elements of the crime. See Commonwealth v. Mazza, 399 Mass. 395, 400, 504 N.E.2d 630 (1987) (consciousness of guilt evidence cannot obscure failure of proof); Commonwealth v. Gonzalez, 475 Mass. 396, 413, 56 N.E.3d 1271 (2016). See also United States v. Otero-Mendez, 273 F.3d 46, 53 (1st Cir. 2001) (evidence of flight may be introduced as probative of guilty mind "if there is an adequate factual predicate creating an inference of guilt of the crime charged" [quotation omitted] ).

Here, the necessary element of the defendant's intent to exercise dominion and control over the firearm and ammunition was missing. See Commonwealth v. Romero, 464 Mass. 648, 653-654, 984 N.E.2d 853 (2013). The defendant's flight could not be used to meet this gap in the evidence-unless the flight itself allowed for an inference of the defendant's intent to exercise dominion and control. See Commonwealth v. Salemme, 395 Mass. 594, 602-603, 481 N.E.2d 471 (1985) (defendant's flight could not compensate for absence of evidence as to whether defendant fired shot). Here, the defendant's flight away from the car does not allow a reasonable inference that he intended to control the firearm and ammunition contained within the backpack, which he left behind in the car. See Black's Law Dictionary 594 (10th ed. 2014) ("dominion" means "control"); id. at 403 ("control" means "to exercise power or influence over"). See also Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519, 658 N.E.2d 182 (1995) (constructive possession requires "evidence of dominating influence over the contraband").

The Commonwealth's case essentially consisted of the defendant's flight from a car from which a closed backpack containing a firearm and ammunition were later recovered. It is well established that proximity to contraband alone cannot establish all of the elements of possession. See Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). A conclusion of constructive possession based on proximity to contraband is "forged entirely of suspicion." Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 240, 675 N.E.2d 1177 (1997). Nor can a conviction rest solely on evidence of consciousness of guilt. See Commonwealth v. Paniaqua, 413 Mass. 796, 803 n.7, 604 N.E.2d 1278 (1992). This is so because "there are numerous reasons why an innocent person might flee." Commonwealth v. Toney, 385 Mass. 575, 585 n.6, 433 N.E.2d 425 (1982). See Commonwealth v. Nadworny, 396 Mass. 342, 371, 486 N.E.2d 675 (1985) (consciousness of guilt evidence is equivocal in nature).

Where a conviction is premised on these two elements, necessarily involving conjecture, I cannot accept that guilt has been proved beyond a reasonable doubt.

      The defendant was acquitted of defacing a firearm serial number.

      There also was a warrant outstanding for the defendant, although there is no indication that Officer Collins was aware of it at the time.

      Nothing personal or identifiable to the defendant was found in the backpack.

      The defendant is six feet, seven inches tall.

      The majority posits that by placing his cellular telephone on the seat next to him the defendant "[demonstrated] some intent to exercise dominion and control over the back seat compartment." Ante 263, 102 N.E.3d at 980. This proposition places too much weight on an innocuous gesture. In any event, even if the defendant exercised control over the back seat when he put his telephone down, it does not follow that he also intended to exercise control over the backpack, which was on the floor.

      The majority suggests that the defendant "had the most ready access to [the backpack]." Ante at 263, 102 N.E.3d at 980. While it is true that the defendant was the only person sitting in the back seat, there is no evidence that the defendant's access to the backpack was superior to that of the front seat passenger or even the driver. Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 692 N.E.2d 103 (1998), upon which the majority relies is distinguishable. In Sadberry, a gun was found under the defendant's seat in the vehicle he was operating. The gun smelled of burnt gun powder and had been fired by one of the passengers. We observed that the question whether the defendant intended to exercise dominion and control over the gun was a close one, but we concluded that evidence of the defendant's presence in the car with two loaded guns, one of which was in plain view, ski masks, gloves, and black clothing, sufficed to establish an intent to control the firearm. Id. at 936, 692 N.E.2d 103.

      As the majority acknowledges, there was no evidence that the defendant had a personal connection to any of the items found in the backpack. Officer Collins testified that a number of items were retrieved from the backpack, but there was no evidence that any of the items were tied to the defendant. In addition, the ammunition was in a sock which, as Officer Collins acknowledged on cross examination, would not fit the defendant.

      Although we consider all of the evidence in its totality in determining whether the Commonwealth has met its burden of proof, we note that the Commonwealth does not argue that the defendant's comment to the police questioning the basis for the charges establishes anything more than knowledge of the firearm.

      The Commonwealth argues that the judge could draw the reasonable inference that the defendant heard MacNamara shouting and, as the majority states, this "caused the defendant to shift from leaving the scene, to fleeing it." Ante at 263, 102 N.E.3d at 980. According to the Commonwealth, this "shift" points to the defendant's guilt and constitutes additional evidence that tips the scale in favor of sufficiency. We reject this "argument because it piles inference upon inference[,] which cannot form the basis of a conviction." Commonwealth v. Ramos, supra at 903 n.2, 744 N.E.2d 107. Furthermore, we see no support in the evidence for the majority's supposition that the defendant began to run "when Officer Collins was alerted by MacNamara to the backpack." Ante at 263-264, 102 N.E.3d at 980. Officer Collins testified only that he saw MacNamara standing and pointing over the roof of the car toward the back seat. He then returned to his cruiser, at which time he saw the defendant running. Officer Collins left the scene in his cruiser and attempted to locate the defendant without success. By the time Officer Collins had returned, MacNamara had fled. Officer Collins had no knowledge of the backpack until the driver, who had remained, showed it to him.

      It bears noting that the cases cited by the majority in support of the proposition that "[f]light is often considered a plus factor supporting an inference that the occupant [of a motor vehicle] intended to exercise dominion and control over the illegal contraband," ante at 264, 102 N.E.3d at 981, are distinguishable in so far as each case involved considerably more direct evidence of guilt.

      As regards the warrant, I agree with the majority that there was no evidence that Officer Collins knew of the warrant or "target[ed] the defendant to arrest him on the outstanding warrant." Ante at 264, 102 N.E.3d at 980. In any event, whether Officer Collins was aware of the outstanding warrant has no bearing on the question of the defendant's motive. What matters is that there was an equally plausible alternative reason that explains the defendant's conduct.

      As noted by the dissent, ante at 268 & n.4, 102 N.E.3d at 983 & n.4, the behavior of the other occupants of the car and the statements made by the defendant one month after the incident were probative, at most, only of the defendant's knowledge of the presence of the firearm and ammunition within the closed backpack.

      As an officer testified regarding the defendant: "he's had warrants for him for my 16 years as a policeman."

      In my view, the language of cases suggesting that a defendant's presence near contraband, supplemented by certain "plus factors," Commonwealth v. Ortega, 441 Mass. 170, 174, 804 N.E.2d 345 (2004), may "tip the scale," Commonwealth v. Boria, 440 Mass. 416, 419, 798 N.E.2d 1017 (2003), in favor of sufficiency for constructive possession, tends to obscure the proper focus of the analysis. It is not a simple matter of adding up factors; rather, the factors must be viewed with respect to the reasonable inferences that may be drawn therefrom. See Commonwealth v. Romero, 464 Mass. at 654-655, 984 N.E.2d 853.

      The cases relied on by the majority to support its position that flight "is often considered a plus factor supporting an inference that the occupant intended to exercise dominion and control" are inapposite. Ante at 264, 102 N.E.3d at 981. In Commonwealth v. Namey, 67 Mass. App. Ct. 94, 99-101, 852 N.E.2d 116 (2006), the defendant was charged with possession of a stolen motor vehicle in which he was a passenger. His intent to control the stolen motor vehicle was inferred, not from his flight from the car, but rather from his actual use of the motor vehicle with the driver to prepare to commit other crimes. Contrast Commonwealth v. Darnell D., 445 Mass. 670, 673-674, 840 N.E.2d 33 (2005) (passenger's intent to control stolen motor vehicle not established by consciousness of guilt in abandoning car, evading police, and lying about his whereabouts). Likewise, while both Commonwealth v. Sabetti, 411 Mass. 770, 778, 585 N.E.2d 1385 (1992), and Commonwealth v. Jefferson, 461 Mass. 821, 826, 965 N.E.2d 800 (2012), involved flight in the constructive possession analysis, neither relied on flight to establish the element of intent to exercise dominion and control.

      Indeed, "the probative value of flight 'as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.' " 2 McCormick on Evidence § 263, at 314 (7th ed. 2013), quoting from United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). See United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005) (for flight to demonstrate guilt, each link in "chain of inferences" must be supported).

      As juries have long been instructed, "it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty." Commonwealth v. Webster, 5 Cush. 295, 320, 59 Mass. 295 (1850).


source: Caselaw Access Project

author: MILKEY, J.

license: Public Domain

text:
    Jonathan SINAIKO & another v. ZONING BOARD OF APPEALS OF PROVINCETOWN & others.
    No. 17-P-1123
    Appeals Court of Massachusetts, Barnstable..
    March 12, 2018 May 25, 2018
    Brian J. Wall Boston, for the plaintiffs.
    Christopher J. Snow Provincetown, for David Mayo & another.
    Present: Milkey, Maldonado, & Desmond, JJ.

      Camille Cabrey.

      David Mayo and Stanley Sikorski.

   MILKEY, J.

Defendant Stanley Sikorski wants to build a four-bedroom, two-and-one-half story single family residence on a vacant lot (lot) in Provincetown (town). At issue is the application of § 2640 of the town zoning by-law (by-law), which regulates the scale of new construction and additions. Despite the fact that § 2640 expressly states that it "is applicable to all new buildings and all additions in all zoning districts in Provincetown," the building commissioner and zoning board of appeals (board) concluded that the by-law's proscriptions were inapplicable to the proposed building here. In an appeal brought by abutters Jonathan Sinaiko and Camille Cabrey (abutters) pursuant to G. L. c. 40A, § 17, a Superior Court judge upheld the board's decision on cross motions for summary judgment. The abutters now appeal, arguing that the plain language of § 2640 requires its application here, and that, as applied, the by-law requires Sikorski to seek a special permit for his proposed building. Because we agree, we reverse the judgment.

Background. a. The by-law. Section 2640 of the by-law regulates building scale. Its express purpose is to preserve the town's existing character of "buildings that have relatively consistent and harmonious scale within neighborhoods," and to prevent the construction of "[n]ewer buildings, where the appropriate scale has not been maintained, [that] have disrupted the character of the neighborhoods." By-law § 2640(B). To serve these ends, the by-law limits the size of new buildings and building additions that can be constructed. Those limits are keyed to the size of existing structures (measured by volume) that already exist in the relevant area.

Under the terms of § 2640 D, a landowner can-as of right-build a new structure (or expand an existing structure) that is up to twenty-five percent larger than the average size of existing buildings in the area (referred to in the by-law as the "neighborhood average"). Under § 2640(E), a landowner can seek to construct a larger building than can be built as of right by applying for a special permit from the board. The board is vested with broad discretion to grant a special permit where "the deviation [from the scale allowed as of right] is appropriate and [the proposal] meets one or more of [six enumerated] criteria" (the specifics of which we reserve for later discussion). Ibid.

The details of how the neighborhood average is to be calculated are important. That average is set based on existing structures that lie within 250 feet of the applicable measuring point. That measuring point in turn varies depending on whether the proposal is for new construction or for the expansion of an existing structure. For new construction, the starting point is "the center of the parcel," while for proposed expansions it is "the center of the proposed renovation." By-law § 2640(C). Generally, all existing structures that lie within 250 feet of the applicable measuring point are to be included, with the qualification that "the largest and smallest structures" within that radius are to be excluded. Ibid. Thus, the neighborhood average employs a form of what statisticians refer to as a "trimmed mean." See Oxford Dictionary of Statistical Terms 412 (6th ed. 2006).

b. The proposed building. The lot in question is owned by defendant David Mayo, but Sikorski apparently has agreed to purchase it contingent on his obtaining a building permit. The lot, which is rectangular, is over one acre in size, but it is exceptionally long and narrow. Specifically, the lot is only forty-nine feet wide, but over 1,000 feet long. One of the narrow sides fronts on Bradford Street, with the lot extending north from that street deep into a wooded area.

Sikorski originally proposed to build a two-family residence at a particular location on the lot. Because of neighborhood opposition to that proposal, Sikorski changed it to a single-family home, reduced its size, moved its location on the lot, and modified its design in certain respects. Under the revised proposal, the building would remain a not insubstantial structure. For example, the building will include two-and-one-half stories -the maximum allowed in the town -and comprise 33,810 cubic feet in volume.

The proposed house is to be located at the southern edge of the lot, that is, next to Bradford Street. It is undisputed that there are many existing structures in close proximity to that proposed location. For example, as the abutters pointed out in their appeal to the board, there are approximately sixteen structures that lie within 250 foot of the center of the proposed building, and the average volume of those structures-not including the largest and smallest-is 9,250 cubic feet. Thus, the proposed building is over three times larger than what the neighborhood average would have been if that figure were calculated using the actual location of the proposed structure.

As noted, however, the neighborhood average for new construction is to be calculated based on the center of the lot, not where the proposed building is in fact to be located. Because of the relatively unusual shape of the lot here, that difference has a significant effect. There are only two existing buildings that lie within 250 feet of the center of the lot. Those structures have volumes of 8,200 and 4,560 cubic feet, respectively. Thus, if the ordinary mean of those two structures were used (6,380 cubic feet), the proposed structure would be over five times as large (a disparity in scale even greater than if the actual location were used).

Excluding the two nearby structures from the calculation-based on their being considered the largest and the smallest of the structures lying within 250 feet of the center of the lot-left no existing structures on which to base a neighborhood average. This presented town officials with the conundrum of how to calculate the neighborhood average here. As evidenced by a "scratch out" on the relevant form, an assistant assessor for the town initially calculated the neighborhood average as zero. However, apparently upon further reflection, he concluded that the neighborhood average simply was "N/A," which the parties agree is shorthand for "not applicable." Under this interpretation, § 2640 placed no constraints on the size of building that Sikorski could build as of right. The building commissioner relied on this interpretation in determining that a building permit should issue.

On an appeal brought by the abutters, the board affirmed. While acknowledging that § 2640 was required "to be applied to all new buildings," the board concluded that in the circumstances of this case, "there [was] no scale calculation procedure to follow." The board also stated that it had taken into consideration that Sikorski had redesigned his original proposal to reduce its scale "in response to previous neighbor objections."

On cross motions for summary judgment, a Superior Court judge affirmed the board's decision. He reasoned that § 2640 was ambiguous because it did not address how the neighborhood average was to be calculated in the circumstances of this case. He then observed that the by-law's purpose was to "maintain consistent scale among existing buildings," and that it did not reference "preserving undeveloped land in its natural state." Finally, he concluded that in light of this intent, "it [was] reasonable for the [b]oard to conclude that where no qualifying structures exist in the 250 foot radius, there is no existing scale which must be protected."

Discussion. To help frame the analysis that follows, we begin with some preliminary observations. It is important to keep in mind that the abutters make two different arguments. The first is that the board's interpretation of § 2640 is invalid because it is at odds with that section's plain language and otherwise unreasonable. The second is that their own proffered interpretation (under which the neighborhood average here had to be taken as zero) must be accepted. These contentions, while related, are conceptually distinct. As elucidated below, it is possible to conclude that the interpretation offered by the board is untenable without concluding that the abutters' particular counter interpretation necessarily is required.

Overall, this case raises two inquiries. One is whether the building scale by-law applies. The other is, if so, how it applies (that is, how the neighborhood average here should be determined). The first question is addressed by the plain language of the by-law, which begins with the edict that the by-law "is applicable to all new buildings and all additions in all zoning districts in Provincetown." By-law § 2640(A). That language is binding on the board, and the board therefore is not free to determine that the by-law simply is inapplicable. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 640, 255 N.E.2d 347 (1970) (board of appeals could not adopt interpretation of by-law where its plain language provided "no basis for such an interpretation"). Cf. Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550, 574 N.E.2d 364 (1991) ("[C]ourts will not hesitate to overrule agency interpretations [of their own regulation] when those interpretations are arbitrary, unreasonable, or inconsistent with the plain terms of the regulation itself").

Having resolved that § 2640 applies, we now turn to the second inquiry: how the neighborhood average is to be calculated in the circumstances presented. As noted, the board concluded that the by-law places no limits on the proposed building's size. As the abutters point out, having rejected a neighborhood average of zero, the board effectively set that average at infinity instead.

The results of the board's interpretation are highly anomalous: how can it be that a proposed new building is exempt from regulation under a generally-applicable building scale by-law no matter how large that building would be? In addition, by exempting a structure that in fact grossly exceeds the scale of other buildings in the area, the board's interpretation flies in the face of the by-law's directive that "[a]ll new buildings or additions shall comply with appropriate scale to their neighborhood." By-law § 2640(B). Even to the extent that the judge was correct that the by-law is ambiguous with regard to how the neighborhood average should be interpreted in the circumstances of this case, the board's resolution of that ambiguity was not reasonable. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72, 794 N.E.2d 1198 (2003), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. at 639, 255 N.E.2d 347 (zoning board decision will be overturned if "based on a legally untenable ground or it is unreasonable, whimsical, capricious or arbitrary"). See also Pelullo v. Croft, 86 Mass. App. Ct. 908, 909, 18 N.E.3d 1092 (2014) ("[A]court owes deference to the interpretation of a zoning by-law by local officials only when that interpretation is reasonable").

In contrast, the abutters' alternative interpretation is based on an arguably straightforward application of the by-law's language: where there are no buildings in the relevant neighborhood, the neighborhood average is zero. Moreover, their interpretation does not mean that Sikorski necessarily will be unable to build his desired house, but only that he will have to seek a special permit to do so. The by-law delegates to the board broad discretion to grant case-by-case exemptions from the by-law's strict application.

At the same time, the abutters' interpretation produces its own anomalies. How can it be, for example, that a landowner who has proposed to construct a new structure in an area populated by numerous other existing structures nevertheless be burdened by a neighborhood average of zero (and thereby be forced to seek a special permit) no matter how small his proposed structure may be? In addition, as a matter of mathematics, trying to divide zero by zero is an endeavor destined to produce an indeterminate result.

Thus, it is apparent that if the board's available choices for setting the neighborhood average were limited to zero and infinity, there are anomalies either way. That realization should have caused the town officials to question whether they were limited to these two problematic options. In other words, could there be a third interpretation that better fit with both the letter and intent of the by-law? Cf. Reade v. Secretary of the Commonwealth, 472 Mass. 573, 578, 36 N.E.3d 519 (2015), quoting from Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. 106, 113, 653 N.E.2d 589 (1995) ("[I]t is a well-established canon of statutory construction that a strictly literal reading of a statute should not be adopted if the result will be to thwart or hamper the accomplishment of the statute's obvious purpose, and if another construction which would avoid this undesirable result is possible"). One does not have to look far to find such an interpretation.

Here, the building commissioner ended up with no existing structures on which to determine a neighborhood average only because he excluded the two existing structures that in fact are located within 250 feet of the center of the lot. The obvious question is whether the terms of § 2640 required him to do so. The only apparent reason for the by-law's relying on a trimmed mean instead of an ordinary "arithmetic mean" is to try to avoid the problem of outliers unduly skewing the resulting average. See Oxford Dictionary of Statistical Terms 412 (idea of trimmed mean is "[to reduce] the sensitivity of the arithmetic mean to extreme observations"). In other words, excluding values at either end is done based on the theory that doing so may yield a more representative center value. Here, the exclusion of the only two available data points had the opposite result: it left a null set, which in turn presented town officials with having to choose between zero and infinity as the operative neighborhood average.

Nothing in the language of § 2640 compelled the building commissioner to exclude existing structures when doing so would leave him without a basis upon which to set a neighborhood average. In fact, the specific language of the by-law cuts in the other direction. That is because the terms "largest" and "smallest" that appear in the by-law properly are used only in relation to three or more items (for two items, "larger" and "smaller" would be proper). See by-law § 2640(C); Chicago Manual of Style § 5.86, at 253 (17th ed. 2017) ("A superlative adjective expresses the relationship between at least three things and denotes an extreme of intensity or amount in a particular shared quality"). Thus, under a grammatically correct reading of the by-law's plain language, the directive that the building commissioner exclude the "largest" and "smallest" structures in calculating a neighborhood average would apply only where there are three or more structures within 250 feet of the applicable measuring point. See generally Commonwealth v. Wright, 88 Mass. App. Ct. 82, 86, 36 N.E.3d 569 (2015) ("In interpreting legislation, we employ familiar canons of statutory and grammatical interpretation"). Applying such an interpretation here, the two structures within 250 feet of the applicable measuring point would not be excluded in calculating the neighborhood average.

Conclusion. In sum, we agree with the abutters both that the by-law applies to the proposed building and that the board unreasonably interpreted how it applies. Although the particular counter-interpretation proposed by the abutters has its own problems, there is at least one interpretation of the by-law that accords with both its language and express purpose. The proposed building is too large to be approved under that interpretation without a special permit. With none of the defendants having offered a reasonable interpretation of the by-law under which the proposed building could be constructed as a matter of right, we reverse the judgment. A new judgment shall enter in favor of the abutters.

So ordered.

      The material facts are undisputed. The parties jointly submitted a statement of agreed material facts, to which relevant documents were appended as exhibits.

      In the town's historic district, only fifteen percent increases are allowed as of right. By-law § 2640(D).

      The specific requirements that follow are all set forth in § 2640 itself. That section also states that "[d]etermination of existing and proposed building volume and neighborhood average shall be directed by the [building commissioner] based on the established methodology by calculating the volume in cubic feet of the building that is above grade, including roofs and porches." By-law § 2640(C). In this manner, certain details of precisely how building volume is to be calculated appear to be left to administrative norms. For example, we know from the record that the town employs a particular computer program and database to measure building volumes and that all buildings are "considered to have [ten] foot ceilings." Such details are not in dispute in the current case.

      In addition, certain small stand-alone structures are not included in setting the neighborhood average, by-law § 2640(C), a detail that has no bearing on the current controversy.

      The record reveals that there are other lots in the area-including those on either side of this lot-that have a similar shape, but are not quite as narrow.

      It appears that under a different provision of the town's zoning by-law, a top floor under a pitched roof is considered only half of a story if less than fifty percent of it lies under dormers. See by-law, Article 1 (definitions).

      See by-law § 2560.

      We caution the reader that this figure is in cubic feet, not the more familiar measure of square feet. Although we know that the town treats each story as being ten feet tall, it is not clear on the record before us how the town measures the volume of "half stories." As a matter of simple arithmetic, one can discern that the proposed building is at least 3,381 square feet in size.

      Under the procedures adopted by the town, the neighborhood average is calculated by the assessor's office, which maintains the available database.

      The by-law includes some express exemptions, including with regard to "remodeling where the total volume of the building is to be reduced," "structures destroyed by fire or other similar casualty," and additions of "less than ... 324 cubic feet of space." By-law § 2640(A). No such exemptions apply to the case before us.

      Sikorski and Mayo attempt to support the board's interpretation of § 2640 by pointing out that after the controversy about how to interpret the by-law emerged, one of the abutters proposed an amendment to the by-law that failed to secure a majority at town meeting, much less the two-thirds majority necessary to pass. They argue that "[t]he rejection of ... [the] amendment to the scale by-law is proof that the citizens of Provincetown were satisfied with, and in effect ratified, the uniform interpretation of the by-law by the ... [b]oard ... that the by-law is inapplicable to projects that have no buildings within a 250 radius." This argument fails for at least two reasons. First, " '[w]e do not draw conclusions concerning the intent of [a legislative body] based on the failure to enact a subsequent amendment.' See Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 193-194, 356 N.E.2d 236 (1976) ('Such inaction by a subsequent legislative body "has no persuasive significance" with reference to the intent of the Legislature which passed the original bill')." Cook v. Patient Edu, LLC, 465 Mass. 548, 555 n.14, 989 N.E.2d 847 (2013). Second, the specific amendment that had been proposed here would not have clarified that the by-law should be interpreted along the lines that the abutters had argued. Instead, it would have amended the by-law by making the measuring point the center of the applicable structure, regardless of whether the proposal was for new construction or an addition. Thus, at least as applied to the facts of this case, the unsuccessful amendment would have increased the resulting neighborhood average (as compared to the zero that the abutters asserted was appropriate under the existing by-law). It is impossible to know whether those who voted against the amendment did so because they favored or opposed more intensive development.

      As noted, a special permit may be granted where "the deviation [from the scale allowed as of right] is appropriate and [the proposal] meets one or more of [six enumerated] criteria." By-law § 2640(E). As the abutters have acknowledged, two of those criteria potentially provide fertile ground for Sikorski:
      "1. The proposed building or addition is in keeping with the goals and objectives of the Local Comprehensive Plan.
      "...
      "5. The proposed building or addition successfully integrates into its surroundings and is sited in a manner that minimizes the appearance of mass from the streetscape and will not have a significant negative impact on the natural light to, or views from, neighboring structures."

      At oral argument, we inquired of the parties whether the by-law was susceptible to a third interpretation, and we sua sponte invited the parties to submit supplemental briefs addressing this issue. Both parties accepted that invitation.

      See also Finkelstein & Levin, Statistics for Lawyers § 1.9, at 29 (1990) (characterizing trimmed mean as effort to address fact that ordinary means are "sensitive to deviant or outlying data points arising from a distribution with 'heavy tails' ").

      We do not know whether-elsewhere in the town-there could be situations where there are no structures within 250 feet of the applicable measuring point, and, in any event, such a case is not before us. We therefore do not address how the by-law should be interpreted in such a situation.

      In the first instance, it is the board's role to decide how to interpret the by-law, and such an interpretation must be upheld so long as it is supported by the by-law's plain language and is otherwise reasonable. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474-475, 961 N.E.2d 1055 (2012). We therefore refrain from holding that only one specific interpretation of the by-law is reasonable.

      If the two existing buildings that lie within 250 feet of the proposed building are not excluded, the neighborhood average for the lot, as noted earlier, is 6,380 cubic feet. That means that-as of right-Sikorsky is able to build a structure twenty-five percent larger than that, that is, 7,975 cubic feet. Sikorski's current proposal is more than four times that number.

      Sikorski and Mayo argue that the town's interpretation has been "long-accepted and uniformly applied," and that a reversal here "would potentially place in jeopardy the legitimacy of hundreds of building permits issued over the years." Putting aside that such statements enjoy no support in the record before us, an unlawful interpretation does not cease to be unlawful simply because it long has been applied.


author: AGNES, J.

text:
    Alexandra STAHR & others v. LINCOLN SUDBURY REGIONAL HIGH SCHOOL DISTRICT.
    No. 17-P-230
    Appeals Court of Massachusetts, Middlesex..
    Argued November 9, 2017 Decided May 18, 2018
    John N. Morrissey, Lincoln, for the plaintiffs.
    Christine M. Dowling for the defendant.
    Present: Agnes, Maldonado, & McDonough, JJ.

      Jennifer Stahr, John Stahr, Stephen Stahr, and David Stahr.

   AGNES, J.

The principle that "if there is tortious injury there is liability" is one of long standing in Massachusetts when the parties are private actors. Historically, however, the principle had no application when the negligent actors were employees of State or local government, because their employers were shielded from such lawsuits based upon the ancient doctrine of sovereign immunity.

Morash & Sons v. Commonwealth, 363 Mass. 612, 618-619, 296 N.E.2d 461 (1973). With the adoption of the Massachusetts Tort Claims Act in 1978, G. L. c. 258 (act), inserted by St. 1978, c. 512, § 15, the Legislature abolished much of the governmental immunity doctrine subject to several exclusions. See G. L. c. 258, §§ 2, 10(a ) - (j ). Recently, in Cormier v. Lynn, 479 Mass. 35, 91 N.E.3d 662 (2018), the Supreme Judicial Court considered the applicability of a specific exclusion in the act that bars "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." G. L. c. 258, § 10(j ), inserted by St. 1993, c. 495, § 57. In Cormier, the court, in keeping with prior case law, held that § 10(j ) comes into play unless the public employer, by some affirmative act, "originally caused" the condition or situation that forms the basis for the plaintiff's negligence claim, 479 Mass. at 40, 91 N.E.3d 662, and determined that a grade school student who suffered a severe spinal injury as a result of being pushed down a stairwell at school by a classmate could not bring suit against the city of Lynn and its school department, among others. The court concluded that the claims were barred either because they "originat[ed] from a failure to act rather than an affirmative act," or because any affirmative actions by the defendants were " 'too remote as a matter of law to be the original cause' of [the student's] injuries ... and therefore cannot be said to have 'materially contributed' to creating the specific condition or situation resulting in [the] injuries." Id. at 41, 91 N.E.3d 662, citing Brum v. Dartmouth, 428 Mass. 684, 696, 704 N.E.2d 1147 (1999), and Kent v. Commonwealth, 437 Mass. 312, 319, 771 N.E.2d 770 (2002).

In the case before us, we must determine whether § 10(j ) is applicable to negligence claims brought by the plaintiffs against the defendant, Lincoln Sudbury Regional High School District (defendant). The plaintiffs' claims arise out of an injury sustained by Alexandra Stahr, a member of the defendant's varsity field hockey team, who was struck by a field hockey stick wielded by another team member during a practice session. In addition, we also must consider whether a specific statutory exception to the immunity afforded by § 10(j ) permits the plaintiffs' claims to proceed because they are grounded in "the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [s]he was in before the intervention." G. L. c. 258, § 10(j )(2). For the reasons that follow, we conclude that notwithstanding the serious injuries suffered by Alexandra, the plaintiffs' claims are barred by § 10(j ) and do not come within the saving provision of § 10(j )(2).

In their amended complaint, the plaintiffs allege that the defendant was negligent in (1) failing to properly train and supervise the athletic coaches and athletes present when Alexandra was injured; (2) failing to seek adequate medical assistance at the time of her injuries and, further, failing to provide adequate postinjury monitoring and planning related to Alexandra's injuries; and (3) failing to implement a written academic reentry plan following Alexandra's injuries. The plaintiffs also assert claims premised on negligent infliction of emotional distress and loss of consortium due to the acts and omissions of the defendant.

The defendant filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the basis that G. L. c. 258, § 10(j ), barred the claims brought against the defendant, a regional school district. The motion judge dismissed the complaint in its entirety after finding that G. L. c. 258, § 10(j ), insulated the defendant from liability. For the reasons set forth below, we affirm.

Background. On September 30, 2012, Alexandra participated in field hockey practice as a member of the defendant's varsity field hockey team. On that day, the team participated in a drill introduced and supervised by an alumna player acting as a volunteer coach (volunteer coach). The head varsity field hockey coach (head coach) was also present on the field but did not actively participate in the supervision of the drill. Prior to beginning the drill, neither coach gave the players any instructions or warnings as to techniques that could endanger other players. The coaches also failed to prohibit the players from practicing dangerous techniques and did not inform the players that they would be penalized for utilizing such techniques. During the drill, Alexandra was struck in the face by a teammate's field hockey stick after the teammate chose to pass the ball via a "hard-drive" as opposed to a "push-pass." The blow knocked out two of Alexandra's teeth and caused her to lose consciousness.

The volunteer coach did not provide Alexandra with assistance after she was injured. The head coach left the field to find first aid supplies and did not immediately assist Alexandra or assess her injuries. While the head coach was getting supplies, one of Alexandra's teammates called Alexandra's father. Upon her return to the field, the head coach, who had retrieved one of Alexandra's teeth, put it on ice and directed Alexandra to apply ice and gauze to her mouth. The head coach did not take any steps to mitigate the effects of a possible concussion, and the defendant had not yet implemented a concussion protocol as required by G. L. c. 111, § 222, and 105 Code Mass. Regs. §§ 201.00 et seq. (2011). When Alexandra's father arrived at the field, the head coach did not explain to him the circumstances of Alexandra's injury or provide advice about how to treat her injury, including the proper protocol to follow in the event of a suspected concussion. Alexandra's father took her for emergency dental surgery but failed to seek further emergency medical treatment.

Alexandra was subsequently diagnosed with a concussion on October 5, 2012. The symptoms of her concussion caused her academic performance to suffer over a prolonged period of time. The defendant provided her with little academic assistance and did not implement a written graduated reentry plan, which ultimately led Alexandra to withdraw from Lincoln-Sudbury Regional High School and transfer to another school.

Discussion. "We review the allowance of a motion to dismiss de novo ... accept[ing] as true the allegations in the complaint and draw[ing] every reasonable inference in favor of the plaintiff." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011).

1. General Laws c. 258, § 10( j ). In this case, we must once again wade into the "interpretive quagmire" that is G. L. c. 258, § 10(j ). See Brum, 428 Mass. at 692, 704 N.E.2d 1147 ; Cormier, 479 Mass. at 40 n.10, 91 N.E.3d 662. Section 10(j ) confers significant protection from tort liability to public employers by barring "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." G. L. c. 258, § 10(j ). See Cormier, supra at 39-40, 91 N.E.3d 662.

a. "Original cause" of Alexandra's injuries. The plaintiffs first argue that the head coach's decision to allow an "untrained volunteer coach to introduce and supervise [a] novel close quarters drill" constituted an affirmative act that was the "original cause" of Alexandra's injuries.

"To have 'originally caused' a condition or situation for the purposes of § 10(j ), the public employer must have taken an affirmative action," and the employer's act "must have materially contributed to creating the specific 'condition or situation' that resulted in the harm." Cormier, 479 Mass. at 40, 91 N.E.3d 662, quoting from Brum, 428 Mass. at 695-696, 704 N.E.2d 1147, and Kent, 437 Mass. at 319, 771 N.E.2d 770.

While the plaintiffs argue that the affirmative act of allowing an untrained volunteer coach to supervise a novel drill was the "original cause" of Alexandra's injuries, their amended complaint makes clear that their claim is rather that the coaches' lack of supervision and inadequate instruction prior to allowing the players to engage in the drill-both omissions-caused Alexandra's injuries. The plaintiffs' claim in this respect amounts to an attempt to hold the defendant liable for failing to ensure Alexandra's safety during field hockey practice. As the Supreme Judicial Court stated in Cormier, 479 Mass. at 42, 91 N.E.3d 662, "Such a claim is precluded under the act." The plaintiffs' claim must fail, as it is premised on the defendant's failure to act. See id. at 41-42, 91 N.E.3d 662 (students instructed to line up before school without adequate supervision or guidance from defendant constituted failure to prevent harm in form of spinal injury to student who was pushed down stairwell, as opposed to affirmative act under § 10 [j ] ). b. Aftermath of the injury. The plaintiffs next argue that § 10(j ) does not bar so much of their claims as are based on the independent negligent acts of the defendant that occurred after Alexandra was initially injured.

i. Independent acts of negligence. Alexandra's injuries were caused by the negligent act of a third person-here, her teammate-and, as discussed supra, the defendant was not the "original cause" of Alexandra's injuries. The plaintiffs nevertheless maintain that the defendant is liable by arguing that the defendant's failure to implement and adhere to proper concussion protocols pursuant to G. L. c. 111, § 222, and 105 Code Mass. Regs. §§ 201.00 et seq., constituted independent acts of negligence that exacerbated the harm initially caused by Alexandra's teammate. However, § 10(j ), by its plain language, precludes liability in such circumstances, as the exclusion is triggered by conduct amounting to a "failure to act to ... diminish the harmful consequences of ... the ... tortious conduct of a third person, which is not originally caused by the public employer." See Anderson v. Gloucester, 75 Mass. App. Ct. 429, 434-435, 914 N.E.2d 926 (2009) (holding that § 10 [j ] barred plaintiffs' negligent misidentification claim because police officer's misidentification of fire victim, while affirmative act intended to diminish ultimate harm suffered, was not original cause of harmful consequences suffered by plaintiffs, which stemmed from fire that city did not cause).

ii. Negligent intervention under § 10( j )(2). The plaintiffs further argue that the motion judge erred in dismissing their amended complaint because the defendant's negligent intervention falls within the exception to § 10(j ) immunity set forth in § 10(j )(2). Section 10(j )(2) provides that § 10(j ) immunity shall not apply to "any claim based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [s]he was in before the intervention." The term "intervention" is not defined in G. L. c. 258, §§ 1 or 10. When a statutory term is not specifically defined, we give it the "usual and accepted meaning, as long as [that] meaning[ is] consistent with the statutory purpose." Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). See Commonwealth v. Gove, 366 Mass. 351, 354-355, 320 N.E.2d 900 (1974). Typically, the usual and accepted meaning of a statutory term can be derived from a source such as a dictionary. Zone Book, Inc., supra. The term "intervention" is commonly understood to mean "the act or fact of intervening." Webster's Third New International Dictionary 1183 (1993). In this sense, "intervention" refers to an affirmative act on the part of the intervener. This is how the term has been understood and applied in our appellate decisions. Compare Jones v. Maloney, 74 Mass. App. Ct. 745, 750, 910 N.E.2d 412 (2009) ("The assistant principal's failure to take various actions, including contacting the [plaintiff's] mother, ... cannot be considered acts of intervention under § 10 [j ][2]"), with Serrell v. Franklin County, 47 Mass. App. Ct. 400, 405, 713 N.E.2d 389 (1999) ( § 10 [j ][2] exception applicable where affirmative act of pushing iron gate against plaintiff to subdue inmate exacerbated situation to plaintiff's detriment).

Here, the intervening "acts" alleged to fall within the scope of § 10(j )(2) are, rather, plainly omissions. These include the head coach's failure both to explain to Alexandra's father the circumstances of Alexandra's injury and to provide advice about how to treat her injury, and the defendant's failure to implement the proper concussion protocols under G. L. c. 111, § 222, and 105 Code Mass. Regs. §§ 201.00 et seq. Thus, the plaintiffs' arguments as to the applicability of § 10(j )(2)'s exception to the exclusion from liability set forth in § 10(j ) must also fail. As we have noted on other occasions and in other contexts involving the scope of statutory remedies, the exception set forth in § 10(j )(2) reflects a policy judgment. "If it is unwise, it is not for us to say so; the remedy lies with the Legislature." Murphy v. Police Commr. of Boston, 369 Mass. 469, 471, 339 N.E.2d 898 (1976). See Commonwealth v. Vickey, 381 Mass. 762, 767, 412 N.E.2d 877 (1980) ("[W]hen the statute appears not to provide for an eventuality, there is no justification for judicial legislation").

2. Other claims. The plaintiffs' other claims, all of which stem from the injuries sustained by Alexandra during field hockey practice, also were properly dismissed by the motion judge. See Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 493, 778 N.E.2d 976 (2002).

Judgment affirmed.

      Because the plaintiffs share a surname, we refer to Alexandra by her first name.

      General Laws c. 111, § 222, establishes a regulatory framework relating to head injury safety and education.

      See 105 Code Mass. Regs. § 201.010(E) (2011) ("Each student who is removed from practice or competition and subsequently diagnosed with a concussion shall have a written graduated reentry plan for return to full academic and extracurricular athletic activities").

      It is undisputed that the defendant is a public employer. See G. L. c. 258, § 1.

      Even if we consider this theory of liability, the act of allowing an untrained volunteer coach to direct and supervise the drill in which Alexandra was injured would not qualify as the "original cause" of the harm complained of because it is too attenuated from the events that were the direct cause of that harm. See Brum, 428 Mass. at 695, 704 N.E.2d 1147 ; Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489, 778 N.E.2d 976 (2002).

      For the same reason that Gennari v. Reading Pub. Schs., 77 Mass. App. Ct. 762, 933 N.E.2d 1027 (2010), was distinguishable in Cormier, 479 Mass. at 42 n.13, 91 N.E.3d 662, it is also distinguishable from the facts presented in the case before us. In Gennari, an elementary school principal directed first graders to participate in recess in a concrete courtyard containing numerous "bench-walls" with sharp edges. During recess, the plaintiff was pushed by a classmate and struck his face on the corner of one of the concrete bench-walls located in the courtyard. 77 Mass. App. Ct. at 763-764, 933 N.E.2d 1027. The plaintiff subsequently filed suit against the school district. This court held that § 10(j ) did not bar the plaintiff's claims against the school district on the basis that the principal's decision to hold recess in a concrete courtyard populated with bench-walls was an affirmative act constituting an "original cause" of the situation that led to the plaintiff's injury. Id. at 765, 933 N.E.2d 1027. Here, as in Cormier, the original cause of Alexandra's injury was an omission-the coaches' failure to properly instruct and supervise the athletes participating in the drill, and thereby ensure Alexandra's safety. See Cormier, supra at 42 n.13, 91 N.E.3d 662.

      General Laws c. 111, § 222(f ), inserted by St. 2010, c. 166, § 1, provides:
      "Nothing in this section shall be construed to waive liability or immunity of a school district or its officers or employees. This section shall not create any liability for a course of legal action against a school district, its officers or employees."
      While the plaintiffs admit that the statute itself does not create a cause of action against the defendant, they argue that they may nonetheless bring a cause of action by showing that the defendant breached a duty owed to Alexandra by failing to comply with the statutory mandates of G. L. c. 111, § 222, and the applicable regulations.