MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of unlicensed carrying of a firearm, G. L. c. 269, § 10 (a), unlawful carrying of a loaded firearm, G. L. c. 269, § 10 (n), and two counts of attempted assault and battery with a firearm, G. L. c. 265, § 15F.
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After a colloquy at a jury-waived trial, the judge accepted the defendants guilty plea to unlicensed carrying of a firearm, as a second and subsequent offense under G. L. c. 269, § 10 (d). The defendant was sentenced to concurrent from five to seven year prison terms, and placed on probation for two years to run from and after the State prison sentence. On appeal, the defendant challenges the denial of his motions for required findings of not guilty.
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We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found that on December 15, 2015, the defendant accompanied Richie Williams, as Williams drove the defendants girlfriends Chevrolet to a location in Mattapan. Stopping near Morse Street, the defendant and Williams met Anthony Arthur, who arrived alone in a separate vehicle. After speaking with Arthur, Williams and the defendant got out of the Chevrolet, leaving it running, and walked toward Morse Street.
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Arthur got out of his car and waited, looking in the direction of Morse Street.
The defendant and Williams walked toward 7 Morse Street, where several people were gathered. Having stepped between two cars on the street, the defendant held a firearm, chambered a round by pulling the slide back and releasing it, and handed the gun to Williams. Both men walked toward the group at 7 Morse Street where, moments later, multiple gunshots were fired, damaging the front door. Although none of the individuals standing outside 7 Morse Street was hit, two men later identified themselves as the intended victims of the shooting.
Arthur quickly got back into his car; the defendant and Williams ran back toward the Chevrolet. Confronted by a police officer, Williams threw a gun into a nearby yard. The defendant ran past the police, evading them. Several hours later, police officers responded to Carney Hospital, where they found the defendant seeking treatment for a gunshot wound. One officer recognized the defendant as the individual he had seen chambering a round earlier on Morse Street. The defendant informed the police that individuals on the stairs of 7 Morse Street had shot him. The defendant had not mentioned his gunshot injury to the police when he encountered them near the scene; he informed them that he did not have a gun. The gun discarded by Williams was a “firearm” under Massachusetts law; ultimately, it was matched to ten shell casings found in the area of the shooting on Morse Street.
Discussion. Because the Commonwealth proceeded under a joint venture theory in prosecuting the defendant for attempted assault and battery with a firearm, it was required to prove “that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). See Commonwealth v. Netto, 438 Mass. 686, 701 (2003) (joint venture liability requires proof defendant was present, shared anothers intent to commit crime, and by agreement, was willing and available to help, if necessary).
A violation of G. L. c. 265, § 15F,
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prosecuted as it was in this case as an attempted battery, requires proof “that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery [here, alone or with others], and came reasonably close to doing so.” Commonwealth v. Melton, 436 Mass. 291, 295 (2002). Additionally, the Commonwealth must prove that the attempted battery was committed “by means of discharging a firearm.”
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G. L. c. 265, § 15F.
Viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676-677, the evidence was sufficient to sustain the defendants convictions under G. L. c. 265, § 15F.
Here, the defendant was not only present at the scene of the shooting; the evidence suggested that he participated in a plan involving both Williams and Arthur, in which Arthur acted as a lookout, Williams as the shooter, and the defendant as the supplier of the loaded firearm. See Commonwealth v. Chhim, 447 Mass. 370, 378-379 (2006) (“The jury could have inferred from the fact that the defendant remained at the scene during this [crime] that he kept himself in a position ready and able to help the other attackers”). The jury also “could have inferred that the defendant was willing and available to assist in the getaway of the joint venturers” after the shooting had occurred. Id. at 379. The fact that the defendant and Williams drove to the area of the shooting despite its proximity to the defendants home, and left the Chevrolet running as they approached the house and armed themselves, suggested that the defendant had knowledge of Williamss plan and the need for a quick and flexible getaway. See Commonwealth v. Giang, 402 Mass. 604, 609 (1988) (jurys inferences of complicity “may naturally be drawn against one found present in a getaway car during or shortly after an armed robbery” [quotation and citation omitted]). See also Commonwealth v. Booker, 386 Mass. 466, 470 (1982) (flight as evidence of consciousness of guilt). Cf. Commonwealth v. Gonzalez, 475 Mass. 396, 414 (2016), citing Zanetti, 454 Mass. at 470 (mere presence at scene of crime, even coupled with advance knowledge of criminal plan, insufficient to prove defendants knowing participation in joint venture). That the defendant not only covertly handed Williams a firearm as the two walked together toward 7 Morse Street, but also chambered a round in the gun, an act that injects a bullet into an unloaded firearm, demonstrates his shared intent to shoot at the individuals gathered there, and provided a tangible demonstration of his willingness to assist in that crime. See Melton, 436 Mass. at 300-301 (defendants supplying weapon to shooter permits inference of defendants willingness to assist in perpetrating crime); Commonwealth v. Cohen, 412 Mass. 375, 381 (1992) (under joint venture, defendant need not be shooter to have assisted in crime). The jury was not required to view the defendants flight as evidence of his participation in the venture, but they were permitted to do so. See Commonwealth v. Williams, 422 Mass. 111, 121 (1996) (circumstantial evidence permits finding of guilt beyond reasonable doubt). See also Booker, supra.
Conclusion. The evidence was sufficient to establish the defendants guilt as a joint venturer on the counts of attempted assault and battery by discharging a firearm.
Judgments affirmed.
FOOTNOTES
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. The defendant was also convicted of unlawful possession of ammunition, G. L. c. 269, § 10 (h); he assented to the dismissal of that charge as duplicative of the unlicensed carrying of a loaded firearm conviction, G. L. c. 269, § 10 (n). The jury acquitted the defendant of two counts of armed assault with intent to murder, G. L. c. 265, § 18 (b), which were prosecuted on a joint venture theory.
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. The defendant, who raised a timely motion and a renewed motion for required findings of not guilty as to all indictments, has briefed only the limited issue of the sufficiency of the evidence of his guilt, as a joint venturer with Williams, on the two charges of attempted assault and battery with a firearm. Accordingly, any other arguments are waived. See Commonwealth v. Flynn, 362 Mass. 455, 480 (1972) (“Assignments of error not argued in briefs are deemed to have been waived”). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1630 (2019) (“The appellate court need not pass upon questions or issues not argued in the brief”).
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. Both the defendant and the owner of the car lived within a block or two of the shooting.
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. That section provides: “(a) Whoever attempts to commit an assault and battery upon another by means of discharging a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun or machine gun, as defined in section 121 of chapter 140, shall be punished by imprisonment in the state prison for not more than 15 years or by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $10,000, or by both such fine and imprisonment.” G. L. c. 265, § 15F.
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. The defendant does not challenge the sufficiency of the evidence demonstrating that the gun at issue was a “firearm.”