Massachusetts Appeals Court Reverses Waltham Conviction for Possession of Nazi-Issued Gun

The Massachusetts Appeals Court today reversed a Waltham man’s conviction for possessing a Nazi-issued gun in his apartment.  The name of the case is Commonwealth v. Lovering

The defendant and his wife lived together in an the same apartment for about 12 years.  In August of 2011, the defendant’s wife obtained a restraining order against him.  The order prohibited the defendant from visiting the apartment and required the defendant to surrender his guns to the police department.  About a month after obtaining the restraining order, the wife was cleaning the apartment when she found the defendant’s Walther PPK handgun lying in a leather pouch that was inside of a wooden box with his other personal belongings on the living room floor.  The defendant collected Nazi memorabilia and the gun was a type issued by the Nazi government.  Following the discovery of the gun, the defendant was charged with: possessing the gun without a firearm identification card; improperly storing the gun; and violating the restraining order (by failing to surrender the gun to the police).  The defendant was convicted of all three crimes and sentenced to serve six months in the House of Correction.

On appeal, the defendant argued there was insufficient evidence to convict him of possessing the gun.  Because he was not in actual possession of the gun, the Commonwealth needed to prove that he constructively possessed it.  Constructive possession means the defendant: (1) had to have known about the gun; and (2) had to have had the ability and intention to exercise dominion and control over the gun.  The Appeals Court had no problem concluding the defendant knew about the gun.  It was in a pile with the defendant’s belongings and it was of Nazi vintage (and the defendant was known to have collected Nazi memorabilia).  However, the Court held there was insufficient evidence that the defendant had the ability to exercise dominion and control over the gun on the date it was found by his wife.  The defendant no longer lived in the apartment (and was prohibited by law from visiting the apartment) and had not been in close proximity to the gun for almost a month.  Further, there was no evidence the defendant was nearby when his wife found the gun.  Therefore, the defendant’s conviction for possessing the gun without the proper license was reversed by the Appeals Court.  The other two convictions were affirmed.  The Court ruled the defendant had not properly stored the gun as required by Massachusetts law and he also had not surrendered the gun to the police as required by his wife’s restraining order.

The defendant, who had been married for more than a decade, pled guilty in 2012 to stealing more than $200,000 from four separate girlfriends.  The defendant met women through online dating websites and convinced them to loan him large amounts of money that he never repaid.  He stole more than $100,000 from one woman by convincing her he was a patient in a medical facility in New Hampshire and was in need of money.  In that case, he was sentenced to six years in jail followed by 10 years of probation.  He was also ordered to pay more than $78,000 in restitution.