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19-P-258                                                 Appeals Court

               COMMONWEALTH     vs.    DESHAWN W. GRAYSON.


                               No. 19-P-258.

          Suffolk.       October 8, 2019. - December 20, 2019.

                Present:     Massing, Sacks, & Hand, JJ.


Firearms. Evidence, Firearm.          Trespass.   Practice, Criminal,
     Required finding.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on July 20, 2018.

    The case was tried before Jonathan R. Tynes, J.


     James M. Fox for the defendant.
     Kathryn Sherman, Assistant District Attorney, for the
Commonwealth.


    SACKS, J.        Is evidence that the defendant carried a loaded

semiautomatic pistol in his waistband sufficient, without more,

to prove beyond a reasonable doubt that he knew the pistol was

loaded?    Concluding that it is not, we reverse the defendant's

conviction, after a jury trial, of carrying a loaded firearm

without a license, G. L. c. 269, § 10 (n).         We affirm, as
                                                                    2


supported by sufficient evidence, his convictions of carrying a

firearm without a license and of trespassing.1    See G. L. c. 269,

§ 10 (a); G. L. c. 266, § 120.

     Background.   Viewing the evidence in the light most

favorable to the Commonwealth, the jury could have found the

following facts.   At about 7 P.M. on a July evening in 2018,

Boston Police Detective Ishmael Henriquez and three other

detectives were driving through Dorchester, looking for a young

man for whom they had an arrest warrant.   The detectives spotted

the man on a bicycle, accompanied by another young man, later

identified as the defendant, also on a bicycle.    The detectives

drove to a spot a few blocks ahead of the men and parked.    As

the men approached on their bicycles, Henriquez's partners got




     1 At the Commonwealth's request, the jury verdict of guilty
on the charge of possessing ammunition without a firearm
identification card, G. L. c. 269, § 10 (h) (1), was set aside
as duplicative and the charge dismissed. A charge of resisting
arrest, G. L. c. 268, § 32B, was disposed of by the assented-to
entry of a required finding of not guilty at the close of the
Commonwealth's case. The defendant received a two-year
committed house of correction sentence on the firearm charge; a
two and one-half year house of correction sentence, suspended
for five years, on the loaded firearm charge; and a thirty-day
committed house of correction sentence, deemed served, on the
trespassing charge. For the reasons stated infra, there was
insufficient evidence to support the possession of ammunition
charge. See Commonwealth v. Johnson, 461 Mass. 44, 53 (2011)
(conviction of unlawful possession of ammunition requires proof
that defendant knowingly possessed ammunition). Thus our
reversal of the conviction on the loaded firearm charge does not
require us to vacate the dismissal of the ammunition charge.
                                                                   3


out of the cruiser and stopped and arrested the man for whom

they had a warrant.

     In the meantime, the defendant, in Henriquez's words,

"attempted to flee" on his bicycle, steering with one hand while

clutching his waistband2 with the other.   Based on Henriquez's

training about the characteristics of armed persons, Henriquez

was alert to the possibility that the defendant was carrying a

firearm.

     After riding past two houses, the defendant attempted to

turn onto a side street but, continuing to steer with only one

hand, lost control and fell off his bicycle.   He broke his fall

with one hand, keeping the other on his waistband.   Henriquez

pursued on foot and saw the defendant run down a driveway toward

the rear of a house, continuing to clutch his waistband.     Behind

the house, the defendant, still holding his waistband, climbed

over a five- or six-foot wooden fence,3 breaking it in the

process, and entered an adjacent back yard that in turn bordered


     2 We use the term waistband for convenience, recognizing
that there is no evidence bearing on whether the item the
defendant carried was tucked into his waistband or instead
contained in a pocket near his waist area. The distinction is
not material here.

     3 Henriquez variously referred to this obstacle as either a
fence or a gate. For clarity, and viewing the evidence in the
light most favorable to the Commonwealth, we use the term
"fence," in accordance with what the Commonwealth's exhibits
appear to depict.
                                                                     4


on other back yards.    Henriquez attempted to follow, but a large

dog appeared, causing Henriquez to suspend the chase and lose

sight of the defendant.

     Henriquez contacted his partners and other officers by

radio and arranged for them to set up a perimeter to ensure that

no one could leave the area of back yards without being

observed.4    The detectives began to search the yards.   Within ten

minutes, on the far side of the yard that the defendant had

entered by climbing over the fence, they found a white sock at

the base of a second fence, approximately four feet tall.

Although the sock was knotted closed, they could see that it

contained an object shaped like a firearm.    Just on the other

side of the fence, in another yard, they found a pair of

discarded sneakers.

     A further search located the defendant hiding in a back

yard a few houses down the block.    He was wearing loose-fitting

sweatpants.    He was not wearing any shoes, and on cross-

examination Henriquez agreed that one could infer the defendant

had "r[u]n out of his sneakers" because he was "going so fast."

The defendant was arrested and frisked; no contraband was found.




     4 Other detectives testified that they neither saw nor
learned of anyone leaving that area during the relevant time.
                                                                     5


Nor was any other contraband located in any of the back yards

searched that day.

     The object inside the knotted sock proved to be a

semiautomatic pistol, loaded with a magazine capable of holding

eight rounds of ammunition and containing seven.     No usable

fingerprints were found on any of the items.     A police firearms

examiner found the pistol to be operable and to have a barrel

length of 3.75 inches.

     The examiner further testified that, unless the pistol's

slide were open, there would be no way to tell if the pistol was

loaded simply by looking at it.5    To make that determination, one

would have to attempt to fire it, or to remove the magazine to

see if it contained ammunition.    Henriquez agreed; he contrasted

a pistol to a revolver, in which ammunition would be visible in

the cylinder before being rotated into firing position.

Henriquez further agreed that "in this case, if [he] were to be

given that weapon not knowing anything about it, [he] couldn't

tell if it was loaded or unloaded."

     Discussion.     The defendant challenges the sufficiency of

the evidence underlying each of his three convictions.6    We


     5 The examiner qualified this answer by adding, "[u]unless
you look down the barrel which is always a bad thing."

     6 His motions for required findings of not guilty at the
close of the Commonwealth's case and of all the evidence were
denied.
                                                                     6


address them in turn, asking "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."    Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

    1.   Possession of firearm.    The defendant first argues that

there was insufficient evidence that he possessed the firearm.

We are not persuaded.   The defendant fled the police, clutching

an item in his waistband, an action that Henriquez testified was

characteristic of persons carrying firearms.    The item was

sufficiently important to the defendant that he devoted one hand

to maintaining possession of it while steering (and falling off)

his bicycle and while climbing over (and breaking) the fence.

The firearm was found next to another fence along the path of

his apparent flight.    Shoes inferentially belonging to him were

found just on the other side of that fence.    His attempt to hide

from the police gave rise to a reasonable inference of

consciousness of guilt, as did his initial, unprovoked flight.

No other contraband was located in the area that might have

explained his flight, nor was anyone else seen leaving the area.

These circumstances, taken together, were sufficient to allow
                                                                        7


the jury to conclude that the defendant knowingly possessed the

firearm.    Cf. Commonwealth v. Dyette, 87 Mass. App. Ct. 548,

552-553 (2015) (evidence of possession of firearm sufficient

where defendant fled when officers approached, firearm and

defendant's clothing were found along path of his flight, and,

when apprehended, defendant lied to police about circumstances).

    2.      Knowledge that firearm was loaded.   "[T]o sustain a

conviction under G. L. c. 269, § 10 (n), the Commonwealth must

prove that a defendant knew the firearm he or she possessed was

loaded."    Commonwealth v. Brown, 479 Mass. 600, 601 (2018).      If

"the Commonwealth present[s] no evidence . . . that could allow

any rational trier of fact to find beyond a reasonable doubt

that the defendant knew the firearm was loaded, the conviction

of possession of a loaded firearm without a license cannot

stand."     Id. at 601-602.   In Brown, "it was not possible to

discern merely by observation whether the pistol . . . was

loaded; the magazine was inserted inside the handle and was not

visible."    Id. at 608.   Absent any other evidence that the

defendant knew the firearm was loaded, the court held the

evidence insufficient.     Id. at 609.   See Commonwealth v.

Galarza, 93 Mass. App. Ct. 740, 748 (2018) (same).

    More recently, we held in Commonwealth v. Resende, 94 Mass.

App. Ct. 194, 201 (2018), that, although it was a "close case,"

id. at 200, the evidence was sufficient to prove beyond a
                                                                    8


reasonable doubt that the defendant knew the firearm he

possessed was loaded.   There we said:

     "Unlike the facts in Brown, . . . the defendant, in the
     case before us, was found with the firearm in his
     waistband. A commonsense inference from that fact alone is
     that a person would check to see if the firearm was loaded
     before putting it in his waistband. This rational
     inference is strengthened by the additional fact that the
     defendant admitted that he had some familiarity with
     firearms. In addition, the inference that the defendant
     was aware the firearm was loaded is strengthened even
     further by the evidence that the defendant was alone in the
     nighttime. Finally, the fact finder could have found that
     moments before the police arrived, the defendant had been
     threatening someone and made reference to a firearm. These
     facts, in combination, permit an inference and a finding
     beyond a reasonable doubt that the defendant was aware that
     the firearm found in his waistband was loaded" (emphasis
     added).

Id. at 200-201.   Importantly, although it was a reasonable

inference that a person carrying a firearm in his (or her)

waistband would know whether it was loaded,7 we did not rest our

decision on that inference alone.   Rather, there were additional

circumstances that, "in combination" with the inference just

mentioned, permitted the jury to find the knowledge element

beyond a reasonable doubt.8   Id. at 201.


     7 Such an inference could rest on the idea that a firearm
carried in a waistband creates a heightened risk of self-injury
in the event of an accidental discharge, so that a prudent
person would check whether the firearm is loaded, in order to be
able to take additional precautions if necessary, before
carrying the firearm in that manner.

     8 In Commonwealth v. Silvelo, 96 Mass. App. Ct. 85 (2019),
we rejected the defendant's challenge to the sufficiency of the
evidence that he knew a firearm was loaded. We did so "for a
                                                                    9


     Here, in contrast, we have only the "commonsense inference"

that the defendant would have "check[ed] to see if the firearm

was loaded before putting it in his waistband."    Id. at 200.

The Commonwealth's brief offers nothing more.9    This case is

missing the three additional factors that in Resende, despite

being a "close case," pushed the evidence over the line of

sufficiency:   there was no evidence that the defendant here was

familiar with firearms, or that he carried the pistol while

alone in the nighttime,10 or that he had threatened anyone and

mentioned a firearm.   This case also lacks any evidence that the



simple reason: the firearm in question [was] a revolver and, as
such, the bullets in the cylinder were clearly visible." Id. at
90. We then added that, as in Resende, "the jury could have
reasonably concluded that the defendant would have checked to
see if the firearm was loaded before he put it in his pocket."
Id. Nothing in our discussion of Resende indicated that that
factor alone was sufficient to permit a finding of the
defendant's knowledge beyond a reasonable doubt.

     9 Indeed, the Commonwealth's entire argument on knowledge is
that "[b]ecause someone had to place the magazine into the
firearm, and because the defendant carried the firearm with the
magazine on his person, it was a reasonable inference that he
loaded the magazine into the firearm that he carried on his
person, and thus saw and was aware of ammunition." We find this
difficult to distinguish from the position, implicitly rejected
in Brown, 479 Mass. at 608-609, that bare possession of a loaded
firearm is sufficient to prove knowledge that it is loaded.

     10Carrying in one's waistband while alone in the nighttime
might support an inference that the firearm was intended to be
ready for immediate use and thus that it was known to be loaded.
Carrying while with another person and during daylight, as
occurred here, does not raise such an inference, at least not
with the same force.
                                                                  10


pistol had been fired while in the defendant's possession,11 or

that any ammunition was separately recovered from the

defendant's person or belongings,12 or that the pistol's loaded

status would have been evident merely by looking at it,13 or that

the defendant made any other statement indicative of knowledge.14

Moreover, the pistol here was tied inside a sock, making it

harder to draw the inference that the defendant inspected it --

i.e., slid open the magazine to check for bullets -- before

putting it in his waistband, or that the defendant intended it

to be ready for immediate use and thus knew that it was loaded.

See note 10, supra.

     The Commonwealth suggested at oral argument that because

the pistol here was loaded with seven rounds, its "heft" put the


     11Cf. Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 413
(2019) (suggesting that evidence would have been sufficient to
prove defendant's knowledge that gun was loaded if, along with
evidence that gun was fired during defendant's struggle with
another person at scene, evidence showed that defendant brought
gun to scene).

     12Cf. Commonwealth v. Paul, 96 Mass. App. Ct. 263, 266-267
(2019) (evidence of knowledge sufficient where, among other
things, defendant was carrying firearm in backpack on his
person, knew precisely where in backpack it could be found, and
kept fully loaded magazine in same section of backpack).

     13See Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 90
(2019). Contrast Brown, 479 Mass. at 608-609; Galarza, 93 Mass.
App. Ct. at 748.

     14We intend no exhaustive catalog of the factors that could
support an inference of knowledge.
                                                                     11


defendant on notice that it was loaded.     But the Commonwealth

offers nothing to support this inference.     To the contrary,

Henriquez agreed that "if [he] were to be given that weapon not

knowing anything about it, [he] couldn't tell if it was loaded

or unloaded."

     The Commonwealth also suggested at oral argument that the

defendant's repeated clutching at his waistband permitted not

only the inference that he was concerned about the pistol

falling out of his loose-fitting sweatpants, but, in turn, a

second inference:   that he was concerned about an accidental

discharge (thus proving he knew the pistol was loaded).     But "a

conviction may not rest upon the piling of inference upon

inference or conjecture and speculation."     Commonwealth v.

Silva, 482 Mass. 275, 289 (2019), quoting Commonwealth v.

Reaves, 434 Mass. 383, 390 (2001).   Moreover, the inference that

the defendant was concerned about the pistol falling out of his

pants could plausibly give rise to other inferences.     These

include that he was concerned about dropping and losing the

pistol, or concerned about dropping an unlicensed pistol

directly in the pursuing officer's path.15    The jury could only




     15Either or both of these inferences could explain the
defendant's behavior without requiring, as the Commonwealth's
argument does, the additional assumption that he knew the pistol
was loaded.
                                                                  12


guess at which concern(s) motivated the defendant, and "we have

made clear that a jury may not use conjecture or guesswork to

choose between alternative inferences."   Silva, supra at 290,

quoting Commonwealth v. Dostie, 425 Mass. 372, 376 (1997).

    We thus return to the question:    is the inference arising

from the defendant's carrying the firearm in his waistband,

standing alone, sufficient to prove his knowledge beyond a

reasonable doubt?   We do not think it is.   Latimore requires

more than that the evidence merely be "sufficient . . . to

permit the jury to infer the existence of the essential elements

of the crime charged."   Latimore, 378 Mass. at 677, quoting

Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).

"Additionally, the evidence and the inferences permitted to be

drawn therefrom must be 'of sufficient force to bring minds of

ordinary intelligence and sagacity to the persuasion of [guilt]

beyond a reasonable doubt.'"   Latimore, supra, quoting

Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).    Thus, "it is

not enough for the appellate court to find that there was some

record evidence, however slight, to support each essential

element of the offense; it must find that there was enough

evidence that could have satisfied a rational trier of fact of

each such element beyond a reasonable doubt."   Latimore, supra

at 677-678.   Notably, the Supreme Judicial Court recently

approved of a jury instruction that stated that "any inference
                                                                   13


constituting an element of an offense must be established beyond

a reasonable doubt."   Silva, 482 Mass. at 289.   See Commonwealth

v. Lee, 460 Mass. 64, 71 (2011), quoting Commonwealth v.

Rodriguez, 456 Mass. 578, 583 (2010) (reversing conviction where

inferences required to prove element of offense "may be

plausible, but cannot bear the weight of proof beyond a

reasonable doubt").

     To be sure, common sense dictates that a person check

whether a firearm is loaded before further handling or carrying

it, whether in a compartment of a vehicle, in a holster, or in a

sock tucked into a waistband.   But persons who possess firearms

without a license cannot be presumed with any high degree of

confidence to follow common sense in the area of firearm

safety.16   The inference that the defendant would check whether a

firearm is loaded before putting it in his waistband simply is

not strong enough, standing alone, to prove beyond a reasonable

doubt his knowledge that it is loaded.




     16Common sense likely also dictates that a person not carry
a firearm in a waistband in the first place (which creates a
risk of dropping and potentially damaging it), yet, as this case
illustrates, unlicensed persons often do so. Cf. Commonwealth
v. Matta, 483 Mass. 357, 366 (2019) (judge credited officer's
concern that person who adjusted waistband area with both hands
might be carrying unlicensed firearm, based on officer's
experience that people who carry unlicensed firearms often carry
them inside waistband).
                                                                    14


    3.    Trespass.    Finally, we reject the defendant's claim

that there was insufficient evidence that his entry into any of

the back yards he traversed during the chase had been forbidden

by the person in control thereof, so as to constitute a

trespass.    The criminal trespass statute provides in pertinent

part that "[w]hoever, without right enters or remains in or upon

the . . . improved or enclosed land . . . of another, . . .

after having been forbidden so to do by the person who has

lawful control of said premises, whether directly or by notice

posted thereon, . . . shall be punished" (emphasis added).

G. L. c. 266, § 120.     We have held that, where there is no

notice posted, the term "'directly' . . . does not require a

person having control of unposted premises to be on those

premises at all times of the day or night to ward off intruders.

Rather, he may directly forbid entry to the premises by securing

them with fences or walls and locked gates or doors."

Commonwealth v. A Juvenile (No. 1), 6 Mass. App. Ct. 106, 108

(1978).     See Commonwealth v. Scott, 71 Mass. App. Ct. 596, 603

(2008) (same).    The jury here were so instructed.

    There was evidence that after entering the first back yard,

the defendant climbed over a five- or six-foot wooden fence,

breaking it in the process, to enter another back yard.     That

yard was in turn separated from the next yard by a fence, on the

other side of which sneakers, inferentially the defendant's,
                                                                15


were found.   From all of this the jury could have found beyond a

reasonable doubt that the owner of the yard into which the

defendant climbed had, at least at the points where the

defendant entered and exited the yard, forbidden entry to the

yard by fences, making the defendant's entry a trespass.17

     Conclusion.   The judgment on the charge of possessing a

loaded firearm without a license is reversed, the verdict is set

aside, and judgment shall enter for the defendant.   The

remaining judgments are affirmed.

                                    So ordered.




     17We reject the defendant's argument that the Commonwealth
was required to negate the possibility that "neighborhood
practices" might have "allow[ed] access for yard crossings,
particularly by teenagers," or that the fences were merely
"decorative or incomplete." The defendant cites no authority
for this argument, which he did not raise at trial through a
request for a jury instruction or otherwise. Nor did the
evidence raise any such possibility. To the contrary, the
Commonwealth offered in evidence two photographs of the fence
the defendant climbed over and broke; they show a continuous
five- or six-foot stockade fence, completely separating one yard
from the next. Other than the damage caused by the defendant,
the fence was fully intact, thus in no way suggesting any
neighborhood practice of climbing over it.
