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15-P-1731                                               Appeals Court

                 COMMONWEALTH   vs.   BYUNG-JIN KANG.


                           No. 15-P-1731.

       Middlesex.       November 7, 2016. - March 16, 2017.

            Present:    Cypher, Massing, & Sacks, JJ.


Firearms. Evidence, Firearm.     Practice, Criminal, Instructions
     to jury.


     Complaints received and sworn to in the Newton Division of
the District Court Department on February 15, 2013, and June 9,
2014.

    The cases were tried before Dyanne J. Klein, J.


     Robert L. Sheketoff for the defendant.
     Susan Leigh Harris, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.    The defendant, Byung-jin Kang, was convicted of

carrying a loaded firearm without a license in violation of

G. L. c. 269, § 10(n), and carrying a firearm without a license

in violation of G. L. c. 269, § 10(a).      On appeal, the defendant

claims that he was improperly denied the opportunity to present

the affirmative defense of the "antique" firearm exemption from
                                                                       2


licensure requirements, arguing that (1) evidence related to his

defense was excluded; and (2) the judge improperly denied his

request for a jury instruction on the antique firearm exemption.

We affirm.

     Facts.1    The incident in question arises from a roadside

confrontation between the defendant and another driver.2      During

this confrontation, the second driver seized a firearm from the

defendant and contacted police after the defendant left the

scene in his vehicle.    Police recovered this firearm, a small

silver revolver, from the pavement near the other driver, and

located the defendant a short distance from the scene.       Officers

discovered the firearm to be loaded, and later ballistic testing

revealed it was capable of firing.

     At trial, the defendant did not contest possession.      He

testified that the firearm was his, and that he was aware that

it was loaded.    The defendant claimed, however, that the

Commonwealth had failed to meet its burden to prove operability,

arguing that the chain of custody evidence was insufficient, as

were the qualifications of the police officer conducting the

test-firing.


     1
         The jury could have found the following facts at trial.
     2
       The other driver testified at the defendant's trial under
an agreement with the Commonwealth not to prosecute him. The
defendant was acquitted of one count of assault by means of a
dangerous weapon related to this dispute.
                                                                   3


     Discussion.   1.   Exclusion of antique firearm evidence.

Prior to trial, the defendant indicated his intent to rely on

the defense of exemption from the firearm licensure requirements

for an antique firearm manufactured prior to 1900.3   See

Commonwealth v. Jefferson, 461 Mass. 821 (2012).   In support of

his defense, the defendant wanted to testify that he had

purchased the firearm from "the online [Internet] store,

antiqueguns.com," from "a section of the store entitled Pre-1898

manufactured firearms."   He sought also to testify that he was

interested in and had researched antique firearm ownership, and

that he "specifically looked for" an antique firearm.     He sought

to testify that he believed that the firearm he had purchased

was in fact an antique.

     The trial judge indicated that she would allow the

defendant to testify about where he purchased the firearm, but

not that it was specifically from the pre-1898 section of the

Web site.   She precluded him from testifying as to his own

belief in the antiquity of the firearm.

     At trial, the defendant testified that he had taken a

firearms safety course and subsequently learned that in the city

in which he resided, it was "almost impossible to gain a


     3
       See G. L. c. 140, § 121, as appearing in St. 1999, c. 1,
§ 1, providing that firearm licensing requirements "shall not
apply to . . . any firearm, rifle or shotgun manufactured in or
prior to the year 1899."
                                                                    4


[firearms] license."     He testified that he investigated other

methods of legally owning a firearm, and eventually purchased a

weapon on the antiqueguns.com Web site.     He was precluded from

explaining why he wanted to purchase the specific weapon at

issue.   On redirect, the defendant was permitted to testify that

the Web site was arranged into categories "sectioned off by

years," and that he purchased his firearm from the section of

the Web site indicating that it contained firearms manufactured

prior to 1898.

     The only portion of the defendant's proffered testimony

that the judge ultimately excluded was the defendant's belief

that his firearm was an antique, and that he had purchased the

firearm based on that belief.     This testimony was properly

excluded.   The mens rea required for conviction pursuant to

G. L. c. 269, § 10(a), is simply the defendant's knowledge that

he was carrying a firearm.4    See Commonwealth v. Jackson, 369

Mass. 904, 916 (1976).    Neither § 10 nor G. L. c. 140, § 121,

provides for the affirmative defense of a defendant's honest but

mistaken belief that he is exempt from firearms licensure

requirements.    The defendant has provided no authority to the

contrary.   The defendant's personal belief in the antiquity of

the firearm was therefore irrelevant, and was properly excluded.


     4
       Because § 10(n) differs only from § 10(a) in that the
firearm must be loaded, the same mens rea is required.
                                                                    5


     2.   Failure to instruct on antique firearm exemption.   At

the close of evidence, the defendant requested that the jury be

instructed on the antique firearm exemption from licensure

requirements.   In support of his request, he relied on his

testimony as described supra, as well as the appearance of the

firearm itself.5   The judge denied the request, finding that the

defendant had failed to produce sufficient evidence to properly

raise the defense.   The defendant challenges the denial of his

request for the instruction.

     To properly raise a defense of antique firearm, a defendant

"bears the burden of producing evidence of the affirmative

defense that the firearm was manufactured before 1900."

Jefferson, 461 Mass. at 834.6   Whether a defense has been


     5
       Defense counsel characterized the firearm as "obviously of
a significant age, very obviously not a modern gun." We have
viewed the firearm and conclude that its appearance does not
materially assist in our analysis.
     6
       Despite the specific guidance of Jefferson, the defendant,
relying on Commonwealth v. Humphries, 465 Mass. 762 (2013),
argues that he should merely bear the burden of notice of the
affirmative defense rather than the burden of production,
because whether the firearm was an antique was not "peculiarly
within the knowledge of the defendant." Id. at 770 (citation
omitted). We do not view Humphries to have overruled Jefferson
on this issue, nor do we perceive the facts of Humphries to be
meaningfully similar to those in the case at bar. In Humphries,
the court found that a defendant need not bear the burden of
production where he alleges the defense of licensure as to a
firearm possessed by a coventurer third party. See ibid. Here,
no third party was involved, and the defendant purchased the
firearm himself from an online store of his own choosing after
learning that he would likely not be able to obtain a firearms
                                                                   6


properly raised is a legal issue for the court to determine.

See Commonwealth v. Kingston, 46 Mass. App. Ct. 444, 449-450

(1999).   Generally, "if any view of the evidence would provide

support for an affirmative defense," a defendant is entitled to

a jury instruction on that defense.   Commonwealth v. Monico, 373

Mass. 298, 299 (1977).   In assessing the evidence, "all

reasonable inferences should be resolved in favor of the

defendant, and, no matter how incredible his testimony, that

testimony must be treated as true."   Commonwealth v. Pike, 428

Mass. 393, 395 (1998).   "The precise quantum of proof necessary

to discharge the defendant's burden of production and thereby to

impose upon the Commonwealth the burden of proof as to an

affirmative defense has not been defined by our courts."

Kingston, supra at 450 n.10.   Nonetheless, a defendant

ultimately "is not entitled to a charge on a hypothesis which is

not supported by the evidence."   Monico, supra at 299.

    The defendant's submission was insufficient to meet his

burden of production to raise the affirmative defense that the

firearm was an antique, and thereby exempt from licensure

requirements.   At trial, the defendant offered evidence

consisting merely of the hearsay labeling of the Web site from

which he purchased the firearm, combined with the hearsay title


license. Knowledge of the provenance of the firearm, such as it
was, was thus "peculiarly within the knowledge of the
defendant." Ibid. (citation omitted).
                                                                    7


of the section in which the firearm was listed.   The defendant

proffered no evidence regarding the reliability of the Web site

or its labeling, any relevant features of the firearm itself, or

any materials or certificates accompanying the weapon.

    There is no requirement that expert testimony be presented

in support of an affirmative defense of antique firearm

exemption.   Indeed, we do not prescribe any particular method of

meeting a defendant's burden on this issue, as the circumstances

of each case will no doubt present distinct factual issues.

Bare uncorroborated hearsay unaccompanied by any indicia of

reliability will not suffice to adequately raise the defense,

and thereby will not entitle a defendant to a jury instruction.

Accordingly, the defendant's request was properly denied.

                                    Judgments affirmed.
