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17-P-1058                                            Appeals Court

               COMMONWEALTH   vs.   JONATHAN MITCHELL.


                          No. 17-P-1058.

            Hampden.     March 7, 2018. - June 5, 2019.

    Present:   Meade, Rubin, Wolohojian, Agnes, & Neyman, JJ.1


Firearms. Practice, Criminal, Voir dire, Jury and jurors,
     Instructions to jury. Jury and Jurors. Witness, Victim.
     Necessity. Self-Defense. Due Process of Law, Elements of
     criminal offense.



     Indictments found and returned in the Superior Court
Department on June 2, 2016.

    The cases were tried before Edward J. McDonough, Jr., J.


     Ian Stone for the defendant.
     Amal Bala, Assistant District Attorney, for the
Commonwealth.




    1  This case was initially heard by a panel comprising
Justices Meade, Rubin, and Neyman. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices
Wolohojian and Agnes. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993).
                                                                  2


     RUBIN, J.   Defendant Jonathan Mitchell was tried before a

jury in Superior Court for the crimes of armed assault with

intent to murder, G. L. c. 265, § 18 (b) (count 1), assault and

battery by means of a dangerous weapon causing serious bodily

injury, G. L. c. 265, § 15A (c) (i) (count 2), assault and

battery by discharging a firearm, G. L. c. 265, § 15E (count 3),

unlawful possession of a firearm, G. L. c. 269, § 10 (a) (count

4), unlawful possession of a large-capacity feeding device,

G. L. c. 269, § 10 (m) (count 5), unlawful possession of a

loaded firearm, G. L. c. 269, § 10 (n) (count 6), and unlawful

possession of ammunition, G. L. c. 269, § 10 (h) (1) (count 7).

The jury acquitted him of all the assaultive charges, counts 1,

2, and 3, and of the charge of possession of a large-capacity

feeding device, count 5.   They convicted him of unlawful

possession of a firearm, count 4, unlawful possession of a

loaded firearm, count 6, and unlawful possession of ammunition,

count 7.2   At the Commonwealth's request, the judge dismissed the

possession of ammunition conviction as duplicative of the loaded

firearm conviction.   Mitchell now appeals from his convictions

of the two remaining counts.   We affirm his conviction of




     2 The defendant was later found guilty at a jury-waived
trial of the prior offense portions of count 4, unlawful
possession of a firearm as a subsequent offender, G. L. c. 269,
§ 10 (d), and a serious drug offender, G. L. c. 269, § 10G (a).
                                                                        3


unlawful possession of a firearm and reverse his conviction of

unlawful possession of a loaded firearm.

    Evidence.   This case arose out of a shooting outside the

Glo nightclub in Springfield in the early morning hours of April

22, 2016.   The facts were disputed.    According to Commonwealth

witnesses, Mitchell and another man, Marquise Newsom, were

arguing outside the club near a hot dog cart.     Newsom pushed

Mitchell, Mitchell pushed Newsom back, and Mitchell then pulled

out a handgun from his belt and shot at Newsom four times.        One

of the bullets hit Newsom's thumb.     After firing the shots,

Mitchell put the gun back in his waistband area and fled, and

was pursued by police officers who happened to be on the scene.

The police apprehended him after his pant leg got stuck while he

tried to jump a fence.    The gun fell as Mitchell went over the

fence, and police recovered the gun and thirteen live rounds of

ammunition from it.     A police officer testified for the

Commonwealth that Mitchell and Newsom were members of rival

gangs.

    According to police testimony, Newsom was not cooperative

in the investigation.    At the scene, he would tell the police

only that he was shot in front of a hot dog cart, and he refused

to give the police any information at the hospital to which he

was taken after the incident.    The police were unsuccessful in
                                                                    4


serving a summons on him, and an uncle told an officer that he

did not know Newsom's phone number or where he was.

     Mitchell testified to an entirely different version of

events.   According to Mitchell, Newsom approached him, reached

into his own waistband, and drew a gun.    Mitchell immediately

"grabbed [Newsom's] hand with both my hands," attempting to

wrest the firearm from it.    Mitchell testified that he had one

hand on the hand of Newsom that was holding the firearm, and the

other hand wrapped around Newsom's fingers, one of which was on

the trigger.    During the ensuing struggle, the gun went off

three times.3   Newsom let go of the gun and ran away.   Mitchell

ran away in the opposite direction but did not let go of the gun

for fear that Newsom or one of Newsom's nearby friends, one

Washdouble, might pick it up and shoot him.   Mitchell did not

know that the police were chasing him until after his pant leg

got caught on the fence and he was apprehended.   Mitchell denied

being a member of any gang but admitted that, while he and

Newsom were not "enemies," they were also "not friends" and had

had a prior altercation.




     3 Although one defense to the assault charge was self-
defense, contrary to the assertion in the dissent, the defendant
did not testify "that he was acting in self-defense when he shot
the victim." Post at         . He testified that the gun went
off during the struggle, that his finger was not on the trigger,
and that he could not have pulled the trigger.
                                                                     5


    Discussion.    I.   Voir dire question.   Before jury voir

dire, defense counsel objected to the prosecutor's proposal that

prospective jurors be asked whether they could be fair and

impartial despite the absence of testimony from the alleged

shooting victim.   The objection was overruled.    During voir

dire, the judge asked prospective jurors this question and,

because of their answers, two prospective jurors were struck for

cause.   Mitchell argues that the dismissal of these two jurors

violated his right to an impartial jury.      Mitchell also argues

that the objection to the question prior to voir dire preserved

his claim of error; the Commonwealth argues that it did not.

    Whether or not the objection to the question preserved the

issue for review, we are not persuaded that there was an abuse

of discretion in this case in the judge asking the prospective

jurors whether the absence of the alleged victim's testimony

would affect their ability to be fair and impartial.     Under

Commonwealth v. Gray, 465 Mass. 330 (2013), a judge may ask a

prospective juror whether "the absence of DNA or fingerprint

evidence [would] prevent [the prospective juror] from fairly

evaluating evidence in this case."   Id. at 340 n.10.    The

purpose of the question in Gray was to ferret out jurors

susceptible to the "CSI effect," a worry that jurors who watch

forensic science television programs like "CSI" would hold

prosecutors to an unreasonably high standard of proof.      Id. at
                                                                       6


338.    Despite being "skeptical" of the need for such questions,

id. at 339, the Supreme Judicial Court held that it was not an

abuse of discretion for a judge to ask them.       Though we are even

more skeptical of the need for the question asked here, which

does not relate to forensic proof, we likewise discern no abuse

of discretion in this case, where the question was "tailored to

ensure that seated jurors were capable of deciding the case

without bias and based on the evidence."       Id. at 340, quoting

Commonwealth v. Perez, 460 Mass. 683, 691 (2011).       We think,

though, such questions should be used at least as "sparingly" as

those in Gray, supra at 339, and that the better practice might

be not to use them at all.

       II.    Closing argument.   Mitchell next argues that the

prosecutor's unobjected-to statement in closing that Mitchell

"despised" Newsom because they were in rival gangs created a

substantial risk of a miscarriage of justice.       We disagree:     the

prosecutor's statement was based on a fair inference from the

evidence that Mitchell and Newsom were in rival gangs, that they

were "not friends," and that they had had a prior altercation.

       III.    Jury instructions.   Mitchell contends that several

jury instructions were either erroneously given or erroneously

omitted.

       A.     Necessity.   First, he claims that the judge failed to

instruct the jury that the Commonwealth had the burden to prove
                                                                    7


absence of necessity beyond a reasonable doubt.   This argument

fails because the judge did so instruct:   "The [d]efendant may

take only such lawful action as is necessary to alleviate the

danger.   Where the issue of necessity is raised, the

Commonwealth has the burden to prove the absence of necessity

beyond a reasonable doubt."

    B.    Missing witness.   Next, Mitchell argues that the judge

erred by denying his request for a missing witness instruction,

which he contends should have been given with respect to Newsom,

who did not testify at trial.   "A missing witness instruction is

appropriate when a party 'has knowledge of a person who can be

located and brought forward, who is friendly to, or at least not

hostilely disposed toward, the party, and who can be expected to

give testimony of distinct importance to the case,' and the

party, without explanation, fails to call the person as a

witness."   Commonwealth v. Saletino, 449 Mass. 657, 667 (2007),

quoting Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991).

Missing witness instructions should be given "only in clear

cases."   Saletino, 449 Mass. at 668, quoting Commonwealth v.

Figueroa, 413 Mass. 193, 199 (1992).    We will reverse only if

the judge's failure to give such an instruction was "manifestly

unreasonable."   Saletino, 449 Mass. at 667.

    Even though Newsom's testimony would have been helpful to

the Commonwealth, the uncontroverted testimony at trial was that
                                                                       8


Newsom had been uncooperative with the Commonwealth and could

not be located.    In these circumstances, it was not manifestly

unreasonable for the judge to decline to give the missing

witness instruction.

       Mitchell also argues, citing Commonwealth v. Smith, 49

Mass. App. Ct. 827 (2000), that, by permitting defense counsel

to make a missing witness argument in closing, "the judge

implicitly concluded that the foundational requisites [for the

missing witness instruction] had been met."     Id. at 830.     This

argument fails because, unlike in Smith, where defense counsel

affirmatively obtained the judge's permission to make a missing

witness argument, defense counsel here made the argument without

asking for the judge's permission.    The lack of a sua sponte

decision to strike the relevant portion of defense counsel's

closing does not constitute an implicit finding that the

foundational requisites for the missing witness instruction were

met.    Neither does the judge's decision to strike, at the

Commonwealth's request, defense counsel's statement in opening

that Newsom did not appear because he knew that the gun was his.

       C.   Knowledge that the firearm was loaded.   1.   The

erroneous jury instruction.     The jury were not instructed that

they were required to find beyond a reasonable doubt that the

defendant knew that the firearm he possessed was loaded, an

essential element of the offense, in order to convict him of
                                                                     9


unlawful possession of a loaded firearm.     They were instructed,

rather, that

     "if you find that the Commonwealth has proven beyond a
     reasonable doubt that [1] the [d]efendant had an object in
     his possession; [2] the object was a firearm; [3] the
     [d]efendant knew the object he possessed was a firearm; and
     [4] the firearm was loaded with ammunition; and [5] the
     absence of necessity . . . you shall find the [d]efendant
     guilty of possession of a loaded firearm."

     There was no objection to the omission from the jury

instructions of the element of knowledge that the firearm was

loaded.     At the time of trial, there were no appellate decisions

addressing whether such knowledge was an essential element of

the offense.    Since our decision will have no bearing on the

sentence the defendant is currently serving for unlawful

possession of a firearm, we have, as the Commonwealth requested,

held this appeal pending resolution of Commonwealth v. Brown,

479 Mass. 600 (2018), which presented the very question whether

knowledge that the firearm is loaded is an element of the

offense.4    The Supreme Judicial Court has now decided that case,

holding that such knowledge is, indeed, an essential element of

the crime.    Id. at 608.   Thus, although the judge did not have




     4 The Supreme Judicial Court decided Brown after granting
further appellate review of our decision in Commonwealth v.
Brown, 91 Mass. App. Ct. 286 (2017), which also held that
knowledge was an essential element of the offense. Id. at 293.
Our decision in Brown also issued after Mitchell's trial
concluded.
                                                                    10


the benefit of Brown, his omission of the knowledge instruction

was nonetheless erroneous.

    2.     Analysis.    The defendant argues that although there was

no objection to the failure to include an instruction on

knowledge, we should review his claim for prejudicial error

under the so-called "clairvoyance exception" to the ordinary

rule requiring objection in the trial court to preserve a claim

of error for review.      See Commonwealth v. Randolph, 438 Mass.

290, 295 (2002).       The Commonwealth, by contrast, argues that we

should apply the test for unpreserved claims of error and ask

whether the error created a substantial risk of a miscarriage of

justice.   We think that, under Commonwealth v. Gagnon, 37 Mass.

App. Ct. 626, 629 & n.2 (1994), the Commonwealth has the better

of this argument.      In that case, as in this, there was no

objection to the judge's failure to include an instruction on

what an appellate decision concluded after trial was an

essential element of the crime at issue.      Id. at 629.   We

concluded that "[t]he 'clairvoyance exception' does not apply

because [the subsequent appellate decision –- the analogue to

Brown in this case -–] did not announce a new rule of

constitutional significance but only clarified the meaning of a

criminal statute."      Id. at 629 n.2.   As the Commonwealth argues,

we therefore must determine whether the error created a

substantial risk of a miscarriage of justice.
                                                                 11


    Erroneous instructions that allow the jury to convict

without finding an essential element of an offense create a

substantial risk of a miscarriage of justice unless either the

element at issue can be "ineluctably inferred" from the evidence

such that the jury was "required to find" it, Commonwealth v.

Azar, 435 Mass. 675, 688 (2002), or the jury's verdicts on the

other counts on which the defendant was convicted compel the

conclusion they "necessarily found" the element on which they

were not instructed, Commonwealth v. McCray, 93 Mass. App. Ct.

835, 847 (2018).   That is because if the jury might not have

found the element proven beyond a reasonable doubt, the

defendant may stand convicted even though he would have been

acquitted by a jury properly instructed on the elements of the

offense.   As we have explained repeatedly in this context, this

is the quintessential substantial risk of a miscarriage of

justice.   Thus, for example, in Commonwealth v. Redmond, 53

Mass. App. Ct. 1, 8 (2001), we explained that "there was a

substantial risk of a miscarriage of justice, because the

failure to apprise the jury that the defendant must have

intended to use the implement to commit the burglary might have

resulted in the jury finding the defendant guilty of an act that

was not criminal -- mere possession of a pocketknife without the

intent to use it as a burglarious implement."
                                                                 12


     a.   The evidence.   Turning first to the evidence, it

obviously did not "require[] the jurors to find" that the

defendant knew the gun was loaded.   Azar, 435 Mass. at 688.

Although the Commonwealth's theory was that the defendant

brought the gun to the scene of the shooting, which, if true,

would support a reasonable inference that he had knowledge that

the gun was loaded, there was evidence put on by the defendant

that it was Newsom's gun that the defendant obtained in a

struggle.   If the jury credited that evidence, the defendant

would have had no way of knowing initially whether the gun was

loaded when brought to the scene, nor whether the gun remained

loaded when he obtained it after it had been discharged during

the struggle.   And, in point of fact, the jury's acquittals make

clear that they did not accept wholesale the Commonwealth's

version of events in which the gun belonged to the defendant.

Indeed, the acquittals suggest that the jury may well instead

have believed the defendant's version of events.5

     The Commonwealth's only argument in support of its position

that omission of the knowledge element did not create a

substantial risk of a miscarriage of justice is that "regardless


     5 Although as the dissent suggests, in some contexts we
decline to infer the meaning behind jury verdicts, see post
at        , in this context, in determining what the jury
necessarily found, we do examine that question. See, e.g.,
McCray, 93 Mass. App. Ct. at 847.
                                                                 13


of whether the defendant or Newsom fired the gun" during the

struggle, "both men obviously knew the gun was loaded because it

fired multiple times."     But as the defendant points out, and we

have noted, this is incorrect if the defendant had no prior

relationship to the gun:    That the gun -- which, at least

according to the defendant's evidence, belonged to Newsom --

fired could demonstrate to the defendant only that the gun had

been loaded prior to the trigger being pulled.    It cannot

support an inference of knowledge on the part of the defendant

before the trigger was pulled that the gun was loaded.     Nor

could it demonstrate anything to the defendant about whether the

gun remained loaded after the trigger was pulled and a bullet

discharged.   Consequently it cannot support an inference that

the defendant knew after wresting possession of the gun from

Newsom that it was still loaded.

    The Commonwealth ultimately acknowledges the logic of this

argument by the defendant, but says it would on this record have

been "unlikely that the jury would have reached th[e]

conclusion" that it was not the defendant's gun and that

therefore he lacked knowledge whether it was loaded.    This,

though, amounts only to an argument that the Commonwealth's case

was stronger, and the one more likely to have been believed.

But, as Azar teaches, we are not permitted to weigh controverted

evidence in determining whether failure to instruct on an
                                                                 14


element of the offense created a substantial risk of a

miscarriage of justice.   See Azar, 435 Mass. at 688-689

(erroneous malice instruction created substantial risk of

miscarriage of justice where Commonwealth's evidence was

"strong" but "controverted" and malice could not be "ineluctably

inferred").   And, in point of fact, even were it a relevant

consideration, given the acquittals on the assault charges, it

is hard to say what it is likely the jury would have concluded

had they been properly instructed.   Given the state of the

evidence at trial, in the absence of any instruction on

knowledge, the jury may indeed have found the defendant guilty

of possession of a loaded firearm even though if properly

instructed, they would have acquitted him.

    b.   What was "actively" contested at trial.   The dissent

does not directly dispute this.   It does not contend that the

evidence leads to an "ineluctable infer[ence]" of knowledge on

the defendant's part beyond a reasonable doubt the firearm was

loaded, such that the jury were "required" by the evidence to

make such a finding.   Rather, the dissent asserts something even

the Commonwealth does not contend:   that this case falls into an

exception to the general rule for determining whether there was

a substantial risk of a miscarriage of justice because the

question of knowledge the firearm was loaded was not "actively

contested" at trial.   Post at        .   Indeed, as will be
                                                                   15


discussed below, the dissent goes further and asserts,

incorrectly, that the defendant's knowledge after the initial

shot was discharged that the firearm remained loaded was

essentially conceded by the defendant.

    The actual legal test is not, though, and never has been,

that if the element itself is not contested there is no

substantial risk of a miscarriage of justice.    The question is

whether the element on which there was no instruction "relate[s]

to an issue actively contested at trial," Commonwealth v.

Gabbidon, 398 Mass. 1, 5 (1986) (emphasis added), such that a

defendant might have been acquitted by a properly instructed

jury.   This is the rule because "no harm accrues to a defendant

if an error does not relate to an issue actively contested at

trial" (emphasis added).   Id.   Put another way, this exception

exists because, if there is no harm to the defendant from

failure to instruct on an element of the offense, there is no

risk that he or she has been convicted even though he or she

might have been acquitted by a properly instructed jury.    In

those circumstances, there is no "substantial risk of a

miscarriage of justice."   Id.

    The cause-and-effect relationship between the examination

of what was actively contested and the risk of a miscarriage of

justice is reflected in the language of the Supreme Judicial

Court in the first case to utilize the "actively contested"
                                                                  16


language, where the court said, "the erroneous instruction on

malice did not relate to an actively contested issue, so it did

not create a substantial risk of a miscarriage of justice."

Commonwealth v. Puleio, 394 Mass. 101, 109 (1985).   Whether the

element itself was contested may of course be relevant to

determining whether there is a substantial risk of a miscarriage

of justice, see Commonwealth v. Shea, 398 Mass. 264, 269 (1986)

("whether the issue of intent [on which the jury were in that

case, without objection, erroneously not instructed] was

contested at trial is highly relevant to our determination

whether the error in the judge's charge prejudiced the

defendant"), but our inquiry is whether the failure to instruct

on an element "relate[s] to an issue actively contested at

trial" such that there is a risk that, if properly instructed,

the jury might have acquitted.

    To see that the proper inquiry is whether the failure to

instruct on an essential element "relates to" an issue contested

at trial –- not whether the element itself was contested -– one

need look no further than Commonwealth v. Colon, 52 Mass. App.

Ct. 725 (2001), where we held that there was a substantial risk

of a miscarriage of justice in a case similar to this one even

though we explicitly agreed with the Commonwealth that the

precise essential element on which the jury were not instructed

was not actively contested at trial.   See id. at 730-731 ("the
                                                                 17


judge's failure to instruct the jury that they were required to

find an essential element of the crime, namely that the

defendant knew the perpetrator was armed, in order to convict

the defendant of armed robbery on a joint venture basis" created

a substantial risk of a miscarriage of justice even though

"whether the defendant knew his coventurer was armed was not an

issue actively contested at trial" at which "the principal

defense asserted . . . was that the defendant had been mis-

identified and had not been present at the robbery at all, not

that he had been present but did not know that the perpetrator

was armed").

    In fact, our appellate courts routinely find a substantial

risk of a miscarriage of justice where the element of an offense

on which there was no instruction was not actively contested,

but where instead that element on which there was no instruction

simply related to an issue that was contested such that a

properly instructed jury might have acquitted the defendant.     To

give another example, in Azar, the jury in a murder case were

not instructed with respect to the third prong of malice that

they were required to find beyond a reasonable doubt that "a

reasonable person [in the defendant's position] would [have]

recognize[d] a plain and strong likelihood of death."     Azar, 435

Mass. at 684.   As in this case, the issue there to which the

instruction related that was actively contested was not the
                                                                    18


element itself on which the jury were not correctly instructed,

but the underlying facts.   A substantial risk of a miscarriage

of justice was found because the Commonwealth's evidence with

respect to what happened "was not incontrovertible, and, indeed,

it was controverted.   Defense witnesses, including the defendant

and his two forensic experts, testified to possible alternative

causes of the child's various injuries."   Id. at 688.

    Similarly, in her opinion for this court in Commonwealth v.

Cowans, 52 Mass. App. Ct. 811 (2001), Justice Cypher concluded

that failure to instruct on intent in a home invasion case

created a substantial risk of a miscarriage of justice where

defense counsel disclaimed all arguments except identity, "even

though counsel's failure to object was a tactical choice based

on the defense strategy of focusing on identity," because "we

cannot say that the verdict would not have been different if the

jury had been properly instructed."   Id. at 821.6   Although the


    6  Justice Cypher's opinion distinguished a laundry list of
cases, including several cited by the dissent today: "In
contrast, in the cases in which the court concluded that an
erroneous instruction on the element of malice did not create a
substantial risk (or likelihood) of a miscarriage of justice
because identity was the only live issue at trial, the nature of
the killings or assaults compelled an inference of malice. See,
e.g., Commonwealth v. Lee, 383 Mass. [507,] 508, 512-513
[(1981)] (shooting); Commonwealth v. Puleio, 394 Mass. at 102,
109 (same); Commonwealth v. Gabbidon, 398 Mass. [at] 4-5, . . .
(same); Commonwealth v. Shea, 398 Mass. at 269-270 (stabbing);
Commonwealth v. Gagnon, 430 Mass. [348,] 350 [(1999)]
(shooting); Commonwealth v. Medina, 430 Mass. 800, 801, 808
                                                                  19


defendant did not directly contest the element of intent, it

related to an issue he actively contested at trial –-

identity -- because, had someone else committed the home

invasion, the defendant would not have had the intent to do so.

    If the test did focus only on whether the missing element

itself had been contested, it would divorce the test from the

relevant underlying question:   whether the error was harmful.

Omitting an instruction on an element can be harmful even if the

defendant did not contest the element itself at trial because,

whether or not the defendant contested the element itself, there

could be evidence in the record that raises a reasonable doubt

about it –- evidence that exists because the defendant contested

a related issue.   Conversely, because the test applies only in

cases where there was no objection to the failure to instruct on

the element at issue, even in cases where the error may have led

to the conviction of someone who might have been acquitted by a

properly instructed jury, the element itself may not have been

actively contested.

    The dissent's observation that "whether that firearm was

loaded and was known to be loaded while in the defendant's

possession, was neither disputed nor at issue," post at n.11, is




(2000) (beating with baseball bat)."   Cowans, 52 Mass. App. Ct.
at 821.
                                                                  20


therefore beside the point.   In this case, the defense

vigorously contested who owned the gun and brought it to the

scene of the shooting.   The defense was that the defendant had

wrested the gun from its owner, the alleged victim.   There was

sufficient evidence to support this, and, again, the jury's

acquittals indicate that they did not accept wholesale the

Commonwealth's version of events in which the gun belonged to

the defendant.   The verdicts suggest the jury may well instead

have believed the defendant's testimony.   Neither party

apparently even knew knowledge was an element of the offense,

which is presumably why neither raised it, why no evidence was

put in by the Commonwealth on it, and why there was no explicit

dispute about it.   Nonetheless, it "relates to an issue actively

contested at trial" –- whose gun it was –- and so, because the

jury could have concluded that the gun was not the defendant's

and hence that he did not know it was loaded, failure to

instruct on it created a substantial risk of a miscarriage of

justice.

    The dissent attempts to bolster its position by saying not

only that knowledge was not contested, but that the defendant's

case "proceeded on the assumption that . . . he knew the firearm

was loaded after he 'grabbed the firearm,' pointed it to the

ground to avoid getting shot, and, as he or the victim pulled

the trigger, a bullet discharged.   When the trigger was pulled
                                                                    21


again, another shot was fired, confirming that the firearm was

loaded.     When the trigger was pulled yet again, yet another

bullet discharged, thereby confirming for a third time that the

firearm was loaded.    The defendant further testified that he

fled, taking the very same gun, which had just fired, because he

feared the victim would shoot him despite the presence of the

police . . . ."    (Emphasis added; footnote omitted.)   Post

at          .   Indeed, the dissent goes so far as to state that

the defendant "implicitly conceded" knowledge at trial.        Post at

n.15.

     If knowledge the gun was loaded was conceded by the

defendant, of course, there could be no substantial risk of a

miscarriage of justice from failure to instruct on that element.

But the dissent's contention that knowledge was the premise of

the defendant's case and that he conceded it is not accurate.

The parties, apparently unaware that knowledge was an element of

the offense, said literally nothing about knowledge at trial,

and nothing in the defendant's testimony implies anything to the

contrary.    The dissent points to a statement by defense counsel

in closing about the defendant's possession of the gun and the

ammunition inside it as though it concedes knowledge.     Post

at          .   Counsel said that the jury should "find [the

defendant] not guilty under [a] theory of necessity, because he

didn't feel that he had any other reasonable alternative than to
                                                                     22


remove that firearm and that ammunition from that scene at that

time."   But the defendant was charged with possession of

ammunition, a charge on which the jury were not instructed

knowledge was an element, and so the statement is only a

statement of what the defendant always conceded:      that he took

the gun, which was, in fact, loaded, from the scene.     It implies

nothing about his knowledge at the time whether or not the gun

was loaded.

    The dissent's claim that the defendant had to know the gun

was loaded after the first shot, or the second, or the third,

requires little discussion.   See post at         .   As described

above, a gun discharging can demonstrate only that the gun was

loaded prior to the trigger having been pulled.    It is not

evidence that an individual knew the gun was loaded prior to the

bullet discharging, nor is it evidence, if that is what the

dissent means, that the gun remains loaded afterward.      All it

can "confirm" is that the gun was loaded before it fired.      It

has no logical bearing on whether the defendant knew it was

loaded prior to the trigger being pulled or whether he knew any

bullets remained afterward.   Jurors are permitted to draw only

reasonable inferences.   And if, as the defendant testified, this

was Newsom's gun, brought by Newsom to the scene, there is no

basis in the evidence for an inference that the defendant knew
                                                                    23


once he gained possession of the gun after the shots fired that

it was still loaded.

       The dissent contends that concluding the defendant had no

knowledge the gun was loaded is "conjecture," and that examining

the inferences that may be drawn from the evidence of the gun's

discharge is a mere "academic exercise."    Post at        .   But

these are just pejorative characterizations, and they are wrong.

If the jury accepted the defendant's testimony -– as they may

well have, and as we must assume they did –- logically the

defendant could not have known whether the gun was loaded when

he obtained it.   He may have thought or hoped or feared that it

was.    But if it was not his gun, in the absence of evidence of

some prior relation to it, he could not have known whether it

contained ammunition when he took possession of it.    And, to the

extent the dissent would rely on the defendant pointing the gun

downward, it is of course prudent to point away from oneself a

gun that even might be loaded, and to remove such a gun from a

scene where someone hostile might obtain it.

       Though the dissent attempts to minimize our examination of

the inferences supported by the evidence by disparaging it as

"academic" or "conjectural," it cannot deny that after the

discharge of each bullet the defendant could not have known

whether there were additional bullets in the gun if it was not

his and he had no prior relationship to it -– the very issue
                                                                    24


that was contested at trial.   Indeed, the dissent's confusion on

this point is reflected in its statement that this same

reasoning, if accepted, would exculpate the defendant, even if

he testified to bringing the gun to the scene, from a finding

that he knew the firearm was loaded.    See post at n.13.      Again,

however, the jury must draw reasonable inferences.     It is

reasonable to infer that one who brings a gun to a location

knows whether or not it is loaded;7 what is unreasonable is to

infer that someone who has never seen it before knows how many

bullets, if any, are contained within it, such that he could

know whether the gun was loaded either at the outset or after

the discharge of one or more bullets.    See, e.g., Commonwealth

v. Galarza, 93 Mass. App. Ct. 740, 748 (2018) (no rational juror

could find knowledge firearm was loaded in that case because

"the defendant 'could not have discerned whether the gun was

loaded merely by looking at it'"), quoting Brown, 479 Mass. at

605.

       The dissent also states that "[a]n argument to the jury

that the defendant was unaware that the firearm was loaded would

have undermined or even contradicted his defense of necessity."

Post at         .   That, too, is incorrect.   The defendant's



       And of course, notwithstanding the suggestion in the
       7

dissent, post at n.13, it would not matter whether he knew
precisely how many bullets are in it.
                                                                     25


version of events is that he fled with the gun to avoid being

shot.   Lack of knowledge whether it was loaded does not

undermine the defense.     If his story is true, he was justified

in taking the gun if there was any risk it might still be

loaded, which there was, even if he lacked actual knowledge

whether it was loaded or not.

    Had the jury accepted the defense put forward at trial,

concluding that the gun did not belong to the defendant, as the

acquittals suggest they may have, they would have not have been

"required to find," Azar, 435 Mass. at 688, that the defendant

had knowledge it was loaded.      Indeed, they could not have found

beyond a reasonable doubt that he did.      The error in failing to

instruct on knowledge, therefore, "relate[d] to an issue

actively contested at trial."     Gabbidon, 398 Mass. at 5.   The

defendant was harmed by the error in that he may have been

convicted even though, given his defense, the jury, if properly

instructed, might well have found the element of knowledge not

proven beyond a reasonable doubt.     This case therefore is not

within the exception to our ordinary substantial-risk-of-a-

miscarriage-of-justice rules that applies to instructional

errors that do not "relate to an issue actively contested at

trial" (emphasis added).    Id.

    c.   The jury's other verdicts.      We turn next to the other

verdicts rendered by the jury.     As McCray makes clear, if the
                                                                   26


jury's verdicts on the other counts on which the defendant was

convicted compel the conclusion they "necessarily found" the

element on which they were not instructed -- here, knowledge the

gun was loaded -- there would be no substantial risk of

miscarriage of justice.     93 Mass. App. Ct. at 847.

    Notwithstanding the testimony of the Commonwealth's

witnesses that the gun at issue was brought to the scene of the

shooting by the defendant, and that he pulled it out of his

waistband and fired several shots toward the alleged victim, the

jury in this case acquitted the defendant of armed assault with

intent to murder, assault and battery by means of a dangerous

weapon causing serious bodily injury, and assault and battery by

discharging a firearm.    A jury finding that the defendant knew

the gun was loaded obviously cannot be ineluctably inferred from

the jury's verdicts on those counts, where the jury did not

convict the defendant of the assaults described by the

Commonwealth's witnesses.    Cf. McCray, 93 Mass. App. Ct. at 847

(guilty verdicts on other counts meant jury "necessarily found"

element on which they were not instructed).     Indeed, as spelled

out above, one possible explanation for the jury's split verdict

on the counts before them is that they did not accept the

Commonwealth's theory that the defendant brought the gun to the

scene and used it there on the alleged victim.     These other

verdicts indicate that the jury did not necessarily find that
                                                                  27


the defendant knew that the gun was loaded.    Indeed, if the

verdicts reflect the jury's acceptance of the defendant's theory

that he did not commit the assaultive crimes but possessed the

gun only because he took it from the scene to prevent Newsom

from recovering it, they could not have found that he had the

requisite knowledge that the gun was loaded.

     The Commonwealth does not even argue that the jury's other

verdicts compel a conclusion that the jury necessarily found the

element of knowledge that the firearm was loaded.   The dissent

though, perhaps recognizing the weakness of its primary, "not-

actively-contested" argument for affirmance, cuts from whole

cloth an alternative, "independent ground" for affirmance in the

fact that the defendant was convicted of possession of

ammunition on the basis of the ammunition inside the gun.   Post

at       .

     At first blush, even though the possession of ammunition

conviction was vacated by the trial court as duplicative of the

possession of a loaded firearm charge, this might seem like a

strong argument.   After all, knowledge that what one possesses

is ammunition is an element of possession of ammunition.    The

text of the statute does not say so, see G. L. c. 269, § 10 (h),

but this was announced by the Supreme Judicial Court in

Commonwealth v. Johnson, 461 Mass. 44, 53 (2011).   The

ammunition involved in this case was concededly only the
                                                                 28


ammunition inside the gun (including the attached magazine) and,

as we held recently in Commonwealth v. Woods, 94 Mass. App. Ct.

761 (2019), if a defendant has been convicted of possession of a

loaded firearm and of possession of ammunition based on the

ammunition within that firearm, and the element of knowledge was

not instructed on with respect to the firearm charge, but "the

jury were instructed clearly that a required element for a

verdict of guilty [on the ammunition charge] was that the

'defendant knew that he possessed that ammunition,'" there is no

substantial risk of a miscarriage of justice in the failure to

instruct on knowledge as an element of the loaded firearm

charge.

    In this case, however, the argument from the conviction on

the ammunition charge is insubstantial.   This is because, as the

dissent is forced to acknowledge, "the judge's instructions on

the charge of possession of ammunition did not specify knowledge

as an element."   Post at       .   Put more transparently, even

though the trial took place after Johnson, the jury were not

instructed that knowledge was an essential element of the crime

of possession of ammunition -- not clearly, not at all.

    The dissent attempts to cobble together a theory that the

jury actually did find knowledge in convicting on the ammunition

charge because the general instruction on possession included in

passing an example of possession in which the possession was
                                                                 29


knowing.    But, as we explain below, the jury were not instructed

that knowledge was necessary in order to prove possession; they

were instructed, correctly, that it was not.    An examination of

the instructions as a whole, though perhaps somewhat tedious,

amply demonstrates that the jurors would not have understood

possession of ammunition to contain an element of knowledge.

     To begin with, as we have said, with respect to the

possession of ammunition charge, the judge omitted the essential

element of knowledge, which was requested by neither party.8    The

instructions on that count therefore did not require the jury

necessarily to find that the defendant knowingly possessed the

ammunition in the gun.    By contrast, with respect to each

possessory count except the ammunition charge the judge




     8   The judge instructed,

          "Count [7] is unlawful possession of ammunition. The
     [d]efendant is also charged under the same statute . . .
     with unlawful possession of ammunition. [The statute]
     provides, in pertinent part, that whoever owns, possesses,
     or transfers possession of ammunition without complying
     with the requirements relating to the firearm
     identification card shall be punished. In order to prove
     the [d]efendant guilty of this offense, the Commonwealth
     must prove each of the following elements beyond a
     reasonable doubt: [first,] that the [d]efendant possessed
     ammunition; . . . [second,] that what the [d]efendant
     possessed met the legal definition of ammunition; [third,]
     that he did so without complying with the requirements
     relating to the firearm identification card; and [fourth,]
     the absence of necessity . . . ."
                                                                 30


instructed that knowledge was a separate, essential element of

the offense, without a finding beyond a reasonable doubt on

which the jury could not convict the defendant.   In addition, he

described the criminal act with respect to each possessory crime

except possession of ammunition and possession of a loaded

firearm as "knowing possession."9


     9 When charging on count 4, unlawful possession of a
firearm, the judge began,

          "A statute in the Commonwealth provides, in pertinent
     part: Whoever, except as provided or exempted by statute,
     knowingly has in his possession or knowingly has under his
     control in a vehicle a firearm, loaded or unloaded,
     without, either being present in his residence or place of
     business, having a license to carry firearms or being
     exempt from license requirement, shall be guilty of an
     offense. The Commonwealth must prove three elements beyond
     a reasonable doubt on this offense. [First,] the
     [d]efendant had an object in his possession or under his
     control in a vehicle; . . . [second,] the object was a
     firearm; [third,] the [d]efendant knew the object he
     possessed was a firearm, meaning [the] [d]efendant
     possessed it knowingly, and [fourth,] the absence of
     necessity."

With respect to count 5, unlawful possession of a large-
capacity feeding device, the judge said,

          "The [d]efendant is also charged with unlawfully and
     knowingly having in his possession a large-capacity feeding
     device. . . . In order to prove the [d]efendant guilty of
     this offense, the [d]efendant [sic] must prove three [sic]
     things beyond a reasonable doubt: [first,] that the
     [d]efendant possessed an item; [second,] the item meets the
     definition of a large-capacity feeding device; [third,] the
     [d]efendant knew that he possessed this large-capacity
     feeding device; [fourth,] the absence of necessity, which
     I've defined for you."
                                                                 31


     Any reasonable juror thus would have understood that,

unlike the other counts, conviction on the possession of

ammunition charge did not require proof beyond a reasonable

doubt of knowledge.10

     The judge did give a general instruction on possession as

part of the charge on count 4, the first possessory charge on



Even with respect to count 6, possession of a loaded firearm,
the judge instructed that possession of the firearm had to be
knowing, though knowledge of the fact it was loaded was not
stated as a requirement:

          "[I]f you find that the Commonwealth has proven beyond
     a reasonable doubt that [1] the [d]efendant had an object
     in his possession; [2] the object was a firearm; [3] the
     [d]efendant knew the object he possessed was a firearm; and
     [4] the firearm was loaded with ammunition; and [5] the
     absence of necessity, which I've already defined for you,
     you shall find the [d]efendant guilty of possession of a
     loaded firearm. If you find that the Commonwealth has
     failed to prove any one of these elements beyond a
     reasonable doubt, then you shall find the [d]efendant not
     guilty."

     10See Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 491
(2013) (despite an instruction that the defendant was required
to share "the intent required for" commission by his coventurer
of "armed assault in a dwelling" and "assault by means of a
dangerous weapon" -- which ordinarily would convey that the
defendant was required to know that his coventurer was armed --
"[i]n light of the failure to give a knowledge-of-the-gun
instruction on the home invasion, armed assault in a dwelling,
and assault by means of a dangerous weapon charges, the judge's
careful explanation that the jury had to find beyond a
reasonable doubt that the defendant knew his coventurer
possessed a firearm before they could convict him of the charge
of possession of a firearm in the commission of a felony . . .
could only have been taken to imply that no such requirement
existed for the other three offenses").
                                                                   32


which he instructed, and he referred back to it in each

instruction he gave on the other possessory offenses, though

without repeating it.    That instruction, however, defined

possession in a way that, correctly, did not require knowledge.

The judge began, "The first element the Commonwealth must prove

beyond a reasonable doubt is that the [d]efendant possessed a

firearm.    A person who has physical control over an object and

has the intent to exercise such control is in actual possession

of it."    Under that definition, possession need not be knowing.11

The judge then made clear that knowing possession was one

example, but only one example, of possession, by continuing, "A

person who knowingly has direct, physical control over an object

at a given time is then in actual possession of it."

    These instructions, then, state that knowing possession

suffices to show possession, but that knowledge is not a

necessary element of possession.

    It was only after this initial instruction that the judge

continued on to give the example on which the dissent would

rely.    That portion of the instruction in full read, "Actual

possession implies control and power over the thing or the




    11 We note that the phrase "intent to exercise [physical]
control [over an object]" does not require specific knowledge of
an object's contents or its nature. See Commonwealth v. Lee,
331 Mass. 166, 168 (1954).
                                                                  33


object.   For example, I have this pen in my hand; I know it's a

pen; I have control over it; I can do whatever I want with it.

Clearly, I have the actual possession of this pen."   Again, this

is an accurate instruction:   It defines possession in terms of

control and power.   It then gives an example in which possession

is knowing as one in which "clearly" there is actual control.

    This instruction does not suggest what would be incorrect,

that knowledge is an essential component of possession.     Nor, if

it did, would the judge have concluded he was required to

instruct on knowledge as an additional element of several of the

possessory offenses.   See note 9, supra.   Nor, for that matter,

given the instruction on possession of a loaded firearm, would

it have been appropriate to treat the ammunition and loaded

firearm convictions as duplicative since, if knowledge were an

element of the ammunition offense, each crime would have had an

additional element the other did not.

    In any event, given the clear import of his other

instructions on the possessory offenses, even if the example

about the pen could be read as the dissent would read it, the

language cited by the dissent would not be a clear enough

statement of knowledge being a required component of possession

that it would permit us to conclude with sufficient certainly to

dispel the substantial risk of a miscarriage of justice that the

jury in convicting the defendant of possession of ammunition
                                                                34


found beyond a reasonable doubt that possession was knowing.

See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (error

creates a substantial risk of a miscarriage of justice if there

is a "plausible inference" that the jury's result on the charge

"might have been otherwise but for the error").

    Conclusion.   On the indictment charging Mitchell with

unlawful possession of a firearm, the judgment is affirmed.    On

the indictment charging him with unlawful possession of a loaded

firearm, the judgment is reversed and the verdict is set aside.


                                  So ordered.
     NEYMAN, J. (dissenting in part, with whom Meade, J.,

joins).   I agree with the majority's affirmance of the

conviction of unlawful possession of a firearm as a subsequent

offense and after having been convicted of a serious drug crime,

G. L. c. 269, §§ 10 (a) & (d), 10G (a).   I disagree, however,

with the majority's conclusion that the judge's failure to

instruct the jury on the knowledge element of the unlawful

possession of a loaded firearm charge created a substantial risk

of a miscarriage of justice.   The majority opinion conceives an

issue not pursued at trial, or even on appeal,1 and contravenes

the well-established rule that the substantial risk standard

"does not encompass an abstract, theoretical possibility of a

miscarriage of justice, utterly divorced from the case as it was

tried."   Commonwealth v. Russell, 439 Mass. 340, 351 (2003).    On

the record before us, there was no such risk, and I would thus




     1 In his appellate brief, the defendant did not argue that
the failure to instruct the jury on the knowledge element of the
loaded firearm charge created a substantial risk of a
miscarriage of justice. Instead, the defendant argued that the
instructions "produced a harmful error that was preserved under
the clairvoyance exception." The clairvoyance exception does
not apply here. See Commonwealth v. Gagnon, 37 Mass. App. Ct.
626, 629 n.2 (1994) (clairvoyance exception does not apply where
court did not announce new rule of constitutional significance
but only clarified meaning of criminal statute).
                                                                    2


affirm the conviction of unlawful possession of a loaded

firearm.   See G. L. c. 269, § 10 (n).2

     Background.   1.   The Commonwealth's case.   Officer Samuel

Gomez-Gonzales of the Springfield police department testified at

trial that from a distance of approximately twenty feet away, he

observed one man, later identified as the victim, Marquise

Newsom, push the other man, later identified as the defendant.

Officer Gomez-Gonzales then observed the defendant "push back"

the victim, pull out a firearm from his own waistband, and fire

several shots at the victim.3   The shooting occurred outside of

Fat Cat's Bar and Grill (Fat Cat's) and the neighboring Glo

nightclub.   At the time of the shooting, the defendant faced

toward Fat Cat's, while the victim's back was toward Fat Cat's.

After the first shot, the victim "started running."    The

defendant continued to fire in the victim's direction, and then

ran away in the opposite direction, tucking the firearm back

into his waistband as he fled the scene.    Officer Gomez-Gonzales


     2 The defendant was sentenced to from five years to five
years and one day in State prison for the conviction of unlawful
possession of a firearm, subsequent offense, and two years of
probation from and after that sentence for the conviction of
unlawful possession of a loaded firearm.

     3 The Commonwealth introduced testimony that the victim and
the defendant were members of rival gangs that were "not
friendly." The defendant denied being a member of a gang, and
testified that he and the victim were not "enemies," but also
"not friends."
                                                                    3


ran after the defendant and screamed for him to stop.     The

defendant continued to flee, ran down an alleyway, and climbed a

fence whereupon his pant leg "got stuck."    Officer Gomez-

Gonzales drew his gun and told the defendant to stop and get

down.    The defendant ignored the order, made his way over the

fence, looked at the officer, and again tried to run.     The

defendant did not stop until Officer Gomez-Gonzales "got over

the fence" and pointed his gun at him.4    While the defendant

climbed the fence, Officer Gomez-Gonzales saw the gun, a black

.40 caliber firearm, fall to the ground.    Officers secured the

firearm, which was loaded with thirteen live rounds of

ammunition -- twelve rounds in the magazine and one in the

chamber.

     2.    The defense case.   The sole and exclusive theories of

defense at trial were self-defense and necessity.    Defense

counsel told the jury in his opening statement, "[w]e're going

to assert self-defense as to the action that caused the injury

to [the victim]. . . .    And we're going to assert the defense of

necessity as to [the defendant] possessing a firearm."     In his

closing argument, defense counsel repeated these themes, stating


     4 The jury could have viewed the defendant's flight from the
crime scene, and further flight from the pursuing officer, as
consciousness of guilt evidence. See Commonwealth v. Rojas, 388
Mass. 626, 629 (1983). The judge provided a consciousness of
guilt instruction.
                                                                   4


that the defendant "is going to assert the defense of self

defense as to these -- the discharging of a firearm. . . .

We're going to assert the defense of necessity as to the

possessory offenses of possessing the firearm and the ammunition

. . . ."

     Consistent with his specified defenses, the defendant

acknowledged that he possessed the firearm and ammunition, but

only after he seized it from the victim out of necessity.5

Specifically, the defendant testified that the victim and

another male approached him in an aggressive manner.   The victim

then reached into his own waistband, and drew the gun.     The

defendant further testified, on direct examination, that he

grabbed the victim's hands with both of his own hands, "grabbed

the firearm," and "the next thing you know, the gun goes off

. . . three times."    The defendant claimed that he was unsure

who pulled the trigger, and stated that the firearm was pointed

toward the ground during the struggle.   He testified that the

victim "let go of the gun and just took off running in the

opposite direction."   The defendant further stated that he took




     5 Consistent with the defendant's testimony, defense counsel
argued in closing that "[the defendant] didn't feel that he had
any other reasonable alternative than to remove that firearm and
that ammunition from that scene at that time."
                                                                    5


the firearm and fled the scene so that the victim or the

victim's companion "couldn't shoot [him]."

    3.   Facts not in dispute.   There is no dispute that the

sole defenses at trial were necessity and self-defense.     There

is no dispute that the victim suffered a wound to his thumb,

which was "hanging by [the] skin"; that a bullet fragment was

lodged in the "last part of the knuckle of the [victim's]

thumb"; that bullet holes from the shooting were found on the

exterior wall of Fat Cat's; that a projectile was located in the

wall; and that officers retrieved three shell casings from in

front of Fat Cat's.   There is likewise no dispute that the

firearm carried by the defendant and retrieved by the police was

the firearm used in the shooting; that the magazine was capable

of holding fifteen rounds; that the defendant fled from the

crime scene, ran down an alleyway, and climbed a fence whereupon

he "got stuck"; and that the firearm discarded by the defendant

was loaded with thirteen live rounds of ammunition -- twelve

rounds in the magazine and one in the chamber.   Finally, there

is no dispute that the victim did not cooperate with the

investigation and did not testify at trial.

    Discussion.   For the first time on appeal, the defendant

contends that the omission of the knowledge element from the

instructions on unlawful possession of a loaded firearm
                                                                    6


constituted reversible error.6   He claims that a "reasonable jury

might have found that [he] did not know, even after each shot,

whether the gun remained loaded."    This argument is unavailing.

     To obtain a conviction under G. L. c. 269, § 10 (n), the

Commonwealth must prove that the defendant "knew the firearm he

or she possessed was loaded."    Commonwealth v. Brown, 479 Mass.

600, 601 (2018).7   See Commonwealth v. Johnson, 461 Mass. 44, 52-

53 (2011).   Accordingly, the judge erred by failing to instruct

the jury on this element, and, in the absence of any objection,

the court's review is limited to whether the error created a

substantial risk of a miscarriage of justice.    See Commonwealth

v. Alphas, 430 Mass. 8, 13 (1999).   This standard requires the

court to "review the evidence and the case as a whole,

considering the strength of the Commonwealth's case, as well as




     6 The judge instructed, in relevant part, that unlawful
possession of a loaded firearm required the Commonwealth to
prove "[1] the [d]efendant had an object in his possession;
[2] the object was a firearm; [3] the [d]efendant knew the
object he possessed was a firearm; and [4] the firearm was
loaded with ammunition; and [5] the absence of necessity."

     7 In Brown, 479 Mass. at 601, 608, issued after the trial in
the present case, the Supreme Judicial Court confirmed that
knowledge that a firearm is loaded is an element of G. L.
c. 269, § 10 (n). In Brown, the defendant claimed that the
evidence was insufficient to prove that he knew the firearm in
his possession was loaded. The Supreme Judicial Court agreed
and reversed the conviction. Id. at 605-609. The defendant
here does not raise a sufficiency argument, nor could he
credibly do so given the evidence in this case.
                                                                    7


the nature and significance of the alleged errors."

Commonwealth v. Chase, 433 Mass. 293, 299 (2001), citing Alphas,

supra.   The court will reverse "only in the extraordinary

situation where, after such a review, we are left with

uncertainty that the defendant's guilt has been fairly

adjudicated."   Chase, supra.   Here, where the explicit theories

of defense were necessity and self-defense, where no party so

much as intimated that the defendant lacked knowledge, where the

omitted portion of the instruction "did not affect the defense

that the defendant chose to pursue," Commonwealth v. Robinson,

444 Mass. 102, 106 (2005), and where the jury convicted the

defendant on the lesser included offense of possession of

ammunition, there is no such uncertainty.

    Our cases hold that "the omission of an element of the

crime from the jury instruction is not among the very limited

class of structural errors subject to automatic reversal, and

upon proper objection would be subject to harmless error

analysis."   Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7

(2001), citing Chapman v. California, 386 U.S. 18, 24 (1967),

and Neder v. United States, 527 U.S. 1, 7-10 (1999).   It thus

follows that the omission of an element of the crime does not

invariably create a substantial risk of a miscarriage of
                                                                     8


justice.8    In evaluating whether such a substantial risk exists,

"we must evaluate the impact of the error in the context of the

entire trial.    In the performance of this task, we pay

particular attention to those issues actively contested at

trial."     Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986).

"[W]hether a particular element of a crime was contested at

trial is important to a determination whether a trial error

resulted in a substantial risk of a miscarriage of justice."

Id.   Therefore, where an erroneous instruction "did not relate

to an issue actively contested at trial, no substantial risk of

a miscarriage of justice result[s]."      Id., citing Commonwealth

v. Puleio, 394 Mass. 101, 109 (1985).      See Commonwealth v.

Spearin, 446 Mass. 599, 609 (2006).      This rule is based on the

longstanding principle that "no harm accrues to a defendant if

an error does not relate to an issue actively contested at

trial."     Gabbidon, 398 Mass. at 5.   This principle has been

consistently applied in numerous cases involving various

defenses, including self-defense, misidentification, and alibi.

See, e.g., Spearin, 446 Mass. at 609; Robinson, 444 Mass. at

106-107; Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 675




      8Again, the defendant did not contend on appeal that the
erroneous instruction created a substantial risk of a
miscarriage of justice. He only argued that it constituted
harmful error. See note 1, supra.
                                                                   9


(2017); Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 263-264

(2013); Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 249-250

(2012); Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 565-566

(2006); Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 463-466

(2004); Commonwealth v. Jenkins, 47 Mass. App. Ct. 286, 292

(1999).   Cf. Commonwealth v. Azar, 435 Mass. 675, 676 (2002)

("erroneous instructions to the jury on a contested element of

the crime charged did create a substantial risk of a miscarriage

of justice").

    The same considerations apply when the omitted element

relates to a defendant's mens rea.   See, e.g., Commonwealth v.

Shea, 398 Mass. 264, 269 (1986) (erroneous instruction on intent

to murder did not create substantial risk of a miscarriage of

justice where defense was that another person stabbed victim and

intent was not contested at trial); Commonwealth v. Picher, 46

Mass. App. Ct. 409, 411 (1999) (erroneous instruction on intent

required for assault and battery by means of dangerous weapon

did not create substantial risk of a miscarriage of justice

where "essential theory of the defense at trial was

misidentification, not that the victims were unintentionally hit

by gunfire"); Commonwealth v. Medina, 43 Mass. App. Ct. 534,

535-536 (1997) (error in intent instruction on charge of assault

and battery on a police officer did not create substantial risk

of a miscarriage of justice where defendant claimed self-defense
                                                                 10


and never argued that touching of officer was accidental);

Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 529 (1988)

(alleged error in malice instruction did not present substantial

risk of a miscarriage of justice where "there was no serious

dispute" that the arson was "purposeful and intended to cause

substantial destruction to the building").   Contrast

Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 820-821 (2001)

(erroneous instruction on home invasion charge, to effect that

jurors could find element of threat of imminent use of force

without considering defendant's intent, created substantial risk

of miscarriage of justice where jury question showed that jury

was grappling "particularly with the element of force or the

threat of imminent force").

    With these principles in mind, I return to the present

case.   It is undisputed that the sole theories of defense,

specified and pursued in opening statement, throughout trial,

and in closing argument, were self-defense and necessity.

Consistent with the defendant's arguments, the judge carefully

and correctly instructed the jury as to both theories of

defense.   Moreover, the judge specified that self-defense

applied to the assault offenses, while the necessity defense

applied to the possessory offenses.   The jury rejected the

necessity defense, and found the defendant guilty of unlawful
                                                                   11


possession of a firearm, possession of ammunition, and

possession of a loaded firearm.9

       As previously noted, the defendant now argues that the

failure to instruct the jury that knowledge is an element of the

crime of possession of a loaded firearm created a substantial

risk of a miscarriage of justice.    Under the precedent described

above, we must first determine whether the error related to an

issue actively contested at trial.    See Gabbidon, 398 Mass. at

5.10   It did not.   At trial, neither the defendant nor his




       The majority speculates that the jury's acquittal on the
       9

assault offenses suggests that they believed the defendant's
version of events. Ante at         . This is the type of
guesswork in which we have said we will not engage. See
Commonwealth v. Rogers, 8 Mass. App. Ct. 646, 652 (1979) ("It is
not open for us to speculate about the jury's internal decision-
making process"). Moreover, even were we to accept such
speculation, it would merely confirm that the defendant shot the
victim in self-defense, as the defense insisted throughout
trial, but would not support the theoretical claim that the
defendant lacked knowledge that the firearm was loaded.

       The majority maintains that the dissent misperceives the
       10

test for evaluating whether the error in the judge's instruction
created a substantial risk of a miscarriage of justice. Ante
at        . This is not so. The test is clear:

       "To determine whether the erroneous instruction created a
       substantial risk of a miscarriage of justice, we must
       evaluate the impact of the error in the context of the
       entire trial. In the performance of this task, we pay
       particular attention to those issues actively contested at
       trial. . . . [W]hether a particular element of a crime was
       contested at trial is important to a determination whether
       a trial error resulted in a substantial risk of a
       miscarriage of justice. We have held previously that no
                                                                   12


counsel disputed that the firearm was loaded or that the

defendant was aware of that fact.   See Mezzanotti, 26 Mass. App.

Ct. at 529.   Instead, as discussed above, the defense focused

exclusively on the theories of self-defense and necessity.    As

the defendant testified, "it was like a fight or flight . . .

reaction."    Neither the issue of knowledge, nor issues related

to knowledge, were raised, argued, or pursued in any way.11   See

Gabbidon, 398 Mass. at 5 ("we pay particular attention to those

issues actively contested at trial").    See also Robinson, 444

Mass. at 106-107; Shea, 398 Mass. at 269.

     The evidence established that the firearm was loaded, and

the defendant's defense proceeded on the assumption that -- at a



     harm accrues to a defendant if an error does not relate to
     an issue actively contested at trial."

Gabbidon, 398 Mass. at 5. I apply this test herein.
     11 The majority contends that "the defense vigorously

contested who owned the gun and brought it to the scene of the
shooting," and that thus the omitted instruction created a
substantial risk of a miscarriage of justice. Ante at          .
I agree that the identity of the person who brought the firearm
to the scene was disputed. However, as detailed herein, whether
that firearm was loaded and was known to be loaded while in the
defendant's possession, was neither disputed nor at issue. For
that reason, this case is unlike Commonwealth v. Galarza, 93
Mass. App. Ct. 740, 748 (2018) (defendant "could not have
discerned whether the gun was loaded merely by looking at it"
[citation omitted]), relied on by the majority, ante at          .
Here, the defendant did not merely "look at" the firearm.
Instead, if we accept his own testimony on direct examination,
he "grabbed" the firearm, held it as bullets shot from it upon
each pull of the trigger, and fled with it.
                                                                    13


minimum -- he knew the firearm was loaded after he "grabbed the

firearm," pointed it to the ground,12 and, as he or the victim

pulled the trigger, a bullet discharged.   When the trigger was

pulled again, another shot was fired, confirming that the

firearm was loaded.   When the trigger was pulled yet again, yet

another bullet discharged, thereby confirming for a third time

that the firearm was loaded.   The defendant further testified

that he fled, taking the very same gun, which had just fired,

because he feared the victim would shoot him despite the

presence of the police, from whom he continued to flee.     Thus,

even if the jury believed the defendant's account, there was no

dispute that he possessed the firearm and knew the firearm was

loaded.   See Commonwealth v. Hall, 80 Mass. App. Ct. 317, 330

(2011) ("possession does not depend on the duration of time

elapsing after one has an object under his control so long as,

at the time of contact with the object, the person has the

control and the power to do with it what he or she wills").

     Furthermore, such knowledge was consistent with the

defenses pursued at trial.   An argument to the jury that the

defendant was unaware that the firearm was loaded would have




     12The Commonwealth contended at trial that the physical
evidence, including the bullet and bullet holes found in the
wall of Fat Cat's and the bullet wound to the victim,
contradicted the defendant's testimony and theory of the case.
                                                                  14


undermined or even contradicted his defense of necessity.

Contrast Azar, 435 Mass. at 688-689 ("the defense's medical

evidence demonstrated that a moderate trauma was indicated, and

that the child's head injuries were consistent with the

defendant's account of the events").   As defense counsel

contended in closing argument, "find him not guilty under [a]

theory of necessity, because he didn't feel that he had any

other reasonable alternative than to remove that firearm and

that ammunition from that scene at that time."   See Alphas, 430

Mass. at 13 (in substantial risk calculus, reviewing court

analyzes whether it can be inferred "from the record that

counsel's failure to object was not simply a reasonable tactical

decision" [citation omitted]).

    In view of the evidence and defense proffered at trial, the

defendant now contends, for the first time on appeal, that "[a]

reasonable jury might have found that [he] did not know, even

after each shot, whether the gun remained loaded."   In other

words, the defendant suggests that although he knew that the

firearm was loaded at some point, he did not know whether the

firearm was "still" loaded after each successive shot.      The

argument is unavailing.

    When the court considers whether an error created a

substantial risk of a miscarriage of justice, we do not look for

theoretical or conjectural risks.   See Proulx, 61 Mass. App. Ct.
                                                                   15


at 466 ("A mere possibility of a different outcome will not

satisfy [the burden to show there is a substantial risk that the

outcome of the trial would have been different]" [citation

omitted]).   To be sure, as an academic exercise, one could now

posit -- as the defendant does -- that it would have been

conceivable to argue that he did not know that the firearm was

"still" loaded after each successive shot, but, as discussed

supra, such an argument, in addition to being based on

conjecture,13 would have undermined the precise defense pursued

throughout trial.    See Proulx, 61 Mass. App. Ct. at 464 ("the

[present] case was not tried on the theory now advanced on

appeal").    An appellate court should not concoct scenarios or

possibilities not pursued at trial.    See Russell, 439 Mass. at

351 (substantial risk standard "does not encompass an abstract,

theoretical possibility of a miscarriage of justice, utterly

divorced from the case as it was tried").   This case does not


     13Under the view articulated by the majority, even if the
defendant testified that he had brought the firearm to the
scene, there would nonetheless be a substantial risk of a
miscarriage of justice because, in theory, one could not
"ineluctably infer[]" that the defendant knew precisely how many
bullets, if any, were ever in the large-capacity magazine, even
after firing three shots therefrom. Ante at         . One could
hypothesize that the defendant may not have checked the firearm
for ammunition prior to arriving at the scene, or may not have
loaded it himself. This is precisely the line of conjecture,
divorced from trial, in which we do not engage. See Russell,
439 Mass. at 351; Proulx, 61 Mass. App. Ct. at 466.
                                                                   16


present the "extraordinary situation" in which we would overturn

a conviction under the substantial risk standard.   Chase, 433

Mass. at 299.14

     In short, the judge's erroneous instruction did not

materially affect the case and, therefore, did not rise to the

level of a substantial risk of a miscarriage of justice.15   See


     14The majority's reliance on Cowans, 52 Mass. App. Ct. at
820-821, is misplaced. See ante at         . In Cowans, the
only contested issue was the identity of the assailant.
Nonetheless, we concluded that an erroneous instruction on the
element of intent created a substantial risk of a miscarriage of
justice because the jury asked questions about the nature of the
intent required. See Cowans, supra (although "there are
numerous cases in which the [Supreme Judicial Court] has held
that an error in the jury instructions on malice did not create
a substantial risk . . . of a miscarriage of justice where the
only contested issue was the identity of the killer or
assailant[,] . . . [w]hat prevents this case from following this
line of precedent . . . is that here the jury grappled with the
elements of home invasion, and particularly with the element of
force or the threat of imminent force"). In other words, it was
clear that the issue of intent was at the forefront of the
jury's deliberations. Here, unlike Cowans, there were no such
jury questions and no indication that the jury grappled with the
elements of the possessory offenses or issues related thereto.
     Likewise, the majority's reliance on Azar, 435 Mass. at
688-689, is misplaced. See ante at         ,        . In that
case, "erroneous instructions to the jury on a contested element
of the crime charged did create a substantial risk of a
miscarriage of justice." Id. at 676. Here, by contrast, the
instructions did not pertain to a contested element.

     15Although the defendant implicitly conceded the issue of
knowledge at trial, to the extent that he never explicitly
conceded the issue, he fares no better. See Picher, 46 Mass.
App. Ct. at 411-412 (no substantial risk of miscarriage of
justice arose from incorrect intent instruction, notwithstanding
defendant's assertion that he never "conceded" issue of intent,
where essential theory of defense at trial was misidentification
                                                                 17


Robinson, 444 Mass. at 107 (erroneous instruction did not result

in substantial risk of miscarriage of justice where error "did

not go to any disputed issue in the case or otherwise compromise

the theory of defense"); Puleio, 394 Mass. at 109 ("The

principal issue at trial was not whether a murder had been

committed.   Rather, it was whether the murder had been committed

by the defendant . . . .   Thus, the erroneous instruction on

malice did not relate to an actively contested issue, so it did

not create a substantial risk of a miscarriage of justice").

Contrast Azar, 435 Mass. at 688-689 (erroneous malice

instruction created substantial risk of miscarriage of justice

because malice was actively contested issue at trial in which

defendant and two forensic experts testified to alternative

causes of child decedent's injuries).   As the issue belatedly

raised on appeal did not relate to an actively contested issue,

"[t]here was no reason for the jury to reach any such issue and

little likelihood that they might have done so from the evidence

presented to them."   Commonwealth v. Molle, 56 Mass. App. Ct.

621, 629 (2002).

    Finally, the conclusion that the erroneous instruction did

not create a substantial risk of miscarriage of justice is




and evidence was strong that firing of shots was not
accidental).
                                                                  18


supported by an independent ground, as explained in the court's

recent decision in Commonwealth v. Woods, 94 Mass. App. Ct. 761

(2019).   There, as here, the jury convicted the defendant of the

lesser included offense of unlawful possession of ammunition

"located within the firearm," which served as the basis for

affirming the illegal possession of a loaded firearm conviction.

Id. at 768.   As the court explained, "[b]ecause the jury found

that the defendant knowingly possessed the ammunition within the

firearm, the failure to instruct the jury that they were

required to find that he knew the handgun was loaded with

ammunition in order to return a verdict of guilty on the charge

of possession of a loaded firearm was of no significance."     Id.16

     Likewise, in the present case, it is undisputed that the

defendant was also convicted of the lesser included offense of

possession of ammunition, and the only ammunition at issue was

that within the firearm.   Thus, the only remaining issue is

whether the jury were instructed that knowledge was a required

element for a conviction of possession of ammunition.   Here, the

judge's instructions on the charge of possession of ammunition

did not specify knowledge as an element.17   However, at the


     16As in the present case, the judge and parties in Woods
did not have the benefit of the decision in Brown, 479 Mass. at
601, at the time of trial. Woods, 94 Mass. App. Ct. at 768
n.10. See note 7, supra.
                                                                  19


outset of his instructions as to all of the possessory offenses

(possession of ammunition, possession of a firearm, possession

of a loaded firearm), the judge provided a definition of

"possession," which specified that "[a] person who knowingly has

direct, physical control over an object at a given time is then

in actual possession of it. . . .   For example, I have this pen

in my hand; I know it's a pen; I have control over it . . . ."

The plain language of this instruction included the requirement

of knowledge, and, in the context of the possession of

ammunition charge, imposed the requirement that the defendant

"knowingly ha[d] direct, physical control over [the

ammunition]."   Thus, the judge's instruction that possession

included the element of knowledge required the jury to find that

the defendant "knowingly" possessed ammunition in order to

convict him of that charge.   A jury finding that the defendant

knowingly possessed the ammunition within the firearm

necessitated a finding that he knew that the firearm was

loaded.18   See Woods, 94 Mass. App. Ct. at 768.   Cf. Commonwealth




     17The defendant did not object to the judge's instructions
on possession of ammunition at trial, and does not claim any
deficiency in those instructions on appeal. After trial, the
conviction of possession of ammunition was vacated as
duplicative of the conviction of possession of a loaded firearm.

     18In his instructions on the charge of possession of a
loaded firearm, the judge instructed that the offense required,
inter alia, "proof that the firearm was loaded with ammunition."
                                                                 20


v. Britt, 465 Mass. 87, 98-99 (2013) (omission of instruction on

knowledge of dangerous weapon did not create substantial

likelihood of miscarriage of justice where jury, by convicting

defendant of other counts, necessarily found that she herself

possessed a firearm).

    For all of the foregoing reasons, I respectfully dissent.
