NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-67                                                 Appeals Court

                   COMMONWEALTH   vs.   TYRIEK BROWN.


                              No. 16-P-67.

          Worcester.      February 6, 2017. - March 31, 2017.

               Present:   Cypher, Milkey, & Neyman, JJ.


Firearms. Evidence, Firearm. Practice, Criminal, Argument by
     prosecutor. Words, "Knowingly."


     Indictments found and returned in the Superior Court
Department on December 13, 2013.

     The cases were tried before William F. Sullivan, J.


     Deborah Bates Riordan for the defendant.
     Michelle R. King, Assistant District Attorney, for the
Commonwealth.


     MILKEY, J.    During an inventory search of the car that the

defendant had been driving, a State trooper discovered a loaded

handgun.    Based on this, the defendant was indicted on two

related counts:    unlawful possession of a firearm, and unlawful

possession of a loaded firearm.     See G. L. c. 269, § 10(a) &
                                                                         2


(n).       A Superior Court jury convicted him of those charges. 1   His

appeal primarily focuses on a question of law that the Supreme

Judicial Court flagged without answering:       "whether, to be

convicted of unlawful possession of a loaded firearm, a

defendant must know that the firearm he possessed was

loaded."       Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7

(2012).       The Commonwealth maintains that proof of such knowledge

is not required.       Although we are not unsympathetic to the

textual arguments on which the Commonwealth relies, existing

case law requires us to conclude that the Commonwealth must

prove that the defendant knew that the gun was loaded.        We

further conclude that the evidence here was legally insufficient

to establish such knowledge, and that the defendant therefore is

entitled to a judgment of acquittal on the indictment for

unlawfully possessing a loaded firearm.       We otherwise affirm.

       Background.     On July 4, 2013, a State trooper stopped the

car that the defendant was driving because of an inoperable tail

light.       After learning that the defendant's driver's license had

been suspended, the trooper placed him in custody.        Although the

defendant had two passengers with him, neither possessed a valid


       1
       The defendant pleaded guilty to operating a motor vehicle
with a suspended license, but he raises no appellate issues
regarding that conviction. The jury acquitted him of possession
of a firearm with a defaced serial number, and an indictment for
possession of ammunition without a firearm identification card
was dismissed.
                                                                    3


license, and the trooper therefore determined that the car

needed to be towed.    During an inventory search of the car, the

trooper discovered a handgun in the console between the rear

passenger seats.   There were five bullets in the gun's magazine.

     While the defendant was being transported to the police

station by a second trooper, he made various statements

regarding the gun. 2   He initially stated his belief that the

passenger who had been seated in the front seat of the car

possessed a license for it (something that was never

substantiated).    The defendant then stated that he had obtained

the gun during an incident at his former girl friend's house

prior to the stop.     According to him, the former girl friend's

sister was waving the gun around during an argument she was

having with an unknown man.     The defendant stated that he

disarmed the sister, and, upon returning to the car, handed the

gun to the rear seat passenger (intending to dispose of it

later).

     Meanwhile, the rear seat passenger was giving a different

story to the police.    She stated that the gun was hers and that

she owned it in order to protect herself (having recently been

the victim of a violent crime).     She had placed the gun in the

car's rear console, she claimed, because it made her purse


     2
       The defendant had been given Miranda warnings when he had
been placed in custody.
                                                                     4


heavy.    The woman did not testify at the defendant's trial, but

her statements about the gun were admitted as statements against

penal interest.

     At the charge colloquy, the judge indicated that he

intended to use the model jury instructions, which did not

include an instruction that the Commonwealth had to prove that

the defendant knew the gun was loaded.     The defendant raised no

objection.    During their deliberations, the jury themselves

honed in on the knowledge issue, asking the judge:    "Does the

defendant have to know whether the firearm was loaded, or just

that he possessed it and it was loaded?"    After discussing the

matter with counsel, 3 the judge did not answer the jury's

question directly, but he reiterated the elements that the

Commonwealth had to prove without including among them knowledge

that the gun was loaded. 4   The jury found the defendant guilty of



     3
       Again, trial counsel did not argue that knowledge that the
gun was loaded was an element of the crime.
     4
         Specifically, the judge stated:

          "In regards to carrying a loaded firearm, the
     defendant is charged under section 10(a) and 10(n) of
     Chapter 269 of our General Laws with knowingly possessing a
     firearm unlawfully. In order to prove the defendant guilty
     of this offense the Commonwealth must prove the following
     four things beyond a reasonable doubt:

          "Number one, that the defendant possessed and/or had
     control of a firearm.
                                                                     5


unlawful possession of a firearm and of unlawful possession of a

loaded firearm. 5

     Discussion.     The defendant primarily focuses on the loaded

firearm charge.     He makes two related arguments:   (1) the

Commonwealth presented legally insufficient evidence that he

knew the gun was loaded, and (2) in any event, the judge's

failure to instruct the jury that the Commonwealth had to prove

such knowledge created a substantial risk of a miscarriage of

justice (entitling him to a new trial).     Both arguments depend

on whether proof is required that the defendant knew the gun was

loaded.   We turn to that question, examining first the language



          "Number two, that what the defendant possessed or had
     under his control in a vehicle met the legal definition of
     a firearm.

          "Three, that the defendant knew that he possessed a
     firearm.

          "Four, that the ammunition was contained in the weapon
     or within the feeding device attached to the weapon."
     5
       Strictly speaking, because the firearm at issue was inside
a vehicle, the defendant could have violated G. L. c. 269,
§ 10(a), either through "possession" of it or through having it
"under his control in [the] vehicle." The indictment was
drafted broadly enough to encompass both theories, although the
jury instructions focused on "possession." At least in the
circumstances of this appeal, nothing turns on any distinction
between "possession" and "control." See Commonwealth v. Romero,
464 Mass. 648, 652 n.6 (2013) ("[W]here the defendant is the
operator of a motor vehicle in which a firearm is discovered
[not on his person], the elements of constructive possession of
the firearm are essentially identical to the elements of
knowingly having the firearm under one's control in a motor
vehicle").
                                                                      6


of the statute, the principal source of legislative

intent.   Commissioner of Correction v. Superior Ct. Dept. of the

Trial Ct. for the County of Worcester, 446 Mass. 123, 124

(2006).

     1.   Whether knowledge is required.    Subsections (a) and (n)

of G. L. c. 269, § 10, operate in tandem.    Subsection 10(a)

makes it a crime to "knowingly" possess a firearm outside one's

home or place of work without the requisite authority. 6   For

purposes of § 10(a), standing alone, it is beside the point

whether the firearm was "loaded or unloaded."    A violation of

that subsection is subject to various sanctions, including a

mandatory minimum term of incarceration.    If the firearm that

was knowingly and unlawfully possessed was loaded, then the

defendant is subject to additional jail time under § 10(n). 7


     6
       In pertinent part, G. L. c. 269, § 10(a), as appearing in
St. 1990, c. 511, § 2, states as follows:

     "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: (1) being present in or on his residence or
     place of business; or [complying with various licensing
     requirements] shall be punished . . . ."
     7
       The full text of G. L. c. 269, § 10(n), inserted by St.
2006, c. 48, § 7, is as follows:

     "Whoever violates paragraph (a) or paragraph (c), by means
     of a loaded firearm, loaded sawed off shotgun or loaded
     machine gun shall be further punished by imprisonment in
     the house of correction for not more than 2 1/2 years,
     which sentence shall begin from and after the expiration of
                                                                   7


See Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705 (2016).

Thus, § 10(n) does not set forth a stand-alone crime, but serves

as a sentencing enhancement provision that applies when someone

violates § 10(a) "by means of a loaded firearm." 8

     In arguing that it can make use of the sentencing

enhancement provisions of G. L. c. 269, § 10(n), without proving

knowledge that the firearm was loaded, the Commonwealth relies

on the fact that § 10(n) does not include any express knowledge

requirement, while G. L. c. 269, § 10(a), does.      However, as

noted, § 10(n) is not a stand-alone provision, and its import

turns on how it interacts with § 10(a).   The operative question

is what it means to violate § 10(a) "by means of a loaded

firearm."   The Commonwealth asserts that all this means is that

the firearm that a defendant knowingly possesses was loaded.

Certainly, that interpretation is a plausible one, and it may be

the most natural reading of the statutory language.      Adding

further support to the Commonwealth's position is the fact that

because proving knowledge that a firearm was loaded will often




     the sentence for the violation of paragraph (a) or
     paragraph (c)."
     8
       General Laws c. 269, 10(n), was added in 2006. St. 2006,
c. 48, § 7. At that time, the Legislature also added G. L.
c. 269, § 10(o), which defines "loaded" to mean that "ammunition
is contained in the weapon or within a feeding device attached
thereto."
                                                                    8


be quite difficult, requiring such knowledge could render

§ 10(n) to little effect. 9

     At the same time, a different reading of the statutory text

is at least possible.   Because G. L. c. 269, § 10(a), on its own

already requires that a defendant "knowingly has in his

possession . . . a firearm," and G. L. c. 269, § 10(n), serves

to incorporate the additional requirement that the firearm be

"loaded," the subsections together can be read as requiring that

a defendant knowingly has in his possession a loaded firearm. 10

In turn, it is not a leap at all to say that one cannot

knowingly possess a loaded firearm without knowing that the

firearm is loaded.   See Commonwealth v. Lawson, 46 Mass. App.

Ct. 627, 629-630 (1999), quoting from Commonwealth v. Altenhaus,

317 Mass. 270, 273 (1944) ("'[k]nowingly' when used in a

criminal statute 'commonly imports a perception of the facts




     9
       In other contexts, the court has recognized that the
difficulty of proving knowledge is a factor that can be
considered in determining whether this is required as a matter
of statutory construction or constitutional law. See
Commonwealth v. Crosscup, 369 Mass. 228, 234-236 (1975) (to
prove operation of motor vehicle with suspended license,
Commonwealth must prove receipt of notice of suspension, but
need not prove actual knowledge of that suspension).
     10
       Indeed, at one point during his instructions to the jury,
the trial judge himself referred to the loaded firearm
indictment using a similar shorthand: "knowingly possessing a
loaded firearm."
                                                                   9


requisite to make up the crime'"). 11   If that reading of the

statutory text is plausible, then it must be accepted under the

rule of lenity.   See Commonwealth v. Williamson, 462 Mass. 676,

679 (2012).

     In the end, we need not decide whether such a reading of

the statutory text is of sufficient plausibility to invoke the

rule of lenity, because, as discussed below, that interpretation

is otherwise required by existing case law.    Specifically, we

conclude that the defendant's proffered interpretation is

compelled by the Supreme Judicial Court's decision

in Commonwealth v. Johnson, 461 Mass. 44 (2011).     A full

understanding of that case cannot be gleaned without examining

it against the backdrop of prior judicial interpretations of

G. L. c. 269, § 10.   We therefore turn next to reviewing that

history.

     In Commonwealth v. Boone, 356 Mass. 85 (1969), the Supreme

Judicial Court examined an earlier version of G. L. c. 269,

§ 10, before that section was broken into subsections.    The

language at issue there, unlike the language in the current

     11
       Commonwealth v. Lawson involved a charge under G. L.
c. 268, § 32B, in which "[a] person commits the crime of
resisting arrest if he knowingly prevents or attempts to prevent
a police officer, acting under color of his official authority,
from effecting an arrest of the actor or another." We held that
the scienter element applied not only to the defendant's efforts
to prevent arrest, but also to his understanding that the police
officer was acting under the color of authority. 46 Mass. App.
Ct. at 629.
                                                                     10


§ 10(a), did not require the defendant to have "knowingly"

possessed the firearm.   Nevertheless, the court read such a

provision into the statute, saying "[w]e would not feel

justified in ruling that knowledge is not necessary where the

penalty is so severe."      Id. at 87.   The court also suggested

that reading a knowledge element into the statute had little, if

any, practical effect because the Commonwealth already had to

prove that the firearm was within the defendant's "control," and

"knowledge is necessary to prove control."       Ibid.

     The court revisited this issue in Commonwealth v. Jackson,

369 Mass. 904 (1976).    By that time, the Legislature had revised

the statute by placing what had been G. L. c. 269, § 10, into a

new subsection, § 10(a), and by adding a minimum mandatory

sentence to that subsection.     See id. at 907.    It had not yet

added the express knowledge requirement.      The court in Jackson

came to the same conclusion it had in Commonwealth v. Boone,

interpreting the statute "as requiring, as a necessary element

of the offense, proof that the accused knew that he was carrying

a firearm."   Id. at 916.    In fact, the court suggested that this

interpretation might be necessary to avoid constitutional

concerns.   Ibid., citing Lambert v. California, 355 U.S. 225

(1957).   See Commonwealth v. Crosscup, 369 Mass. 228, 234-236

(1975) (discussing constitutional limitations on creating strict

liability crimes).
                                                                      11


     In 1990, the Legislature finally added an express knowledge

requirement to G. L. c. 269, § 10(a), thus harmonizing the

language of that subsection with existing case law.     St. 1990,

c. 511, § 2.     However, the Legislature did not add such a

requirement to G. L. c. 269, § 10(h), a subsection that makes it

a crime to possess firearms or ammunition without a firearm

identification card issued pursuant to G. L. c. 140, § 129C.

See Commonwealth v. Johnson, 461 Mass. at 55 n.14 (explaining

difference between § 10[a] and § 10[h]).     Nevertheless, in

subsequently interpreting § 10(h), the court once again read a

knowledge requirement into the statute, albeit without

discussion. 12   See id. at 53 ("To convict the defendant of

unlawful possession of ammunition [pursuant to § 10(h)], the

Commonwealth was required to prove that the defendant knowingly

possessed ammunition").     Accord Commonwealth v. Jefferson, 461

Mass. at 828 n.7.

     Although the court's reading of a knowledge requirement

into G. L. c. 269, § 10(h), aligns with its earlier precedent,

doing so extends that precedent in two important respects.      The


     12
       In doing so, the court cited only to the statute (which
includes no express knowledge requirement) and to the 2009 model
jury instructions for the District Court. In pertinent part,
the language of that version of the model instructions was the
same as the 1988 version, which predates the addition of an
express knowledge requirement to G. L. c. 269, § 10(a). See
Instruction 5.601 of the Criminal Model Jury Instructions for
Use in the District Court (1988).
                                                                   12


first is that the court adopted such an interpretation even

though the Legislature by this time had included an express

knowledge requirement in G. L. c. 269, § 10(a), but declined to

do so in § 10(h).   Compare Commonwealth v. Galvin, 388 Mass.

326, 330 (1983) ("[W]here the Legislature has employed specific

language in one paragraph, but not in another, the language

should not be implied where it is not present" [quotation

omitted]).   The second has to do with the fact that, unlike

§ 10(a), § 10(h) applies not only to firearms but to ammunition

as well (whether that ammunition is found inside of a firearm or

not).    The court's suggestion in Commonwealth v. Boone, 356

Mass. at 87, that inferring a scienter requirement has little

practical effect no longer holds true once that requirement is

applied to out-of-sight ammunition contained within a firearm.

Put simply, proving knowledge of such ammunition would often be

far more difficult than proving possession.

     In any event, Commonwealth v. Johnson includes a second

holding with direct pertinence to the case before us.   The court

specifically concluded that unlawful possession of ammunition

pursuant to G. L. c. 269, § 10(h), is a lesser included offense

of unlawful possession of a loaded firearm pursuant to G. L.

c. 269, § 10(a) & (n).    Commonwealth v. Johnson, 461 Mass. at

52-53.    Because the court in Johnson concluded that possession

of ammunition pursuant to § 10(h) has to be "knowing," it
                                                                    13


necessarily follows that possession of that ammunition as part

of the loaded firearm offense also has to be knowing.

Otherwise, § 10(h) would require an element that §§ 10(a) and

10(n) did not, and hence could not be a lesser included offense.

See Commonwealth v. Vick, 454 Mass. 418, 431 (2009) (setting

forth elements-based test).    Thus, although the Supreme Judicial

Court, subsequent to Commonwealth v. Johnson, has suggested that

whether the Commonwealth must prove knowledge that a firearm is

loaded remains an open question, see Commonwealth

v. Jefferson, supra, the holding of the earlier case already

appears to have closed that door.    Put differently, we could not

accept the Commonwealth's position in the case before us without

holding that Commonwealth v. Johnson -- at least in part -- was

wrongly decided, something that would be beyond our power as an

intermediate appellate court.    Accordingly, we conclude that to

be convicted of unlawful possession of a loaded firearm, a

defendant must know that the firearm he possessed was loaded.

     2.   Sufficiency.   The question remains whether the

Commonwealth presented legally sufficient evidence that the

defendant knew that the gun was loaded.    We agree with the

defendant that it did not.    In reaching our conclusion, we are

mindful that the Supreme Judicial Court stated, in dicta, that

"[w]here, as here, the firearm was a revolver located in a

vehicle, a rational jury could infer that those who possessed
                                                                     14


the firearm knew that it was loaded with

ammunition."    Commonwealth v. Jefferson, supra.    However, that

statement was made with respect to a revolver, a type of handgun

that one might be able to tell was loaded merely by looking at

the outside of the gun (because some of the bullets might be

visible in the cylinder).      The handgun in the case before us was

a pistol that relied on a magazine to feed bullets into the gun,

and therefore one could not have discerned whether the gun was

loaded merely by looking at it.     Under the facts of this case,

we see no basis on which a rational juror could conclude beyond

a reasonable doubt that the defendant knew the gun was loaded.

The Commonwealth has not argued otherwise. 13    The defendant

therefore is entitled to a judgment of acquittal on the

indictment that alleged unlawful possession of a loaded firearm.

     3.    Closing argument.    The defendant makes one argument

that relates to both possession indictments, a claimed error in

the prosecutor's closing argument.     Because no objection was

lodged at trial, our review is limited to whether any error

caused a substantial risk of a miscarriage of

justice.    Commonwealth v. King, 77 Mass. App. Ct. 194, 202

(2010), S.C., 460 Mass. 80 (2011).

     13
       In its brief, the Commonwealth defended the sufficiency
of the evidence based only on its argument that it need not
prove that the defendant knew that the gun was loaded. When
pressed on the issue at oral argument, the Commonwealth
characterized any proof of such knowledge as "thin."
                                                                    15


     In his closing argument, the prosecutor addressed what he

termed the "elephant in the room," the contention made by the

rear seat passenger that the gun was hers.       The prosecutor

sought to discredit that person's claims by pointing out two

inconsistencies between them and other evidence.       First, the

woman had stated that the gun was fully loaded when, according

to a police witness, it was not.    Second, the woman had stated

that she removed the gun from her purse to place it in the rear

seat console even though, according to other evidence, she had

no purse with her in the vehicle.    The prosecutor suggested that

perhaps this woman was trying to cover for the defendant because

she was his girl friend. 14   The defendant challenges this last

suggestion, arguing that it was based on facts not in evidence.

     As an initial matter, we note that the prosecutor did not

misstate any evidence; the particular words he used make it

clear that he was merely asking the jury to draw an inference

from the evidence.    Even if such an inference was not

reasonable, a question we do not decide, we conclude that any

error did not cause a substantial risk of a miscarriage of

     14
          Specifically, the prosecutor argued:

     "Brown said he was going to his ex-girlfriend's house. Was
     [the rear seat passenger] the new girlfriend? He was going
     to pick up clothes, suggesting that this was a recent
     breakup. [The passenger] was waiting in the car. Was she
     waiting in the car to avoid the ex? The defendant told you
     what happened, and it certainly is possible that [the
     passenger] was covering for her boyfriend."
                                                                   16


justice.   Notably, the suggestion that the defendant and the

rear seat passenger were dating may in fact have helped the

defendant as much as it hurt him, in that it provided support

for the theory that he could have been covering for her, rather

than vice versa.   It was up to the jury to evaluate what

reasonable inferences could be drawn from the evidence, and

which facts to credit.   We are confident that the jury's verdict

would not have been different had the prosecutor not raised the

possibility that the two individuals were dating.

See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).

     Conclusion.   On the indictment charging the defendant with

unlawful possession of a loaded firearm, the judgment is

reversed, the verdict is set aside, and judgment shall enter for

the defendant.   The judgments are otherwise affirmed.

                                    So ordered.
