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18-P-720                                               Appeals Court

                COMMONWEALTH    vs.   JAMES R. PAUL.


                            No. 18-P-720.

           Essex.       April 5, 2019. - October 17, 2019.

             Present:    Agnes, Maldonado, & Sacks, JJ.


Firearms. License. Evidence, Firearm. Practice, Criminal,
     Affirmative defense, Instructions to jury. Statute,
     Construction. Words, "Resident."



     Complaints received and sworn to in the Lawrence Division
of the District Court Department on August 5, 2015, and
September 2, 2015.

    The cases were tried before Holly V. Broadbent, J.


     Alison R. Bancroft for the defendant.
     Kayla M. Johnson, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.   The principal issue in this case is whether the

law that exempts a "new resident moving into the commonwealth"

from the requirement of a license to possess a firearm "for 60

days after such . . . entry into the commonwealth," G. L.

c. 140, § 129C (j), applies to the circumstances of this case.
                                                                    2


The defendant, James R. Paul, appeals from his convictions of

possession of a firearm without a license, in violation of G. L.

c. 269, § 10 (a); possession of ammunition without a firearm

identification card (FID), in violation of G. L. c. 269,

§ 10 (h) (1); and possession of a loaded firearm without a

license, in violation of G. L. c. 269, § 10 (n).1   For the

following reasons, we conclude that the exemption does not

apply.    Thus, we affirm the convictions, except for the loaded

firearm conviction, which we vacate on a separate ground and

remand.

     On August 5, 2015, at approximately 6:58 A.M., Trooper

Michael O'Brien responded to a radio broadcast of a pedestrian,

the defendant, walking southbound on Interstate Highway 93

approximately six miles south of the New Hampshire border.    The

trooper located the defendant walking between the guardrail and

the tree line.   The trooper pulled over into an emergency cutout

in the road ahead of him and told the defendant that he could

not walk on the highway.   In the ensuing conversation, the

defendant told the trooper that he was coming from New Hampshire

and trying to get to a gasoline (gas) station a few exits south




     1 The defendant also was charged with trespass with a
firearm, impersonating a police officer, and possession of
marijuana, which were the subject of a motion to dismiss by the
Commonwealth, and possession of a large capacity firearm, which
was disposed of via nolle prosequi.
                                                                    3


of Interstate Highway 495 to meet a friend.    The defendant

stated that he was homeless and that, although he "still travels

the country," "his end goal was to get to Michigan."    He

appeared to the trooper as if he had camped the night before

because he looked disheveled, wore unclean clothes, and "hadn't

bathed in a couple of days."    The trooper offered to drive the

defendant to the gas station he was walking to, and the

defendant accepted the invitation.

    The trooper asked the defendant if he had any weapons, to

which the defendant replied in the affirmative, pointing to his

backpack, stating that "his uniform" was in it and that he

worked for Homeland Security.    The trooper repeated his

question, and the defendant "stated that there was a firearm in

the bag."   The defendant complied with the trooper's instruction

to step back.   The defendant directed the trooper to where in

the backpack the firearm was located.    The trooper located a

Ruger SR9 semiautomatic pistol in its holster, loaded with five

rounds of ammunition, and a second fully loaded magazine, and

secured the weapon.   Other items in the bag included an active

New Hampshire license to carry a firearm, a New Hampshire

driver's license, the defendant's passport, a water purification

kit, and other items indicative of someone camping.    The

defendant did not produce any law enforcement credentials or a

Massachusetts license to carry a firearm.
                                                                     4


    Trooper O'Brien advised the defendant of his Miranda

rights.   The defendant stated that he could not speak with the

trooper about his clearance but would speak with the trooper's

supervisor.   The defendant was taken into custody and driven to

the Andover State police barracks, where he spoke with the

station commander.   The defendant reiterated that he worked for

"Homeland" but declined to speak further.   At booking, Trooper

O'Brien advised the defendant of the charges against him, and

the defendant replied that "the firearm was for life and

property."

    Prior to trial, the defendant filed a motion to dismiss the

charges, which, following a hearing on the motion, the court

denied on February 10, 2016.    Also prior to trial, the defendant

filed a "Notice of Intent to Rely Upon Exemption," referring in

particular to G. L. c. 140, § 129C (j), which provides in part

that "any new resident moving into the commonwealth" is exempt

from the firearm licensing laws for sixty days after such person

enters into the Commonwealth.

     A two-day jury trial commenced on July 27, 2017.      As to

the defendant's request to present the § 129C (j) exemption as a

defense, the judge indicated that, based on the defendant's

proffer, she was not yet persuaded that there was sufficient

evidence for her to instruct the jury on that defense.

Following the close of evidence, the defendant filed a motion
                                                                     5


for a required finding of not guilty, which, after a hearing,

was denied.   The court also denied the defendant's request to

instruct the jury on the new resident exemption, to which the

defendant objected.     The jury found the defendant guilty on all

counts.

     Discussion.   1.    The G. L. c. 269, § 10 (n), conviction.

a.   Lack of instruction on knowledge.    The defendant argues, and

the Commonwealth concedes, that the conviction of unlawful

possession of a loaded firearm in violation of G. L. c. 269,

§ 10 (n), must be reversed because the judge failed to instruct

the jury that proof that the defendant was aware that the

firearm was loaded is an essential element of the offense.     In

Commonwealth v. Brown, 479 Mass. 600, 608 (2018), the Supreme

Judicial Court held that in order to convict a person of a

§ 10 (n) violation the Commonwealth must prove that the

defendant had knowledge that the firearm was loaded.     Although

Brown was decided after the trial in this case, it has

application to this case because the court was interpreting a

statute enacted before the conduct of the defendant that is the

basis for the charge.     See Eaton v. Federal Nat'l Mtge. Ass'n,

462 Mass. 569, 587 (2012) ("In general, when we construe a

statute, we do not engage in an analysis whether that

interpretation is given retroactive or prospective effect; the

interpretation we give the statute usually reflects the court's
                                                                   6


view of its meaning since the statute's enactment").     Despite

the absence of an objection by the defendant, the omission of an

instruction that permits the jury to convict without finding an

essential element of an offense creates a substantial risk of a

miscarriage of justice unless we can fairly say that "either the

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

such that the jury were '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)."   Commonwealth v. Mitchell, 95 Mass. App. Ct.

406, 412 (2019).    Here, there was no direct evidence that the

defendant knew the firearm contained in his backpack was loaded,

and the circumstantial evidence of his knowledge did not compel

such a finding.

    We also consider that, following the submission of its

brief, the Commonwealth filed a written "notice of withdrawal of

argument."   The Commonwealth explained that in light of our

decision in Commonwealth v. Resende, 94 Mass. App. Ct. 194, 202-

203 (2018), it could no longer argue that merely because there

was sufficient evidence that the defendant knew the firearm was

loaded, the omission of an instruction on such knowledge as an

element could not have created a substantial risk of a
                                                                     7


miscarriage of justice.   We attach significance to the

Commonwealth's concession but reach the same conclusion based on

our independent assessment of the evidence.   See Commonwealth v.

Poirier, 458 Mass. 1014, 1015 (2010), quoting Young v. United

States, 315 U.S. 257, 258-259 (1942) ("Confessions of error are,

of course, entitled to and given great weight," but the court's

"judicial obligations compel us to examine independently the

errors confessed").

    b.   Sufficiency of the evidence as to the defendant's

knowledge.   In reviewing the sufficiency of the evidence, we

determine "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt."    Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Based on the evidence that the defendant was carrying the

firearm in a backpack on his person, that he knew precisely

where in the backpack it could be found, that he told the

trooper that he possessed the firearm for "life and property,"

that he appeared to have been living outdoors, and that he had a

fully loaded magazine in the same section of the backpack where

the firearm was stored, we conclude that a reasonable jury would

be warranted in finding beyond a reasonable doubt that the
                                                                   8


defendant had knowledge that his firearm was loaded.    See

Resende, 94 Mass. App. Ct. at 199-201.

     2.   The applicability of the "new resident" exemption to

the licensing requirement.   A person such as the defendant, who

does not have a valid Massachusetts firearm license, see G. L.

c. 140, § 129C (j), and who knowingly has possession of a

firearm, whether loaded or unloaded, not in his home or

business, is guilty of a felony unless at least one of several

exemptions is applicable.    See G. L. c. 269, § 10 (a);

Commonwealth v. Harris, 481 Mass. 767, 772 (2019).2    The

exemptions are considered "affirmative defenses," which means


     2 "General Laws c. 269, § 10 (a), provides for punishment of
any individual who, '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.' The
statute defines a number of categories of persons who are
'exempted by statute' from punishment under G. L. c. 269,
§ 10 (a). Exemptions apply to new residents of the
Commonwealth, see G. L. c. 140, § 129C (j); holders of a
Massachusetts firearm license, see G. L. c. 140, §§ 131 (a),
(b), 131F; holders of certain firearm licenses issued by other
jurisdictions, see G. L. c. 140, §§ 129C (u), 131G; those with
firearm identification (FID) cards who possess firearms in their
residences or places of business, see G. L. c. 269, § 10 (a)
(1); G. L. c. 140, § 129C; and certain nonresidents traveling in
or through the Commonwealth, see G. L. c. 140, §§ 129C
(h), 131F, 131G. In addition, exemptions exist for specific
types of firearms, certain persons, and specified uses"
(footnote omitted). Harris, 481 Mass. at 771-772. See
Commonwealth v. Cornelius, 78 Mass. App. Ct. 413, 419 (2010)
("[B]y satisfying the exception set out in G. L. c. 140, § 129C
(j), new residents and certain returning residents thereby
satisfy the firearm exemption set out in G. L. c. 269,
§ 10 (a) (4), for a limited period of time, without also
complying with the provisions of G. L. c. 140, § 131G").
                                                                      9


that the absence of an exemption is not an element of a § 10 (a)

violation.    Harris, 481 Mass. at 772.    "Because it is an

affirmative defense, a defendant has the initial burden of

production" as to any exemption.    Id.    The Commonwealth assumes

the burden of persuading the finder of fact that the exemption

does not apply only if first there is evidence presented that

supports the exemption's existence.       Id. at 772-773.

    At the end of the first day of trial testimony, the judge

conducted a hearing with respect to the defendant's pretrial

notice that he intended to rely on the G. L. c. 140, § 129C (j)

exemption.    The judge noted that contrary to an earlier proffer

by defense counsel, she was not aware of any evidence that the

defendant was "moving into the Commonwealth" or that he had any

plans to remain in Massachusetts.    Defense counsel argued that

the jury could draw a reasonable inference that at the time of

the defendant's arrest he was a resident of Massachusetts

because he was then in Massachusetts, and they could infer that

the defendant had spent the previous night camping in

Massachusetts which would satisfy the statutory requirement that

one had to be "moving into the Commonwealth" to come within the

§ 129C (j) exemption.   The judge ruled that based on the

evidence before the court, the defendant did not qualify for the

§ 129C (j) exemption, and therefore she would not instruct the

jury on it.
                                                                       10


       The exemption relied on by the defendant provides in part

that the requirement of a firearm identification card to own or

possess a firearm in Massachusetts shall not apply to "any new

resident moving into the commonwealth . . . for 60 days after

such . . . entry into the commonwealth."       G. L. c. 140, § 129C

(j).       This exemption, in one form or another, has been part of

§ 129C since it was adopted in 1968.3      When the meaning of a

statute is at issue courts must begin the analysis by

recognizing "that the primary source of insight into the intent

of the Legislature is the language of the statute."

International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853

(1983).       We must give the words used by the Legislature their

plain meaning unless the Legislature has supplied a definition

of one or more of the statute's words or used a word in a

technical sense.       See G. L. c. 4, § 6, third clause.   Accord

Phillips v. Equity Residential Mgt., L.L.C., 478 Mass. 251, 257

(2017); Benoit v. Boston, 477 Mass. 117, 123 (2017); Yeretsky v.

Attleboro, 424 Mass. 315, 319 (1997).       We will depart from this

tenet only when otherwise the result we reach would be illogical

or irrational.       See Sebago v. Boston Cab Dispatch, Inc., 471




       General Laws c. 140, § 129C, was added to the General Laws
       3

by St. 1968, c. 737, § 7. Although § 129C has been amended
several times since 1968, the language at issue in this case,
"any new resident moving into the commonwealth," has remained
unchanged.
                                                                  11


Mass. 321, 339 (2015); Sullivan v. Brookline, 435 Mass. 353, 360

(2001).   In interpreting a statute, "each clause or phrase is to

be construed with reference to every other clause or phrase

without giving undue emphasis to any one group of words, so

that, if reasonably possible, all parts shall be construed as

consistent with each other so as to form a harmonious enactment

effectual to accomplish its manifest purpose."   Selectmen of

Topsfield v. State Racing Comm'n, 324 Mass. 309, 312–313 (1949).

See Custody of Victoria, 473 Mass. 64, 74 (2015); Swift v.

Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932).

    The purpose of G. L. c. 140, § 129C (j), is to provide

certain residents -- specifically, "any resident of the

commonwealth" who returns "after having been absent from the

commonwealth for not less than 180 days" and "any new resident

moving into the commonwealth" -- with a sixty-day grace period

during which they may own or possess a firearm without a valid

firearm identification card.   In Rummel v. Peters, 314 Mass.

504, 511-513 (1943), the Supreme Judicial Court surveyed case

law from Massachusetts and other jurisdictions that addressed

the meaning of the term "resident."   In Rummel, the court

concluded that "[r]esidence is a word of varied meanings,

ranging from domicil down to personal presence with some slight

degree of permanence."   Rummel, 314 Mass. at 511.   While in

Rummel the court was required to define the term "legal
                                                                 12


residence," as it appeared in G. L. c. 90, § 3, as amended by

St. 1939, c. 325,4 the court's discussion strongly suggested that

when the term "resident" is used by the Legislature and is not

otherwise defined or qualified, it means "a personal presence at

some place of abode with no present intention of definite and

early removal and with a purpose to remain for an undetermined

period, not infrequently but not necessarily combined with a

design to stay permanently."   Id. at 511, quoting Jenkins v.

North Shore Dye House, Inc., 277 Mass. 440, 444 (1931).5


     4 In Rummel, the question whether a man who had lived in
Pennsylvania all his life, but who also lived in an apartment in
Brookline with his wife nine or ten months of the year while
working in Boston, was a "legal" resident of Massachusetts when
he was operating a motor vehicle involved in a collision in
Massachusetts. Rummel, 314 Mass. at 506. At the time of the
collision, the man's vehicle was registered in Pennsylvania, but
he had a Massachusetts driver's license. Id. at 506-507. The
court noted that the Massachusetts statute that controlled the
question contained a definition of a "nonresident" as "any
person whose legal residence is not within the commonwealth."
Id. at 513. In concluding that the man fell within the
definition of a nonresident of Massachusetts and therefore was
not required to register the vehicle in Massachusetts, the court
explained that "[t]he statute contemplates that a man may be a
nonresident although he has a regular place of abode or
residence here," because the statute's registration requirement
is limited to persons whose "legal residence" is in
Massachusetts. Id. at 513. The use of the phrase "'legal
residence' in the statutory definition indicate[s] that the
Legislature conceived of a 'legal residence' as something of
which a person must have one and cannot have more than one.
That is true of domicil, but not of residence in the ordinary
sense. The expression 'legal residence' has been used in the
sense of domicil." Id. at 514.
                                                                     13


    The view that the term "residence" means both presence in a

jurisdiction and an intention to remain there for some

indefinite period of time is reflected in other decisions by the

Supreme Judicial Court.     See Aufiero v. Aufiero, 332 Mass. 149,

153 (1955), quoting Marlborough v. Lynn, 275 Mass. 394, 397

(1931) ("Residence imports something of expected permanence in

way of personal presence.    It signifies intended continuance as

distinguished from speedy change"); Cambridge v. West

Springfield, 303 Mass. 63, 67 (1939).     This view is reinforced

when we examine the context in which the term "resident" appears

in § 129C (j).   The language of the exemption in question refers

to a "new resident moving into the commonwealth."     This language




    5  The Restatement of Conflict of Laws § 9 comment e, at 20
(1934), in effect at the time of the decision in Jenkins,
provided that, "'residence' is often but not always used in the
sense of domicil, and its meaning in a legal phrase must be
determined in each case. It is sometimes used as equivalent to
'domicil'; sometimes it has a broader meaning; and sometimes it
has a narrower meaning. It may mean . . . the domicil, namely,
at which a person is resident. . . . [It may also mean] a
dwelling-place adopted for the time being, but not necessarily
with such an intention of making a home there as to create a
domicil." In the current Restatement (Second) of Conflict of
Laws § 11 comment k, at 45 (1969), "residence" is described as
"an ambiguous word whose meaning in a legal phrase must be
determined in each case. Frequently it is used in a sense
equivalent to domicil. On occasion it means something more than
domicil, namely, a domicil at which a person actually dwells.
On the other hand, it may mean something else than domicil,
namely, a place where the individual has an abode or where he
has settled down to live for a period of time, but not
necessarily with such an intention of making a home there as to
create a domicil."
                                                                   14


expresses a legislative intent to exclude persons who are merely

passing through or visiting the Commonwealth without any

intention of remaining in the Commonwealth.6   Compare G. L.

c. 140, § 129C (h) (creating limited exemption for rifles,

shotguns, and ammunition therefor possessed by "nonresidents

traveling in or through the commonwealth").    By its own terms,

however, the exemption does not require that a resident must

remain in Massachusetts.   See G. L. c. 140, § 129C (j) (sixty-

day grace period applies to "[a]ny resident of the commonwealth"

who returns "after having been absent from the commonwealth for

not less than 180 consecutive days" as well as to "any new

resident moving into the commonwealth").7


     6 Standard English language and legal dictionaries further
support this interpretation of the term "resident." See Black's
Law Dictionary 1424 (9th ed. 2009) (defining "resident" as "a
person who lives in a particular place," or "a person who has a
home in a particular place"); Merriam-Webster's Collegiate
Dictionary 1060 (11th ed. 2005) (defining "resident" as one who
is "living in a place for some length of time"); Webster's New
Universal Unabridged Dictionary 1540 (2d ed. 1983) (defining
"resident" as "one who lives in a place, as distinguished from a
visitor or transient").

     7 In this case we are not required to, and specifically
decline to, express an opinion whether certain persons who are
physically present in the Commonwealth only for certain parts of
the year (e.g., seasonal home owners, seasonal workers, seasonal
or fulltime business owners who reside out of State, and
students who are of age to possess a firearm) would qualify for
the § 129C (j) exemption. It is the general rule that a person
can have only one domicile, but may have more than one
residence. See Harris, 481 Mass. at 781 ("Because G. L. c. 269
does not define the term 'resident,' the judge instructed that a
defendant 'can only have one domicile under the law,' but 'can
                                                                    15


     In the present case, viewing the evidence in the light most

favorable to the defendant, he was in Massachusetts to meet a

friend at a gas station and had a plan to move on to Michigan.

There was no evidence that the defendant intended to stay in

Massachusetts for any longer than necessary to meet his friend

before continuing his travels to other States; thus, there is no

basis in the evidence to support an inference that he was "a new

resident moving into the commonwealth."     The judge, therefore,

was correct in denying the defendant's request for an

instruction on the § 129C (j) exemption.8




have lots of residences[,] so we use the [term] residence in its
common everyday meaning and understanding that a person may have
more than one residence at any one given time'"). See also
Doyle v. Goldberg, 294 Mass. 105, 108 (1936); Commonwealth v.
Becker, 71 Mass. App. Ct. 81, 92 (2008). Further, it should be
noted that the Legislature has provided that firearm licenses
are not limited to persons who qualify as residents of
Massachusetts. See G. L. c. 140, § 131 (d) (allowing residents
or persons "having a place of business within the [relevant]
jurisdiction of the licensing authority" to obtain firearm
licenses); G. L. c. 140, § 131F (providing in part that "[a]
Class A or Class B temporary license to carry firearms or
feeding devices or ammunition therefor, within the commonwealth,
may be issued by the colonel of state police, or persons
authorized by him, to a nonresident or any person not falling
within the jurisdiction of a local licensing authority or to an
alien that resides outside the commonwealth for purposes of
firearms competition and subject to such terms and conditions as
said colonel may deem proper").

     8 The defendant's remaining argument, that G. L. c. 269,
§ 10, and G. L. c. 140, § 129C, are unconstitutional because
they infringe on his rights under the Second Amendment to the
United States Constitution, was rejected in Harris, 481 Mass. at
772-773.
                                                                     16


     Conclusion.   For the above reasons, on the charge of

unlawful possession of a firearm in violation of G. L. c. 269,

§ 10 (a), the judgment is affirmed.9     On the charge of unlawful

possession of ammunition in violation of G. L. c. 269, § 10 (h)

(1), the conviction is affirmed, but the case is remanded for

resentencing on that charge.   10   On the charge of unlawful

possession of a loaded firearm in violation of G. L. c. 269,

§ 10 (n), the judgment is vacated, the verdict is set aside, and

the case is remanded for further proceedings on that charge

consistent with this opinion.

                                      So ordered.




     9 The judge imposed the minimum mandatory sentence of
eighteen months in the house of correction on the conviction of
unlawfully carrying a firearm in violation of G. L. c. 269,
§ 10 (a). We do not see a need, therefore, to remand that
conviction for resentencing.

     10This charge was included in the same complaint as the
charge of unlawful possession of a loaded firearm. The
defendant was convicted of this charge and sentenced to a term
of probation for one year to be served from and after the
sentence of incarceration on the loaded firearm conviction.
Because the judge's decision to impose a from and after sentence
of probation on this charge may have been based in part on the
conviction on the charge we have ordered to be vacated, the
defendant is entitled to be resentenced on the conviction for
unlawful possession of ammunition.
