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15-P-1139                                               Appeals Court

                 COMMONWEALTH    vs.   DAMONTE DANCY.


                          No. 15-P-1139.

      Suffolk.      October 21, 2016. - November 29, 2016.

            Present:   Cypher, Kinder, & Lemire, JJ.


                                Firearms.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on September 5, 2012.

     After transfer to the Central Division of the Boston
Municipal Court Department, the case was tried before Michael J.
Coyne, J.


     Mehmet Baysan for the defendant.
     Priscilla A. Guerrero (Helle Sachse, Assistant District
Attorney, with her) for the Commonwealth.


    LEMIRE, J.   Following a jury trial in the Boston Municipal

Court, the defendant, Damonte Dancy, was convicted of possession

of a loaded firearm without a license, G. L. c. 269, § 10(n).

On appeal, the defendant challenges the sufficiency of the

evidence, the denial of his motion to suppress photographs
                                                                     2


seized from his cellular telephone, and certain evidentiary

rulings at trial.   He also claims that his conviction was

unlawful because he was acquitted of possession of a firearm

without a license under G. L. c. 269, § 10(a), the predicate

offense for conviction under G. L. c. 269, § 10(n).1    Because we

agree that the conviction was unlawful, we reverse without

reaching the defendant's other claims of error.

     Background.    We summarize the facts the jury could have

found.   On the morning of August 25, 2012, the defendant was

among a large group of people attending a festival in

Dorchester.   An unknown passerby stopped a Boston police

officer, stated that "a man had a gun," and pointed to a small

group of black males, which included the defendant, walking down

the street away from the parade.    Officers then began to follow

and surveil that group.    At one point, when the defendant was

near a parked vehicle, one of the officers, who was on the

opposite side of the street,   observed the defendant, who was

walking at a fast pace, "[s]low[] down a little bit" next to the

vehicle, and heard a noise that, based on his experience, was

consistent with a gun hitting the pavement.    The two other males

from the group were about ten to fifteen feet away from the


     1
       The defendant was also charged with and acquitted of
possession of ammunition without a firearm identification card
under G. L. c. 269, § 10(h)(1).
                                                                   3


defendant at that time.   After stopping the group to ask

questions, the police canvassed the immediate area.   A loaded

firearm was recovered from beneath the parked vehicle, and the

defendant was arrested.

     The defendant was charged with possession of a firearm

without a license, G. L. c. 269, § 10(a), possession of

ammunition without a firearm identification card, G. L. c. 269,

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

license, G. L. c. 269, § 10(n).   He was acquitted of the § 10(a)

and § 10(h)(1) charges and convicted of the § 10(n) charge.

     Discussion.    The defendant contends that because he was

acquitted of possession of a firearm under § 10(a), he cannot be

convicted of possession of a loaded firearm under § 10(n),

because § 10(n) is simply a sentencing enhancement provision

that requires a conviction under either § 10(a) or § 10(c) as a

predicate.2   The Supreme Judicial court addressed a similar issue

in Commonwealth v. Loadholt, 456 Mass. 411 (2010), S.C., 460

Mass. 723 (2011).   There, the defendant was convicted under

G. L. c. 269, § 10(n); however, due to an oversight by the

Commonwealth, he was never charged with either predicate

offense, G. L. c. 269, § 10(a) or (c).   Id. at 423-424.    The


     2
       The defendant was not charged with G. L. c. 269, § 10(c)
(possession of a machine gun or sawed-off shotgun), and there is
nothing in the record to show a violation of that statute.
                                                                   4


Supreme Judicial Court ordered that the defendant's conviction

under § 10(n) be vacated because "in order properly to convict

the defendant under § 10(n), he first must be charged pursuant

to § 10(a) or (c)."   Ibid.

     Here, the defendant was charged under G. L. c. 269,

§ 10(a); however, he was acquitted of that crime.   The

Commonwealth contends that Loadholt stands for the limited

proposition that a conviction under § 10(n) only requires that

the defendant be charged with a predicate offense, § 10(a) or

(c), but that conviction of a predicate offense is not

necessary.   In cases involving statutory construction, we start

"with the language of the statute itself and 'presume, as we

must, that the Legislature intended what the words of the

statute say.'"   Commonwealth v. Williamson, 462 Mass. 676, 679

(2012), quoting from Commonwealth vs. Young, 453 Mass. 707, 713

(2009).   "The statutory language, when clear and unambiguous,

must be given its ordinary meaning."   Bronstein v. Prudential

Ins. Co. of Am., 390 Mass. 701, 704 (1984).

     General Laws c. 269, § 10(n), inserted by St. 2006, c. 48,

§ 7, states as follows:

          "Whoever violates paragraph (a) or paragraph (c),[3] 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

     3
       "[P]aragraph (a) or paragraph (c)" refers to G. L. c. 269,
§ 10(a), and G. L. c. 269, § 10(c), respectively.
                                                                   5


    1/2 years, which sentence shall begin from and after the
    expiration of the sentence for the violation of paragraph
    (a) or paragraph (c)."

We interpret the plain language of this section to require a

finding that § 10(a) or § 10(c) has been violated before the

penalty enhancement provision in § 10(n) can apply.     This

interpretation is supported by the clear language of the statute

that provides that "[w]hoever violates paragraph (a) or

paragraph (c), by means of a loaded firearm . . . shall be

further punished" and the sentence must begin after the

"expiration of the sentence for the violation of paragraph (a)"

(emphasis supplied).     Further punishment, of course, can only

occur if there is punishment in the first instance.    Absent a

conviction for violating § 10(a) or § 10(c), there would be no

punishment to enhance.

    It is well established that "mere inconsistency in

verdicts, one of which is an acquittal, will not render the

verdict of guilty erroneous even though such inconsistency may

have indicated the possibility of compromise on the part of the

jury."   Commonwealth v. Charles, 463 Mass. 1008, 1008-1009

(2012), quoting from Commonwealth v. Gonzalez, 452 Mass. 142,

150-151 (2008) (that defendant acquitted of possession of

ammunition under G. L. c. 269, § 10[h][1], did not dictate entry

of judgment for defendant on possession of loaded firearm under

§ 10[n], where only ammunition found was inside of loaded
                                                                   6


firearm and defendant also was convicted of possession of

firearm under § 10[a]).   But here, there was more than mere

inconsistency.   The defendant was acquitted of the offense that

was the predicate for liability under the penalty enhancement

section.   In these circumstances, the defendant's conviction

under G. L. c. 269, § 10(n), cannot stand.

    The judgment is reversed, the verdict is set aside, and

judgment shall enter for the defendant.

                                    So ordered.
