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19-P-595                                              Appeals Court

               COMMONWEALTH    vs.   JOHN F. DAVENPORT.


                            No. 19-P-595.

           Norfolk.     January 15, 2020. - April 8, 2020.

             Present:   Wolohojian, Milkey, & Shin, JJ.


           Dangerous Weapon.   Words, "Vehicle," "Control."



     Complaint received and sworn to in the Stoughton Division
of the District Court Department on January 26, 2018.

    The case was heard by Paul McCallum, J.


     Meghan K. Oreste for the defendant.
     Laura A. McLaughlin, Assistant District Attorney, for the
Commonwealth.


    SHIN, J.    After a jury-waived trial, the defendant was

convicted of carrying a dangerous weapon (a spring-loaded knife)

on his person or under his control in a vehicle.     See G. L.

c. 269, § 10 (b).     The principal issue before us is whether

there was sufficient evidence to show that the defendant's

camper, which was affixed to his pickup truck, qualifies as a
                                                                   2


"vehicle" under the statute.    This particular camper is not

freestanding in the sense that it does not have a driving cab or

wheels, but instead is a type of attachment designed to rest on

top of the pickup truck, with its outer dimensions not exceeding

those of the truck.   We conclude that there was sufficient

evidence to show that the camper, as affixed to the truck, is a

vehicle or part of a vehicle within the meaning of G. L. c. 269,

§ 10 (b), and that there was also sufficient evidence that the

knife was under the defendant's control in the vehicle.      We

therefore affirm.

     Background.    We recite the facts, which are largely

undisputed, in the light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

     On January 24, 2018, Avon Police Detective Lawrence Donovan

interviewed a woman about an incident involving her and the

defendant.1   Based on what he learned, Donovan issued a broadcast

two days later for the defendant's vehicle, a white Ford pickup

truck with a camper attached.   That same day, the Raynham Police

Department responded that the defendant's vehicle had been

located in the parking lot of a Walmart store in Raynham.

     Donovan arrived at the Walmart store in the early afternoon

and saw the defendant's pickup truck and camper in the parking


     1 The record reveals no details about the nature of the
incident.
                                                                       3


lot.       The camper was hooked up to a generator, which was outside

and running.      Donovan knocked on the door of the camper, and the

woman with whom he had previously spoken opened the door and

stepped outside.       Donovan was unable to see anyone else inside

and continued knocking while yelling for the defendant to come

out.       After twenty to thirty minutes, the defendant did so and

was placed under arrest.

       The pickup truck and camper were secured, locked, and

transported to the Avon police station.       A few days later,

Donovan executed a search warrant and found a spring-loaded

knife with a four-inch blade in the camper's sleeping area.

Deoxyribonucleic acid (DNA) testing revealed the defendant to be

the major contributor to a swab taken from the knife's handle.

       Photographs taken of the camper show that it was affixed,

partly with bungee cords and ropes, to the bed and roof of the

pickup truck.      The camper has both a kitchen area and a sleeping

area.       It does not have its own driving cab, and there is no

access to it from the truck; the only access is through a door

in the rear.      Donovan testified that the defendant had lived in

the camper, while parked in the lot of a Walmart store in Avon,

for some unspecified period of time.2




       According to Donovan, Walmart stores, specifically the one
       2

in Avon, allow recreational vehicles and campers to park
overnight in their lots.
                                                                        4


    Discussion.     To establish a violation of G. L. c. 269,

§ 10 (b), the Commonwealth must prove that a defendant knowingly

"carrie[d] on his person or under his control in a vehicle" a

dangerous weapon.       The defendant does not contest that the knife

found in his camper qualifies as a dangerous weapon under the

statute.   See id. (prohibiting carrying of "a switch knife, or

any knife having an automatic spring release device by which the

blade is released from the handle, having a blade of over one

and one-half inches").      He argues, however, that the camper is

not a "vehicle" within the meaning of the statute and that, even

if it is, the Commonwealth failed to prove that the knife was

"under his control in a vehicle."      We address his arguments in

turn.

    1.     "Vehicle."     Because the statute does not define

"vehicle," we look to the word's "ordinary meaning . . . to

discern the Legislature's intent."       Commonwealth v. Rodriguez,

482 Mass. 366, 368 (2019).      See Commonwealth v. Fragata, 480

Mass. 121, 125 (2018).      A vehicle is commonly understood to be

"[a] device, such as a car or sled, for carrying passengers,

goods, or equipment; conveyance."      American Heritage Dictionary

1340 (2d College ed. 1982).      See Webster's Third New

International Dictionary 2538 (1993) ("a means of carrying or

transporting something:      conveyance"); Black's Law Dictionary

1868 (11th ed. 2019) ("An instrument of transportation or
                                                                    5


conveyance"; "[a]ny conveyance used in transporting passengers

or things by land, water, or air").   A camper that is affixed to

a truck is a means of transporting people and things and, as

such, is a vehicle or at least part of a vehicle under the

common definition.

    We disagree with the defendant's suggestion that his

camper, though attached to his truck, cannot be considered a

vehicle because it does not have its own driving cab.     The

common definition of vehicle as set out supra is not limited to

conveyances that run on motors.   Rather, motor vehicles are a

subset of vehicles, as evidenced by the Legislature's many uses

of the term "motor vehicle" in other statutes.   See, e.g., G. L.

c. 90, § 1 (defining "motor vehicles" generally as "vehicles

constructed and designed for propulsion by power other than

muscular power including such vehicles when pulled or towed by

another motor vehicle").

    Our interpretation is also consistent with the purpose of

G. L. c. 269, § 10 (b), which is "to outlaw the carrying of

those [weapons] which are primarily designed for stabbing human

beings or for other unlawful objectives."   Commonwealth v.

Garcia, 82 Mass. App. Ct. 239, 246-247 (2012), quoting

Commonwealth v. Miller, 22 Mass. App. Ct. 694, 696 (1986).      A

camper that is attached to a motor vehicle is equally capable as

a motorized camper of "carrying" -- i.e., "bear[ing] or
                                                                     6


convey[ing] from one place to another," American Heritage

Dictionary 243 -- a prohibited weapon.   By analogy, all the cars

comprising a train, and not just the locomotive car, would

qualify as vehicles or the constituent parts of a vehicle.     Nor

do we think it matters whether the weapon would be accessible

during transport, to the extent the defendant so argues, because

accessibility is not required to establish that a weapon was

under a defendant's control in a vehicle.   Cf. Commonwealth v.

Collins, 11 Mass. App. Ct. 583, 586 (1981) (sufficient evidence

to support convictions of unlawful carrying of firearm under

G. L. c. 269, § 10 [a], where firearms were found in trunk of

car); Commonwealth v. White, 5 Mass. App. Ct. 398, 402 (1977)

(judge did not err in declining to charge jury that firearm must

"be accessible" to constitute "control in a . . . vehicle" under

§ 10 [a]).

    The defendant further contends that his camper cannot be

considered a vehicle because he was using it as a residence.     We

perceive his argument to be twofold:   that G. L. c. 269,

§ 10 (b), can never be applied to a vehicle that also serves as

one's residence; and that it cannot be applied on the facts of

this case because the camper was set up as a residence when the

defendant was arrested.   The first of these arguments fails

because, unlike § 10 (a), which prohibits the unlawful carrying

of firearms, § 10 (b) contains no residence exception.   Cf.
                                                                  7


G. L. c. 269, § 10 (a) (1) (exception for possessing firearm

while "being present in or on . . . residence or place of

business").   For this reason the defendant is not aided by State

v. Erickson, 362 N.W.2d 528, 532-533 (Iowa 1985), where the

issue was the meaning of a "dwelling" exception to an Iowa

statute prohibiting the carrying of a revolver.3

     The defendant's second argument fails because the evidence

was sufficient to show that he used the camper as a means of

transport, even though he also used it at times as a residence.

Indeed, the judge indicated that he was drawing that inference.

The facts and context in Commonwealth v. Upton, 394 Mass. 363

(1985), on which the defendant relies, are very different.

There, the court held, in the context of a motion to suppress,

that the automobile exception did not apply to a motor home that

the defendant used as a residence and that was parked on his

family's private property, within a foot of his family's house,

enclosed by a six-foot-high stockade fence.   See id. at 378-379.

We need not pass on whether a motor home or camper would qualify

as a vehicle in those circumstances because here the




     3 While the court in Erickson, 362 N.W.2d at 532, stated
that "[t]he dwelling exception reaches habitations like house
trailers, campers, and motor homes when they are being used in
circumstances analogous to those in which a dwelling is used,"
it ultimately held that the defendant's "truck was not
transformed from a vehicle into a dwelling when [he] drove onto
the shoulder of the exit ramp to take a nap," id. at 533.
                                                                    8


Commonwealth provided evidence that the defendant drove his

truck, with the camper attached, from Avon to Raynham.     The

judge was thus warranted in finding that the defendant was using

the camper as a vehicle.   Cf. California v. Carney, 471 U.S.

386, 393 (1985) (automobile exception applied to mobile home in

parking lot because it was "readily mobile" and "so situated

that an objective observer would conclude that it was being used

not as a residence, but as a vehicle").

    Finally, the defendant's reliance on the rule of lenity is

to no avail.   As there is no ambiguity in the statutory

language, the rule of lenity does not apply.   See Commonwealth

v. Wassilie, 482 Mass. 562, 572 (2019).

    2.   "Control."   We have no difficulty concluding that the

Commonwealth met its burden of proving that the knife was under

the defendant's control in the vehicle.   The defendant owned the

camper, he was alone inside for twenty to thirty minutes before

complying with Donovan's order to leave the camper, the knife

was found in the defendant's sleeping quarters, and he was the

major contributor to the DNA taken from the knife's handle.

This evidence was sufficient to establish that the defendant had

the requisite control over the knife.   See Collins, 11 Mass.

App. Ct. at 586 (evidence sufficient to show defendant's

knowledge of and control over firearms found in trunk of car,

given "defendant's ownership and operation of the car, his
                                                                   9


possession of ammunition which fit two of the guns, his evasive

statements regarding access to the trunk, and his admission that

he had assisted in packing the trunk").

                                   Judgment affirmed.
