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SJC-12258

                      COMMONWEALTH   vs.   MARC ALDANA.



         Worcester.        March 7, 2017. - September 19, 2017.

 Present:    Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.1


            Destructive or Incendiary Device or Substance.



     Indictments found and returned in the Superior Court
Department on December 20, 2013.

     A pretrial motion to suppress evidence was heard by Daniel
M. Wrenn, J., and the cases were heard by Richard T. Tucker, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Ethan C. Stiles for the defendant.
     Joseph A. Simmons, Assistant District Attorney, for the
Commonwealth.


     LENK, J.    In the course of arresting the defendant at his

apartment on a default warrant, Worcester police officers saw in

his kitchen three bags containing unknown powders.        One of the

     1
       Justice Hines participated in the deliberation on this
case prior to her retirement.
                                                                    2


bags was labeled "aluminum powder," another "red iron oxide,"

and one bag was not labeled.    An unidentified red-brown powder

was spilled on the counter and the kitchen window sill, and

smudged on the wall around the window.    Concerned about the

appearance of the bags of powder, given the other circumstances

in the apartment, one of the officers undertook an Internet

search for information on the labeled substances.    On the basis

of information derived from that search, a detective requested

assistance from the Federal Bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF), the State police, and the local fire

department.    Representatives of these agencies arrived, seized

the bags of powder, and removed them from the apartment.

     The defendant thereafter was indicted on two charges of

possession of the ingredients to make an incendiary device or

substance with the intent to do so, in violation of G. L.

c. 266, § 102 (a), and a single charge of possession of an

incendiary device or substance, in violation of G. L. c. 266,

§ 102 (c).

     After a jury-waived trial in the Superior Court, the

defendant was convicted of both charges under G. L. c. 266,

§ 102 (a), and acquitted of the charge under G. L. c. 266,

§ 102 (c).2   In this appeal, the defendant argues that the


     2
         The defendant was not charged under G. L. c. 148, § 12,
                                                                   3


ingredients seized and observations made by police during the

search of his apartment should have been suppressed, and that

the evidence at trial was in any event insufficient to support

his convictions.   In the alternative, the defendant contends

that his convictions are duplicative and that one must be

vacated.

    To convict the defendant of a violation of G. L. c. 266,

§ 102 (a), the Commonwealth was required to prove beyond a

reasonable doubt that the defendant had in his possession or

control, without lawful authority to do so, a "substance . . .

which, alone or in combination, could be used to make a

destructive or incendiary device or substance" and that he

intended to "make a destructive or incendiary device or

substance."   To prove that what the defendant intended to make

was a violation of the statute, the Commonwealth was required to

establish that the device or substance was "designed or adapted

to cause physical harm to persons or property by means of fire,

explosion, deflagration or detonation and consisting of [a]

substance capable of being ignited, whether or not contrived to

ignite or explode automatically."   G. L. c. 266, § 101.

    We conclude that the evidence introduced at trial was not

sufficient to establish that the defendant was without lawful



which is applicable to pyrotechnics, e.g., fireworks.
                                                                     4


authority to possess the powders themselves or the incendiary

substance, thermite, that the Commonwealth asserted he intended

to make.   Since the evidence at trial was insufficient to

establish at least one critical element of the Commonwealth's

case, the defendant's convictions cannot stand.     Accordingly,

the matter must be remanded to the Superior Court for entry of

required findings of not guilty.

    1.     Background.   After a hearing on the defendant's motion

to suppress, a Superior Court judge denied the motion in a

written decision containing comprehensive findings of fact.        The

defendant thereafter was tried, jury-waived, by a different

Superior Court judge.     All of the individuals who had testified

at the hearing on the motion to suppress -- officers involved in

the arrest and the building manager -- testified to essentially

the same facts at trial.     In addition, testimony was introduced

from another member of the Worcester police department, members

of the State police bomb squad, a chemist and a State police

evidence technician, two Worcester fire department lieutenants,

and a defense expert in chemistry.     In announcing his verdicts,

the trial judge issued limited oral findings of fact and a brief

explanation of his reasoning.     We recite the facts the trial

judge could have found, reserving some facts for later

discussion.

    a.     Evidence at trial.   On October 15, 2013, officers of
                                                                      5


the Worcester police departments went to the defendant's

apartment to arrest him on a default warrant for a charge of

disorderly conduct.     Detective Sergeant Mark Richardson of the

Worcester police department, and other Worcester police

officers, entered the building and went to the door of the

defendant's apartment.     Richardson knocked on the door and

announced the police presence several times without receiving a

response.   After the officers heard movement inside the

apartment and the sounds of breaking glass, Richardson ordered

one of them to force entry into the apartment.3

     The defendant was arrested almost immediately upon the

police entry.   Through the kitchen doorway, officers could see

an open kitchen cabinet and drawers standing open.     The officers

saw two foil bags of powder, and one unlabeled plastic bag

containing a reddish-brown powder, on the counter and in the

open kitchen cabinet.     One foil bag was labeled "aluminum

powder" and the other was labeled "red iron oxide."     The

officers did not recognize the names, and were not familiar with


     3
       In his motion to suppress, the defendant challenged, among
other things, the propriety of the police entry, as he does
before us. Because of the result we reach, we do not address
the defendant's claims concerning the forced entry, or the other
issues raised in his motion to suppress, including whether it
was immediately apparent that the powders were dangerous, such
that their seizure without a warrant fell within the plain view
exception to the warrant requirement. We also do not reach the
question whether the convictions were duplicative.
                                                                    6


the appearance of the powders.   One of the officers conducted an

Internet search on his cellular telephone and reported to

Richardson that, when mixed together, red iron oxide powder and

aluminum powder produce thermite, a substance Richardson

believed posed a significant public safety concern.

    Thereafter, Richardson contacted ATF, the State police, and

the Worcester fire department; at some point, he conducted a

"sweep" of the apartment.   State police Trooper Eric Gahagan, a

bomb squad technician, arrived and examined the three bags of

powders.   Based on the appearance of the substance, he suspected

that the unlabeled bag contained thermite.   He took three

samples from each of the three bags of powder and placed them in

glass vials.   Gahagan also performed a "sweep" of the apartment

for signs of other possibly dangerous materials, and any means

for lighting Thermite, and found none.   He then took the samples

back to the State police crime laboratory for testing.     The

remaining powders were placed in a plastic bin and transported

to a Department of Public Works site to be destroyed by burning.

Gahagan and an ATF agent mixed the three bags of powder

together, at the site, and lit them remotely using a robot with

an ignited road flare.   The mixture burned for approximately

five minutes before it consumed all of the aluminum and burned

itself out.

    A State police chemist testified regarding the steps he
                                                                    7


took to determine whether the powders seized from the

defendant's apartment were, indeed, thermite.    First, he

examined samples of each of the three powders under a microscope

and confirmed that they were aluminum, red iron oxide, and a

mixture of aluminum and red iron oxide.   He then attempted to

ignite the mixture with a Bunsen burner and was not able to do

so; he did not attempt to ignite it with tools that burn at

higher temperatures, such as a road flare or a magnesium strip.

    The technical evidence concerning the properties of the

various powders seized and their testing was essentially

undisputed.   Experts for both the Commonwealth and the defendant

testified that thermite can be created by combining red iron

oxide and aluminum powder, and that specific ratios are

necessary for it to burn.   Neither iron oxide nor aluminum

powder is ignitable individually.   The experts agreed that the

only reason to combine red iron oxide and aluminum powder is to

create a thermite mixture that can be ignited.    When ignited,

thermite burns at very high temperatures, at approximately 4,000

degrees Fahrenheit.   Thermite is not explosive, will not ignite

spontaneously, and, because of the high temperature at which it

burns, cannot be ignited with an ordinary flame, such as a match

or a Bunsen burner.   To reach the high temperatures necessary to

ignite thermite requires heat sources such as road flares,
                                                                   8


firework sparklers, or magnesium strips.4

     Thermite is used in military operations to dispose of old

equipment or to disable it in the field so that it does not fall

into enemy hands, and in civilian operations for metal salvage.

Thermite also is used for cutting metal, including steel; for

welding or filling in damaged portions of railroad tracks; for

spot welding; for cutting through locks to open doors and safes;

and, because it is not extinguished by water, in underwater

welding.5

     The sole evidence as to the licensing and permitting

requirements applicable to thermite was introduced through

Lieutenant Robert Mansfield of the Worcester fire department.

Mansfield testified that he was responsible for fire hazard

identification, inspection, and suppression in Worcester.

Through his testimony, the Commonwealth introduced, and sought

judicial notice of, §§ 9, 12, and 13 of G. L. c. 148, the State

fire prevention act, and 527 Code Mass. Regs. §§ 13.00 (2012), a




     4
       Both Commonwealth and defense experts indicated that they
believed thermite is relatively safe, is difficult to light, and
is stable when unlit. The experts also stated that, in their
many years of experience, investigations at the State police
crime laboratory involving thermite are quite rare.
     5
       Testimony at trial also indicated that red iron oxide
(rust) and aluminum powder, individually, have ordinary civilian
uses. One use for red iron oxide is as a pigment.
                                                                   9


regulation in effect at the time of the defendant's arrest,6

governing storage, use, and permitting of explosives, based on

§ 13 of the statute.7   Mansfield explained that G. L. c. 148,

§ 9,8 authorizes the fire department to require and issue permits

to store and use certain explosive and inflammable substances

and that G. L. c. 148, § 12,9 requires licenses for the use and


     6
       Effective January 1, 2015, the version of 527 Code Mass.
Regs. in effect at the time of the defendant's arrest was
repealed. The current State comprehensive fire safety code is
found in 527 Code Mass. Regs. §§ 1.00 (2016).
     7
       Copies of the statutes and regulations Lieutenant Robert
Mansfield discussed were presented to the judge and marked for
identification. The judge did not state explicitly whether he
took judicial notice of them. The parties dispute whether the
judge also implicitly took judicial notice of 527 Code Mass.
Regs. §§ 14.00, which then regulated the use and storage of
certain inflammable solids, liquids, and gases. The transcript
establishes that, at trial, the judge was not presented with 527
Code Mass. Regs. §§ 14.00 nor asked to take notice of it. See
discussion, infra.
     8
       "The board shall make rules and regulations for the
keeping, storage, use, manufacture, sale, handling,
transportation or other disposition of gunpowder, dynamite,
crude petroleum or any of its products, or explosive or
inflammable fluids or compounds, tablets, torpedoes or any
explosives of a like nature, or any other explosives, fireworks,
firecrackers, or any substance having such properties that it
may spontaneously, or acting under the influence of any
contiguous substance, or of any chemical or physical agency,
ignite, or inflame or generate inflammable or explosive vapors
or gases to a dangerous extent . . . ." G. L. c. 148, § 9.
     9
       "No building shall be used for the manufacturing of
fireworks or firecrackers without a license from the local
licensing authority. No building or structure shall be used for
the manufacturing or storage of explosive materials without a
permit issued by the marshal." G. L. c. 148, § 12.
                                                                    10


storage of, inter alia, fireworks and firecrackers.    G. L.

c. 148, § 13,10 governs the storage, manufacture, and sale of

explosives.    The regulations concerning the manufacture, sale,

and storage of explosives, implementing the provisions of G. L.

c. 148, § 13, were then contained in 527 Code Mass. Regs.

§§ 13.00.

     Mansfield testified that the fire department's authority to

regulate the storage of thermite was derived from 527 Code Mass.

Regs. §§ 13.00.11    Although that regulation did not mention

thermite directly, he stated that thermite fell within its

requirements because it explicitly incorporated 27 C.F.R.

§ 55.23, a Federal regulation setting forth a list of explosive

materials.12   To possess thermite in his apartment, the defendant


     10
       "No building or other structure shall, except as provided
in [§ 14], be used for the keeping, storage, manufacture or sale
of any of the articles named in [§ 9, defining blasting
requirements], unless the local licensing authority shall have
granted a license to use the land on which such building or
other structure is or is to be situated for the aforementioned
uses, after a public hearing . . . ." G. L. c. 148, § 13.
     11
       Title 527 Code Mass. Regs. §§ 13.00 applied to the use
and storage of "explosives" and "explosive materials," and also
provided that "[t]he term also includes any material determined
to be contained in the list of explosive materials provided for
in 27 [C.F.R. §] 55.23." 527 Code Mass. Regs. § 13.03.
"Explosive" was defined as "any chemical compound, mixture or
device, the primary or common purpose of which is to function by
explosion; i.e., with substantially instantaneous release of gas
and heat." Id. See note 6, 8, supra.
     12
          Contrary to this testimony, the then-applicable Federal
                                                                  11


would have been required to have both a license from the State,

after passing an explosives handling course, and a permit from

the city of Worcester.    Mansfield had examined the city's

records and found no indication that the defendant had a permit

to possess thermite; he stated also that he would never issue

such a permit to anyone living in a multiunit residential

building.    He did not explain which of the statutory or

regulatory definitions pertaining to "explosive," see G. L.

c. 266, § 101 (defining "[e]xplosive" as "any element, compound

or mixture that is manufactured, designed or used to produce an

explosion"), were applicable to thermite.

     Mansfield testified on cross-examination, without reference

to any applicable statute or regulation, that possession of

aluminum powder or red iron oxide would require a permit if it

were above "a certain amount" because they are an "inhalation

hazard."13   No permit was required for possession of aluminum



regulation listing specific explosives did not in fact contain
any mention of thermite. See 27 C.F.R. § 55.23; 77 Fed. Reg.
58,410 (Sept. 20, 2012).
     13
       Gahagan testified that red iron oxide and aluminum powder
can be purchased legally, and stored lawfully in a residence.
He also noted that the recipe for mixing thermite from the
compounds is readily available on the Internet; he did not
mention any requirement of a permit. The defense expert also
testified that these components are legally available, can be
ordered over the Internet, and are shipped by mail; he testified
that the only restriction he was aware of was that certain
companies would not ship them to a college dormitory address.
                                                                     12


oxide.   He also agreed that, under G. L. c. 148, § 13, certain

quantities of explosives could be held without a permit or a

license.

    b.     Trial proceedings.   At the close of the Commonwealth's

case, the judge denied the defendant's motion for required

findings of not guilty.    At the close of all the evidence, the

judge found the defendant guilty of two counts of possession of

the ingredients necessary to make a destructive or incendiary

device or substance without lawful authority and with the intent

to make such a device or substance, in violation of G. L.

c. 266, § 102 (a).    The defendant was acquitted of possession of

an incendiary device or substance in violation of G. L. c. 266,

§ 102 (c).

    The judge found that the evidence proved beyond a

reasonable doubt that "the defendant was in possession of

aluminum powder and red iron oxide," and also in possession of

"a mixture of these two substances."     The judge explained that

the defendant's combination of the two substances, and the

absence of evidence that the defendant intended to use thermite

for a legitimate purpose, demonstrated his intent to make

thermite.    The judge did not make findings or rulings or explain

his reasoning as to whether the defendant had lawful authority

to possess thermite or its components.

    The judge also found that, while the evidence showed that
                                                                   13


the mixture of the three bags combined by Gahagan and the ATF

agent burned in a manner consistent with thermite, the evidence

did not establish beyond a reasonable doubt that the mixture

found in the defendant's kitchen would have been ignitable.     He

noted that, before investigators disposed of the seized powders,

all three of them had been combined into a single mixture,14 and

that the combination burned as thermite would burn.   The judge

determined that, because the act of combining the three bags

might itself have created the proper ratio, this did not

establish that the seized mixed powder would have burned in the

same manner, if at all.   He noted in this respect that the bags

of powders had not been weighed and the ratio of materials in

the mixed bag had not been determined.15

     The defendant appealed, and we transferred the matter from

the Appeals Court on our own motion.


     14
       According to the ATF agent's report, which was introduced
in evidence and about which Gahagan testified, "The red iron
oxide and aluminum powder were spread in a line along the
pavement with the suspected Thermite spread on top of the
previous two chemicals."
     15
       The judge explained his decision to acquit the defendant
of the charged violation of G. L. c. 266, § 102 (c), as follows:

          "My reasons include among other things the lack of the
     weighing or testing or burning of the mixture separately.
     I do not find beyond a reasonable doubt that the mixture
     would have burned, even with a flare igniter, if done
     without the presence of the remaining aluminum powder and
     red iron oxide."
                                                                  14


    2.   Discussion.    On appeal, the defendant argues that it

was error to deny his motion to suppress, the evidence was

insufficient to support his convictions, and the convictions are

duplicative.   We agree that the evidence was insufficient to

support the convictions, and therefore do not address the

defendant's other claims.

    To convict a defendant of a violation of G. L. c. 266,

§ 102 (a), the Commonwealth must prove that the defendant

(1) possessed or controlled, (2) without lawful authority, (3) a

"substance . . . which, alone or in combination, could be used

to make a destructive or incendiary device or substance," and

(4) the defendant intended to "make a destructive or incendiary

device or substance."   To prove that the intended device or

article fell within the meaning of a "destructive or incendiary

device or substance," the Commonwealth was required to prove

that the device or substance was "designed or adapted to cause

physical harm to persons or property by means of fire,

explosion, deflagration or detonation and consisting of [a]

substance capable of being ignited, whether or not contrived to

ignite or explode automatically."    G. L. c. 266, § 101.

    We conclude that the evidence was not sufficient to

establish that the defendant lacked lawful authority to possess

or control the powders seized, either individually or combined
                                                                 15


as thermite.16   The Commonwealth offered evidence that thermite,

operating as it does through heat and not explosion, is an

inflammable or incendiary substance, rather than an explosive

substance.   The Commonwealth did not offer evidence, through any

witness or otherwise, that the possession of thermite, or, as

here, of its component parts, is subject to regulation as an

inflammable or incendiary substance.   Mansfield's testimony did

not bridge the evidentiary gap.17   Because the trial evidence


     16
       As noted, the Commonwealth was also required to prove
that the defendant intended to make a device or substance
"designed or adapted to cause physical harm to persons or
property by means of fire, explosion, deflagration or
detonation" as defined in G. L. c. 266, § 101. The Commonwealth
proceeded on the theory that the possession of thermite,
standing alone, would suffice to establish such a device or
substance. The issue not having been raised or briefed, we do
not address the question of the sufficiency of the evidence in
this regard. But see Commonwealth v. Loadholt, 456 Mass. 411,
431, vacated on other grounds, 562 U.S. 956 (2010), citing
Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997)
(distinguishing object "designed for" given use and object that
"functions as" particular type of thing). "[A] device that
explodes is not covered by [a similar Federal] statute merely
because it explodes." United States v. Hammond, 371 F.3d 776,
780 (11th Cir. 2004) (cardboard tube filled with explosive
powder was not designed as weapon and therefore was not
destructive device under Federal statute; to establish that
explosive is weapon, and therefore prohibited destructive
devices requires "plus" factor). Compare United States v. York,
600 F.3d 347, 354-355 (5th Cir. 2010) (concluding that, under
similar Federal statute, Molotov cocktail is designed as weapon
and therefore is destructive device).
     17
       Mansfield did not indicate which of the statutory or
regulatory definitions pertaining to "explosives," see G. L.
c. 266, § 101, he believed were applicable to thermite.
                                                                  16


established that thermite is not an "explosive," but, rather, an

"inflammable" or "incendiary" substance, the regulation as to

explosives has no apparent application to thermite.

     a.   Sufficiency of the evidence of absence of lawful

authority.   In arguing that the evidence was not sufficient to

support a conviction under G   L. c. 266, § 102 (a), insofar as

the Commonwealth failed to establish that he lacked lawful

authority to possess thermite, the defendant does not challenge

the testimony that he did not have a permit from the city of

Worcester.   Rather, he argues that the Commonwealth failed to

establish that such a permit was necessary.   He maintains that

the fire safety regulations of which the judge was asked to take

judicial notice, discussed at trial, concerned the storage of

explosives, and therefore were not applicable to thermite, which

is an inflammable.

     The defendant argues further that, even had 527 Code Mass.

Regs. §§ 14.00 (2012), the regulation then governing the storage

of inflammables been introduced and considered, see note 7,

supra, the evidence did not show that thermite was a "flammable

solid,"18 which requires permits for use and storage if the


     18
       General Laws c. 148, § 9, authorizes the creation of
regulations governing "inflammable fluids or compounds." Title
527 Code Mass. Regs. § 14.03 then established differing storage
and permitting requirements for flammable liquids, gases, and
solids. As thermite is a powder, and a compound, any regulation
                                                                  17


weight of the material is beyond the amount of a regulatory

exemption.19   Because the weights of the bags were not introduced

at trial, there was no evidence that the powders in the

defendant's possession exceeded the exempt amounts.    Had the

limited quantities noted on the labeled bags been an accurate

representation of the weights, moreover, the amounts would have

fallen within the amount allowed by the exemption.

     "Because the absence of lawful authority or justification

is an element of each of the crimes charged, the Commonwealth

must prove beyond a reasonable doubt that [the] defendant acted

without lawful authority or justification."    Commonwealth v.

Cabral, 443 Mass. 171, 179 (2005).

     i.   Applicable regulation.   All of the regulations of which

the judge was asked to take notice, and all of the testimony

concerning the required permits and licensing, were applicable



applicable to it would have had to fall under the regulations on
"flammable solids," and not under the sections pertaining to
liquids and gases. See id.
     19
       The then fire safety regulations on explosives also
contained such exemptions. See 527 Code Mass. Regs. § 13.04(1)
(in accordance with provisions of G. L. c. 148, § 13, "the
following quantities of explosive materials . . . shall be
exempt from License, Registration, and Permit and may be kept,
or stored in a building or other structure"); 527 Code Mass.
Regs. § 13.04(1)(f) (exempting "[s]pecial industrial explosive
devices when in quantities of less than [fifty] pounds net
weight of explosives" and providing that materials falling under
this exemption "may be kept, or stored in a building or other
structure").
                                                                  18


to explosives.   The expert evidence at trial established that

thermite is an "inflammable" or "incendiary" that operates

through heat; it did not establish that thermite is an

"explosive" as defined in 527 Code Mass. Regs. § 13.03.20

Mansfield, the fire department lieutenant responsible for fire

hazard identification, inspection, and suppression, testified

that the fire department's authority to regulate the storage of

thermite was derived from 527 Code Mass. Regs. §§ 13.00, which

then governed explosives.   Neither he nor any other Commonwealth

witness explained which of the statutory or regulatory

definitions pertaining to "explosives" were applicable to

thermite, a substance which the expert evidence at trial

established is an "inflammable" or "incendiary" that operates

through heat.

     The Commonwealth argues in its brief that the judge could

also have taken judicial notice, albeit implicitly, of the then

regulation for the use and storage of inflammables, 527 Code

Mass. Regs. §§ 14.00.   That regulation was not mentioned at

trial, and no copy of it was introduced; nor was there any

indication at trial or in the judge's reading of the verdicts

     20
       Gahagan described ignited thermite as undergoing a
chemical reaction which creates a new chemical compound. The
aluminum powder provides the fuel to the iron oxide, and they
burn at a much higher temperature as the reaction occurs. The
resulting reaction produces a "liquid molten metal," which cools
to a slag left behind after the reaction has completed.
                                                                   19


that the judge had considered it.21   Moreover, we have not

determined that a judge may, sua sponte, take judicial notice of

a regulation or implicitly rely on such a regulation in reaching

a verdict; when a judge takes judicial notice at a jury trial,

he or she must explain that determination to the jury.   See

Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 922 (1998);

Mass. G. Evid. §§ 201, 202 (2017), citing Department of Revenue

v. C.M.J., 432 Mass. 69, 76 n.15 (2000) (in criminal case,

"party has right to notice of matters that court will

adjudicate").   In any event, because it was the Commonwealth's

burden to establish that the defendant was without lawful

authority to possess thermite, it was required to prove that a

specific permit or license was necessary.   See Commonwealth v.

Ferola, 72 Mass. App. Ct. 170, 174 & n.4 (2008) ("Even if

Klonopin were a substance so designated in the United States

Attorney General's regulations, see 21 C.F.R. § 1308.14 [2006],

no such proof was adduced at trial").

     The judge, as fact finder, was entitled to credit

Mansfield's testimony that the defendant did not have a permit

from the city of Worcester, a question of fact.   That, however,

does not answer the more fundamental question whether a permit

     21
       In support of this argument, the Commonwealth notes that
the regulation on inflammables was mentioned in its opposition
to a motion to dismiss. That motion, however, was heard by a
different judge, more than a year before trial.
                                                                    20


was required in these circumstances.    Such a determination is a

question of law -- the applicable regulation and the meaning of

its terms -- which a reviewing court considers de novo.     See,

e.g., Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18,

23 (2015).22   See also Town Fair Tire Ctrs., Inc. v. Commissioner

of Revenue, 454 Mass. 601, 604-605 (2009).

     ii.    Whether a permit would have been required under 527

Code Mass. Regs. §§ 14.00.    The judge did not explain his

determination that the defendant lacked authority to possess

thermite.   Had 527 Code Mass. Regs. §§ 14.00 been proffered and

considered, however, the evidence was insufficient in any event

to establish the necessity of a permit.    The evidence did not

show that thermite fell within the definition of those

inflammable materials then regulated under 527 Code Mass.

Regs. §§ 14.00.   Further, even were we to assume that thermite

did fall within the definition of "flammable solid" in that

regulation, the evidence did not establish that the amount of

the substances the defendant possessed would have exceeded the

     22
       "'The interpretation of a regulation is a question of law
which we review de novo,' Commonwealth v. Hourican, 85 Mass.
App. Ct. 408, 410 (2014), applying 'the traditional rules of
statutory construction,' Young v. Patukonis, 24 Mass. App. Ct.
907, 908 (1987). 'This is so because a properly promulgated
regulation has the force of law . . . and must be accorded all
the deference due to a statute.' Borden, Inc.[ v. Commissioner
of Pub. Health, 388 Mass. 707, 723, cert. denied, 464 U.S. 936
(1983)]." Ivey v. Commissioner of Correction, 88 Mass. App. Ct.
18, 23 (2015).
                                                                  21


one hundred pound exemption from the permit requirement set

forth in the regulation.

     A.   Inflammable solid.   As stated, had 527 Code Mass.

Regs. §§ 14.00, then regulating the storage and use of

"flammable and combustible liquids, flammable solids or

flammable gases," been considered, the evidence was insufficient

to establish that it would have been applicable to thermite.

There was neither expert testimony nor other evidence introduced

that thermite (a solid, not a liquid or a gas)23 met the

definition of "flammable solid" under 527 Code Mass.

Regs. § 14.02.   See Commonwealth v. Green, 408 Mass. 48, 50-51

(1990) ("The Commonwealth could have easily met its burden of

proof that codeine was a derivative of opium by presenting

expert testimony").   The evidence that was introduced as to the

properties of thermite, moreover, shows that it has none of the

qualities set forth in the regulatory definition of "flammable

solid" then applicable.

     Pursuant to 527 Code Mass. Regs. § 14.02, a flammable solid

was "[a] solid substance, other than one classified as an

explosive, which is liable to cause fires through friction,

through absorption of moisture, through spontaneous chemical

changes, or as a result of retained heat from manufacturing or

     23
       The experts testified that thermite is a combination of
very fine powders.
                                                                      22


processing."     Undisputed expert testimony at trial established

that thermite does none of these things.       It can be soaked in or

made to float on water without any problem.      It does not ignite

through friction or spontaneous chemical changes.       The act of

mixing iron oxide and aluminum powder together does not generate

or retain heat.     Indeed, expert testimony indicated that it is

very difficult to ignite thermite and that to do so requires a

very particular type of high intensity external source.       Even if

poured on top of each other, and then lit, the particles of red

iron oxide and aluminum powder that make up the thermite

compound may not be in close enough contact with each other to

burn.24,25

     B.      Exemptions for limited amounts.   Even if we were to

assume that thermite is an inflammable solid, nothing at trial

suggested that the weight of the powders in the defendant's

kitchen exceeded the regulatory exemption for individuals




     24
       There was expert testimony that, when using thermite in
the "field" to cut or weld, a binding agent such as clay,
plastic, or putty is generally used to hold the particles
closely together so that they do not separate; if the individual
particles of the two substances become separated, even in the
same bag or pile, the mixture will not burn.
     25
       We recognize that, in the right circumstances, thermite
could pose a significant hazard once lit. The Legislature is of
course free to modify the relevant statutes to incorporate
thermite should it deem such modification necessary.
                                                                  23


possessing only limited amounts of an inflammable solid.26

     As the fire safety regulations for using and storing both

explosives and inflammable materials then contained exemptions

for limited amounts of the explosives and inflammable materials

that they regulated, and provided that amounts that fell within

these exemptions may be used and stored without a license or

permit, the weight of the substances seized from the defendant's

kitchen was essential to a determination whether a permit was

required or whether the lack of a permit established the absence

of lawful authority.

     There was no evidence at trial concerning the weight of any

of the three bags, other than as to the labeled weights on two

of the bags.   Even assuming that the open labeled bags contained

the five and two pounds of materials indicated on their labels,

however, and the entire contents of the three bags of powder

were combined, the resulting seven-pound mixture would appear to

be far below the exempted weight of one hundred pounds for an

inflammable solid.     The Commonwealth did not prove that the

powders, combined, exceeded the statutory exemption.

     b.   Pyrotechnics.   Finally, as the Commonwealth notes, the

experts at trial agreed that, in chemical terms, thermite is


     26
       See 527 Code Mass Regs. § 14.03(2) (exempting, at time of
trial, one hundred pounds of flammable solids from any license
or permit requirement).
                                                                  24


also considered to be a "pyrotechnic compound" or "composition."

Based on this, the Commonwealth argues that the defendant could

have been found guilty under G. L. c. 148, § 12, which prohibits

the manufacturing of fireworks in a building without a license.

There are two flaws in this argument.   First, the defendant was

not charged with having violated that statute.   Second, insofar

as the Commonwealth now argues that possession of a pyrotechnic

without a license would separately subject the defendant to

criminal penalties under G. L. c. 266, § 102, we note that

pyrotechnics are excluded from the definition of "explosives"

applicable to that statute.   See G. L. c. 266, § 101 ("Explosive

shall not include a pyrotechnic . . .").27


     27
       For purposes of G. L. c. 266, § 101, and G. L. c. 148,
§ 12, a pyrotechnic is "any commercially manufactured
combustible or explosive composition or manufactured article
designed and prepared for the purpose of producing an audible
effect or a visible display and regulated by chapter 148
including, but not limited to: (i) fireworks, firecrackers;
(ii) flares, fuses and torpedoes, so-called, and similar
signaling devices."

     Both Commonwealth and defense experts testified that, while
thermite is defined in chemical terms as a "pyrotechnic
compound" or "composition," it is not a pyrotechnic in the
ordinary understanding of a firework or pyrotechnic. It also
does not meet the statutory definition under G. L. c. 266,
§ 101, or G. L. c. 148, § 12. In those definitions, a
pyrotechnic is designed to create a visible and audible effect
by explosive or combustive burning. Thermite does not do
either. Indeed, the Commonwealth's expert testified that
thermite is used by the military to disable equipment precisely
because it is silent and can be used without disclosing one's
position.
                                                                   25


    3.    Conclusion.   Because the evidence at trial was not

sufficient to establish every element of the Commonwealth's

case, the defendant's convictions cannot stand.    The defendant's

convictions are vacated and set aside.    The matter is remanded

to the Superior Court for entry of required findings of not

guilty.

                                     So ordered.




     We note also that the statutes regulating pyrotechnics
contain another requirement -- that a pyrotechnic be
commercially fabricated -- which makes the definition
inapplicable to the apparently hand-mixed substance found in the
defendant's kitchen. See G. L. c. 266, § 101; G. L. c. 148,
§ 12.
