Commonwealth v. Erickson Resende
Appeals Court, October 5, 2018
(Evidence /Defendant’s Knowledge G.L. c. 269, §10 (m)/(n))
At the close of the Commonwealth’s case, the defendant filed a motion for required findings of not guilty on the charges of possession of a loaded firearm without a license, G.L. c. 269, §10 (n), and possession of a large capacity firearm, G.L. c. 269, §10 (m).
With respect to G.L. c. 269, §10 (n): The circumstantial evidence presented in this case is distinguishable from Commonwealth v. Brown, 479 Mass. 600 (2018). The evidence presented included: the firearm was in the defendant’s waistband; the defendant admitted he had some familiarity with firearms; the defendant was alone in the nighttime in an area where violent crimes occurred; and the defendant referenced a firearm when threatening someone earlier. The totality of these facts permit an inference that the defendant was aware that the firearm was loaded.
As to G.L. c. 269, §10 (m): The evidence presented to prove the defendant knew the firearm was a large capacity firearm was insufficient based on G.L. c. 269, §10 (m), set forth in Commonwealth v. Cassidy, 479 Mass. 527 (2018). The evidence presented included: the defendant’s explanation that his friend gave him the firearm; there was only one magazine in the case; and the magazine was not “obviously large.” These factors alone are not sufficient.