Heard: October 21, 2016.
received and sworn to in the Dorchester Division of the
Boston Municipal Court Department on September 5, 2012.
transfer to the Central Division of the Boston Municipal
Court Department, the case was tried before Michael J. Coyne,
Baysan for the defendant.
Priscilla A. Guerrero (Helle Sachse, Assistant District
Attorney, with her) for the Commonwealth.
Present: Cypher, Kinder, & Lemire, JJ.
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
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). Because we agree that the conviction was
unlawful, we reverse without reaching the defendant's
other claims of error.
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 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.
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.
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 (c0 as a predicate. The Supreme
Judicial court addressed a similar issue in
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 Supreme Judicial Court
ordered that the ...