COMMONWEALTH vs. DESHAWN W. GRAYSON.

SACKS, J. Is evidence that the defendant carried a loaded semiautomatic pistol in his waistband sufficient, without more, to prove beyond a reasonable doubt that he knew the pistol was loaded? Concluding that it is not, we reverse the defendant's conviction, after a jury trial, of carrying a loaded firearm without a license,

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G. L. c. 269, § 10 (n). We affirm, as supported by sufficient evidence, his convictions of carrying a firearm without a license and of trespassing. [Note 1] See G. L. c. 269, § 10 (a); G. L. c. 266, § 120.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. At about 7 p.m. on a July evening in 2018, Boston Police Detective Ishmael Henriquez and three other detectives were driving through Dorchester, looking for a young man for whom they had an arrest warrant. The detectives spotted the man on a bicycle, accompanied by another young man, later identified as the defendant, also on a bicycle. The detectives drove to a spot a few blocks ahead of the men and parked. As the men approached on their bicycles, Henriquez's partners got out of the cruiser and stopped and arrested the man for whom they had a warrant.

In the meantime, the defendant, in Henriquez's words, "attempted to flee" on his bicycle, steering with one hand while clutching his waistband [Note 2] with the other. Based on Henriquez's training about the characteristics of armed persons, Henriquez was alert to the possibility that the defendant was carrying a firearm.

After riding past two houses, the defendant attempted to turn onto a side street but, continuing to steer with only one hand, lost control and fell off his bicycle. He broke his fall with one hand, keeping the other on his waistband. Henriquez pursued on foot and saw the defendant run down a driveway toward the rear of a

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house, continuing to clutch his waistband. Behind the house, the defendant, still holding his waistband, climbed over a five- or six-foot wooden fence, [Note 3] breaking it in the process, and entered an adjacent back yard that in turn bordered on other back yards. Henriquez attempted to follow, but a large dog appeared, causing Henriquez to suspend the chase and lose sight of the defendant.

Henriquez contacted his partners and other officers by radio and arranged for them to set up a perimeter to ensure that no one could leave the area of back yards without being observed. [Note 4] The detectives began to search the yards. Within ten minutes, on the far side of the yard that the defendant had entered by climbing over the fence, they found a white sock at the base of a second fence, approximately four feet tall. Although the sock was knotted closed, they could see that it contained an object shaped like a firearm. Just on the other side of the fence, in another yard, they found a pair of discarded sneakers.

A further search located the defendant hiding in a back yard a few houses down the block. He was wearing loose-fitting sweatpants. He was not wearing any shoes, and on cross-examination Henriquez agreed that one could infer the defendant had "r[u]n out of his sneakers" because he was "going so fast." The defendant was arrested and frisked; no contraband was found. Nor was any other contraband located in any of the back yards searched that day.

The object inside the knotted sock proved to be a semiautomatic pistol, loaded with a magazine capable of holding eight rounds of ammunition and containing seven. No usable fingerprints were found on any of the items. A police firearms examiner found the pistol to be operable and to have a barrel length of 3.75 inches.

The examiner further testified that, unless the pistol's slide were open, there would be no way to tell if the pistol was loaded simply by looking at it. [Note 5] To make that determination, one would have to attempt to fire it, or to remove the magazine to see if it

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contained ammunition. Henriquez agreed; he contrasted a pistol to a revolver, in which ammunition would be visible in the cylinder before being rotated into firing position. Henriquez further agreed that "in this case, if [he] were to be given that weapon not knowing anything about it, [he] couldn't tell if it was loaded or unloaded."

Discussion. The defendant challenges the sufficiency of the evidence underlying each of his three convictions. [Note 6] We address them in turn, asking "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

1. Possession of firearm. The defendant first argues that there was insufficient evidence that he possessed the firearm. We are not persuaded. The defendant fled the police, clutching an item in his waistband, an action that Henriquez testified was characteristic of persons carrying firearms. The item was sufficiently important to the defendant that he devoted one hand to maintaining possession of it while steering (and falling off) his bicycle and while climbing over (and breaking) the fence. The firearm was found next to another fence along the path of his apparent flight. Shoes inferentially belonging to him were found just on the other side of that fence. His attempt to hide from the police gave rise to a reasonable inference of consciousness of guilt, as did his initial, unprovoked flight. No other contraband was located in the area that might have explained his flight, nor was anyone else seen leaving the area. These circumstances, taken together, were sufficient to allow the jury to conclude that the defendant knowingly possessed the firearm. Cf. Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552-553 (2015) (evidence of possession of firearm sufficient where defendant fled when officers approached, firearm and defendant's clothing were found along path of his flight, and, when apprehended, defendant lied to police about circumstances).

2. Knowledge that firearm was loaded. "[T]o sustain a conviction under G. L. c. 269, § 10 (n), the Commonwealth must prove that a defendant knew the firearm he or she possessed was

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loaded." Commonwealth v. Brown, 479 Mass. 600, 601 (2018). If "the Commonwealth present[s] no evidence . . . that could allow any rational trier of fact to find beyond a reasonable doubt that the defendant knew the firearm was loaded, the conviction of possession of a loaded firearm without a license cannot stand." Id. at 601-602. In Brown, "it was not possible to discern merely by observation whether the pistol . . . was loaded; the magazine was inserted inside the handle and was not visible." Id. at 608. Absent any other evidence that the defendant knew the firearm was loaded, the court held the evidence insufficient. Id. at 609. See Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 748 (2018) (same).

More recently, we held in Commonwealth v. Resende, 94 Mass. App. Ct. 194, 201 (2018), that, although it was a "close case," id. at 200, the evidence was sufficient to prove beyond a reasonable doubt that the defendant knew the firearm he possessed was loaded. There we said:

"Unlike the facts in Brown, . . . the defendant, in the case before us, was found with the firearm in his waistband. A commonsense inference from that fact alone is that a person would check to see if the firearm was loaded before putting it in his waistband. This rational inference is strengthened by the additional fact that the defendant admitted that he had some familiarity with firearms. In addition, the inference that the defendant was aware the firearm was loaded is strengthened even further by the evidence that the defendant was alone in the nighttime. Finally, the fact finder could have found that moments before the police arrived, the defendant had been threatening someone and made reference to a firearm. These facts, in combination, permit an inference and a finding beyond a reasonable doubt that the defendant was aware that the firearm found in his waistband was loaded" (emphasis added).

Id. at 200-201. Importantly, although it was a reasonable inference that a person carrying a firearm in his (or her) waistband would know whether it was loaded, [Note 7] we did not rest our decision on that inference alone. Rather, there were additional circumstances

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that, "in combination" with the inference just mentioned, permitted the jury to find the knowledge element beyond a reasonable doubt. [Note 8] Id. at 201.

Here, in contrast, we have only the "commonsense inference" that the defendant would have "check[ed] to see if the firearm was loaded before putting it in his waistband." Id. at 200. The Commonwealth's brief offers nothing more. [Note 9] This case is missing the three additional factors that in Resende, despite being a "close case," pushed the evidence over the line of sufficiency: there was no evidence that the defendant here was familiar with firearms, or that he carried the pistol while alone in the nighttime, [Note 10] or that he had threatened anyone and mentioned a firearm. This case also lacks any evidence that the pistol had been fired while in the defendant's possession, [Note 11] or that any ammunition was separately recovered from the defendant's person or belongings, [Note 12] or that the

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pistol's loaded status would have been evident merely by looking at it, [Note 13] or that the defendant made any other statement indicative of knowledge. [Note 14] Moreover, the pistol here was tied inside a sock, making it harder to draw the inference that the defendant inspected it -- i.e., slid open the magazine to check for bullets -- before putting it in his waistband, or that the defendant intended it to be ready for immediate use and thus knew that it was loaded. See note 10, supra.

The Commonwealth suggested at oral argument that because the pistol here was loaded with seven rounds, its "heft" put the defendant on notice that it was loaded. But the Commonwealth offers nothing to support this inference. To the contrary, Henriquez agreed that "if [he] were to be given that weapon not knowing anything about it, [he] couldn't tell if it was loaded or unloaded."

The Commonwealth also suggested at oral argument that the defendant's repeated clutching at his waistband permitted not only the inference that he was concerned about the pistol falling out of his loose-fitting sweatpants, but, in turn, a second inference: that he was concerned about an accidental discharge (thus proving he knew the pistol was loaded). But "a conviction may not rest upon the piling of inference upon inference or conjecture and speculation." Commonwealth v. Silva, 482 Mass. 275, 289 (2019), quoting Commonwealth v. Reaves, 434 Mass. 383, 390 (2001). Moreover, the inference that the defendant was concerned about the pistol falling out of his pants could plausibly give rise to other inferences. These include that he was concerned about dropping and losing the pistol, or concerned about dropping an unlicensed pistol directly in the pursuing officer's path. [Note 15] The jury could only guess at which concern(s) motivated the defendant, and "we have made clear that a jury may not use conjecture or guesswork to choose between alternative inferences." Silva, supra at 290, quoting Commonwealth v. Dostie, 425 Mass. 372, 376 (1997).

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We thus return to the question: is the inference arising from the defendant's carrying the firearm in his waistband, standing alone, sufficient to prove his knowledge beyond a reasonable doubt? We do not think it is. Latimore requires more than that the evidence merely be "sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged." Latimore, 378 Mass. at 677, quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "Additionally, the evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.'" Latimore, supra, quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928). Thus, "it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Latimore, supra at 677-678. Notably, the Supreme Judicial Court recently approved of a jury instruction that stated that "any inference constituting an element of an offense must be established beyond a reasonable doubt." Silva, 482 Mass. at 289. See Commonwealth v. Lee, 460 Mass. 64, 71 (2011), quoting Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010) (reversing conviction where inferences required to prove element of offense "may be plausible, but cannot bear the weight of proof beyond a reasonable doubt").

To be sure, common sense dictates that a person check whether a firearm is loaded before further handling or carrying it, whether in a compartment of a vehicle, in a holster, or in a sock tucked into a waistband. But persons who possess firearms without a license cannot be presumed with any high degree of confidence to follow common sense in the area of firearm safety. [Note 16] The inference that the defendant would check whether a firearm is loaded before putting it in his waistband simply is not strong enough, standing alone, to prove beyond a reasonable doubt his knowledge that it is loaded.

3. Trespass. Finally, we reject the defendant's claim that there was insufficient evidence that his entry into any of the back yards

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he traversed during the chase had been forbidden by the person in control thereof, so as to constitute a trespass. The criminal trespass statute provides in pertinent part that "[w]hoever, without right enters or remains in or upon the . . . improved or enclosed land . . . of another, . . . after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon, . . . shall be punished" (emphasis added). G. L. c. 266, § 120. We have held that, where there is no notice posted, the term "'directly' . . . does not require a person having control of unposted premises to be on those premises at all times of the day or night to ward off intruders. Rather, he may directly forbid entry to the premises by securing them with fences or walls and locked gates or doors." Commonwealth v. A Juvenile (No. 1), 6 Mass. App. Ct. 106, 108 (1978). See Commonwealth v. Scott, 71 Mass. App. Ct. 596, 603 (2008) (same). The jury here were so instructed.

There was evidence that after entering the first back yard, the defendant climbed over a five- or six-foot wooden fence, breaking it in the process, to enter another back yard. That yard was in turn separated from the next yard by a fence, on the other side of which sneakers, inferentially the defendant's, were found. From all of this the jury could have found beyond a reasonable doubt that the owner of the yard into which the defendant climbed had, at least at the points where the defendant entered and exited the yard, forbidden entry to the yard by fences, making the defendant's entry a trespass. [Note 17]

Conclusion. The judgment on the charge of possessing a loaded firearm without a license is reversed, the verdict is set aside, and judgment shall enter for the defendant. The remaining judgments are affirmed.

So ordered.