COMMONWEALTH vs. MARC ALDANA.

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 bags was labeled "aluminum powder," another "red iron oxide," and one bag was not labeled. An unidentified red-brown powder was

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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). [Note 2] In this appeal, the defendant argues that the 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

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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 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. [Note 3]

The defendant was arrested almost immediately upon the police entry. Through the kitchen doorway, officers could see an

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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 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 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

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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, firework sparklers, or magnesium strips. [Note 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. [Note 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 regulation in effect at the time of the defendant's arrest, [Note 6] governing storage, use, and permitting of explosives, based on § 13 of the statute. [Note 7] Mansfield

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explained that G. L. c. 148, § 9, [Note 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, [Note 9] requires licenses for the use and storage of, inter alia, fireworks and firecrackers. G. L. c. 148, § 13, [Note 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. [Note 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

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Federal regulation setting forth a list of explosive materials. [Note 12] To possess thermite in his apartment, the defendant 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." [Note 13] No permit was required for possession of aluminum 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

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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 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, [Note 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. [Note 15]

The defendant appealed, and we transferred the matter from the Appeals Court on our own motion.

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

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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 as thermite. [Note 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. [Note 17] Because the trial evidence established that thermite is not an "explosive," but, rather, an "inflammable" or "incendiary" substance, the regulation as to explosives has no

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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," [Note 18] which requires permits for use and storage if the weight of the material is beyond the amount of a regulatory exemption. [Note 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).

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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 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. [Note 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 that the judge had considered it. [Note 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,

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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 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). [Note 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 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

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liquid or a gas) [Note 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 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. [Note 24], [Note 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 possessing only limited amounts of an inflammable solid. [Note 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

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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 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 . . ."). [Note 27]

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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.