MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of carrying a firearm without a license, carrying a loaded firearm without a license, and possession of ammunition without a firearm identification (FID) card. The defendant appeals, arguing that his convictions should be vacated under Commonwealth v. Guardado, 491 Mass. 666 (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II), cert. denied, U.S. Supreme Ct., No. 23-886 (June 24, 2024). We agree with the Commonwealths concession that the evidence was insufficient to prove lack of licensure as required by Guardado I, supra at 690, and so the convictions must be vacated. For purposes of determining whether the defendant can be retried on the loaded firearm and ammunition charges, we must also address his argument that the evidence was insufficient to prove he knew there was ammunition in the firearm. As we conclude that that evidence was sufficient, the Commonwealth remains free under Guardado II, supra at 12, to retry the defendant on any of the charges.
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Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 10 P.M. on September 13, 2017, Boston police officers on patrol observed a group of about eleven people gathered at Unity Park after hours; some of the people appeared to be drinking. When Officer Jean Jean-Louis approached the group to speak with them, he saw open bottles of beer and hard liquor on the ground and a gun on a dirt path in close proximity to the group. Officer Jean-Louis ordered everyone to the ground and called for assistance.
One of the responding officers, who arrived at the scene within minutes, pat frisked the defendant, removed a semiautomatic pistol from the right interior pocket of his jacket, and handcuffed him. Although it was not evident from looking at the pistol whether it was loaded, a detective later recovered five rounds of ammunition from the magazine and another round from the chamber. The slide of the pistol had been “rack[ed],” which “means somebody manually pulled the slide back” to release a round from the magazine into the chamber. Officer Jean-Louis testified that, based on his training and experience, a round in the chamber signifies that “the firearm is hot and ․ ready for use.” Police also recovered the firearm that Officer Jean-Louis had seen on the dirt path and a third firearm from a Styrofoam box on the ground.
Discussion. Carrying a loaded firearm without a license requires proof that the defendant knew that the firearm was loaded. See Commonwealth v. Silvelo, 486 Mass. 13, 17 (2020). Likewise, to convict the defendant of possessing ammunition without an FID card, the Commonwealth had to prove that the defendant knowingly possessed the ammunition found in the firearm. See Commonwealth v. Johnson, 461 Mass. 44, 53 (2011). In assessing the defendants argument that the Commonwealth failed to prove these elements, we review the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact” could have found the elements beyond a reasonable doubt. Commonwealth v. Santos, 95 Mass. App. Ct. 791, 798 (2019), quoting Latimore, 378 Mass. at 677. Inferences supporting a conviction “need not be necessary or inescapable” but “need only be reasonable and possible.” Santos, supra, quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
The circumstantial evidence in this case permitted the jury to infer that the defendant knew there was ammunition in the firearm. See Commonwealth v. Ashford, 486 Mass. 450, 454 (2020) (“Where there is no direct evidence that a defendant knew a gun was loaded, a jury rationally may infer that fact from circumstantial evidence”). The firearm was found in the defendants jacket pocket, giving rise to a “commonsense inference” that he “would check to see if the firearm was loaded” before putting it there. Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200 (2018). That inference is strengthened by the evidence that the firearm was easily accessible to the defendant and ready to use with a round in the chamber. See Commonwealth v. Ralph R., 100 Mass. App. Ct. 150, 164 (2021), S.C. 490 Mass. 770 (2022). The jury also could have found that the defendant was familiar with firearms given his presence in a group of people from whom two other firearms were recovered. See Resende, supra at 200-201 (familiarity with firearms supported inference defendant knew firearm was loaded).
Contrary to the defendants argument, the evidence in this case is stronger than in Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 750 (2019), where the defendant was found with a loaded firearm tied inside a sock tucked into his waistband. There, we concluded that the location of the firearm in the defendants waistband was not enough, “standing alone,” to prove he knew it was loaded. Id. at 755. Unlike in Grayson, the firearm here was easily accessible and ready to use, and the defendant was present at a scene from which multiple firearms were recovered. These facts taken together were sufficient for a rational jury to conclude that the defendant knew that the firearm was loaded. See Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 774 (2020).
Conclusion. The judgments of conviction are vacated, and the verdicts are set aside. The Commonwealth may retry the defendant on any of the charges. See Guardado II, 493 Mass. at 12.
So ordered.
FOOTNOTES
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. We agree with the defendants additional contention (and the Commonwealths concession) that his conviction of possession of ammunition without an FID card is duplicative of his conviction of carrying a loaded firearm without a license. See Commonwealth v. Johnson, 461 Mass. 44, 54 (2011). Because we are vacating all of the convictions, however, no further relief is necessary.