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25-P-933 Appeals Court
COMMONWEALTH vs. ORETTE NICHOLAS JACKSON.
No. 25-P-933.
Hampden. July 13, 2026. - October 16, 2026.
Present: Ditkoff, Hand, & Grant, JJ.
Firearms. Motor Vehicle, Firearms, Operating under the
influence. Intoxication. Statute, Construction.
Complaint received and sworn to in the Springfield Division of the District Court Department on March 15, 2021.
The case was tried before Robert S. Murphy, Jr., J.
Charles P. McGinty for the defendant.
Travis H. Lynch, Assistant District Attorney (Hilary A. Sullivan, Assistant District Attorney, also present) for the Commonwealth.
HAND, J. This case presents the question whether G. L.
c. 269, § 10H (§ 10H) -- which criminalizes conduct including,
as pertinent here, the carrying of a loaded firearm while the
2
person is under the influence of liquor1 -- requires that the
Commonwealth prove as an essential element that the defendant
knew that the firearm was loaded. We conclude that it does.
Because the evidence at trial was insufficient to prove the
defendant's knowledge beyond a reasonable doubt, we reverse the
defendant's conviction under § 10H. We affirm the defendant's
conviction of operating a motor vehicle while under the
influence of intoxicating liquor (OUI), G. L. c. 90,
§ 24 (1) (a) (1), as amended through St. 2018, c. 69, §§ 32-33.
1. Facts. At approximately 4 A.M. on a March morning in
2021, a State police trooper saw a white minivan traveling ahead
of him on Interstate 291 in the city of Springfield; the
minivan's taillights were not illuminated. As the trooper
watched, the minivan drifted back and forth across the right
lane, crossing repeatedly into the left lane and the breakdown
lane. The trooper stopped the minivan and spoke to the
defendant, who was the driver. The trooper could smell a strong
odor of alcohol coming from the defendant's breath; he noted
that the defendant's speech was slurred; and he saw that the
defendant's eyes were glazed over, glassy, and bloodshot. When
1 Section 10H was amended in 2024 to additionally
criminalize carrying a loaded firearm "while with a percentage, by weight, of alcohol in the[] blood of eight one-hundredths or greater." St. 2024, c. 135, § 133. As we note infra, that amendment does not affect our analysis.
3
the trooper asked the defendant for his driver's license and
registration, the defendant fumbled through the glove box,
dropping items on his lap and on the floor. He eventually
provided his license and the minivan's registration to the
trooper.2 Although the defendant initially denied having had
anything to drink, he later told the trooper that he had
consumed two beers while visiting a friend in Springfield.
The trooper looked up the defendant's information in a
database available in his cruiser, through which he could "run
licenses and registration." In doing so, the trooper learned
that the defendant had a valid Massachusetts license to carry
firearms. The trooper asked the defendant if he was carrying a
firearm. The defendant answered that he had a firearm in a
holster on his hip and allowed the trooper to take it. The
firearm had a full magazine inserted into its "mag well." The
trooper collected a second magazine from the minivan's glove
box.3
There was no evidence at trial identifying the owner of
2
the minivan.
The firearm, magazines, and ammunition were admitted in
3
evidence. The parties stipulated that the weapon was a .45 caliber Smith and Wesson semiautomatic pistol of a certain make and serial number; that it was a "firearm" as defined in G. L. c. 140, § 121, as amended through St. 2018, c. 123, §§ 1-7; and that the cartridges recovered met the statutory definition of ammunition, see id. It would not have been possible by simple visual inspection of the exterior of the firearm to determine whether the firearm was loaded.
4
The trooper directed the defendant to walk to the front of
the minivan. The defendant seemed "off balance" when he walked
and had to raise his arms for balance. He was unsuccessful in
completing the field sobriety tests the trooper administered
because he could not remember or follow the trooper's
instructions and because he could not maintain his balance. The
trooper formed the opinion that the defendant was intoxicated
and arrested him for a violation of § 10H and for OUI.4 At times
during the booking process, the defendant appeared to be asleep.
2. Procedural background. At the beginning of the
defendant's jury trial in the District Court, the judge
instructed the jury that under § 10H, the elements of carrying a
loaded firearm while intoxicated were "first, that the defendant
carried a weapon on his person . . . that met the legal
definition of a firearm; second, that the firearm was loaded
with ammunition; and third, that the defendant was under the
influence of intoxicating liquor."5 At the close of the
Commonwealth's case, however, the judge sua sponte raised the
question whether § 10H also required the Commonwealth to prove
4 The trooper also cited the defendant for two civil motor vehicle violations.
5 These instructions are consistent with Instruction 7.670 of the Criminal Model Jury Instructions for Use in the District Court (2021).
5
that the defendant knew that the firearm was loaded. After
hearing argument from the prosecutor and defense counsel, the
judge ruled that the Commonwealth was required to prove, as an
element of § 10H, that the defendant knew that the firearm was
loaded. In doing so, the judge cited to our decision in
Commonwealth v. Grayson, 96 Mass. App. Ct. 748 (2019), and noted
the similarities between the language of the statute at issue in
that case (G. L. c. 269, § 10 [n]) and that of § 10H.6 The
Commonwealth objected to the instruction on the knowledge
element.
The judge instructed the jury that they were required to
reach verdicts on "two charges"; that "[e]ach charge . . . is an
accusation of a different crime, although they have overlapping
elements"; and that they "must consider each charge separately
and return a separate verdict . . . for each charge." The judge
first instructed the jury on the elements of OUI, tracking the
language of the model jury instructions, including a detailed
explanation of what it means to be "under the influence of
alcohol" for the purposes of that charge. See Instruction 5.310
6 The judge initially expressed concern about the lack of evidence of the defendant's knowledge. The defendant did not move for a required finding of not guilty but did argue that the evidence of knowledge was insufficient. Ultimately, the judge concluded that a required finding of not guilty on the charge under § 10H was not warranted.
6
of the Criminal Model Jury Instructions for Use in the District
Court (2019). Immediately afterward, the judge instructed the
jury on the elements of § 10H that he had outlined at the
beginning of the trial, plus the requirement that the defendant
knew that the firearm he was carrying was loaded. The judge
also reinstructed the jury on the meaning of the phrase, "under
the influence of alcohol," consistent with the model instruction
for § 10H. See Instruction 7.670 of the Criminal Model Jury
Instructions for Use in the District Court (2021).7 The jury
convicted the defendant of both charges, and this appeal
followed.
3. Discussion. a. Elements of § 10H include the
defendant's knowledge that the firearm was loaded. As relevant
here, § 10H provides that
"[w]hoever, having in effect a license to carry firearms
. . . , carries on his person, or has under his control in
a vehicle, a loaded firearm, . . . while under the
influence of intoxicating liquor . . . shall be punished by
a fine of not more than $5,000 or by imprisonment in the
house of correction for not more than two and one-half
years, or by both such fine and imprisonment."
7 Consistent with the model instruction, the trial judge did not instruct that the defendant's licensure was an element of the crime. See G. L. c. 269, § 10H (applies to person "having in effect a license to carry firearms issued under [G. L. c. 140, § 131 or 131F]"). As the question has not been briefed before us, we do not reach the issue whether licensure is an affirmative element or this statutory language merely expresses the Legislature's intent to prevent a defendant from being convicted of violating both G. L. c. 269, § 10 (n), and G. L. c. 269, § 10H, for the same act.
7
Section 10H does not explicitly require that the licensee know
that the firearm was loaded, and whether that section includes
an implied requirement to that effect appears to be a question
of first impression. We approach the question mindful that
"[o]ur primary duty in interpreting a statute is 'to effectuate
the intent of the Legislature in enacting it.'" Commonwealth v.
Brown, 479 Mass. 600, 606 (2018), quoting Sheehan v. Weaver, 467
Mass. 734, 737 (2014). Our review is de novo. See Commonwealth
v. James, 493 Mass. 828, 834 (2024).
"Ordinarily, where the language of a statute is plain and
unambiguous, it is conclusive as to legislative intent." Brown,
479 Mass. at 606, quoting Thurdin v. SEI Boston, LLC, 452 Mass.
436, 444 (2008). Nonetheless, "[w]e generally presume that
criminal liability will not be imposed without some level of
mens rea." Commonwealth v. Kelly, 484 Mass. 53, 58 (2020).
"Given this, the absence of explicit language involving mens rea
in a statute is not dispositive of a legislative intent to
create a strict liability offense." Id. Rather, "we 'must
interpret the statute so as to render the legislation effective,
consonant with sound reason and common sense.'" Id. at 57,
quoting Commonwealth v. Morgan, 476 Mass. 768, 777 (2017).
In reaching our decision, we are guided by the Supreme
Judicial Court's opinion in Commonwealth v. Jackson, 369 Mass.
8
904 (1976). In that case, the defendant was convicted of
carrying a pistol without a license in violation of G. L.
c. 269, § 10 (a) (§ 10 [a]), which at the time did not
explicitly require proof of the defendant's knowledge that the
defendant was carrying a firearm.8 See Jackson, supra at 905 &
n.1. The defendant argued that § 10 (a) was a strict liability
statute that "constitut[ed] a violation of the due process
clause of the Fourteenth Amendment [to the United States
Constitution] and parallel provisions of our State Constitution,
arts. 1, 10 and 12 of the [Massachusetts] Declaration of
Rights," for reasons including the harshness of the penalties
the statute imposed. Jackson, supra at 916. The Supreme
Judicial Court cautioned that "a strict liability offense does
not necessarily constitute a denial of due process" but --"mindful of . . . the need to avoid possible constitutional
At that time, § 10 (a), as amended through St. 1975,
8
c. 113, § 2, provided in relevant part as follows:
"(a) Whoever, except as provided by law, carries on his
person, or carries on his person or under his control in a
vehicle, a firearm, loaded or unloaded, . . . without
[being licensed to carry firearms] . . . shall be punished
by imprisonment in the state prison for not less than two
and one-half nor more than five years, or for not less than
one year nor more than two and one-half years in a jail or
house of correction. The sentence imposed upon such person
shall not be reduced to less than one year . . . ."
See Jackson, 369 Mass. at 905 & n.1.
9
doubts" -- went on to "interpret § 10 (a) as requiring, as a
necessary element of the offense, proof that the accused knew
that he was carrying a firearm." Jackson, supra. In the
court's words, "We would not feel justified in ruling that
knowledge is not necessary where the penalty is so severe."
Id., quoting Commonwealth v. Boone, 356 Mass. 85, 87 (1969).
The Legislature subsequently amended § 10 (a) to include an
explicit requirement that violators "knowingly" possess a
firearm. St. 1990, c. 511, § 2. See G. L. c. 269, § 10 (a)
("Whoever, except as provided or exempted by statute, knowingly
has in his possession; or knowingly has under his control in a
vehicle; a firearm, loaded or unloaded . . . shall be punished
. . . "). Since then, the Supreme Judicial Court has ruled that
another provision of G. L. c. 269, § 10, implicitly requires
knowledge of possession, despite the absence of an explicit mens
rea requirement. See Commonwealth v. O'Connell, 432 Mass. 657,
663 (2000) (inferring G. L. c. 269, § 10 [c], contains
requirement that defendant knowingly possess weapon, but noting
that Commonwealth was not required to prove defendant's
knowledge that "physical characteristics of the firearm he
possessed" met statutory definition of prohibited "sawed-off
shotgun"). These decisions are consistent with other rulings
similarly inferring knowledge requirements. See, e.g., Boone,
356 Mass. at 87 (reading knowledge requirement into precursor to
10
G. L. c. 269, § 10 [a], based on severity of potential
punishment); Commonwealth v. Buckley, 354 Mass. 508, 512 (1968)
(reading knowledge requirement into statute criminalizing being
present where narcotic drug was illegally kept because "any
other interpretation would raise serious constitutional doubts"
in light of statute's severe penalty of up to five years in
prison). Cf. Brown, 479 Mass. at 606-608 (reading knowledge
requirement into G. L. c. 269, § 10 [n], which criminalizes
unlawful possession of loaded firearm, whereas G. L. c. 269,
§ 10 [h], unlawful possession of ammunition, is lesser included
offense of § 10 [n]).
The Commonwealth argues that it was not required to prove
that the defendant knew the firearm in his possession was loaded
because § 10H's enactment reflects the Legislature's intention
to create a "strict liability, public welfare offense." Kelly,
484 Mass. at 58. See id., quoting Staples v. United States, 511
U.S. 600, 607 (1994) (defining public welfare statutes as laws
that "criminalize conduct that has not necessarily caused harm
but is 'potentially harmful or injurious'"; collecting cases).
Public welfare statutes are exceptions to the "general[]
presum[ption] that criminal liability will not be imposed
without some level of mens rea." Kelly, supra. Considering
factors including the nature of the conduct targeted by § 10H,
see Kelly, supra at 58-59, "the ability of a defendant to take
11
actions to avoid violating the statute," id. at 60, and the
severity of the potential punishments, see id. at 59-60, we are
not persuaded that the Legislature intended § 10H to be a public
welfare statute.
We acknowledge that some of the factors set forth in Kelly,
484 Mass. at 58-61,9 could here suggest a legislative intent
consistent with the creation of a public welfare statute. It is
true that § 10H prohibits conduct that creates a risk of harm
but is not necessarily harmful. See Kelly, supra at 59 (statute
prohibiting discharge of firearm within 500 feet of dwelling "is
consistent with a public welfare offense because it punishes
risky behavior, not behavior that necessarily has caused a
harm"). It is also true that, generally, a firearms licensee
could avoid violating § 10H by simply opting not to carry any
firearm when the licensee is, or might become, intoxicated by
alcohol. See Kelly, supra at 61 (risk of discharging firearm
within 500 feet of dwelling is easily avoided by owner's
deciding not to discharge weapon, and accidental discharge is
easily prevented by use of mechanical locks or other safety
devices).
9 In Kelly, 484 Mass. at 62, the Supreme Judicial Court held that a statute prohibiting discharge of a firearm within 500 feet of a dwelling was a public welfare offense.
12
Our consideration of the penalty imposed for a violation of
§ 10H, however, leads us to a conclusion different than that in
Kelly. The maximum potential penalties for violating § 10H are
imprisonment for a term of two and one-half years and a fine of
$5,000. G. L. c. 269, § 10H. The severity of these sanctions
distinguishes them from "the category of 'fines or short jail
sentences' that are characteristic of public welfare offenses."
Kelly, 484 Mass. at 60, quoting Staples, 511 U.S. at 616.
Although a severe sanction is "not dispositive" of legislative
intent, Massachusetts courts have consistently "interpreted
statutes that contain no specific mens rea requirement, but that
provide a harsh penalty, to contain an implicit requirement of a
particular mens rea." Kelly, supra at 59. See id., and cases
cited. See also Commonwealth v. Collier, 427 Mass. 385, 388
(1998) (reading mens rea requirement into statute criminalizing
violation of protective order, based in part on "severe penalty
. . . of up to two and one-half years of imprisonment");
Jackson, 369 Mass. at 907, 916 (similar, five-year maximum
sentence and one-year mandatory minimum for carrying firearm
without license); Boone, 356 Mass. at 87 (same); Buckley, 354
Mass. at 511-512 (similar, five-year maximum sentence for being
present where narcotic drug was held). Contrast Kelly, supra at
60 (maximum penalties of three months' incarceration and fine of
one hundred dollars were "squarely within" range indicative of
13
intent to create public welfare statute); Commonwealth v. Tart,
408 Mass. 249, 265 (1990) (maximum penalties of thirty days'
imprisonment and fine of fifty dollars were "relatively small"
and did not justify inference of mens rea requirement for
regulatory violation). We are not persuaded that the
Legislature intended to impose a two and one-half year term of
incarceration, plus a substantial fine, without requiring proof
of the defendant's knowledge that he was committing the act
proscribed by the statute.
The Commonwealth claims that some importation of mens
rea -- that the intoxication must be voluntary -- assuages "due
process-based concerns about imposing strict liability." This
is not the case, as illustrated by the following hypothetical.
Imagine that a licensee goes out to dinner with a friend who,
unbeknownst to the licensee, is carrying a loaded firearm in her
bag. By the conclusion of the meal, the licensee has consumed
enough alcohol to be under the influence within the meaning of
the statute. As the licensee and the friend prepare to leave,
the friend asks the licensee to take her bag while the friend
goes to the restroom. If the licensee takes possession of the
bag containing the firearm, the licensee would be subject to
prosecution under the Commonwealth's theory of § 10H, despite
being unaware of the loaded firearm in the bag. The fact that
the licensee is voluntarily intoxicated does not, in this
14
instance, bear on her knowledge that she is carrying the firearm
or that the firearm is loaded. To that extent, § 10H, as the
Commonwealth envisions it, would impose strict liability for
possession of a loaded firearm, even if the statute provides for
some "mens rea" as to the element of the defendant's
intoxication.
Moreover, the Commonwealth can provide no reason for
inferring the requirement of voluntary intoxication but not
knowledge that the firearm is loaded. Nothing in the statutory
language explicitly requires that the intoxication be voluntary.
See G. L. c. 265, § 10H. We have stated that, "where proof of
intoxication is an express element of any offense charged, the
Commonwealth bears the burden of proving that the defendant's
intoxication was voluntary." Commonwealth v. Darch, 54 Mass.
App. Ct. 713, 716 (2002). We did this, however, as a matter of
inferring legislative intent, concluding that the Legislature
did not intend to make "it a crime . . . to drive after having
unknowingly been slipped a[n intoxicating] drug." Id., quoting
Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982).
Similar inferences drive our conclusion here. See Jackson, 369
Mass. at 916.
We do not share the Commonwealth's concern that our
interpretation necessarily leads to the absurd result that a
defendant licensee charged with carrying a loaded firearm while
15
under the influence could defend against that charge by arguing
that the defendant was too intoxicated to have knowingly
committed the crime. This is because the Commonwealth may prove
a violation of § 10H at any time that a licensee is both
knowingly carrying a loaded weapon and "under the influence" to
any degree. In the absence of evidence that the defendant
became instantaneously intoxicated to the point of legal
incapacity -- a scenario we think unlikely -- the Commonwealth
may rely on circumstantial evidence to prove that the defendant
carried the loaded firearm at a point when the defendant was
"under the influence" but not yet incapacitated. Cf.
Commonwealth v. Sama, 411 Mass. 293, 298 (1991) (in prosecution
for murder under theory of third prong malice, jury must
consider "the nature and extent of the defendant's knowledge of
the circumstances at the time he [or she] acted"). And, as we
have discussed, we do not think the Legislature intended to
punish one who has unknowingly come to possess a loaded firearm
after becoming intoxicated.
Because the conduct at issue in this case was the
defendant's carrying a loaded firearm while under the influence
of intoxicating liquor, we explain our decision using those
terms. We think the reasoning and our holding equally
applicable to cases involving allegations that the defendant
violated § 10H by any of the other ways set forth in that
16
section, including by carrying a loaded firearm or having it
"under [one's] control in a vehicle . . . while with a
percentage, by weight, of alcohol in the[] blood of eight onehundredths or greater, or while under the influence of . . .
marijuana, narcotic drugs, depressants or stimulant substances"
as defined in G. L. c. 94C, § 1, "or from smelling or inhaling
the fumes of any substance having the property of releasing
toxic vapors as defined in [G. L. c. 270, § 18]." G. L. c. 269,
§ 10H.
b. Sufficiency of the evidence of the defendant's
knowledge that the firearm was loaded.10 Considering the
evidence under the familiar Latimore standard, we agree with the
defendant that it was insufficient to prove that he knew that
the firearm he carried was loaded. See Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979) (appellate court conducting
sufficiency review asks "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
10Because "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice," Commonwealth v. Qasim Q., 491 Mass. 650, 659 n.14 (2023), quoting Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001), we consider the sufficiency question despite the absence of a formal motion for a required finding of not guilty. The question whether there was sufficient evidence that the defendant knew the firearm was loaded was discussed prior to the case being submitted to the jury.
17
beyond a reasonable doubt" [citation omitted]). The
Commonwealth need not introduce direct evidence of knowledge
because "[p]roof of the essential elements of the crime may be
based on reasonable inferences drawn from the evidence,"
provided the inferences are "reasonable and possible."
Commonwealth v. Wurtzberger, 496 Mass. 203, 205 (2025), quoting
Commonwealth v. Kapaia, 490 Mass. 787, 791 (2022). The
Commonwealth's evidence may not, however, be so limited that it
can prove the defendant's guilt only by "piling inference upon
inference." Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981).
In the same vein, a reviewing court cannot affirm a conviction
based on its determination "that there was some record evidence,
however slight, to support each essential element of the
offense." Commonwealth v. Smith, 496 Mass. 304, 316 (2025),
quoting Commonwealth v. Gonzalez, 475 Mass. 396, 407 (2016).
We compare the Commonwealth's showing in this case to the
evidence presented in Commonwealth v. Resende, 94 Mass. App. Ct.
194 (2018), a case cited by both parties. In Resende, as in
this case, there was no direct evidence that the defendant knew
that the firearm he was carrying in his waistband was loaded.
See id. at 200. However, significant features differ: there,
the defendant, Erickson Resende, admitted to "some familiarity
with firearms," id. at 201; immediately before being found with
the firearm, Resende had been threatening someone, including
18
mentioning a gun, see id. at 196, 201; and a police officer had
to forcibly disarm Resende, see id. at 196. Although we
characterized the question as "close," we concluded that this
evidence was sufficient to prove Resende's knowledge that the
firearm he carried was loaded. Id. at 200.
The evidence in this case was less substantial than that in
Resende. Although the jury could have drawn some inference of
knowledge from (1) the defendant's carrying the firearm on his
hip, see Grayson, 96 Mass. App. Ct. at 755 ("To be sure, common
sense dictates that a person check whether a firearm is loaded
before further handling or carrying it . . . in a holster
. . ."),11 and (2) the presence of an additional loaded magazine
in the minivan's glove box, cf. Commonwealth v. Paul, 96 Mass.
App. Ct. 263, 266-267 (2019) (evidence of knowledge that firearm
was loaded was sufficient where, among other things, defendant
was carrying firearm in backpack on his person and kept fully
11Where the Commonwealth did not introduce evidence about any gun safety training or about the requirements for obtaining a license to carry firearms, we are not persuaded that the evidence that the defendant was licensed could reasonably have bolstered these inferences about the defendant's knowledge. Cf. Grayson, 96 Mass. App. Ct. at 755 ("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"); Resende, 94 Mass. App. Ct. at 200-201 (defendant's admission to "some familiarity with firearms" "strengthened" inference of knowledge drawn from evidence that defendant carried loaded firearm in his waistband).
19
loaded magazine in same section of backpack), there was no
evidence comparable to the threats or admitted familiarity with
firearms as in Resende to suggest that the defendant actually
did have that knowledge. We held in Grayson, 96 Mass. App. Ct.
at 753-754, that the mere fact that a firearm was carried in a
waistband was insufficient to prove a defendant's knowledge that
a firearm was loaded. In this case, there is little reason to
think that the presence of ammunition in the closed glove box
provided the defendant with knowledge that the firearm in the
holster on his hip was loaded. We think the evidence in this
case too thin to prove knowledge beyond a reasonable doubt, see
Commonwealth v. Silva, 482 Mass. 275, 289 (2019) ("any inference
constituting an element of an offense must be established beyond
a reasonable doubt"), and as a result, we conclude that the
defendant's conviction under § 10H must be reversed and that
judgment must enter in his favor as to that charge.12
12Given our conclusion, we need not and do not reach the defendant's facial challenge to the constitutionality of § 10H in light of the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). During the pendency of this appeal, the Supreme Court decided United States v. Hemani, 608 U.S. 772, 794-795 (2026), finding unconstitutional a statute that prohibited a habitual marijuana user from possessing a firearm. The Supreme Court noted that it did "not address efforts to ban . . . those presently intoxicated . . . from possessing a firearm," id. at 794; the parties here provided supplemental briefing on that case.
20
c. Validity of the OUI conviction. We are not persuaded
by the defendant's argument that reversing his conviction under
§ 10H requires us also to vacate his OUI conviction. The
evidence supporting the OUI conviction was more than sufficient
-- a point the defendant does not contest -- and the argument in
his brief that the jury might have viewed him with a jaundiced
eye based on evidence that he was carrying a loaded firearm is
entirely speculative and beside the point. The defendant
provides no reason why the full circumstances of the stop would
not have been admissible in any event. We discern no reason to
disturb the jury's guilty verdict on the OUI charge.
4. Conclusion. On count 4 of the complaint charging
carrying a loaded firearm while intoxicated, in violation of
G. L. c. 269, § 10H, the judgment is reversed, the verdict is
set aside, and judgment shall enter for the defendant. On count
3 of the complaint charging operating under the influence of
liquor, in violation of G. L. c. 90, § 24 (1) (a) (1), the
judgment is affirmed.
So ordered.