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Commonwealth v. Cabrera

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 20, 2012
11-P-648 (Mass. Apr. 20, 2012)

Opinion

11-P-648

04-20-2012

COMMONWEALTH v. ENRIQUE CABRERA.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury in the Boston Municipal Court Department convicted the defendant of carrying a firearm without a license in violation of G. L. c. 269, § 10(a); carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n); and possession of ammunition without a firearm identification (FID) card in violation of G. L. c. 269, § 10(h).

To the extent that the defendant argues generally that the statutes at issue violate the right to bear arms protected by the Second Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment to the United States Constitution, he is incorrect. In two recent cases, Commonwealth v. Powell, 459 Mass. 572, 589-590 (2011), and Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011), the Supreme Judicial Court held that where, as here, a defendant has not asserted or made any showing that he applied for (and was denied) an FID card or a license, he lacks standing to challenge these statutes.

See District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008) (articulating scope of Second Amendment right to keep and bear arms); McDonald v. Chicago, 130 S. Ct. 3020, 3050 (2010) (Second Amendment right to keep and bear arms is incorporated against States).

As to the defendant's specific claim that the Commonwealth presented insufficient evidence to establish that he did not have a firearm license, it suffices to note that the absence of a license is not an element of the offense. '[T]he Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7, to come forward with such evidence.' Powell, supra at 582 (footnote omitted). In any event, in this case, there was evidence that the defendant lacked a license. A police officer testified that a silver-colored firearm loaded with five rounds of ammunition was found in one of the back pockets of the defendant's jeans during a patfrisk. An additional ten rounds of ammunition were found in the defendant's other back pocket. When the defendant was asked to produce a license to carry the firearm, he responded that he did not have one. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), this evidence is sufficient to support the defendant's convictions of carrying a firearm without a license, and carrying a loaded firearm without a license.

The defendant does not appear to challenge the sufficiency of the evidence with regard to his conviction of possession of ammunition without an FID card. Nonetheless, we note that the evidence amply supports this conviction as well.

Finally, we reject the defendant's argument that the judge's instructions to the jury regarding the elements of the offenses, including the absence of a firearm license, improperly shifted to the defendant the burden of proof. This precise argument was addressed and rejected in Loadholt, supra at 727, in which the Supreme Judicial Court stated, 'Nothing in the McDonald and Heller decisions has altered or abrogated the state of the law concerning the statutory presumption set forth in G. L. c. 278, § 7.' See Powell, supra.

That statute reads, 'A defendant in a criminal prosecution, relying for his justification upon a license . . . shall prove the same; and, and until so proved, the presumption shall be that he is not so authorized.' G. L. c. 278, § 7.
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Judgments affirmed.

By the Court (Vuono, Grainger & Carhart, JJ.),


Summaries of

Commonwealth v. Cabrera

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 20, 2012
11-P-648 (Mass. Apr. 20, 2012)
Case details for

Commonwealth v. Cabrera

Case Details

Full title:COMMONWEALTH v. ENRIQUE CABRERA.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 20, 2012

Citations

11-P-648 (Mass. Apr. 20, 2012)