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15-P-1731 Appeals Court

COMMONWEALTH vs. BYUNG-JIN KANG.

No. 15-P-1731.

Middlesex. November 7, 2016. - March 16, 2017.

Present: Cypher, Massing, & Sacks, JJ.

Firearms. Evidence, Firearm. Practice, Criminal, Instructions 

to jury.

Complaints received and sworn to in the Newton Division of 

the District Court Department on February 15, 2013, and June 9, 

2014.

The cases were tried before Dyanne J. Klein, J. 

Robert L. Sheketoff for the defendant.

Susan Leigh Harris, Assistant District Attorney, for the 

Commonwealth.

CYPHER, J. The defendant, Byung-jin Kang, was convicted of 

carrying a loaded firearm without a license in violation of

G. L. c. 269, § 10(n), and carrying a firearm without a license 

in violation of G. L. c. 269, § 10(a). On appeal, the defendant 

claims that he was improperly denied the opportunity to present 

the affirmative defense of the "antique" firearm exemption from 
2

licensure requirements, arguing that (1) evidence related to his 

defense was excluded; and (2) the judge improperly denied his 

request for a jury instruction on the antique firearm exemption. 

We affirm.

Facts.

1 The incident in question arises from a roadside 

confrontation between the defendant and another driver.2 During 

this confrontation, the second driver seized a firearm from the 

defendant and contacted police after the defendant left the 

scene in his vehicle. Police recovered this firearm, a small 

silver revolver, from the pavement near the other driver, and 

located the defendant a short distance from the scene. Officers 

discovered the firearm to be loaded, and later ballistic testing 

revealed it was capable of firing.

At trial, the defendant did not contest possession. He

testified that the firearm was his, and that he was aware that 

it was loaded. The defendant claimed, however, that the 

Commonwealth had failed to meet its burden to prove operability, 

arguing that the chain of custody evidence was insufficient, as 

were the qualifications of the police officer conducting the 

test-firing.

 

1 The jury could have found the following facts at trial. 

2 The other driver testified at the defendant's trial under 

an agreement with the Commonwealth not to prosecute him. The 

defendant was acquitted of one count of assault by means of a 

dangerous weapon related to this dispute.
3

Discussion. 1. Exclusion of antique firearm evidence. 

Prior to trial, the defendant indicated his intent to rely on 

the defense of exemption from the firearm licensure requirements 

for an antique firearm manufactured prior to 1900.3 See 

Commonwealth v. Jefferson, 461 Mass. 821 (2012). In support of 

his defense, the defendant wanted to testify that he had 

purchased the firearm from "the online [Internet] store, 

antiqueguns.com," from "a section of the store entitled Pre-1898 

manufactured firearms." He sought also to testify that he was 

interested in and had researched antique firearm ownership, and

that he "specifically looked for" an antique firearm. He sought 

to testify that he believed that the firearm he had purchased 

was in fact an antique. 

The trial judge indicated that she would allow the 

defendant to testify about where he purchased the firearm, but 

not that it was specifically from the pre-1898 section of the 

Web site. She precluded him from testifying as to his own 

belief in the antiquity of the firearm.

At trial, the defendant testified that he had taken a 

firearms safety course and subsequently learned that in the city 

in which he resided, it was "almost impossible to gain a 

 

3 See G. L. c. 140, § 121, as appearing in St. 1999, c. 1, 

§ 1, providing that firearm licensing requirements "shall not 

apply to . . . any firearm, rifle or shotgun manufactured in or 

prior to the year 1899."
4

[firearms] license." He testified that he investigated other 

methods of legally owning a firearm, and eventually purchased a 

weapon on the antiqueguns.com Web site. He was precluded from 

explaining why he wanted to purchase the specific weapon at 

issue. On redirect, the defendant was permitted to testify that 

the Web site was arranged into categories "sectioned off by 

years," and that he purchased his firearm from the section of 

the Web site indicating that it contained firearms manufactured 

prior to 1898.

The only portion of the defendant's proffered testimony 

that the judge ultimately excluded was the defendant's belief 

that his firearm was an antique, and that he had purchased the 

firearm based on that belief. This testimony was properly 

excluded. The mens rea required for conviction pursuant to 

G. L. c. 269, § 10(a), is simply the defendant's knowledge that 

he was carrying a firearm.4 See Commonwealth v. Jackson, 369 

Mass. 904, 916 (1976). Neither § 10 nor G. L. c. 140, § 121,

provides for the affirmative defense of a defendant's honest but 

mistaken belief that he is exempt from firearms licensure 

requirements. The defendant has provided no authority to the 

contrary. The defendant's personal belief in the antiquity of 

the firearm was therefore irrelevant, and was properly excluded.

 

4 Because § 10(n) differs only from § 10(a) in that the 

firearm must be loaded, the same mens rea is required.
5

2. Failure to instruct on antique firearm exemption. At 

the close of evidence, the defendant requested that the jury be 

instructed on the antique firearm exemption from licensure 

requirements. In support of his request, he relied on his

testimony as described supra, as well as the appearance of the 

firearm itself.5 The judge denied the request, finding that the 

defendant had failed to produce sufficient evidence to properly 

raise the defense. The defendant challenges the denial of his 

request for the instruction.

To properly raise a defense of antique firearm, a defendant 

"bears the burden of producing evidence of the affirmative 

defense that the firearm was manufactured before 1900." 

Jefferson, 461 Mass. at 834.

6 Whether a defense has been 

 

5 Defense counsel characterized the firearm as "obviously of 

a significant age, very obviously not a modern gun." We have 

viewed the firearm and conclude that its appearance does not 

materially assist in our analysis. 

6 Despite the specific guidance of Jefferson, the defendant, 

relying on Commonwealth v. Humphries, 465 Mass. 762 (2013), 

argues that he should merely bear the burden of notice of the 

affirmative defense rather than the burden of production, 

because whether the firearm was an antique was not "peculiarly

within the knowledge of the defendant." Id. at 770 (citation 

omitted). We do not view Humphries to have overruled Jefferson

on this issue, nor do we perceive the facts of Humphries to be 

meaningfully similar to those in the case at bar. In Humphries, 

the court found that a defendant need not bear the burden of 

production where he alleges the defense of licensure as to a 

firearm possessed by a coventurer third party. See ibid. Here, 

no third party was involved, and the defendant purchased the 

firearm himself from an online store of his own choosing after 

learning that he would likely not be able to obtain a firearms 
6

properly raised is a legal issue for the court to determine. 

See Commonwealth v. Kingston, 46 Mass. App. Ct. 444, 449-450

(1999). Generally, "if any view of the evidence would provide 

support for an affirmative defense," a defendant is entitled to 

a jury instruction on that defense. Commonwealth v. Monico, 373 

Mass. 298, 299 (1977). In assessing the evidence, "all 

reasonable inferences should be resolved in favor of the 

defendant, and, no matter how incredible his testimony, that 

testimony must be treated as true." Commonwealth v. Pike, 428 

Mass. 393, 395 (1998). "The precise quantum of proof necessary 

to discharge the defendant's burden of production and thereby to 

impose upon the Commonwealth the burden of proof as to an 

affirmative defense has not been defined by our courts." 

Kingston, supra at 450 n.10. Nonetheless, a defendant

ultimately "is not entitled to a charge on a hypothesis which is 

not supported by the evidence." Monico, supra at 299. 

The defendant's submission was insufficient to meet his 

burden of production to raise the affirmative defense that the 

firearm was an antique, and thereby exempt from licensure 

requirements. At trial, the defendant offered evidence

consisting merely of the hearsay labeling of the Web site from 

which he purchased the firearm, combined with the hearsay title 

 

license. Knowledge of the provenance of the firearm, such as it 

was, was thus "peculiarly within the knowledge of the 

defendant." Ibid. (citation omitted).
7

of the section in which the firearm was listed. The defendant 

proffered no evidence regarding the reliability of the Web site

or its labeling, any relevant features of the firearm itself, or 

any materials or certificates accompanying the weapon. 

There is no requirement that expert testimony be presented 

in support of an affirmative defense of antique firearm

exemption. Indeed, we do not prescribe any particular method of 

meeting a defendant's burden on this issue, as the circumstances 

of each case will no doubt present distinct factual issues. 

Bare uncorroborated hearsay unaccompanied by any indicia of 

reliability will not suffice to adequately raise the defense, 

and thereby will not entitle a defendant to a jury instruction. 

Accordingly, the defendant's request was properly denied.

Judgments affirmed.