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15-P-1139 Appeals Court

COMMONWEALTH vs. DAMONTE DANCY.

No. 15-P-1139.

Suffolk. October 21, 2016. - November 29, 2016.

Present: Cypher, Kinder, & Lemire, JJ.

Firearms.

Complaint received and sworn to in the Dorchester Division 

of the Boston Municipal Court Department on September 5, 2012. 

After transfer to the Central Division of the Boston 

Municipal Court Department, the case was tried before Michael J. 

Coyne, J.

Mehmet Baysan for the defendant.

Priscilla A. Guerrero (Helle Sachse, Assistant District 

Attorney, with her) for the Commonwealth.

LEMIRE, J. Following a jury trial in the Boston Municipal 

Court, the defendant, Damonte Dancy, was convicted of possession 

of a loaded firearm without a license, G. L. c. 269, § 10(n). 

On appeal, the defendant challenges the sufficiency of the 

evidence, the denial of his motion to suppress photographs 
2

seized from his cellular telephone, and certain evidentiary 

rulings at trial. He also claims that his conviction was 

unlawful because he was acquitted of possession of a firearm 

without a license under G. L. c. 269, § 10(a), the predicate 

offense for conviction under G. L. c. 269, § 10(n).

1 Because we 

agree that the conviction was unlawful, we reverse without 

reaching the defendant's other claims of error. 

Background. We summarize the facts the jury could have 

found. On the morning of August 25, 2012, the defendant was 

among a large group of people attending a festival in 

Dorchester. An unknown passerby stopped a Boston police 

officer, stated that "a man had a gun," and pointed to a small 

group of black males, which included the defendant, walking down 

the street away from the parade. Officers then began to follow 

and surveil that group. At one point, when the defendant was 

near a parked vehicle, one of the officers, who was on the 

opposite side of the street, observed the defendant, who was 

walking at a fast pace, "[s]low[] down a little bit" next to the 

vehicle, and heard a noise that, based on his experience, was 

consistent with a gun hitting the pavement. The two other males 

from the group were about ten to fifteen feet away from the 

 

1 The defendant was also charged with and acquitted of 

possession of ammunition without a firearm identification card 

under G. L. c. 269, § 10(h)(1).
3

defendant at that time. After stopping the group to ask 

questions, the police canvassed the immediate area. A loaded 

firearm was recovered from beneath the parked vehicle, and the 

defendant was arrested. 

The defendant was charged with possession of a firearm

without a license, G. L. c. 269, § 10(a), possession of 

ammunition without a firearm identification card, G. L. c. 269, 

§ 10(h)(1), and possession of a loaded firearm without a 

license, G. L. c. 269, § 10(n). He was acquitted of the § 10(a) 

and § 10(h)(1) charges and convicted of the § 10(n) charge. 

Discussion. The defendant contends that because he was 

acquitted of possession of a firearm under § 10(a), he cannot be 

convicted of possession of a loaded firearm under § 10(n), 

because § 10(n) is simply a sentencing enhancement provision

that requires a conviction under either § 10(a) or § 10(c) as a 

predicate.2 The Supreme Judicial court addressed a similar issue 

in Commonwealth v. Loadholt, 456 Mass. 411 (2010), S.C., 460 

Mass. 723 (2011). There, the defendant was convicted under 

G. L. c. 269, § 10(n); however, due to an oversight by the 

Commonwealth, he was never charged with either predicate 

offense, G. L. c. 269, § 10(a) or (c). Id. at 423-424. The 

 

2 The defendant was not charged with G. L. c. 269, § 10(c)

(possession of a machine gun or sawed-off shotgun), and there is 

nothing in the record to show a violation of that statute.
4

Supreme Judicial Court ordered that the defendant's conviction 

under § 10(n) be vacated because "in order properly to convict 

the defendant under § 10(n), he first must be charged pursuant 

to § 10(a) or (c)." Ibid. 

Here, the defendant was charged under G. L. c. 269, 

§ 10(a); however, he was acquitted of that crime. The 

Commonwealth contends that Loadholt stands for the limited 

proposition that a conviction under § 10(n) only requires that 

the defendant be charged with a predicate offense, § 10(a) or 

(c), but that conviction of a predicate offense is not 

necessary. In cases involving statutory construction, we start 

"with the language of the statute itself and 'presume, as we 

must, that the Legislature intended what the words of the 

statute say.'" Commonwealth v. Williamson, 462 Mass. 676, 679 

(2012), quoting from Commonwealth vs. Young, 453 Mass. 707, 713 

(2009). "The statutory language, when clear and unambiguous, 

must be given its ordinary meaning." Bronstein v. Prudential 

Ins. Co. of Am., 390 Mass. 701, 704 (1984).

General Laws c. 269, § 10(n), inserted by St. 2006, c. 48, 

§ 7, states as follows: 

"Whoever violates paragraph (a) or paragraph (c),

[3] by 

means of a loaded firearm, loaded sawed off shotgun or 

loaded machine gun shall be further punished by 

imprisonment in the house of correction for not more than 2 

 

3 "[P]aragraph (a) or paragraph (c)" refers to G. L. c. 269, 

§ 10(a), and G. L. c. 269, § 10(c), respectively.
5

1/2 years, which sentence shall begin from and after the 

expiration of the sentence for the violation of paragraph 

(a) or paragraph (c)."

We interpret the plain language of this section to require a 

finding that § 10(a) or § 10(c) has been violated before the 

penalty enhancement provision in § 10(n) can apply. This 

interpretation is supported by the clear language of the statute 

that provides that "[w]hoever violates paragraph (a) or 

paragraph (c), by means of a loaded firearm . . . shall be 

further punished" and the sentence must begin after the 

"expiration of the sentence for the violation of paragraph (a)"

(emphasis supplied). Further punishment, of course, can only 

occur if there is punishment in the first instance. Absent a 

conviction for violating § 10(a) or § 10(c), there would be no 

punishment to enhance.

It is well established that "mere inconsistency in 

verdicts, one of which is an acquittal, will not render the 

verdict of guilty erroneous even though such inconsistency may 

have indicated the possibility of compromise on the part of the 

jury." Commonwealth v. Charles, 463 Mass. 1008, 1008-1009 

(2012), quoting from Commonwealth v. Gonzalez, 452 Mass. 142, 

150-151 (2008) (that defendant acquitted of possession of 

ammunition under G. L. c. 269, § 10[h][1], did not dictate entry 

of judgment for defendant on possession of loaded firearm under 

§ 10[n], where only ammunition found was inside of loaded 
6

firearm and defendant also was convicted of possession of 

firearm under § 10[a]). But here, there was more than mere 

inconsistency. The defendant was acquitted of the offense that 

was the predicate for liability under the penalty enhancement 

section. In these circumstances, the defendant's conviction 

under G. L. c. 269, § 10(n), cannot stand. 

The judgment is reversed, the verdict is set aside, and 

judgment shall enter for the defendant.

So ordered.