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Conviction of Possession of a Loaded Firearm Can’t Stand Without Predicate Possession Conviction

A criminal defendant appealed his conviction for possession of a loaded firearm without a license after trial where he was acquitted of the “predicate” offense of unlawful possession of a firearm.  The Massachusetts Appeals Court held that a conviction on these verdicts could not stand because the crime of possession of a loaded firearm is a “sentencing enhancement”, which does not apply without a conviction for the predicate offense on the firearm possession.

In the case of Commonwealth v. Dancy, the defendant was with a group of people attending a festival in Boston’s Dorchester. Someone stopped a Boston Police Officer and told him that a man had a gun, and pointed to the small group of black males that the defendant was with. Police officers followed this group and noticed that the defendant was walking at a fast pace, suddenly slowed down near a vehicle and then hard a noise that be believed was a gun hitting the pavement. The police stopped the group, questioned them, and found a gun under a parked gun.  The defendant was arrested and charged with possession of a firearm without a license; possession of ammunition; and possession of a loaded firearm.

After trial, the defendant was acquitted of all charges, but was convicted of possession of a loaded firearm.  On appeal, he argued that because he was acquitted of the crime of possession of a firearm, he could not then be convicted of the crime of possession of a loaded firearm because the latter crime (possession of a loaded firearm) is a sentencing enhancement that requires a conviction of the predicate offense (possession of a firearm).

On appeal, the Commonwealth argued that the crime of possession of a loaded firearm only requires that the defendant be charged with the predicate offense, and that a conviction is not required.  It argued that the statute could be interpreted in a manner that a conviction was not required. The Massachusetts Appeals Court, however, rejected that argument, explaining that the clear language of the statute as enacted by the Massachusetts Legislature requires a finding that the predicate offense first be violated before the penalty enhancement is enforced.

Therefore, where the defendant here was acquitted of the underlying predicate offense, his conviction for the sentence enhancement penalty could not properly stand.  The appeals court vacated his conviction.

In Massachusetts, there are various other sentencing enhancement schemes, all of which require certain elements or predicates in order to be applicable.  Other sentencing enhancements include being charges as a Habitual Offender, which serves to impose the maximum sentence for the predicate crime charged; or under the Armed Career Criminal statute, which may add up to twenty years to the predicate crime’s sentence.

Massachusetts Gun Crimes Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all gun crimes charges and criminal appeals