Commonwealth v. Skyzen Encarnacion.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-771

COMMONWEALTH

vs.

SKYZEN ENCARNACION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Skyzen Encarnacion, was charged with second

degree murder, G. L. c. 265, § 1, and illegal possession of a

firearm, G. L. c. 269, § 10 (a). After a jury trial, he was

acquitted of the murder charge and found guilty of the firearm

possession charge. The defendant contends that the

Commonwealth's failure to introduce evidence that he had no

firearm license rendered the trial evidence insufficient.

Following the Supreme Judicial Court's recent decision in

Commonwealth v. Crowder, 495 Mass. 552 (2025), we agree.

The facts are known to the parties. We do not detail them

here because the resolution of this appeal is dictated by its

procedural posture and by a recent decision of the Supreme
Judicial Court. The defendant was tried in late March and early

April 2023, after the United States Supreme Court issued New

York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), and

days before the Supreme Judicial Court issued the first of its

two Guardado opinions. Commonwealth v. Guardado, 491 Mass. 666

(Guardado I), S.C., Commonwealth v. Guardado, 493 Mass. 1 (2023)

(Guardado II). The question posed by this case, and decided in

Crowder, is how developments in firearms law affect cases tried

during this interim period. See Crowder, 495 Mass. 552.

In Guardado I, the court ruled that, after Bruen, the

Commonwealth bore the burden of demonstrating that "the

defendant in fact failed to comply with the licensure

requirements for possessing a firearm." Guardado I, 491 Mass.

at 690. The Supreme Judicial Court then determined in Guardado

II that double jeopardy did not bar retrial in cases tried

before Bruen was issued. Crowder, 495 Mass. at 559, citing

Guardado II, 493 Mass. at 7. In Crowder, the court held that "a

new trial is the proper remedy for defendants who were convicted

under G. L. c. 269, § 10 (a), after the Supreme Court decided

Bruen but before this court decided Guardado I." Crowder, supra

at 559. The court reasoned that "neither the trial court nor

the Commonwealth was sufficiently on notice as to the effect of

Bruen on our existing characterization of licensure as an

affirmative defense." Crowder, 495 Mass. at 563.

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This holding dictates the outcome of this case. We are not

persuaded by the Commonwealth's contention that its evidence

that the defendant was under twenty-one years old, and therefore

a "prohibited person" under the firearms licensing scheme, was

an adequate proxy for proof of his lack of licensure. Absent

any jury instruction on the elements of licensure -- which was

not given here -- the jury could not have made this finding.

After Guardado and Crowder, this finding was the jury's to make,

and we may not make it for them. 1

1 Defense counsel's statement in opening that the defendant
was "guilty of not having a license to carry a firearm"
similarly did not operate as proof of the defendant's
nonlicensure, nor render any error harmless. Statements of
counsel are not evidence, Commonwealth v. Gomez, 495 Mass. 688,
699 (2025), and there was no stipulation to the defendant's lack
of licensure. Accordingly, the jury did not have sufficient
evidence to convict the defendant of the crime of which he was
convicted.

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Accordingly, the judgment is vacated, the verdict is set

aside, and the case is remanded for a new trial.

So ordered.

By the Court (Sacks,
Hershfang & Tan, JJ. 2),

Clerk

Entered: June 2, 2025.

2 The panelists are listed in order of seniority.

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