CourtListener 10596514•Commonwealth v. Skyzen Encarnacion.
Testo completo
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.
2
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.
3
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.
4
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