Commonwealth v. Nelson C. Mitchell.

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-518

COMMONWEALTH

vs.

NELSON C. MITCHELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant, Nelson C. Mitchell,

was convicted of improper storage of a firearm in violation of

G. L. c. 140, § 131L (a) (firearms storage statute). 1 On appeal,

the defendant (1) argues that the evidence was insufficient to

support the conviction, and (2) asserts facial and as-applied

challenges to the constitutionality of the firearms storage

statute. We affirm.

Background. 1. Trial. The jury could have found the

following facts. Between 9 P.M. and 10 P.M. on June 19, 2022,

1The Commonwealth entered a nolle prosequi on one count of
assault and battery, G. L. c. 265, § 13A (a), and one count of
assault and battery on a household or family member, G. L.
c. 265, § 13M (a).
Sergeant Michael Placanico and Officer Guillermo Burgos of the

Springfield police department responded to a call about a

disturbance at the defendant's home. On arrival, Placanico and

Burgos entered the home through the unlocked front door and

spoke with the defendant's wife and daughter in the living room.

Burgos found the defendant in the backyard, detained him, and

placed him in the back of a police cruiser. A records search

revealed that the defendant had an active license to carry (LTC)

and a valid firearms identification (FID) card, and that a

shotgun was expected to be in the home. When Burgos asked the

defendant to tell him the location of the shotgun, the defendant

refused.

The officers then returned to the living room to speak with

the wife and the daughter. During this conversation, the wife

walked out of the living room, through the kitchen, and into a

bedroom, out of the officers' sight. After two or three

minutes, Placanico followed the wife into the bedroom and saw

her standing beside the bed, on which there was a gun bag

containing a shotgun. When Placanico entered the room, the wife

was not holding anything. Neither the shotgun nor the gun bag

had a lock attached or nearby. Placanico noted that the bedroom

was small and contained only a bed and a dresser. Similarly,

Burgos saw a bed, a couple of corner bookshelves, clothing, and

the gun bag. Neither Placanico nor Burgos saw a gun safe in the

2
bedroom or any locking mechanism nearby. Placanico testified

that there was nothing in the gun bag other than the shotgun.

Placanico "cleared" the shotgun, ensured that it was safe,

placed it back into the gun bag, and brought it to his police

cruiser. 2

2. Motion to dismiss. Before trial, the defendant filed a

motion to dismiss the charge of improper storage of a firearm on

the ground that the firearms storage statute infringed his right

under the Second Amendment to the United States Constitution to

possess a shotgun in his home for the purpose of immediate self-

defense. Following an evidentiary hearing, the motion judge

denied the motion in a well-reasoned written decision. 3 The

motion judge determined that the defendant had raised only an

as-applied challenge and concluded that the firearms storage

statute was not unconstitutional because the Second Amendment

did not protect his conduct. As the motion judge explained, the

Second Amendment protects "an authorized gun owner's ability to

possess a firearm in the home." Here, however, "the defendant

2 The police officers' interactions with the wife were
captured on their body-worn camera footage, which was entered
into evidence.

3 The motion judge was not the trial judge.

3
was not in possession or control of the shotgun that was in the

house while he was intoxicated in the backyard." 4

Discussion. 1. Sufficiency of the evidence. The

defendant contends that there was insufficient evidence of

improper storage of a firearm. In determining whether the

evidence was sufficient to sustain a conviction, we ask

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt"

(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). "A conviction may rest exclusively on

circumstantial evidence, and, in evaluating that evidence, we

draw all reasonable inferences in favor of the Commonwealth."

Commonwealth v. Jones, 477 Mass. 307, 316 (2017). "Inferences

'need only be reasonable and possible and need not be necessary

or inescapable'" (citation omitted). Commonwealth v. Gomez, 495

Mass. 688, 693 (2025).

"[T]o prove the offense of improper storage of a firearm,

the Commonwealth must demonstrate that the defendant failed to

[store or] keep the firearm 'secured in a locked container' or

'equipped with a tamper-resistant mechanical lock or other

safety device,'" Commonwealth v. Lojko, 77 Mass. App. Ct. 82,

4 The jury did not hear testimony about the defendant's
intoxication.

4
83-84 (2010), quoting G. L. c. 140, § 131L (a), "properly

engaged so as to render such firearm inoperable by any person

other than the owner or other lawfully authorized user." G. L.

c. 140, § 131L (a). "The gun owner's obligation to secure the

firearm in accordance with the statute arises only when the

firearm is stored or otherwise outside the owner's immediate

control." Commonwealth v. Runyan, 456 Mass. 230, 236 (2010). 5

The defendant asserts that the Commonwealth did not meet

its burden of proof because his wife, who also had valid LTC and

FID cards, had control of the shotgun when she was in the

bedroom before she presented it to the responding officers. We

are not persuaded.

"[A] firearm is within the 'control' of its owner or

authorized user only when that person has it sufficiently nearby

to prevent immediately its unauthorized use." Commonwealth v.

Patterson, 79 Mass. App. Ct. 316, 319 (2011). Here, a rational

trier of fact could reasonably infer that the shotgun was not

secured and was not under the wife's control when the police

arrived. The wife spoke with Placanico in the living room for

5 The record belies the defendant's contention that the only
evidence of ownership was "the prosecutor's objectionable
leading question" regarding the results of the records query.
The parties jointly stipulated that the defendant legally
purchased a shotgun bearing a specified serial number, and the
Commonwealth introduced the report identifying the shotgun
confiscated from the defendant's home with a matching serial
number.

5
"[a] few minutes," and then traveled through two rooms from the

living room to the bedroom. After she was out of his sight for

two to three minutes, Placanico followed the wife into the

bedroom and observed her standing at the bed, with a gun bag

that contained the shotgun on the bed and no other items. Both

police officers observed the room to contain the bed, clothing,

and a dresser or cabinet, but no gun safe or other securing

container. See Commonwealth v. Reyes, 464 Mass. 245, 253-254

(2013) (listing safes, weapon boxes, locked cabinets, gun cases,

lock boxes, and soft gun cases secured with padlocks as examples

of statutorily acceptable secured containers). The fact that

the wife was alone in the bedroom for only two to three minutes

coupled with the absence of a gun safe or any visible locking

mechanism supports a reasonable inference that the shotgun was

not properly secured while it was unattended in the bedroom and

outside of the wife's control. Moreover, after the officers

confirmed that the defendant had active LTC and FID cards, and

that he owned a shotgun, they asked the defendant about its

location, and he refused to answer, thereby permitting an

inference that he knew the shotgun was not properly stored. See

Commonwealth v. Swartz, 343 Mass. 709, 713 (1962) (while not

conclusive, consciousness of guilt may combine with other

6
evidence to support guilty finding). 6 Accordingly, the evidence

sufficed to prove beyond a reasonable doubt that the defendant

improperly stored his shotgun.

2. Constitutional challenges. On appeal, the defendant

asserts both a facial challenge and an as-applied challenge to

the firearms storage statute. As to the former, he argues that

the statute does not comport with the nation's history and

tradition of firearm regulation. See New York State Rifle &

Pistol Ass'n v. Bruen, 597 U.S. 1, 24 (2022) (Bruen) (applying

text and history test to challenged regulation covered by Second

Amendment). As to the latter, he argues that the statute unduly

burdened his rights under the Second Amendment "to maintain a

firearm at the ready in his home for self-defense." However, at

oral argument, the defendant suggested that he agreed with the

Commonwealth that the panel of this court was precluded from

reaching either issue given the Supreme Judicial Court's

decisions in Reyes, 464 Mass. at 257, and Commonwealth v.

McGowan, 464 Mass. 232, 244 (2013). Although he preserved the

6 Evidence of the defendant's refusal to provide the
location of the shotgun was admitted over his objection, and
subject to a humane practice instruction regarding the
voluntariness of the statement. The defendant does not
challenge the statement's admissibility on appeal. Regardless
of whether the statement was properly admitted, we may consider
this evidence on the issue of sufficiency. See Commonwealth v.
Sepheus, 468 Mass. 160, 164 (2014); Commonwealth v. Farnsworth,
76 Mass. App. Ct. 87, 98 (2010).

7
constitutional arguments, the defendant asked us to consider

only his argument concerning the sufficiency of the evidence.

Without accepting the proposition that we cannot reach the

question whether McGowan and Reyes are consistent with the

United States Supreme Court's subsequent decision in Bruen, and

noting that the defendant's facial challenge is not properly

before us in any event, see Commonwealth v. Hendricks, 452 Mass.

97, 98 n.1 (2008) (facial challenge to constitutionality of

statute may not be asserted for first time on appeal);

Commonwealth v. Chou, 433 Mass. 229, 237-238 (2001) (same), we

accept the defendant's invitation not to address his

constitutional claims. 7

Judgment affirmed.

By the Court (Blake, C.J.,
Vuono, Meade, Massing &
Allen, JJ. 8),

Clerk

Entered: September 15, 2025.

7 To the extent the defendant asks us to interpret the
firearms storage statute to be inapplicable to licensed gun
owners whenever they are inside the home or within its
curtilage, we decline to do so. Such an expansive reading
contravenes the statutory requirement that the firearm be under
the owner or authorized user's immediate control, as discussed
supra. See Patterson, 79 Mass. App. Ct. at 319.

8 The panelists are listed in order of seniority.

8