Commonwealth v. Josiah Sweeney.

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-681

COMMONWEALTH

vs.

JOSIAH SWEENEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Juvenile Court, the defendant

was found to be a youthful offender on an indictment for

carrying a firearm without a license in violation of G. L.

c. 269, § 10 (a). On appeal, the defendant asserts, inter alia,

that the judge erred in admitting a video recording, which was

extracted from the defendant's cellular telephone, that depicted

a youth, allegedly the defendant, pointing a gun at the phone's

camera. Concluding on this record that a combination of errors

related to the jury's consideration of this video recording

resulted in prejudicial error, we vacate the defendant's

conviction. Because we also conclude that the evidence was

sufficient to sustain the defendant's conviction, we remand the
case to the Juvenile Court for a new trial should the

Commonwealth choose to pursue one.

1. Background. As relevant to our analysis of the grounds

on which we vacate the defendant's conviction, the jury could

have found the following facts based on the evidence presented

at trial. On March 4, 2022, at approximately 12:50 A.M., C.D.

was driving southbound on Route 18 in New Bedford with his

friend, H.P., when he saw a red, "box-like" car swerving in the

lanes ahead. After slowing down to avoid colliding with the

car, C.D. pulled alongside it, and was able to see inside

sufficient to offer a description of the driver and front seat

passenger. The red car pulled slightly ahead of C.D.'s car and

he saw the person subsequently alleged to be the defendant

seated in the rear passenger seat of the car. As the red car

pulled farther ahead, C.D. saw a hand sticking out of the rear

passenger's side window,"[a] gun and the muzzle flash," and then

heard "[t]wo shots [ring]." "[O]ne bullet went through" the

roof of C.D.'s car, "inches" from where he and H.P. were

sitting.

After calling 911, C.D. met with a police officer,

described the incident, and showed the police the hole in his

car's roof. At around the same time, officers responded to a

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ShotSpotter1 alert, and traveled to an area of Route 18 around

Potomska Street where they found a bullet fragment on the road.

Using the information from the ShotSpotter alert, C.D.'s

call to 911, and C.D.'s description of the incident to the

police, a detective accessed video footage from city-owned and

privately-owned cameras in the area which led to the

identification of the red SUV and the defendant.

On March 7, 2022, the police arrested the defendant and

executed a search warrant, seizing "43 additional rounds of

. . . ammunition" and the defendant's cellphone. The cellphone

was transferred to the state detective unit, where Cellebrite2

software was used to extract the phone's contents.

The defendant was charged with one count of carrying a

firearm without a license and two counts of attempted assault

and battery by means of a firearm. At trial, C.D. made an in-

1 At trial, a detective testified that ShotSpotter is a
"gunshot detection system which is designed to triangulate
gunshots . . . to pinpoint a specific location and also a time
in which the gunshot was detected." Because we reverse on other
grounds, we need not address the defendant's challenges to this
evidence.

2 At trial, the detective described Cellebrite as creating a
"carbon copy view" of the phone's contents that "arranges the
data collected from the dump into . . . a usable format where
the viewer can see the content without physically manipulating
the phone." Because we reverse on other grounds, we need not
address the defendant's challenges to this evidence.

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court identification of the defendant as the shooter.3 The

Commonwealth submitted a video recording, extracted from the

defendant's cellphone, that depicted an individual, alleged to

be the defendant, pointing what appeared to be a firearm toward

the phone's camera from a very close distance. A portion of the

individual's face was obscured by the weapon held in front of

the camera. The defendant's counsel objected to the admission

of the video recording. At the close of evidence, the

defendant's counsel moved for a required finding of not guilty

arguing that there was insufficient evidence that the defendant

possessed an operational firearm. The judge denied the motion.

The jury found the defendant guilty of carrying a firearm

without a license.4

2. Bad Act Evidence. a. Standard of review. "We review

a judge's evidentiary rulings for an abuse of discretion."

Commonwealth v. Welch, 487 Mass. 425, 440 (2021), quoting

Commonwealth v. Andre, 484 Mass. 403, 414 (2020). The defendant

asserts that the judge abused her discretion in admitting the

cellphone video recording without first analyzing the

recording's admissibility as evidence of a prior bad act.

3 The defendant's appeal includes a challenge to this
identification. Because we reverse on other grounds, we do not
reach this issue.

4 The defendant was acquitted of both counts of assault and
battery.

4
Because the defendant's objection was preserved at trial, to the

extent we discern an abuse of the judge's discretion, we review

it for prejudicial error. See Commonwealth v. Reyes, 483 Mass.

65, 78 (2019).

b. Video recording. The defendant raises a number of

arguments concerning the video recording depicting a youth who

was alleged to be the defendant. We agree that certain errors,

in combination, require that we vacate the finding that the

defendant is a youthful offender and remand the matter to the

trial court for a new trial should the Commonwealth choose to

pursue one.

It is well-settled that "[e]vidence of a crime, wrong, or

other act is not admissible to prove a person's character in

order to show that on a particular occasion the person acted in

accordance with the character." Mass. G. Evid. § 404 (b) (1)

(2025). Such evidence may, however, "be admissible for another

purpose," such as to prove "motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident." Mass. G. Evid. § 404 (b) (2). See

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Before

admitting evidence of a firearm-related prior bad act, "the

judge should articulate the precise manner in which the evidence

of the defendant's access to and familiarity with firearms is

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relevant and material to the facts of the particular case."

Andre, 484 Mass. at 415.

Here, before trial, the Commonwealth moved in limine to

admit the video recording, stating that it was being offered to

show that the defendant "had the manner and opportunity to

possess a firearm." In response, the judge asked the

defendant's counsel whether "any potential prejudice" could be

overcome "with a limiting instruction," to which counsel stated,

"I think a limiting instruction would possibly alleviate that

particular issue, Your Honor." Although the video recording

allegedly depicted the defendant possessing a firearm prior to

the crime, it was offered, permissibly, for the precise purpose

of showing that the defendant had access to the firearm. The

evidence was, therefore, relevant. See Mass. G. Evid.

§ 404 (b) (2); Commonwealth v. Crayton, supra.

Even where evidence is relevant to a permissible purpose,

however, it "will not be admitted if its probative value is

outweighed by the risk of unfair prejudice to the defendant."

See Crayton, supra. In assessing the propriety of the judge's

decision to admit evidence of prior bad acts, we may consider

factors including:

"(1) whether the trial judge carefully weighed the
probative value and prejudicial effect of the evidence
introduced at trial . . .; (2) whether the judge mitigated
the prejudicial effect through proper limiting instructions
. . .; (3) whether the challenged evidence was cumulative

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of other admissible evidence, thereby reducing the risk of
any additional prejudicial effect . . . ; and (4) whether
the challenged evidence was so similar to the charged
offense as to increase the risk of propensity reasoning by
the jury."

Commonwealth v. Peno, 485 Mass. 378, 386 (2020).

The defendant contends that application of these factors

shows that the risk of unfair prejudice posed by the video

recording outweighed its probative value, and thus, the judge

abused her discretion by admitting the video. As to the first

factor, absent a more robust explanation on the record of the

judge's reasoning, we cannot say that the judge considered

either the risk that the jury would ignore a limiting

instruction or carefully weighed the video recording's probative

value against its prejudicial effect. See Commonwealth v.

Samia, 492 Mass. 135, 148 n. 8 (2023).5

In addition, as to the second factor, we are not persuaded

that the judge's instructions mitigated the risk of the video

recording's prejudicial effect. See Peno, 485 Mass. at 386.

The most relevant instructions, which were read to the jury

after the admission of the video recording, and repeated almost

verbatim at the close of evidence, stated the following:

"There was also a video of the defendant that was admitted
into evidence . . . . You may consider this video as some
evidence showing the defendant's familiarity with or access
to firearms, but only if you first conclude that the video

5 We express no opinion on whether the video recording
should be admitted at any trial after remand.

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actually depicts a firearm and that the defendant knowingly
had possession, custody or control over that firearm. If
you're not satisfied that the defendant had knowing
possession, custody or control over a firearm in that video,
then you should not consider that evidence in any way."

These instructions raise two concerns. First, in declaring that

"there was . . . a video of the defendant that was admitted into

evidence" (emphasis added), the judge improperly instructed the

jury that the individual in the video recording was, in fact,

the defendant. See Commonwealth v. Borges, 2 Mass. App. Ct.

869, 869 (1974) ("judge's comment amounted to an instruction as

to the inference which the jury should draw . . . and had the

effect of throwing the judge's opinion onto the scales

decisively against the defendant"). Similarly, the digital

folder containing the video recording was provided to the jury

during deliberations labeled as "[defendant's first name]

holding gun." 6 Second, contrary to the model instructions given

in cases where prior bad act evidence is admitted, the judge's

instructions related to the video recording did not explicitly

instruct the jury that they could not consider the video "as

proof that the defendant ha[d] a criminal personality or bad

character." See Criminal Model Jury Instructions for Use in the

6 At oral argument, the Commonwealth stated that the folder
named "'[defendant's first name] holding gun' . . . was not
supposed to be in there . . .," and that there is no affirmative
evidence of whether the jury saw the folder name.

8
District Court 3.760 (2009). This omission was significant

where the risk that the jury would engage in "propensity

reasoning" -- that is, conclude that because the defendant

possessed a firearm in the video, he also possessed a firearm at

the time of the alleged shooting -- was high. See Peno, 485

Mass. at 386.

On this record, we conclude that admitting the video

recording without giving the jury proper instructions and

instructing the jury that the defendant was the person in the

video was error. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014) ("a judge's discretionary decision constitutes an abuse

of discretion where we conclude the judge made 'a clear error of

judgment in weighing' the factors relevant to the decision"

[citation omitted]). Because we agree with the defendant's

argument that there was a "reasonable possibility" that the

admission of the video recording "might have contributed to the

jury's verdict," we conclude that the error was prejudicial.

Commonwealth v. Alphas, 430 Mass. 8, 23 (Greaney, J.,

concurring).

3. Sufficiency of the evidence. Whether the Commonwealth

can, on remand, seek to reprosecute the defendant depends on

whether the evidence at the trial was sufficient to convict him

of the offense of illegal possession of a firearm. See

Commonwealth v. Lester, 70 Mass. App. Ct. 55, 66 (2007), quoting

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Commonwealth v. Cardenuto, 406 Mass. 450, 457 (1990)

("Constitutional principles dictate that, if the evidence

introduced by the Commonwealth was insufficient to sustain the

defendant's conviction, retrial is barred by the principles of

double jeopardy" [quotation omitted]). Despite the defendant's

argument that the evidence failed to show that the weapon at

issue was an operable firearm, we conclude that the evidence was

sufficient on that point.

In determining the sufficiency of the evidence, "we

consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Oberle, 476

Mass. 539, 547 (2017). See Commonwealth v. Davis, 487 Mass.

448, 462 (2021) ("Ordinarily, in determining the sufficiency of

the evidence, we include evidence improperly admitted" [citation

omitted]).

To convict the defendant as a youthful offender on the

charge of carrying a firearm without a license, the Commonwealth

must prove that the defendant possessed a "firearm" as defined

by G. L. c. 140, § 121 (1998).7 Under G. L. c. 140, § 121, a

7 We note that the defendant's counsel stipulated to the
defendant's date of birth, which meant he was sixteen years old
at the time of the incident in question and therefore he could

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firearm is a weapon "from which a shot or bullet can be

discharged and of which the length of the barrel . . . is less

than [sixteen] inches." "In cases such as this one -- [where

there was] no firearm available as a trial exhibit, [and] no

ballistics evidence -- the necessary element of operability may

be proved by witness testimony and related circumstantial and

corroborative evidence." Commonwealth v. Drapaniotis, 89 Mass.

App. Ct. 267, 271 (2016). See Commonwealth v. Nieves, 43 Mass.

App. Ct. 1, 2 (1997) (proving operability "requires only that

the Commonwealth present some competent evidence from which the

jury reasonably can draw inferences that the weapon will fire").

Here, we conclude that there was sufficient evidence to

support the jury's findings. C.D. testified that (1) he saw

"[a] gun and the muzzle flash" from the window where he located

the defendant, (2) he heard "[t]wo shots [ring]," and (3) there

was a hole in the roof of his car "inches" from where he was

seated. C.D. also testified that he did not see a "large

barrel" sticking out of the window, and that based on his prior

experience shooting both handguns and rifles, the gun appeared

to be a handgun. From this evidence, the jury could have

concluded beyond a reasonable doubt that the defendant possessed

not have lawfully possessed a firearm. See G. L. c. 140,
§ 131 (d).

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a firearm as defined by G. L. c. 140, § 121. See Oberle, supra.

Accordingly, we vacate the judgment, set aside the verdict,

and remand for a new trial should the Commonwealth choose to

pursue one.8

So ordered.

By the Court (Henry, Hand &
Allen, JJ.9),

Clerk

Entered: February 18, 2026.

8 Because we vacate the judgment, we do not consider the
defendant's other arguments. We note that the Commonwealth
conceded that a detective's identification of the defendant from
a photograph should not have been admitted, that the jury
instruction on eyewitness testimony should have been given but
was not, and that a portion of the detective's testimony about
the Cellebrite software strayed beyond permissible lay
knowledge.

9 The panelists are listed in order of seniority.

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