Marc Aldana v. Commonwealth.

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

23-P-99

MARC ALDANA

vs.

COMMONWEALTH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Marc Aldana, filed a civil lawsuit for

compensation pursuant to G. L. c. 258D after the Supreme

Judicial Court vacated his convictions for two counts of

possession of a destructive or incendiary device or substance

without lawful authority, G. L. c. 266, § 102 (a) (incendiary

device charges). See Commonwealth v. Aldana, 477 Mass. 790,

791-792 (2017). A Superior Court jury concluded that the

plaintiff failed to prove by clear and convincing evidence that

he was innocent of the incendiary device charges. On appeal,

the plaintiff argues that the verdict should be set aside

because of various rulings by the judge and erroneous jury

instructions. We affirm.
Background. On January 8, 2016, the plaintiff was

convicted of the two incendiary device charges. The plaintiff

was acquitted of possession of an explosive or incendiary

device, G. L. c. 266, § 102 (c).

In September 2017, the Supreme Judicial Court vacated the

plaintiff's convictions, holding that "the evidence introduced

at trial was not sufficient to establish that the [plaintiff]

was without lawful authority to possess the powders themselves

or the incendiary substance, thermite, that the Commonwealth

asserted he intended to make." Aldana, 477 Mass. at 791-792.

The plaintiff thereafter filed a claim in the Superior Court

seeking damages for his wrongful convictions pursuant to G. L.

c. 258D.

A jury trial commenced in the Superior Court in June 2022.

The following evidence was submitted for the jury's

consideration. On October 15, 2013, Worcester police officers

executed an arrest warrant and forcibly entered the defendant's

apartment after knocking and announcing themselves several

times. The officers heard glass breaking inside the apartment

as they broke down the door. When the officers entered, they

saw furniture and tires barricading the door inside. The police

found bags containing aluminum powder and red iron oxide on the

kitchen counter next to the stove. They additionally located a

sliced opened, unlabeled Ziploc bag containing a reddish-brown

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powder which was later identified as a mixture of red iron oxide

and aluminum, a mixture known as "thermite."1

Evidence was presented that an "explosive" is defined by

527 Code Mass. Regs. § 13.03 (2008) as "[a]ny chemical compound,

mixture, or device, the primary or common purpose of which is to

function by explosion, i.e. with substantially instantaneous

release of gas and heat."2 Aluminum powder qualifies as an

explosive as defined by 527 Code Mass. Regs. § 13.03 (2008).

Aluminum powder is also a flammable solid as defined by 527 Code

Mass. Regs. § 14.02 (2009). Thermite is a pyrotechnic mixture,

that when properly ignited burns at extreme temperatures

exceeding 4,000 degrees Fahrenheit, depending on the mixture.

Thermite is an incendiary that is a flammable solid pursuant to

527 Code Mass. Regs. § 14.02 (2009).

The jury heard testimony that to store thermite, or its

component parts of aluminum powder and red iron oxide, in a

residence, an individual needs a permit pursuant to 527 Code

1 The Bureau of Alcohol, Tobacco, Firearms and Explosives
and the Massachusetts State Police bomb squad destroyed the
powders in a controlled setting with safety barriers, protective
equipment, and safety personnel on standby.

2 Effective January 1, 2015, the version of 527 Code Mass.
Regs. in effect at the time of the defendant's arrest was
repealed. The current State comprehensive fire safety code is
found in 527 Code Mass. Regs. §§ 1.00 (2023).

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Mass. Regs. § 14.03 (2009) and § 25.08 (1993). The jury was

also informed that G. L. c. 148, § 24, prohibits storing

materials that may become a fire menace. The plaintiff did not

have a permit to store thermite or aluminum powder in his

apartment and the Worcester Fire Department would not have

issued such a permit to a person who wished to store the

materials in a residential structure.

The jury concluded that the plaintiff failed to prove by

clear and convincing evidence that he was innocent of the

incendiary device charges. The plaintiff timely filed this

appeal.

Discussion. Entitlement to compensation under G. L.

c. 258D turns on, among other things, a showing by the plaintiff

that he "did not commit the crimes or crime charged in the

indictment or complaint or any other felony arising out of or

reasonably connected to the facts supporting the indictment or

complaint, or any lesser included felony." G. L. c. 258D,

§ 1 (C) (vi). At a minimum, and central to our decision, the

plaintiff had to prove to the jury that he did not commit the

incendiary charges.3 The four elements of the incendiary charge

3 The plaintiff makes various claims regarding jury
instructions and evidentiary rulings that the judge made in
relation to "related crimes," such as possession of burglarious
tools, G. L. c. 266, § 49, and evidence tampering, G. L. c. 268,
§ 13E. The jury indicated on the verdict slip that the

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are: (1) the plaintiff "possessed or controlled," (2) "without

lawful authority," (3) a component of a "destructive or

incendiary device or substance," and (4) with the intent to make

such a device or substance. Aldana, 477 Mass. at 797-798.

1. Defective complaint. The plaintiff argues that the

criminal complaint was facially defective and, therefore, the

trial court did not have jurisdiction. The plaintiff's

contention has no bearing on his civil case. However, even if

his argument applied to a civil case, "the absence of a required

element in [a complaint] does not by itself establish that a

crime is not charged, even if acquittal is required if the

prosecution were to prove only the allegations in the

indictment." Commonwealth v. Canty, 466 Mass. 535, 548 (2013).

Under that general rule, we ask whether there was "fair notice

of the crime charged, [as] [i]t is not necessary for the

plaintiff failed to prove he was innocent of the incendiary
device charges and thus did not reach the issues of the "related
crimes." Therefore, if there was any error in the jury
instructions or evidentiary rulings regarding the "related
charges," they had no impact on the jury verdict and cannot be
grounds for reversal. Thus, we need not reach those issues.
See Beaucage v. Mercer, 206 Mass. 492, 500 (1910) ("[A]s the
verdict was for the defendant on the question of liability, the
instructions as to damages become immaterial"); Pinshaw v.
Metropolitan Dist. Comm'n, 33 Mass. App. Ct. 733, 738 (1992)
("[A]ny analysis of the possible prejudicial effect of the
judge's instructions [regarding an unreached jury question]
. . . would involve us in unnecessary speculation").

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Commonwealth to set forth in the complaint or indictment every

element of the crime to withstand a motion to dismiss" if the

complaint otherwise provides fair notice. Id. at 547 (quotation

omitted). To provide fair notice of a charged offense, a

complaint shall state the offense "with sufficient clarity to

show a violation of law and to permit the defendant to know the

nature of the accusation against him." Id. (quotation omitted).

Here, the plaintiff's criminal complaint charged him with

two counts of possession of a destructive or incendiary device

or substance without lawful authority, G. L. c. 266, § 102 (a),

and one count of possession of an explosive or incendiary device

or substance without lawful authority, G. L. c. 266, § 102 (c).

Under the Canty analysis, we have no hesitation in declaring

that the plaintiff was on fair notice of the crimes charged in

his criminal trial.

Moreover, whether the complaints or indictments were

defective, which they were not, pursuant to G. L. c. 258D the

plaintiff still had to prove at the civil trial that he did not

commit the incendiary device charges.

2. Without lawful authority. The plaintiff claims that

because the Supreme Judicial Court vacated his convictions, his

"factual innocence" had already been proven and therefore the

trial court, and this court, should take judicial notice of his

"factual innocence." Although it is true that, in his criminal

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case, the Commonwealth did not present sufficient facts of each

element beyond a reasonable doubt, that alone does not equate to

"factual innocence."4 In the plaintiff's criminal trial, the

Commonwealth failed to present sufficient evidence that the

plaintiff lacked lawful authority to possess the aluminum and

iron oxide. See Aldana, 477 Mass. at 799.

The plaintiff has not provided us with any legal support

for his assertion that the Commonwealth is prevented from

offering additional or different evidence from that which was

offered at the criminal trial. Here, the Commonwealth presented

evidence that the plaintiff possessed flammable solids and was

subject to licensing and permitting requirements. Specifically,

there was evidence that, pursuant to G. L. c. 148, § 13, the

storage of flammable solids required a land use license from the

local licensing authority, in this case, the Worcester Fire

Department. The jury also heard testimony and was instructed

that 527 Code Mass. Regs § 14.03(1) (2009) required an annual

permit to store flammable solids. It is undisputed that the

plaintiff did not have a permit to possess thermite or aluminum

powder. Based on this evidence, the jury instructions regarding

4 A "[f]actually innocent" individual is "a person convicted
of a criminal offense who did not commit that offense." G. L.
c. 278A, § 1.

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the possession of flammable solids and permitting and licensing

requirements were proper.

The plaintiff faults the trial judge for not providing a

jury instruction regarding the weight exemption contained in 527

Code Mass. Regs. § 13.04(1)(f) (1996). A party is entitled to a

jury instruction on an affirmative defense if the party raises

the defense and supports it by "sufficient evidence."

Commonwealth v. Cabral, 443 Mass. 171, 179 (2005). Where a

judge does not instruct the jury on an affirmative defense, the

judge errs "if the evidence, viewed in the light most favorable

to the [plaintiff], provided support for the affirmative

defense." Commonwealth v. Kelly, 484 Mass. 53, 67 (2020).

The weight exemption contained in 527 Code Mass. Regs.

§ 13.04(1)(f) (1996) applies only to special industrial

explosive materials stored or kept in a building. There was no

evidence presented at trial that the plaintiff was storing the

materials in an industrial setting or for an industrial purpose.

See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 445

(2006) (jury instruction warranted if some evidence on the topic

admitted at trial). There was no error in not providing an

instruction regarding the weight exemption.

3. An incendiary device or substance. Contrary to the

plaintiff's argument, the Supreme Judicial Court did not in his

criminal matter rule as a matter of law that thermite was not

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subject to regulation as a "flammable solid" and could not be

revisited at his civil trial. See Aldana, 477 Mass. at 801.5

The expert evidence at trial was that both aluminum powder and

thermite6 were flammable solids that could be ignited by

friction. 527 Code Mass. Regs. § 14.02 (2009) defines a

flammable solid as "[a] solid substance, other than one

classified as an explosive, which is liable to cause fires

through friction, through absorption of moisture, through

spontaneous chemical changes, or as a result of retained heat

5 The plaintiff argues that instructing the jury regarding
527 Code Mass. Regs. § 14.00 (2009) violated the ex post facto
clauses in art. I, § 9, of the United States Constitution and
Part I, art. 24 of the Massachusetts Declaration of Rights. The
ex post facto clauses apply only to criminal or punitive
statutes. See Police Dep't of Salem v. Sullivan, 460 Mass. 637,
645 (2011). Because the plaintiff brought a civil claim
pursuant to G. L. c. 258D and is not facing any criminal
penalties or any type of sanctions, the ex post facto clauses do
not apply.

6 Initially, the plaintiff requested that the judge instruct
the jury that the thermite in this case does not qualify as a
pyrotechnic because it was not commercially manufactured. The
judge then gave an instruction in relation to one of the
"related crimes." The plaintiff subsequently changed positions
and objected to the judge's instruction. In any event, as
stated supra, since the jury indicated on the verdict slip that
the plaintiff failed to prove he was innocent of the incendiary
device charges, and the jury did not reach the issues of the
"related crimes," if there were any error in the jury
instructions regarding the "related crimes" it had no impact on
the jury verdict and cannot be grounds for reversal. Thus, we
need not reach those issues.

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from manufacturing or processing." Accordingly, the jury

instruction regarding flammable substances was not error.

4. Intent to make a destructive or incendiary device or

substance. A "destructive or incendiary device or substance" is

"an explosive, article or device designed or adapted to cause

physical harm to persons or property by means of fire,

explosion, deflagration or detonation and consisting of

substance capable of being ignited, whether or not contrived to

ignite or explode automatically." G. L. c. 266, § 101. A

required element of an incendiary charge is that "the

[plaintiff] intended to 'make a destructive or incendiary device

or substance.'" Aldana, 477 Mass. at 798, quoting G. L. c. 266,

§ 102 (a).

The plaintiff requested a jury instruction that the final

element requires a "plus factor" that he intended to make a

weapon. The judge refused the plaintiff's request. We discern

no error. A judge's refusal

"to give a requested jury instruction is reversible error
only if the requested instruction is (1) substantially
correct, (2) was not substantially covered in the charge
given to the jury, and (3) concerns an important point in
the trial so that the failure to give it seriously impaired
the [respondent's] ability to effectively present a given
defense [emphasis omitted]."

Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013),

quoting Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519

(1993). The instruction requested by the plaintiff added an

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element -- that the plaintiff used the incendiary device or

substance as a weapon. Because the requested instruction would

have misstated the elements of the incendiary device charges,

the judge correctly declined to give it. See Commonwealth v.

Fano, 400 Mass. 296, 305-306 (1987) ("It was appropriate for the

judge to refuse to give the requested instruction because it was

incorrect as a matter of law").

Unlike the plaintiff's proposed instruction, the

instruction given by the judge accurately stated the law. "We

do not require that judges use particular words" when

instructing juries. Commonwealth v. Kelly, 470 Mass. 682, 697

(2015). Here, the judge's instructions mirrored the language of

the statute and stated a "person intended to make a destructive

or incendiary device or substance" and "[a] person acts

intentionally when he or she or it acts [purposefully], not by

mistake or by accident, and wants the general type of the result

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to happen or knows that the result is very likely to happen."

There was no error.

Judgment affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.7),

Clerk

Entered: October 28, 2024.

7 The panelists are listed in order of seniority.

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