Commonwealth v. Michael D. Lavoie.

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-830

COMMONWEALTH

vs.

MICHAEL D. LAVOIE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in District Court, the

defendant was convicted of carrying a firearm without a license,

G. L. c. 269, § 10 (a), and carrying a loaded firearm without a

license, G. L. c. 269, § 10 (n).1 On appeal, the defendant

contends that the judge erred in admitting testimony from an

employee from the Department of Criminal Justice Information

Services (DCJIS) and a printout of a search of the firearm

1At the request of the Commonwealth, the judge dismissed
the charge of possession of a firearm during the commission of a
felony, G. L. c. 265, § 18B. The judge granted the defendant's
motion for a required finding of not guilty on the charge of
assault with a dangerous weapon, G. L. c. 265, § 15B (b). The
judge found the defendant not guilty of possessing ammunition
without a firearms identification card, G. L. c. 269, § 10 (h),
because it was duplicative of the charge of carrying a loaded
firearm without a license.
license database showing that the defendant did not have a

license to carry. The defendant also claims that there was

insufficient evidence to find that he knew the firearm was

loaded. We affirm.

Background. "Because the defendant challenges the

sufficiency of the evidence presented, we summarize the facts

the jury could have found in the light most favorable to the

Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431

(2015). Around 1:20 A.M. on April 30, 2022, a man went to the

Worcester police station, reported that there had been an

incident at a local bar involving a firearm, and provided a

description and photograph of the suspect. Multiple officers

went to the bar and waited for someone matching that description

to walk outside. The officers eventually detained the

defendant, asked if he had any weapons, and removed a firearm

from the defendant's front pants pocket. After being advised of

his Miranda rights, the defendant told an officer that he was

holding the firearm for a friend.

At trial, an employee from DCJIS testified that he obtained

the defendant's name and date of birth from the district

attorney's office. The Commonwealth also entered into evidence

a certified record from the registry of motor vehicles showing

the defendant's name and birth date. The DCJIS employee

testified that he used that information to conduct a search of

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the DCJIS-maintained Statewide firearm license database. After

running that query, he received a response indicating that no

record existed of the defendant having a license to carry a

firearm. The judge also allowed into evidence, over the

defendant's objection, a printout showing "no records found" for

a search of the DCJIS-maintained database using the defendant's

name and birth date.

Discussion. 1. DCJIS employee testimony. The defendant

argues that the DCJIS employee's testimony regarding the result

of his search of the firearm license database was inadmissible

hearsay. We review evidentiary rulings for abuse of discretion

and "do not disturb a trial judge's decision absent a clear

error of judgment in weighing the relevant factors" (quotations

and citation omitted). Commonwealth v. McDonagh, 480 Mass. 131,

140 (2018).

The DCJIS employee's testimony did not violate the rule

against inadmissible hearsay. See Mass. G. Evid. § 802 (2025).

"Under our common law, testimony that a search of public records

did not turn up a record is admissible to prove the nonexistence

of such a record." Commonwealth v. Smith, 496 Mass. 304, 308

(2025). See Mass. G. Evid. § 803 (10) (2025). The witness "who

is offered to testify that a search of a database of public

records failed to return a record must be familiar with the

process of searching the database and with the government

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record-keeping practices with respect to the database." Smith,

supra at 305. Here, the DCJIS employee testified that he had

conducted "thousands" of database searches in his career. He

stated that the firearms records bureau is the repository for

all records regarding licenses to carry, firearms identification

cards (FID card), and weapons transfers in the State, and that

licensing authorities process applications for licenses to carry

and FID cards and provide information from each application to

DCJIS through the Massachusetts instant record check system.

The employee further explained how a police officer or DCJIS

employee can search the database to obtain licensing information

on a particular person and what happens if a name or birth date

is entered into the system incorrectly. Although it would have

been better for the Commonwealth to elicit additional testimony

on how DCJIS maintains and updates its database, including with

respect to licenses that have been revoked or expired, see id.

at 313, the employee's testimony was sufficient to establish

that "he was familiar with the process of searching the database

and . . . he understood the relevant government record-keeping

practices." Id.

We also reject the defendant's claim that the DCJIS

employee's testimony violated his right to confront witnesses

against him under the Sixth Amendment to the United States

Constitution. In Smith, the Supreme Judicial Court rejected an

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identical challenge under the Sixth Amendment and art. 12 of the

Massachusetts Declaration of Rights. See Smith, 496 Mass. at

313-315. It explained that the "touchstone" of the

confrontation clause analysis is whether "the primary purpose of

a declarant's out-of-court statement is testimonial or

nontestimonial -- that is, whether the statement is intended to

'prove past events potentially relevant to later criminal

prosecution.'" Id. at 313, quoting Commonwealth v. Middlemiss,

465 Mass. 627, 634 (2013). Agency records are generally

admissible absent confrontation because they are "created for

the administration of an entity's affairs and not for the

purpose of establishing or proving some fact at trial." Smith,

supra at 314, quoting Commonwealth v. Zeininger, 459 Mass. 775,

786, cert. denied, 565 U.S. 967 (2011). In particular, because

"the contents of DCJIS's database were not created with the

'primary purpose' of creating evidence for use at trial,"

testimony about an employee's search of that database does not

violate a defendant's right to confront witnesses against him.

Smith, supra at 315. Accordingly, it was not error to allow the

DCJIS employee to testify about his search results.

2. Admission of printout. The defendant also challenges

on hearsay and confrontation clause grounds the admission of the

printout showing "no records found" in response to a search of

the DCJIS-maintained database with the defendant's name and

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birth date.2 As discussed, because the contents of the firearms

license database were not created with the "primary purpose" of

creating evidence for use at trial, the admission of a record

showing the result of a search of that database does not violate

the confrontation clause. See Smith, 496 Mass. at 314-315. Nor

was the printout hearsay. See id. at 315 n.13. "[B]ecause

computer-stored records contain statements of human beings, they

can in certain circumstances constitute hearsay; but computer-

generated records, which contain only the results of computer

programs, cannot." Commonwealth v. Brea, 488 Mass. 150, 160

(2021). The printout qualifies as a computer-generated record

because it was generated by applying a designated algorithm to

the defendant's identifying information and did not "require

human participation" to generate its result. Commonwealth v.

Royal, 89 Mass. App. Ct. 168, 171 (2016). Accordingly, the

judge did not abuse his discretion in allowing the printout into

evidence.

3. Sufficiency of the evidence. Lastly, the defendant

contends that there was insufficient evidence that he knew that

2 Although the printout appears to have been generated as
the result of a search conducted by someone else at DCJIS, the
testifying employee stated that it was "a fair representation of
the result that [he] personally saw when [he] ran the [search]."
The defendant does not contend that the document was
insufficiently authenticated. See Mass. G. Evid. § 901 (a)
(2025).

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the firearm was loaded. "[T]o sustain a conviction under G. L.

c. 269, § 10 (n), the Commonwealth must prove that a defendant

knew the firearm he or she possessed was loaded." Commonwealth

v. Brown, 479 Mass. 600, 601 (2018). In determining whether the

evidence was sufficient to sustain a conviction, we consider the

evidence in the light most favorable to the Commonwealth.

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).

The fact that the defendant was carrying the firearm in his

front pants pocket supports a reasonable inference that he knew

it was loaded, because carrying a firearm in such a manner

"creates a heightened risk of self-injury in the event of an

accidental discharge, so that a prudent person would check

whether the firearm is loaded." Commonwealth v. Grayson, 96

Mass. App. Ct. 748, 752 & n.7 (2019) (defendant found with

firearm in his waistband). See Commonwealth v. Resende, 94

Mass. App. Ct. 194, 200-201 (2018) (same). See also

Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 774 (2020)

(reasonable to infer that defendant would check whether firearm

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was loaded before tucking it into armpit area). That inference

is strengthened by several other facts. See Grayson, supra at

752-753 & n.10. In the middle of the night, the police received

a report describing the defendant and stating that he had been

involved in an incident with a firearm at a bar. Officers later

used that description to identify the defendant as he left the

bar and found the weapon on him. In addition, the defendant

told an officer that he was holding the firearm for a friend,

and it is reasonable to infer that in such circumstances the

defendant would have asked his friend whether the firearm was

loaded or checked it himself. Accordingly, there was sufficient

evidence to find beyond a reasonable doubt that the defendant

knew the firearm was loaded. See Resende, supra at 200-201.

Judgments affirmed.

By the Court (Vuono, Meade &
Toone, JJ.3),

Clerk

Entered: August 8, 2025.

3 The panelists are listed in order of seniority.

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