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24-P-161 Appeals Court
COMMONWEALTH vs. REMI M. JONES.
No. 24-P-161.
Suffolk. March 3, 2025. – March 27, 2026.
Present: Henry, Shin, & Brennan, JJ.
Firearms. License. Evidence, Firearm, Hearsay, Videotape. Practice, Civil, Hearsay. Practice, Criminal, Required finding.
Indictment found and returned in the Superior Court Department on September 22, 2021.
The case was tried before Kathleen McCarthy-Neyman, J.
Andrew P. Power for the defendant. Ian MacLean, Assistant District Attorney, for the Commonwealth.
HENRY, J. In this appeal from the defendant's conviction
of unlawful possession of a firearm without a license, in
violation of G. L. c. 269, § 10 (a), the main issue concerns the
admissibility of nonlicensure. Specifically, the defendant
challenges the admissibility of the testimony of an employee of 2
the Department of Criminal Justice Information Services (DCJIS)
that the defendant was not licensed to carry a firearm in the
Commonwealth, on the ground, among others, that the employee
failed to perform a diligent search of the DCJIS-maintained
Statewide database of firearm licenses (firearm license database
or database). The defendant also challenges the admissibility
of an exhibit confirming the absence of a record in the database
that he was licensed to carry a firearm. We conclude that the
Commonwealth established the admissibility of the witness
testimony and the exhibit. Because we also conclude that the
evidence was sufficient for the jury to conclude that the
defendant unlawfully possessed a firearm without a license to
carry a firearm, we affirm the defendant's conviction.1
Background. In light of the nature of the defendant's
appellate arguments, we recite the factual background only in
summary form, reserving detail for later discussion of his
arguments on admissibility and sufficiency.
The events in question were captured on surveillance video
footage on March 7, 2021, except to the extent that some of the
action moved out of range of the cameras. Brothers Evel and
Jean Almonte and their mother, Jacqueline Estevez de Almonte,
were involved in an altercation with the defendant and another
1 The defendant does not challenge his conviction of assault and battery, in violation of G. L. c. 265, § 13A (a). 3
man in East Boston.2 After a man fighting with Evel and Jean
dropped an object wrapped in a sock, the mother picked up the
sock. The object was a gun. The defendant, in an unsuccessful
effort to retrieve the gun, chased and fought with the mother.
After the events in question, the defendant was arrested and
charged with several crimes. Following a jury trial in the
Superior Court, the defendant was convicted of unlawful
possession of a firearm without a license and assault and
battery.
Discussion.3 "General Laws c. 269, § 10 (a), makes it an
offense to knowingly possess a firearm outside of one's
2 Because the family members share the same last name, we refer to them by their first names to avoid confusion.
3 The defendant's argument that the firearm licensing regime in effect at the time of the offense, March 7, 2021, was facially unconstitutional was rejected by the Supreme Judicial Court in Commonwealth v. Rodriguez, 496 Mass. 627, 639 (2025). In Rodriguez, the court concluded that this same former version of the resident firearm licensing scheme was not facially unconstitutional because "at least 'some of its applications' were constitutional." Id. at 642, quoting United States v. Rahimi, 602 U.S. 680, 693 (2024). See G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11, 12; G. L. c. 269, § 10 (a) (2), as amended through St. 2014, c. 284, § 90.
Insofar as the defendant may be arguing that the nonresident firearm licensing scheme at the time of the offense, G. L. c. 140, § 131F, as amended through St. 2014, c. 284, §§ 60, 63, was facially unconstitutional, his argument is misplaced. The Supreme Judicial Court held in Rodriguez that the same version of the nonresident firearm licensing scheme was not facially unconstitutional. See Rodriguez, 496 Mass. at 642 n.8 (abrogating Commonwealth v. Donnell, 495 Mass. 471, 479-483 4
residence or place of business without also having a license to
carry a firearm" (quotations and citation omitted).
Commonwealth v. Guardado, 491 Mass. 666, 682 (Guardado I), S.C.,
493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024). To
convict the defendant of unlawful carrying of a firearm, the
Commonwealth is required to establish that the defendant
possessed the firearm and that he did not have a license to
carry a firearm. See Guardado I, supra at 690-692. We first
address the defendant's challenges to the admissibility of
evidence of nonlicensure and then address his challenges to the
sufficiency of the evidence of (a) nonlicensure and
(b) possession of a firearm.
1. Evidence presented of nonlicensure and its
admissibility. The defendant challenges the admissibility of
the following evidence that the Commonwealth submitted to
establish that the defendant lacked a license to carry a
firearm: (1) the testimony from DCJIS employee Amy4 Conway, who
[2025] to extent it held that former version of nonresident firearm licensing scheme "was facially violative of the Second Amendment").
4 As is our custom, we spell the witness's name as it appears in the transcript. The correct spelling, which is confirmed by exhibit 1 and a search of the Board of Bar Overseers attorney database, is Aimee. We recognize the irony of a misspelling of the name of the person testifying about her database search in a case that hinges on the witness entering the correct spelling of the defendant's name in her database search. 5
searched the firearm license database for the defendant's name
and date of birth and testified that no record was found, and
(2) a printout memorializing the search parameters Conway used
and the search result that no record was found (printout or
exhibit 1).
Before turning to the legal analysis, we summarize the
evidence the Commonwealth presented on the issue of
nonlicensure. Conway testified that she was employed by the
DCJIS as litigation and compliance counsel and that, prior to
taking that role, she was an assistant district attorney for
almost thirteen years. She explained that the DCJIS is made up
of multiple divisions, including the firearms record bureau,
which issues the physical firearm license and enters information
relevant to that license into an electronic database called the
Massachusetts instant record check system (MIRCS).
Conway explained that after the firearms record bureau
supplies a physical license to the licensing authority, "[t]he
licensing authority physically provides it to the . . .
licensee, and then activates the license in [the MIRCS]
database." This process ensures that every licensee is given
the opportunity to make sure all of the identifying information
entered into the firearm license database and listed on their
license is accurate. 6
Information entered into the MIRCS is immediately
replicated into the Criminal Justice Information Systems (CJIS)
database, a separate database that law enforcement officers and
agencies can access and search for purposes of carrying out
their criminal justice responsibilities. Law enforcement
officers can access specific information regarding firearms
licensing histories and ownership records in the CJIS database
through what is known as a "BOPFI"5 search.
Conway further testified that, three days before trial, she
conducted a BOPFI search consisting of the combination of the
defendant's name "Remi Jones" and his correct date of birth (May
17, 1994), a fact subsequently established by testimony from a
police officer.6 The result of the search was "no records
found." The Commonwealth introduced a printout, which Conway
authenticated, that Conway described as memorializing the
database query she entered and the corresponding result of "no
records found" in the CJIS database.
5 The acronym has not been used in our case law. The record does not reflect what "BOP," the first three letters of the acronym, signify. We presume they stand for "board of probation." Cf. Doherty v. Civil Serv. Comm'n, 486 Mass. 487, 488-489 (2020) (referencing board of probation checks). Conway testified that the "FI" in "BOPFI" stands for "firearms inquiry."
6 Following Conway's testimony, a police officer testified that he stopped the defendant at the scene, the defendant's name was Remi Jones, and the defendant's date of birth was May 17, 1994. 7
The defendant challenges the admissibility of Conway's
testimony and argues that the computer printout was inadmissible
hearsay.
a. Conway's testimony. After briefing and oral argument
in this case, the Supreme Judicial Court addressed in
Commonwealth v. Smith, 496 Mass. 304 (2025), the foundation
necessary to admit a witness's testimony that a search of the
firearm license database turned up no record. For a witness "to
be competent to testify that a search of the database returned
no result . . . [i]t suffices that the witness be familiar with
the process of searching the database and with the public
record-keeping practices with respect to the database." Id. at
312. Conway's testimony met this standard. See id. at 310
(DCJIS employee's testimony that his "search of the Statewide
firearm license database turned up no results was a 'practicable
way' of proving that no one with that particular name and birth
date had a firearm license" [quotation and citation omitted]).
See also Commonwealth v. Meserve, 154 Mass. 64, 71 (1891) ("The
only practicable way to prove that no deed appears of record is
to show that an examination of the records discloses none").
Accordingly, "testimony that a search of public records did not
turn up a record is admissible to prove the nonexistence of such
a record." Smith, supra at 308. 8
Conway's testimony also did not violate the confrontation
clause of the Sixth Amendment to the United States Constitution
"because the records in DCJIS's Statewide firearm license
database are not testimonial." Smith, 496 Mass. at 305. As the
Supreme Judicial Court explained further in Smith, "because the
contents of DCJIS's database were not created with the 'primary
purpose' of creating evidence for use at trial, . . . [the DCJIS
employee's] testimony regarding the result of [her] search of
the database did not violate the defendant's right to confront
the witnesses against him" (citations omitted). Id. at 315.
We next address the defendant's argument that the
Commonwealth failed to establish that Conway conducted a
"diligent" search of the firearm license database, and that as a
result, the evidence provided by Conway was inadequate to prove
nonlicensure. The Massachusetts Guide to Evidence, § 803(10)
(2025), addresses testimony and written certifications
introduced to prove the absence of a public record. See
Mass. G. Evid. § 803(10) (2025). Section 803(10) advises that
the admissibility of such evidence should be conditioned on a
"diligent search" having been undertaken. Smith, 496 Mass. at
310, quoting Mass. G. Evid. § 803(10) ("[t]estimony . . . that a
diligent search failed to disclose a public record or statement
is admissible in evidence if the testimony or certification is
offered to prove that [A] the record or statement does not 9
exist, or [B] a matter did not occur or exist, if a public
office regularly kept a record or statement for a matter of that
kind"). However, Smith did not address what would constitute a
diligent search of a database. See Smith, supra at 311 n.10.
Here, it is true that Conway did not expressly state that
she undertook a diligent search of the database. Nonetheless,
the evidence established that Conway's search was one way to
perform a diligent search, meaning that her search efforts would
have found a Massachusetts firearms license if the defendant had
one. Conway testified that she used a two-parameter search of
the database, using the defendant's name and date of birth. Of
course, the Commonwealth must establish in some way that the
search was conducted using the defendant's correct information,
Smith, 496 Mass. at 317-318, viz., the defendant's name and date
of birth. The Commonwealth established the defendant's date of
birth through the testimony of a police officer who spoke to the
defendant at the scene. See note 6, supra. And while Conway
was not asked how she spelled the defendant's first and last
names when she conducted the search, the printout memorialized
the spellings that she used in the search, and they are the same
as the spellings used in the indictments. Exhibit 1 also
documented the correct date of birth. This portion of exhibit 1 10
confirming the search terms entered was admissible for that
purpose.7
We reject the defendant's argument that the Commonwealth
did not prove the search was diligent because Conway did not
review the charging documents, arrest report, or booking form.
The only relevant question was whether she searched the database
for the defendant's name and correct date of birth. Also, the
fact that it does not take a long time to search a database for
a properly spelled name and a correctly entered date of birth
does not nullify the diligence of the search.
The defendant also raises on appeal arguments that were not
made at trial. We review those claims to determine whether
there was error, and if so, whether such error created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Rios, 96 Mass. App. Ct. 463, 474 (2019). The defendant
argues that Conway's search could have produced a "false
negative" because the indictment listed "Remi M. Jones." The
defendant argues that a "query for 'Jones, Remi; date-of-birth:
5/17/1994' would have failed to retrieve records entered under
7 The act of entering the defendant's name into the search parameters was not an assertion and thus was not hearsay. See Commonwealth v. Purdy, 459 Mass. 442, 452 (2011), quoting Mass. G. Evid. § 801(c), at 233 (2011) ("[W]hen out-of-court statements are offered for a reason other than to prove the truth of the matter asserted or when they have independent legal significance, they are not hearsay"). 11
the combination 'Jones, Remi M.; date-of-birth: 5/17/1994.'"
This was a matter for cross-examination, and it was not raised
at trial. We do not discern a substantial risk of a miscarriage
of justice.8 Rios, supra.
The defendant also argues for the first time on appeal that
Conway did not determine whether the defendant was a nonresident
who did not have a Massachusetts firearms license, but who did
have a permit or license under the laws of another State. This
argument was briefed only cursorily and relies on outdated law.9
We understand the defendant to mean that the Commonwealth did
not prove that he did not fall within an exemption to license
requirements for nonresidents. It is correct that the
Commonwealth did not establish the defendant's residence.
Nonetheless, we discern no substantial risk of a miscarriage of
justice because "[w]e treat the existence of a statutory
8 We note, however, that in Smith, the Commonwealth provided more robust testimony on the reliability of a DCJIS employee's search for a name in the CJIS database. See Smith, 496 Mass. at 307 (DCJIS employee testified that CJIS database "uses a 'Soundex' search method for names that allows some room for error in misspelling a person's name"). Such testimony was not offered in this case.
9 In support of this argument, the defendant cites to Commonwealth v. Harris, 481 Mass. 767, 781-782 (2019), and G. L. c. 140, § 131G. The Supreme Judicial Court recognized in Commonwealth v. Crowder, 495 Mass. 552, 562, cert. denied, 146 S. Ct. 169 (2025), that Harris was abrogated on other grounds. And G. L. c. 140, § 131G, was repealed in 2024. See St. 2024, c. 135, § 64. 12
exemption as equivalent to an affirmative defense" (citation
omitted). Guardado I, 491 Mass. at 682. See Commonwealth v.
Anderson, 445 Mass. 195, 214 (2005) ("statutory exemption for
the charge of illegally possessing a firearm . . . is an
affirmative defense"). "While the Commonwealth carries the
burden of proving each element of a charged crime, it has no
burden of disproving an affirmative defense unless and until
there is evidence supporting such defense" (quotation and
citation omitted). Guardado I, supra.
It is worth noting that we reject the Commonwealth's
argument that Conway's single search for both the defendant's
name and date of birth was more diligent than conducting two
separate searches for each parameter. In proving the absence of
a record, performing a single search for two parameters may be
less diligent than performing two separate, one-parameter
searches (e.g., one for the name and one for the date of birth)
because a single, two-parameter search requires a match of two
parameters to yield a record.10 In other words, if there is a
typographical error in either parameter of a two-parameter
10In Smith, the Supreme Judicial Court held that searching the name and date of birth, if both are in the record, is "a practicable way of proving that no one with that particular name and birth date had a firearm license" (emphasis added; quotation and citation omitted). Smith, 496 Mass. at 310. The court did not say in Smith that one search using the defendant's name and date of birth was the only way to prove lack of licensure. 13
search, the single search will yield no record. See Smith, 496
Mass. at 317 (DCJIS employee "testified that, even if a person
does have a firearm license, a search for that person's name
will return no result if the person's birth date is entered
incorrectly"). In contrast, conducting two separate, one-
parameter searches for the information will yield a record, if
one exists, so long as at least one of the parameters is entered
correctly.11 In any event, here, the Commonwealth proved that
Conway entered both the name and date of birth correctly.
In sum, the Commonwealth established that Conway's search
was diligent. Thus, it was within the trial judge's discretion
to admit Conway's testimony regarding her search of the CJIS
database and the printout to the extent that it memorialized her
search.
b. Written record of the search result. We next turn to
the defendant's argument that exhibit 1, the written record of
Conway's search and the result "no records found," was
inadmissible hearsay. Here, the printout reflecting the result,
"No Records Found," was not accompanied by a written
certification by a custodial officer "that after [a] diligent
search no record or entry of a specified tenor [was] found to
11If the defendant has a common name, the Commonwealth can establish that the search result is not the defendant by using one or more additional parameters such as the date of birth or address. 14
exist in" the firearm license database. Smith, 496 Mass. at
309, quoting Mass. R. Crim. P. 40 (b), 378 Mass. 917 (1979).
Nonetheless, the defendant's argument is misplaced because the
person who created the document -- Conway -- was present in
court, was the person who performed the search, and testified to
the result that no records were found for the defendant's name
and date of birth. See Smith, supra at 309 n. 7, quoting 4 J.H.
Wigmore, Evidence § 1273, at 674-675 (Chadbourn rev. ed. 1972)
("rule permitting admission of certified copies should not be
understood as 'provid[ing] an exclusive mode' to exclusion of
sworn testimony authenticating document"). Accordingly,
Conway's testimony was admissible and established the absence of
a public record. See Smith, supra at 310.
2. Sufficiency of the evidence of unlawful possession of a
firearm. The defendant moved for a required finding of not
guilty at both the close of the Commonwealth's case and the
close of all evidence, arguing that there was insufficient
evidence for the jury to conclude that the defendant (a) lacked
a license to carry a firearm and (b) possessed a firearm.
In evaluating the denial of a motion for a required finding
of not guilty, we review the evidence in the light most
favorable to the Commonwealth to determine whether "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 15
Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979). "[C]ircumstantial evidence is sufficient to
establish guilt beyond a reasonable doubt, and inferences drawn
from such evidence need only be reasonable and possible; [they]
need not be necessary or inescapable" (quotations and citations
omitted). Commonwealth v. Gonzalez, 475 Mass. 396, 407 (2016).
"Because the defendant moved for required findings at the
close of the Commonwealth's case and again at the close of all
the evidence, '[w]e consider the state of the evidence at the
close of the Commonwealth's case to determine whether the
defendant's motion should have been granted at that time. We
also consider the state of the evidence at the close of all the
evidence, to determine whether the Commonwealth's position as to
proof deteriorated after it closed its case'" (citation
omitted). Commonwealth v. West, 487 Mass. 794, 799-800 (2021).
a. Lack of license to carry a firearm. The defendant
asserts that there was insufficient evidence to prove he lacked
a firearm license because Conway did not conduct a diligent
search of the CJIS database. We disagree.
As discussed supra, Conway conducted a diligent search of
the CJIS database, and her testimony was properly admitted.
Thus, the jury could consider her testimony in determining 16
whether the defendant had a firearm license.12 Given the
combination of (1) Conway's testimony that her search for the
defendant in the CJIS database yielded no record and (2) the
arresting officer's testimony providing the defendant's name and
date of birth, there was sufficient evidence to prove beyond a
reasonable doubt that the defendant lacked a license to carry a
firearm. Contrast Smith, 496 Mass. at 317 (DCJIS employee's
testimony that he conducted search based on hearsay as to
defendant's date of birth "did not alone amount to sufficient
evidence that the defendant lacked a firearm license" because
there was no "substantive evidence" of defendant's birth date).
b. Possession of a firearm. The defendant also argues
that the witness testimony and surveillance video footage were
insufficient to prove possession of a firearm beyond a
reasonable doubt. We disagree.
We recite the facts the jury could have found, viewing the
evidence in the light most favorable to the Commonwealth. See
Latimore, 378 Mass. at 676-677. Jean, through his bedroom
window, saw Evel in an altercation in the parking lot with a
male wearing a black shirt. Jean ran outside, followed by their
12Even if we concluded that Conway's testimony was improper, we would still include it as evidence in our sufficiency analysis because it was admitted at trial. See Commonwealth v. Davis, 487 Mass. 448, 462 (2021), S.C., 491 Mass. 1011 (2023) ("Ordinarily, in determining the sufficiency of the evidence, we include evidence improperly admitted"). 17
mother, to where Evel and the man were fighting. When Jean
stepped between them to break up the fight, he was hit in the
face and then struck back at the man in the black shirt. The
mother tried to separate the men. The fighting ended once the
man in the black shirt calmed down.
After the initial fighting ended, Evel, Jean, and their
mother began to walk back towards their apartment. As the
family was walking away, the man in the black shirt approached
the defendant. The surveillance video footage shows that the
man in the black shirt and the defendant interacted and
exchanged an object. Then, the man in the black shirt
approached Evel, Jean, and their mother with what the jury could
infer was the same object in his hand. The man in the black
shirt pointed the black object at Jean, who reacted by
immediately putting his hands up. Jean and his mother testified
that the object the man in the black shirt was pointing at Jean
was a firearm wrapped inside a sock. The man in the black shirt
tried to strike Jean with the firearm but, as the man swung, he
dropped the firearm and it skittered across the parking lot.
The mother and the defendant both raced to the firearm, and the
mother was able to retrieve it first. The defendant then
pursued the mother and grabbed at her, repeatedly saying,
"Please give it to me." 18
In the light most favorable to the Commonwealth, the jury
could have reasonably inferred that the object exchanged between
the defendant and the man in the black shirt was a firearm, and
that the defendant's effort to retrieve the firearm from the
mother was evidence that the defendant knowingly possessed it.
See Commonwealth v. Witkowski, 487 Mass. 675, 681 n.6 (2021)
(where "conflicting inferences are possible from the evidence,
'it is for the jury to determine where the truth lies'"
[citation omitted]). Thus, there was sufficient evidence to
establish that the defendant possessed a firearm.13
Judgment affirmed.
13The Commonwealth's case did not deteriorate during the presentation of the defendant's case because the only evidence the defendant introduced was body-worn camera video footage of an officer at the scene, which did not contradict any of the surveillance video footage or witness testimony. See West, 487 Mass. at 799-800.