COMMONWEALTH v. WILLIAM HOWELL (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial in February 2023, a Superior Court judge convicted the defendant of unlawfully carrying a firearm (third offense),¹ unlawful possession of ammunition, unlawfully carrying a loaded firearm, and unlawful possession of a large capacity feeding device. The judge subsequently granted the defendant's motion for a new trial on the first three charges, because the Commonwealth did not present evidence that the defendant lacked a license to carry a firearm. See Commonwealth v. Guardado, 491 Mass. 666 (2023), S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024). By separate order, the judge denied the defendant's request for a new trial on the large capacity feeding device indictment, determining that the defendant was not prejudiced by his trial counsel's ineffective assistance.

In this consolidated appeal, the defendant argues that (1) the trial evidence was insufficient to establish that the defendant knew that he possessed ammunition, knew that the firearm was loaded, or knew that the firearm had a large capacity feeding device; (2) the judge erred by admitting thermal images in evidence at trial; and (3) the judge abused his discretion by denying the defendant's motion for a new trial as to the large capacity feeding device conviction.² To the extent the Commonwealth elects to retry the defendant, we conclude that there was sufficient evidence of the element of knowledge on the indictments charging possession of ammunition and carrying a loaded firearm and discern no error in the trial judge's admission of thermal imaging evidence. However, we conclude that the trial evidence was insufficient to establish that the defendant knew the firearm had a large capacity feeding device, and therefore we reverse the defendant's conviction on that charge.³

Discussion. 1. Sufficiency of evidence. 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” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable” (quotation and citation omitted). Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018). Here, the defendant challenges the sufficiency of the trial evidence only as to the knowledge element of the crimes for which he was convicted.

a. Possession of ammunition and carrying loaded firearm. “To convict the defendant of unlawful possession of ammunition, the Commonwealth was required to prove that the defendant knowingly possessed ammunition.” Commonwealth v. Johnson, 461 Mass. 44, 53 (2011). To convict the defendant of unlawful possession of a loaded firearm, the Commonwealth was required to prove that the defendant knew “that the firearm was loaded with ammunition.” Commonwealth v. Brown, 479 Mass. 600, 608 (2018). The defendant asserts that the Commonwealth did not present evidence from which a reasonable inference could be drawn that the defendant knew the firearm was loaded with ammunition. We disagree.

The Commonwealth presented the following evidence at trial. On March 17, 2021, Boston police officers saw a car with excessively tinted windows pass by their unmarked vehicle. They activated their emergency lights and followed the vehicle. During their brief pursuit, police saw the vehicle swerve toward a parked car, narrowly missing it, then stop a short time later. The defendant was the sole occupant. When police removed the defendant from his vehicle, they noticed that the vehicle's passenger side window, which was closed when the car initially passed them, was now open. Shortly thereafter, officers found a firearm underneath the rear of the car that the defendant had nearly hit during the chase. The firearm had a large capacity feeding device attached and was loaded with nineteen rounds of ammunition. It had visible exterior damage that appeared to be scratch marks. Furthermore, an officer used a thermal imaging device to take two photographs of the firearm and determined that the firearm's temperature cooled in the ten minutes that elapsed between the first and second photographs.

Based on this evidence, a rational fact finder could reasonably infer that the defendant threw the gun out of his car window as he passed the parked car. A fact finder also could reasonably infer that the defendant, while retrieving and throwing the firearm, perceived its weight, balance, and configuration, and therefore knew that the firearm was loaded with live rounds of ammunition. See Commonwealth v. Ashford, 486 Mass. 450, 454 (2020) (jury rationally may infer that defendant knew gun loaded from circumstantial evidence); Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 773-775 (2020) (sufficient evidence that gun loaded where defendant held it under armpit); Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412-413 (2019) (evidence that defendant brought gun to location would support reasonable inference of knowledge that gun was loaded).

b. Possession of large capacity feeding device. To sustain a conviction for unlawful possession of a large capacity feeding device, the Commonwealth must prove that a defendant “either knew the firearm or feeding device met the legal definition of ‘large capacity’ or knew it was capable of holding more than ten rounds of ammunition.” Commonwealth v. Cassidy, 479 Mass. 527, 529, cert. denied, 586 U.S. 876 (2018). A large capacity feeding device is “a fixed or detachable magazine ․ or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition.” G. L. c. 140, § 121, as amended through St. 2018, c. 123, §§ 4, 7.⁴ “[T]he large capacity of a weapon often is not readily apparent.” Commonwealth v. Marrero, 484 Mass. 341, 346 (2020).

In Cassidy, 479 Mass. at 528, police recovered two firearms, four feeding devices, and ammunition from the defendant's apartment. The court concluded that the jury could have inferred that the defendant knew that the nine millimeter pistol and four magazines recovered were capable of holding more than ten rounds of ammunition based on evidence that the defendant had owned the firearms and magazines for a significant period of time, had fired the two firearms, had owned other firearms in the past and hunted with firearms since age eight, had stated that he did not fully load the magazine to avoid wearing out the spring, and could see the “obvious large size of the thirty-round ‘banana-style’ magazines.” Id. at 538. Here, by contrast, there was no evidence that the defendant had owned the firearm for a significant period, how he had acquired it, or whether he had owned firearms in the past. Nor was there evidence that the defendant made statements that he knew about firearms or feeding devices. Also, unlike Cassidy, there was only one magazine in this case and the photographs of the firearm offered in evidence show the magazine protruding only a few inches from the weapon's handle. Given the evidence presented, we conclude that no rational trier of fact could have found beyond a reasonable doubt that the defendant knew the firearm was high capacity or that its feeding device could hold more than ten rounds of ammunition. See Commonwealth v. Resende, 94 Mass. App. Ct. 194, 202 (2018).

2. Admission of thermal imaging evidence. “We do not disturb a judge's decision to admit ․ evidence absent an abuse of discretion or other legal error” (citation omitted). Commonwealth v. Souza, 492 Mass. 615, 626 (2023). The defendant asserts that the judge abused his discretion by admitting evidence of thermal imaging of the firearm without expert testimony. We disagree.⁵

Although there is no appellate case directly on point, our analysis is guided by Commonwealth v. Whitlock, 74 Mass. App. Ct. 320 (2009). In Whitlock, the judge properly admitted testimony in a drug distribution case of a nonexpert police witness that he “used a software program called ArcView to determine that the distance from the point of sale” was within a school zone. Id. at 325. The witness testified he was trained in the use of the program, used it to determine distances in over 150 similar cases, and confirmed its accuracy by having it generate the distance between two points he had independently measured with a measuring wheel. See id. at 326. Although the officer did not know how the program worked, he was familiar with how to operate it as a measuring tool. See id. at 327-328. Therefore, any foundational deficiencies went to the weight and not the admissibility of the witness's testimony. See id. at 328.

Here, the officer was trained in using the thermal imaging camera and operated it over a dozen times, including with firearms. He testified that the device was used as a measuring tool that “picks up ․ heat signatures.” The officer took photographs of known hot and cold areas before “imaging” the firearm twice, ten minutes apart. The judge was able to compare the photographic evidence of the “known” areas and the two photographs of the firearm to see that the hot area and the first firearm photograph glowed more brightly than the cold area and the second firearm photograph. The judge thus was able to apply common sense to the evidence, which was contextualized by the defendant's trial counsel's cross-examination. Because the officer's testimony was limited to what he did and the resulting images, without any interpretation of the images, we conclude that the judge did not abuse his discretion by admitting the testimony. As in Whitlock, any foundational shortcomings due to the officer's lack of expertise on technical aspects of the device's operation went to the weight rather than admissibility of the thermal imaging of the firearms.

Conclusion. On the indictment charging possession of a large capacity feeding device, the judgment is reversed, the finding is set aside, and judgment shall enter for the defendant. On the remaining indictments, the judgments remain vacated and the Commonwealth may retry the defendant, if it so chooses.⁶ The appeal from the order dated July 31, 2025, denying the motion for a new trial is dismissed as moot.

So ordered.

FOOTNOTES

1.   After the trial, the defendant pleaded guilty to the third and subsequent offense portion of the indictment.

2.   The defendant appealed from the order dated July 31, 2025, denying his motion for a new trial as to the large capacity feeding device conviction, but not from the separate order vacating his other convictions. However, as part of the defendant's direct appeal, we consider his argument that he is entitled to judgment in his favor on the indictments charging possession of ammunition and carrying a loaded firearm because the Commonwealth presented insufficient evidence of those offenses at trial.

3.   Based on this conclusion and the entry of acquittal, we need not resolve whether the judge abused his discretion by denying the defendant's motion for a new trial based on ineffective assistance of counsel and we dismiss the appeal from the order denying the new trial motion as moot.

4.   We cite the version of the statute in effect at the time of the actions giving rise to the indictments.

5.   The defendant also contends that the error resulted in prejudice. See Commonwealth v. Correia, 492 Mass. 220, 232 (2023). Although the defendant did not object when the photographs taken using the thermal imaging device were admitted in evidence during the trial, he objected to the Commonwealth's motion in limine to admit evidence of thermal imaging. Because we discern no abuse of discretion or other error in the admission of the evidence, we do not reach the issue of prejudice.

6.   As discussed above, there was sufficient evidence at trial that the defendant knew he possessed ammunition and knew that the firearm he carried was loaded. To the extent that the Commonwealth chooses to retry the defendant on the indictments charging carrying a firearm, possession of ammunition, and carrying a loaded firearm, we discern no abuse of discretion or error of law in the admission of thermal imaging evidence, even absent an expert witness.