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March 27, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. Jones

Massachusetts Appeals Court

• Citations: None known

• Docket Number: AC 24-P-161

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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

1. 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.

1. 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.