2. Sufficiency of evidence of "control". The firearm storage statute applies to weapons when they are neither carried nor under the control of their owner or other authorized user. […] The defendant does not contend that he was carrying the gun within the meaning of the statute at the time of the offense. […] He does, however, argue that the Commonwealth failed to prove that the gun was not under his "control." We must assess, therefore, the meaning of that term for purposes of the gun storage statute.
"Control" is not defined by the statute, and we have found no case construing the term in this context. Ordinary rules of statutory construction lead to the conclusion that "control" is not synonymous with the term "carried." Otherwise, there would have been no need for the Legislature to have used both terms in the statute. […] "Carried" is also undefined by the statute, but at a minimum it requires actual physical possession. What else might be required is a question left for another day, although we note that in the related context of G. L. c. 269, § 10(a), "carrying" requires nontemporary physical possession together with movement. […]
While a gun for purposes of the firearm storage statute need not necessarily be in the actual physical possession of its owner or authorized user in order to be under that individual's "control," it must be readily at hand. The statute is part of an over-all scheme of gun control legislation designed "to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself." […] The firearm storage statute itself "is illustrative of the societal concern with weapons reaching the hands of unauthorized users." […] Understanding that the purpose of the statute is to guard against the use of firearms by unauthorized, incompetent, or irresponsible persons, it becomes clear that a firearm is within the "control" of its owner or authorized user only when that person has it sufficiently nearby to prevent immediately its unauthorized use. […]
Of course, the determination whether a particular firearm is under an individual's control will depend on the facts and circumstances of any given case. Among other things, consideration should be given to the firearm's location, its proximity to its authorized user or owner, and that person's ability to reach immediately the gun. It is clear to us that the Commonwealth satisfied its burden of proving beyond a reasonable doubt that the gun was not under the defendant's control in this case. The gun was stored in the pocket of a jacket hanging in an upstairs closet. The defendant was downstairs. The gun was out of its holster, which was lying on the kitchen floor. Children were present, including a young boy who at times was closer to the gun than was the defendant. The jury had more than sufficient evidence upon which to find that the gun was not within the defendant's control.
![[thinking]](/xen/styles/default/xenforo/smilies.vb/010.gif "Thinking [thinking]")
