Commonwealth v. Eberhart, 461 Mass. 809

Defendant convicted by jury in 2010 of unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition without an FID card under G. L. c. 269, § 10.
Indictments also alleged three predicate offenses for armed career criminal enhancement under § 10G(c); one predicate was simple assault and battery.
Judge, at a jury-waived trial, found all three predicate offenses and the defendant guilty of the subsequent offender portions; ammunition indictment dismissed as duplicative.
On appeal, defendant challenged the burden of proving licensure as an element and the constitutionality of § 10(a)/(n) under the Second Amendment.
Court rejected the licensure-as-element argument, applying the same burden framework as in Gouse/Loadholt, and affirmed firearm convictions.
Court vacated the § 10G (c) conviction for armed career criminal, remanding for resentencing under § 10G(b) based on two predicate offenses after determining one predicate (assault and battery) did not qualify as a violent crime.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether licensure is an element of unlawful possession offenses	Gouse: license absence not element; Commonwealth bears burden only if defendant shows licensure.	McDonald/Heller require Commonwealth prove absence of license as element.	Commonwealth bears burden only if defendant presents licensure evidence; licensure not element
Whether § 10(a)/(n) violate Second Amendment as applied to self-defense	Defendant contends wide restriction burdens keep/bear rights.	Gouse: statute remains consistent with Second Amendment; no error.	Statute upheld; no undue restriction found
Whether a prior assault and battery conviction can be a ‘violent crime’ under § 10G	Assault and battery conviction proves violent crime under § 10G.	Under Colon, only true ‘violent’ components count; not all assault-and-battery convictions qualify.	Only harmful or reckless battery count; offensive battery not violent; remand for two predicates
Proper standard for determining violent-crime predicate under § 10G	Use modified categorical approach to show predicate offense is violent.	Massachusetts law requires jury trial and admissibility of evidence at § 10G trial.	Mass. uses a modified categorical approach with jury trial; prove which definition underlies conviction

Commonwealth v. Colon, 81 Mass. App. Ct. 8 (Mass. App. Ct. 2011) (defines violent crime under § 10G with force, enumerated, and residual clauses; supports modified categorical approach)
Commonwealth v. Ware, 75 Mass. App. Ct. 220 (Mass. App. Ct. 2009) (applies strict approach to serious drug offenses for § 10G predicates)
Commonwealth v. Latimore, 378 Mass. 671 (1979) (religion on interpreting statute elements; informs use of certified records)
Johnson v. United States, 130 S. Ct. 1265 (2010) (modified categorical approach for evaluating prior convictions under ACCA)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach baseline for prior offenses)
Shepard v. United States, 544 U.S. 13 (2005) (guides reliance on extrinsic evidence under modified categorical approach)
Holloway v. United States, 630 F.3d 252 (1st Cir. 2011) (limits on using broad charging documents to prove violent-felony predicate under residual/force analysis)
United States v. Harris, 964 F.2d 1234 (1st Cir. 1992) (describes objective of reviewing prior convictions under modified categorical approach)
Gouse, Mass. App. Ct. 2012 (2012) (reiterates licensure burden and elements for unlawful possession offenses post McDonald/Heller)
McDonald v. Chicago, 130 S. Ct. 3020 (2010) (Second Amendment right to keep and bear arms; informs contemporary interpretation)