COMMONWEALTH vs. ANTHONY EBERHART.

CORDY, J. On February 8, 2010, a Superior Court jury convicted the defendant on indictments charging unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a); [Note 1] unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n); [Note 2] and unlawful possession of ammunition without a firearm identification (FID) card, in violation of G. L. c. 269, § 10 (h). [Note 3] The indictments charging unlawful possession of a firearm and unlawful possession of ammunition further alleged that the defendant previously had been convicted of three violent crimes or serious drug offenses, thus subjecting him to enhanced sentencing as an armed career criminal under G. L. c. 269, § 10G (c). One of the three alleged predicate offenses was simple assault and battery, G. L. c. 265, § 13A. At a jury-waived subsequent offender trial, the judge found that the defendant had committed each of the three predicate offenses, and found him guilty of the subsequent offender portions of the indictments. [Note 4] Prior to sentencing, the judge dismissed the indictment charging unlawful possession of ammunition without an FID card as duplicative.

The defendant appeals from his convictions of possession of a firearm and possession of a loaded firearm. We transferred the

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case to this court on our own motion, and paired it for argument with Commonwealth v. Gouse, ante 787 (2012) (Gouse). Relying on the United States Supreme Court decisions in McDonald v. Chicago, 130 S. Ct. 3020 (2010) (McDonald), and District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), the defendant argues that (1) the Commonwealth should bear the burden of proving that he did not possess a license to carry a firearm as an element of the crimes of unlawful possession of a firearm and unlawful possession of a loaded firearm; and (2) G. L. c. 269, § 10 (a) and (n), unduly restricts the right to keep and bear arms for the purposes of self-defense. [Note 5] For the reasons expressed in Gouse, supra at 799-808, we reject the defendant's argument and affirm his firearm convictions.

The defendant also appeals from his conviction under the sentencing enhancement provision of G. L. c. 269, § 10G (c), on the ground that the evidence presented in support of one of his three prior convictions, assault and battery, failed to establish that he had committed a "violent crime" within the meaning of G. L. c. 140, § 121. Adopting the reasoning of the Appeals Court in its recent decision in Commonwealth v. Colon, 81 Mass. App. Ct. 8 (2011) (Colon), we agree with the defendant. Consequently, we vacate the judgment of conviction under G. L. c. 269, § 10G (c), as an armed career criminal based on three predicate offense convictions, and we remand the case for the entry of judgment and resentencing under G. L. c. 269, § 10G (b), based on two predicate offense convictions.

1. Background. We summarize the limited facts relevant to our inquiry. On June 25, 2009, Detective Thomas Kakley and Sergeant Kevin Devine of the Springfield police department were driving in an unmarked cruiser in the area of Ruth Elizabeth Park in Springfield. Kakley recognized the defendant, who he knew had several outstanding motor vehicle warrants, speaking to the driver of a vehicle parked on Hickory Street, which borders the park. Kakley got out of the cruiser and attempted to

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apprehend the defendant. The defendant resisted. A struggle ensued, which Devine then joined.

The officers ultimately subdued the defendant and placed him in handcuffs. In the defendant's pocket, Devine found a six-shot revolver, which was loaded with four rounds of ammunition, a plastic bag containing thirty-five tablets (later determined to be methylenedioxy methamphetamine, also known as "MOMA" or "Ecstasy") and $137. The officers also found a bag of marijuana on the ground near where the scuffle had occurred.

At trial, the Commonwealth did not present evidence in its case-in-chief that the defendant lacked a license to carry the firearm found on his person or an FID card permitting him to possess ammunition. As a result, the defendant moved for, and was denied, required findings of not guilty on the firearms and ammunition charges at the close of the Commonwealth's case. [Note 6]

The defendant then testified in his own defense. He denied possessing the gun, the ammunition, and the drugs; on cross-examination, he testified that he did not possess either an FID card or a license to carry a firearm. [Note 7]

After the jury returned their verdicts, the defendant waived a jury trial on the subsequent offender portions of the firearm and ammunition charges. For each of the three predicate offenses listed in the indictments -- possession of a class B substance with intent to distribute, assault and battery by means of a dangerous weapon, and simple assault and battery -- the Commonwealth called the arresting officer to testify and submitted a certified copy of the relevant conviction or corresponding docket.

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With regard to the assault and battery conviction, the Commonwealth called Officer John Carolan, who testified that he had arrested the defendant on September 4, 2004. Carolan provided no substantive information about the crime, other than describing it as "[a]ssault and battery domestic and intimidation of a witness." The Commonwealth then introduced a certified copy of a docket from the Springfield Division of the District Court Department that indicated that the defendant had pleaded guilty to a single charge of assault and battery on August 25, 2005. [Note 8]

2. Convictions under G. L. c. 269, § 10 (a) and (n). The defendant contends that our ruling in Commonwealth v. Jones, 372 Mass. 403, 406 (1977), that the "[a]bsence of a license is not 'an element of the crime' " of unlawful possession of a firearm, and that the "holding of a valid license" is an affirmative defense to that charge, conflicts with an individual's right to keep and bear arms under the Second Amendment to the United States Constitution, as defined in Heller, supra, and McDonald, supra. He further contends that, in light of those Second Amendment decisions, a "presumption of unlawfulness" based on the mere carrying of a firearm is no longer sustainable, and the Commonwealth must carry the affirmative burden of proving the absence of a license as an element of the offense.

We have today rejected the essential core of the defendant's argument in Gouse, supra at 801-808, concluding that "[n]othing in the McDonald and Heller decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure." See Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011). Our reasoning in that case applies with equal force here. The holding of a license remains an affirmative defense to the crime of unlawful possession of a firearm, whether loaded or not, in violation of G. L. c. 269, § 10 (a) and (n), [Note 9] Gouse, supra; and the Commonwealth bears the burden of proving its

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absence only if and when the defendant presents some evidence of licensure. Id. Here, the defendant presented no such evidence and his motion for required findings of not guilty was properly denied. [Note 10], [Note 11]

3. Assault and battery as a "violent crime" under G. L. c. 140, § 121. The defendant argues that a certified conviction of assault and battery does not suffice to prove that he committed a "violent crime," absent additional evidence demonstrating that the crime of which he was convicted "has as an element the use, attempted use or threatened use of physical force" or "presents a serious risk of physical injury to another." G. L. c. 140, § 121. We are in accord with the recent decision in Colon, supra at 12-22, on this precise point. We summarize the essential points of the Appeals Court's analysis, providing additional commentary when appropriate.

General Laws c. 269, § 10G (a)-(c) (§ 10G), imposes enhanced sentencing on a person who, having previously been convicted of at least one "violent crime" or serious drug offense, is convicted of possession of a firearm or ammunition. For purposes of § 10G, a "violent crime" is defined as

"[A]ny crime punishable by imprisonment for a term

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exceeding one year . . . that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another."

G. L. c. 140, § 121. See G. L. c. 269, § 10G (e). The definition of a violent crime under § 10G "therefore has three components: (1) the 'physical force' or 'force' clause; (2) the enumerated crimes provisions; and (3) the residual clause." Colon, supra at 12.

Section 10G's language "largely replicates" the language of the Federal armed career criminal act (Federal ACCA), 18 U.S.C. § 924(e) (2006). Colon, supra at 12-14. See Commonwealth v. Ware, 75 Mass. App. Ct. 220, 223 (2009). See also Commonwealth v. Anderson, ante 616, 626 n.10 (2012). In particular, the definition of "violent crime" in § 10G is almost identical to the definition of "violent felony" in the Federal ACCA. See Colon, supra at 13. We therefore "consider the Federal courts' construction of the Federal statute highly persuasive in interpreting [§ 10G]." Colon, supra at 14.

Under the Federal ACCA, sentencing judges use a "categorical approach" to determine whether a prior conviction qualifies as a predicate offense. Colon, supra at 15, citing Taylor v. United States, 495 U.S. 575, 602 (1990). "This approach 'generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.' " Colon, supra, quoting Taylor v. United States, supra. Massachusetts courts have previously applied the categorical approach when interpreting the "serious drug offense" prong of § 10G, Commonwealth v. Ware, supra at 224-225, and cases cited, and when determining whether a defendant has allegedly committed an offense that subjects him to pretrial detention for dangerousness, G. L. c. 276, § 58A. See Commonwealth v. Young, 453 Mass. 707, 711-716 (2009). We agree that "this straightforward categorical approach also applies to [§ 10G] jury trials when the statutory definition of the prior offense unambiguously qualifies that offense as a predicate conviction." Colon, supra at 15.

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The categorical approach does not always produce a conclusive determination whether the defendant has been convicted of a "violent crime." The defendant may have been convicted under a broad statute that encompasses multiple crimes, not all of which are "violent crimes." In this "narrow range of cases," Federal judges utilize a "modified categorical approach," consulting extrinsic evidence to determine the material elements that formed the basis of the defendant's prior convictions. Id. at 16, quoting Johnson v. United States, 130 S. Ct. 1265, 1273 (2010).

The procedure for conducting this additional inquiry is different under Massachusetts law and Federal law. Colon, supra at 14-15, 16. Under Federal law, the sentencing judge determines whether the defendant has been convicted of sentence-enhancing predicate felonies. See, e.g., Johnson v. United States, supra. The judge's inquiry is confined to the trial records of the predicate felonies -- including "charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Id., and cases cited. Under Massachusetts law, a defendant facing sentence enhancement based on prior convictions is entitled to a jury trial. G. L. c. 278, § 11A. At this subsequent offender trial, the "trial judge may admit any evidence that would have been admissible at the original trial of the alleged predicate offense." Colon, supra at 16 n.8. [Note 12] Because the same standard of proof applies as in a regular trial, G. L. c. 278, § 11A, this evidence must suffice to prove, beyond a reasonable doubt, that the crime for which he was convicted was a violent crime. Id. at 16.

We emphasize that, at the subsequent offender trial, "the Commonwealth need not retry the prior conviction . . . ; the Commonwealth need only prove which statutory or common-law definition was the basis of the prior conviction" (emphasis original). Id. at 16 n.8. The United States Court of Appeals for the First Circuit has concisely explained the objective of a court

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reviewing a prior conviction under the modified categorical approach:

"It would be appropriate for the sentencing court to look to the conduct in respect to which the defendant was charged and pled guilty, not because the court may properly be interested (in this context) in the violent or non-violent nature of that particular conduct, but because that conduct may indicate that the defendant and government both believed that the generically violent crime . . . rather than the generically non-violent crime . . . was at issue" (emphasis original).

United States v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992), overruled on other grounds, Shepard v. United States, 544 U.S. 13 (2005). Under the modified categorical approach, a certified record of conviction referencing a particular statute may prove that the defendant committed a violent crime only when all crimes encompassed within that statute are violent crimes. The Colon court explained:

"If a certified record of conviction identifies a statutory or common-law term which could refer to multiple crimes with different material elements, then the certified record permits any rational factfinder to conclude, beyond a reasonable doubt, that the defendant was convicted of a 'violent crime' only if all crimes defined by that statutory or common-law term are 'violent crimes.' See [Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979)]; United States v. Holloway, 630 F.3d [252,] 256-257 [(1st Cir. 2011)]. See also Shepard v. United States, 544 U.S. [13], 15-17, 24-26 [(2005)]. If the statutory or common-law crime encompasses several offenses at least one of which is not a 'violent crime,' then a rational factfinder would require some additional evidence that the conviction at issue was of one of the offenses included in that term that is a 'violent crime' in order to conclude, beyond a reasonable doubt, that the defendant was previously convicted of a 'violent crime.' See Commonwealth v. Latimore, supra. Accord United States v. Holloway, [supra] at 259-260." (Emphases in original.)

Colon, supra at 16-17.

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We now apply these principles to assault and battery, again tracking the analysis in Colon. The statutory crime of assault and battery, G. L. c. 265, § 13A, encompasses three common-law crimes: harmful battery, reckless battery, and offensive battery. [Note 13] Commonwealth v. Burke, 390 Mass. 480, 482 (1983); Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194-195 (2008). Harmful battery is "[a]ny touching 'with such violence that bodily harm is likely to result' . . . ." Commonwealth v. Burke, supra, quoting Commonwealth v. Farrell, 322 Mass. 606, 620 (1948). Reckless battery is a "wilful, wanton and reckless act which results in personal injury to another." Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274 (1983). Offensive battery occurs when "the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim's consent." Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008). "The affront to the victim's personal integrity is what makes the touching offensive." Commonwealth v. Burke, supra at 483.

The Colon court analyzed whether all three crimes of assault and battery are predicate "violent crimes" under § 10G. Colon, supra at 18. In so doing, it reviewed the three clauses encompassed in the definition of "violent crime" in G. L. c. 140, § 121: the enumerated crimes clause, the force clause, and the residual clause. Id. at 18-22. See id. at 12. Assault and battery is not among the list of enumerated crimes. Id. at 18.

The "force clause" defines a "violent crime" as one that "has as an element the use, attempted use or threatened use of physical force." G. L. c. 140, § 121. Drawing from United States Supreme Court precedent interpreting the Federal ACCA, the Colon court concluded that the phrase "physical force" means "violent or substantial force capable of causing pain or injury." Colon, supra, citing Johnson v. United States, 130 S. Ct. 1265, 1271 (2010). Harmful battery and reckless battery do have as an element the use of "physical force" sufficient to implicate the sentencing enhancement. Offensive battery,

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however, which can be committed through such de minimis touchings as tickling and spitting, does not. Colon, supra at 19-20, citing Commonwealth v. Hartnett, supra, and Commonwealth v. Cohen, 55 Mass. App. Ct. 358, 359-360 (2002).

The "residual clause" qualifies an offense as a "violent crime" if it "otherwise involves conduct that presents a serious risk of physical injury to another." G. L. c. 140, § 121. Again drawing guidance from Federal precedent, the Colon court concluded that "[o]ffensive battery does not, in the ordinary case, involve conduct with the requisite risk." Id. at 22.

In sum, of the three crimes of assault and battery codified in G. L. c. 265, § 13A, harmful battery and reckless battery are "violent crimes," but offensive battery is not. Colon, supra at 17-18. Accord United States v. Harris, supra ("Massachusetts 'assault and battery' statute covers two separate crimes -- one involving actual [or potential] physical harm and the other involving a 'nonconsensual' but unharmful touching"). Accordingly, a certified conviction of assault and battery is insufficient to prove beyond a reasonable doubt that a defendant committed a "violent crime" for the purpose of sentencing enhancement under § 10G. [Note 14]

In the present case, the only evidence offered in connection

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with the defendant's prior conviction of assault and battery was a certified conviction from the Springfield Division of the District Court Department and the testimony of arresting Officer John Carolan to the effect that the defendant was charged with "[a]ssault and battery domestic and intimidation of a witness." As the Commonwealth concedes, this minimal additional evidence failed to prove beyond a reasonable doubt that the defendant's prior conviction was based on harmful or reckless battery. The Commonwealth thus sufficiently proved only that the defendant had committed two predicate offenses under § 10G. See Colon, supra at 24-25.

4. Conclusion. For the foregoing reasons, we uphold the defendant's firearm convictions under G. L. c. 269, § 10 (a) and (n). On the subsequent offender portion of the indictment, we set aside so much of the judgment of conviction as pertains to the predicate offense of assault and battery, and remand the case for the entry of judgment and resentencing under G. L. c. 269, § 10G (b), based on two predicate offenses.

So ordered.