This case raises the question whether an adjudication of delinquency for possessing a firearm in violation of G.L. c. 269, § 10(h) qualifies as a predicate offense for purposes of the repeat offender provisions of G.L. c. 269, § l 0(d). For the reasons set forth below, this court concludes it does. Consequently, the defendant's motion to dismiss so much of the indictment charging him with a third offense of carrying a firearm is DENIED.[1]
Background
The defendant, Shamus Horton ("Horton"), has filed a motion to dismiss pursuant Commonwealth v. McCarthy, 385 Mass. 160 (1982). Horton does not challenge the sufficiency of the evidence introduced before the grand jury, however, insofar as it relates to the indictments charging him with possession of a large capacity feeding device in violation of G.L. c. 269, § l0(m), carrying a firearm without a license in violation of G.L. c. 269, § l 0(a), assault and battery by means of a dangerous weapon causing serious bodily injury in violation of G.L. c. 269, § 15A(c)(I), and assault and battery by discharging a firearm in violation of G.L. c. 269, § 15E. Rather, Horton moves to dismiss only so much of the indictment that charges him with a
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[1] The indictment insofar as it alleges a second offense of carrying a firearm under G.L. c. 269, § 10(d) stands.
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third offense of carrying a firearm under G.L. c. 269, § l0(d). Accordingly, a precis of the evidence presented to the grand jury follows.[2]
Shortly before 8:00 PM on May 9, 2025, officers from the Salem Police Department responded to a report of shots fired at 12 Pope Street. Upon their arrival at that location, police spoke to a male, Jael Lugo ("Lugo"), who was suffering from a head injury which, investigators· later learned, resulted from Lugo being struck with a bottle. Lugo stated he had been assaulted by numerous people who were either unknown to him or he declined to identify. His girlfriend told police that she heard a gunshot during the altercation. With the assistance of a Melrose K-9 officer, police later recovered a Baretta nine-millimeter pistol from a gazebo area dedicated for smokers in close proximity to 12 Pope Street.
Surveillance video from the interior of the multi-unit apartment building at 12 Pope Street earlier that evening shows Horton leaving apartment number 502 with what appeared to be a weighted object in the front pocket of his hooded sweatshirt. Horton and other individuals then exit the building. Surveillance cameras on the exterior of the building next capture the assault of Lugo in a parking lot outside 12 Pope Street as well as people running back towards the apartment building. Horton is then captured on surveillance video inside the apartment building handing a firearm to his co-defendant, Anthony Vazquez ("Vazquez"). That firearm is similar in appearance to the Baretta nine-millimeter handgun police recovered from the gazebo area near 12 Pope Street. Vazquez is next captured by city cameras - though the footage is grainy - walking toward the gazebo area where police located the Baretta handgun.[3]
[2] The evidence introduced before the grand jury is viewed in the light most favorable to the Commonwealth, Commonwealth v. Buono, 484 Mass. 351, 362 (2020). In addition, because appellate review of a McCarthy decision is done de novo, it is not necessary to recite all of the facts heard by the grand jury. See Commonwealth v. Clinton, 491 Mass. 756, 765 (2023), citing Commonwealth v. Stirlacci, 483 Mass. 775, 780-781 (2020).
[3] Co-defendant Vazquez has filed a separate motion to dismiss. See Commonwealth v. Vazquez, Super. Ct. Criminal Case No. 2577CR0025 I (Docket Entry No. 20).
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Investigators also learned that sometime later that evening an individual entered the emergency room in Salem Hospital with a gunshot wound. That person, Ranziel De Jesus Rodriguez ("Rodriguez"), admitted to officers that he was present for the fight outside 12 Pope Street, but provided no specific information about the assault. He provided little more information to the grand jury. Rodriguez is identified in the indictments as the alleged victim of the shooting.
After voting to indict Horton on charges that included the unlawful carrying of a firearm in violation of G.L. c. 269, § 10(a), the grand jury heard evidence concerning the relevant portions of Horton' s prior criminal record. The Commonwealth presented testimony from a Salem police detective that, based on a review of Horton's Board of Probation record, Horton had been previously adjudicated delinquent in Juvenile Court of "possession of a firearm," and separately of "possession of a firearm without an FID card." The grand jury then indicted Horton for carrying a firearm with two prior convictions in violation of G.L. c. 269, § 10(d).
Discussion
Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), Horton argues the Commonwealth presented insufficient information to the grand jury to support a finding of probable cause to believe that he had previously been convicted of two "like offenses" under G.L. c. 269, § 10(d). More specifically, Horton asseverates that his adjudication of delinquency for possession of a firearm in violation of G.L. c. 269, § 10(h) does not qualify as a predicate offense under the repeat offender provision of§ l O(d) .4 The Commonwealth counters Horton's
[4] Although the testimony before the grand jury obliquely referred to "possession of a firearm without an FID card," the prosecutor has since examined the relevant papers in the Juvenile Court and confirmed that the charge resulting in Horton's delinquency adjudication for possession of a firearm without an FID card was a violation of G.L. c. 269, § 10(h).
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challenge by asserting that a conviction under § 10(h) is sufficiently " like" a conviction under § 10(a) to justify application of the enhanced penalty provision of§ 10(d). In any event, the government argues, the question is best resolved after a full presentation of the evidence at trial, presumably by means of a motion for a required finding of not guilty. Mass. R. Crim. P. 25. See Commonwealth v. Becker, 71 Mass. App. Ct. 81, 85-86, cert. denied, 555 U.S. 933 (2008) (upholding denial of motion for required finding of not guilty where rational jury could have found beyond a reasonable doubt that New York sexual abuse conviction was "like violation" similar to Massachusetts offense of indecent assault and battery on person fourteen or older).
Although the Commonwealth's suggestion is not unreasonable, the question squarely before the court involves an exercise of statutory interpretation and hence a legal determination of whether Horton is properly charged in the first place with a criminal offense. Answering that question in the context of a pretrial motion to dismiss, even if the court is not required to do so, makes sense. See McCarthy, 385 Mass. at 163 (noting grand jury's traditional function as effective protection against unfounded criminal prosecutions). The court therefore addresses the merits of Horton's motion.
To begin, there is no dispute that a prior adjudication of delinquency for possession of a firearm under G.L. c. 269, § 10(a) constitutes a "conviction" for purposes of the repeat offender provision of G.L. c. 269, § IO(d). Commonwealth v. Connor C., 432 Mass. 635,646 (2000).
G.L. c. 269, § 10(d) states in pertinent part:
Whoever, after having been convicted of any of the offences set forth in paragraph (a), (b) or (c) commits a like offense or any other of the said offenses shall be punished ... for a third such offence ....
The specific subsections cited within§ 10(d) punish knowingly carrying or possessing a firearm outside one's residence or place of business, or under one's control in a vehicle, without
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an active license to carry(§ 10(a)), carrying on one's person, or under one's control in a vehicle, a dangerous weapon (§ 10(b)), and possessing a machine gun or carrying a sawed-off shotgun, automatic part, bump stock, rapid-fire trigger activator or trigger modifier(§ 10(c)).
In the present case, a Sal m detective testified before the grand jury that Horton had been adjudicated delinquent of possession of a firearm on February 23, 2021, thus establishing a violation of G.L. c. 269, § 10(a). 5 The detective further testified that Horton also had been adjudicated delinquent of possession of a firearm without a valid FID card on April 21, 2022, thus establishing that Horton had committed a violation of G.L. c. 269, § 10(h) . Con s eq uently, it is beyond dispute Horton committed a § 1 O(h) offense after having been adjudged delinquent of the § 10(a) offense. The question before the court, then, is whether a § 10(h) offense is "like" one of the offenses described in§§ 10(a) , (b), or (c), and thus qualifies as a predicate offense for the enhanced penalty provisions of§ 10(d).
In Commonwealth v. Smith, the Appeals Court considered whether a Federal conviction for violating the felon-in-possession provisions of 18 U.S.C. § 922(g)(l) was a "like offense" for purposes of the repeat offender provision of G. L. c. 269, § 10(d). 53 Mass. App. Ct. 166, 172 (2003), rev'd on other grounds, Smith v. Massachusetts, 543 U.S. 462 (2005). The Court initially noted that "[t]he statute does not define a 'like offense."' Id. In such a situation, the Court observed, "we may interpret ["like offense"] in accordance with its generally accepted plain meaning. .. . The generally accepted, plain meaning of ' like,' in this context, means the same or nearly the same." Id. (internal citations and quotations omitted). The Court concluded,
"Although the elements of the Federal statute are not identical to the State statute, the offenses
[5] Horton does not dispute that the prior delinquency adjudication on February 23, 2021, involved a violation of § 10(a).
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proscribed by both statutes are sufficiently alike to be considered 'like offense[s]' for the purposes of G.L. c. 269, § l0(d)." Id. at 173. The Smith Court reasoned that both statutes "are concerned with keeping firearms out of the hands of those not legally entitled to possess them, in particular, people with felony convictions." Id. Ultimately, the Court found the Federal felon- in-possession conviction properly served as a predicate offense for the repeat offender provisions of§ l0(d). Id.
Relying on the Smith decision, Horton asseverates the "like offense" language in § 10(d) applies only to prior convictions of another jurisdiction which have the same or nearly the same elements as§§ l0(a), (b), or (c). He cites in further support of his position Doe v. Sex Offender Registry Bd, 456 Mass. 612,615 (2010) ("Doe v. SORB"), in which the Supreme Judicial Court ("SJC") analyzed the "like violation" language of G.L. c. 6, § 178C. In Doe v. SORB, the SJC held that a conviction in Maine of unlawful sexual conduct is a "like violation" to the Massach1,1setts crime of indecent assault and battery on a child under 14, requiring sex offender registration in Massachusetts. Id. at 61?, In reaching this conclusion, the SJC cited with approval Smith, supra, as well as Becker, supra. As noted above, the Appeals Court in Becker upheld the trial court's denial of a rule 25 motion, concluding that a rational jury could have found beyond a reasonable doubt that a conviction in New York of third-degree sexual abuse is similar to, and thus a "like violation" of, the Massachusetts offense of indecent assault and battery on a person fourteen or older. 71 Mass. App. Ct. at 87. The SJC in Doe v. SORB concluded the Appeals Court analysis in Becker and Smith "was correct. A 'like violation' is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts." 456 Mass. at 615.
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If Horton is correct in his interpretation of the statute and relevant case law, then he is entitled to dismissal of so much of the indictment alleging a third firearm possession offense as he was adjudicated delinquent under § 10(h) in Massachusetts. Yet, neither the Appeals Court in Sm_ith or Becker nor the SJC in Doe v. SORE indicated that only a Federal or out-of-state conviction qualifies as a "like offense" or "like violation" under the respective statutes at issue. All three cases originated outside the Massachusetts state court system and resulted in out-of- state or Federal convictions -Smith (Federal), Becker (New York), and Doe v. SORE (Maine) - and the courts analyzed the specific questions presented in those cases. The SJC and Appeals Court were not presented with, and so did not decide, whether another Massachusetts firearm offense not specifically listed in § 10(d) could qualify as a predicate offense for that provision's enhanced penalties.
Adopting Horton's argument would preclude State courts from considering whether a Massachusetts firearm offense not specifically identified in § 10(d) is a "like offenses" simply because the offense occurred in Massachusetts. See G.L. c. 269, § 10(j) (unlawfully carrying firearm in building or on grounds of elementary or secondary school, college or university); G.L. c. 269, § 10(k) (unlawful possession of firearm in prohibited area, such as government administration building, courthouse, or polling place or early voting site); G.L. c. 269, § l0(m) (unlawful possession of large-capacity feeding device). That approach is at odds with the purpose of the statute. See Smith, 53 Mass. App. Ct. at 173 (§ 10(d) concerned with keeping firearms out of hands of people with felony convictions); Skawski v. Greenfield Investors Prop·. Devel. LLC, 473 Mass.580, 586-587 (2016) (courts consider words of statute, cause of legislation's e actment, mischief to be remedied and main object to be accomplished to ascertain Legislature's intent).
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The court declines to follow Horton's strict interpretation of the holdings of Doe v. SORB, Becker, and Smith. These decisions do not mandate a conclusion that the "like offense" . language in§ 10(d) applies solely to Federal or out-of-state convictions which are the same or nearly the same; rather, the higher courts simply addressed the narrow issues before them requiring resolution. Moreover, the statute at issue in Doe v. SORB, G.L. c. 6, § 178C, lists specific Massachusetts offenses that qualify as a "sex offense" as well as "a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority." Other provisions of the General Laws contain similar language. See G.L. c. 90, § 1 (" 'Like offense', as used in sections twenty-four and twenty-four D, shall mean any violation of subparagraph (1) of paragraph (a) of subsection (1) of section twenty-four, or any violation of paragraph (1) of subsection (a) of section eight of chapter ninety B or any violation of the comparable laws of any other jurisdiction"); G.L. c. 279, § 25 (habitual offender law applies to specific applicable offenses and "a like violation of the laws of another state, the United States or military, territorial, or Indian tribal authority"). Section 10(d) contains ri.o such language. Had the Legislature intended such a restriction, presumably it would have included one as it explicitly had in Chapters 6, 90, and 279 of the General Laws.
This court, therefore, examines whether an offense under § 10(h) is the same or nearly the same as an offense contained in§ 10(a), (b), or (c).
G.L. c. § 10(h)(1) provides in pertinent part,
Whoever owns, possesses or transfers a firearm or ammunition without complying with the provisions of section 129 C of chapter 140 shall be punished
. . .
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At its core,§ l0(h)(l) "makes it an.offenseto own or to possess a firearm or ammunition in one's home or place of business without obtaining a firearm identification card (FID card) pursuant to G.L. c. 140, § 129C." Commonwealth v. Loadholt, 460 Mass. 723, 724 n.1 (2011).[6]
In making the "like offense" or "like violation" determination, the SJC has emphasized that the legislature chose the word "like" rather than the word "identical." Doe v. SORE, 456 Mass. at 616. The elements of the offenses designated in the statute need not precisely match the elements of the purported "like offense." Id. The Appeals Court similarly has stated that the offenses need only be "sufficiently alike" to be considered "like offenses." Smith, 58 Mass. App. Ct. at 173.
Here, both§ l0(a) and§ I0(h) penalize the unlawful possession of a firearm. Both statutes require prior government approval to possess such a weapon - albeit different i11 kind. [7] The primary difference between the statutes is locational in nature -- § l0(a) addresses carrying or possessing a firearm outside one's home or place of business whereas§ l0(h) pertains to possessing a firearm within one's home or place of business. Horton argues this distinction is critical given judicial recognition of the right to keep and bear arms in defense of one's home. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (recognizing Second Amendment protection "oflaw abiding, responsible citizens to use arms in defense of hearth and
[6] G.L. c. 269, § IO(h)(2) is not at issue here.
[7] Horton was previously adjudicated delinquent of carrying a firearm. Therefore, this court's analysis focuses on a comparison of§ 10(a) and § 10(h). It is worth noting, however, that G.L. c. 140, § 121 now defines a "fireann" as follows: "a stun gun, pistol, revolver, rifle, shotgun, sawed-off shotgun, large capacity fireann, assault-style firearm and machine gun, loaded or unloaded, which is designed to or may readily be converted to expel a shot or bullet. . . " (emphasis added), and that § 10(c) penalizes the unlawful possession of a machine gun, as well as owning, possessing or carrying on one's person or under one's control in a vehicle, a sawed-off shotgun, bump stock, or rapid-fire trigger activator or modifier. Thus, § I0(h), insofar as it punishes the unlawful possession of a "firearm" as presently defined, also is not wholly indistinct from § 10(c). Section 10(b), which punishes carrying or possessing specific types of dangerous weapons, is inapposite.
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home.") The distinction, however, is of no consequence with respect to the issue before the court.
A person convicted of a felony is prohibited from possessing a firearm anywhere, whether in their home, on their person, or inside a car. See G.L. c. 140, § J21F (defining "prohibited person" as person convicted or adjudicated delinquent of felony making them ineligible to receive permit, card or license); G.L. c. 140, § 131 (licensing authority shall not issue license to any prohibited person); see also Heller, 554 U.S: at 626 (nothing in Court's decision sliould "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and mentally ill persons . . . "); Commonwealth v. Marquis, 495 Mass. 434, 447 (2025) (same); Chardin v. Police Com'r of Boston, 465 Mass. 314, 327 (2013) (same).
Horton nevertheless argues that the repeat offender provision within § 10(h) and the legislative history of§ 10 itself compel the conclusion that a violation of§ 10(h) does not trigger the subsequent offender provision in § 10(d). There is some facial appeal to this argument.
Section 10(h) specifically provides,
Whoever commits a second or subsequent violation of this paragraph shall be punished ....
But § 10(h) expressly pertains only to individuals who have previously violated that specific paragraph, that is, anyone who has previously been convicted of the misdemeanor offense of possessing a firearm in one's home or business without a valid FID Card. It does not apply to individuals previously convicted of a felony. Nor does the legislative history of§ 10 mandate the conclusion that the Legislature never intended a § 10(h) offense to trigger the subsequent offender provision of§ 10(d). That the "like offense" language first appeared in the original version of§ 10, but the text of§ 10(h) did not, and that § 10 was later amended to include § 10(d) and 10(h), but did not specify § 10(h) as a predicate offense within § 10(d), does
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not inevitably lead to the conclusion that the Legislature could not have intended a § 10(h) offense to implicate the statute's enhanced penalty provisions.
The Legislature did not strike the "like offense" language in amending § 10, though it could have done so when it added § 10(d) and § 10(h). The language is not superfluous. Rather, it is a strong indication that the Legislature did not intend to limit the predicate offenses exclusively to§ l0(a), (b), and (c). Nor does the statute's text define or limit a "like offense" solely to Federal or out-of-state convictions. And it is not entirely unusual for a statute in the criminal context to list specific offenses followed by more general language capturing other unspecified offenses. See G.L. c. 276, § 58A (dangerousness statute allowing for pretrial detention of defendant identifies specific offenses and offenses that have as an element "the use, attempted use or threatened use of physical force against" another person).
Finally, the court rejects Horton's contention that the rule of lenity requires a different result. Though the statute as a whole is hardly a beacon of clarity, possessing a firearm in a home is sufficiently similar to, or nearly the same as, possessing a firearm on one's person or in one's car such that a§ 10(h) violation qualifies as a "like offense" under§ l0(d), and there is nothing unclear about the prohibition against a person convicted of a felony from possessing a firearm, anytime and anywhere.
Order
For the foregoing reasons, the defendant's Motion to Dismiss Subsequent Offense Enhancement (Paper No. 14) is DENIED.
DENIED.
So Ordered,
/s/William F. Bloomer
Justice of the Superior Court
Date:
June 17, 2026