Instruction 6.305, Criminal Model Jury Instructions for Use in the District Court

ASSAULT BY MEANS OF A DANGEROUS WEAPON

G.L. c. 265, § 15B

[The judge should inquire of the prosecutor as to which theory or theories the

Commonwealth intends to pursue. The judge should then instruct on attempted

battery, immediately threatened battery, or both, depending on the evidence.

Bracketed material is to be used when both theories are advanced.

The definition of “dangerous weapon” in Supplemental Instruction A or B should

be read prior to the conclusion.]

The defendant is charged with having committed an assault with

a dangerous weapon.

[When instructing on both theories] An assault with a dangerous

weapon can be proven in either of two ways - either as an attempted

battery or as an immediately threatened battery.

Attempted Battery

To prove the defendant guilty of assault with a dangerous

weapon as an attempted battery, the Commonwealth must prove four

things beyond a reasonable doubt:

First: the defendant intended to commit a battery upon [the named

victim] ;

Second: the defendant took some overt step toward

accomplishing that intent;

Third: the defendant came reasonably close to doing so; and

Fourth: the defendant committed the assault with a dangerous

weapon.

To prove the first element, the Commonwealth must prove that

the defendant intended to commit a battery. A battery is a touching

that is either offensive or likely to cause bodily harm to [the named

victim].

[The judge may continue here or choose to use the extended instruction on specific

intent in model instruction 3.120.]

A person’s intent is their purpose or objective. This requires

you to make a decision about the defendant’s state of mind at that

time. You may consider any evidence about the actions or words of

the defendant, and all of the surrounding circumstances, to help you

determine whether the defendant intended to commit a battery.

To prove the second element, the Commonwealth must prove

that the defendant took some overt step toward accomplishing that

intent. In other words, the defendant must take some demonstrable

action toward committing a battery. However, it is not necessary for

the Commonwealth to show that [the named victim] was put in fear or

was even aware of the attempted battery.

To prove the third element, the Commonwealth must prove that

the defendant came reasonably close to accomplishing a battery.

To prove the fourth element, the Commonwealth must prove that

the defendant attempted to commit the battery with a dangerous

weapon.

[If only charging on attempted battery, skip to the instruction defining a dangerous weapon,

infra.]]

Immediately Threatened Battery

The defendant is (also) charged with assault with a dangerous

weapon by making an immediate threat to commit a battery with a

dangerous weapon.

To prove the defendant guilty, the Commonwealth must prove

three things beyond a reasonable doubt:

First: the defendant intended to put [the named victim] in fear of an

immediate battery;

Second: the defendant engaged in some conduct toward [the

named victim] which [the named victim] reasonably perceived as

immediately threatening a battery; and

Third: the assault was committed with a dangerous weapon.

To prove the first element, the Commonwealth must prove that

the defendant intended to put [the named victim] in fear of an imminent

battery. A battery is a touching that is either offensive or likely to

cause bodily harm to [the named victim] .

[The judge may continue here or choose to use the extended instruction on specific intent in

model instruction 3.120. If the Commonwealth is pursuing both theories, the judge may avoid

repetition by reminding jurors that the instruction on intent just given applies equally here.]

A person’s intent is their purpose or objective. This requires

you to make a decision about the defendant’s state of mind at that

time. You may consider any evidence about the actions or words of

the defendant, and all of the surrounding circumstances, to help you

determine whether the defendant intended to commit a battery.

To prove the second element, the Commonwealth must prove

that the defendant engaged in some conduct toward [the named victim]

which [the named victim] reasonably perceived as immediately

threatening a battery. This requires you to consider any evidence

about what [the named victim] perceived and also whether that

perception was reasonable.

To prove the third element, the Commonwealth must prove that

the immediate threat of a battery was committed with a dangerous

weapon.

Dangerous Weapon

A. If the alleged weapon is inherently dangerous.

A dangerous weapon is an item which is designed for the

purpose of causing serious injury or death. I instruct you, as a

matter of law, that ______________ is a dangerous weapon.

See Notes 1 & 2 regarding inherently dangerous weapons. If the

weapon alleged is a knife, consider using Instruction B, below.

B. If the alleged weapon is not inherently dangerous.

An item that is normally used for innocent purposes can

become a dangerous weapon if it is used in a dangerous or

potentially dangerous fashion. The law considers an item to be

used in a dangerous fashion if it is used in a way that it

reasonably appears to be capable of causing serious injury or

death to another person. [For example, a (brick) (baseball) can

be a dangerous weapon if it is thrown at someone’s head.] In

deciding whether an item was used as a dangerous weapon,

you may consider the circumstances surrounding the alleged

crime, the nature, size, and shape of the item, and the manner

in which it was handled or controlled.

Conclusion

Your verdict, whether guilty or not guilty, must be unanimous as

to whether the Commonwealth proved beyond a reasonable doubt

that the defendant committed an assault with a dangerous weapon.

[If the Commonwealth is proceeding on both theories:]

[You do not all have to agree as to whether the Commonwealth

proved an attempted battery or an imminently threatened battery. If

each juror finds the Commonwealth has proved one or the other

beyond a reasonable doubt, you should return a verdict of guilty. If all

jurors agree that the Commonwealth has not proved either an

attempted battery or an imminently threatened battery beyond a

reasonable doubt, you must return a verdict of not guilty.]