Instruction 6.700, Criminal Model Jury Instructions for Use in the District Court

THREAT TO COMMIT A CRIME

G.L. c. 275, § 2

The defendant is charged with having threatened to commit a

crime against the person or property of another.

To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant expressed an intent to injure a

person, or property of another, now or in the future;

Second: That the defendant intended that the threat be

conveyed to a particular person;

Third: That the injury that was threatened, if carried out, would

constitute a crime, namely, _____________;

Fourth: That the defendant made the threat under

circumstances which could reasonably have caused the person to

whom it was conveyed to fear that the defendant had both the

intention and the ability to carry out the threat; and

Fifth: That the defendant was aware of or consciously

disregarded a substantial risk that the communication would be

viewed as threatening violence or injury. This element requires that

the defendant was aware that others could regard their statement as

threatening violence or injury and yet the defendant made it anyway.

G.L. c. 275, §§ 2-4. Commonwealth v. Cruz, 495 Mass. 110, 118 (2024) (instruction in

appendix). See also Commonwealth v. DeVincent, 358 Mass. 592, 594-595 (1971);

Commonwealth v. Hughes, 59 Mass. App. Ct. 280, 283 (2003); Commonwealth v. Ditsch,

19 Mass. App. Ct. 1005 (1985) (immediate or personal ability to carry out threat

unnecessary, only “intention and ability in circumstances which would justify

apprehension on the part of the recipient”); Commonwealth v. Daly, 12 Mass. App. Ct.

338 (1981) (under Mass. R. Crim. P. 4[b], others beside victim may bring complaint). See

also Wagenmann v. Adams, 829 F.2d 196, 207 (1st Cir. 1987); Robinson v. Bradley, 300

F. Supp. 665, 668 (D. Mass. 1969) (3-judge court); Commonwealth v. Kerns, 449 Mass.

641 (2007).

SUPPLEMENTAL INSTRUCTIONS

1. Victim’s apprehension. It is not required that [alleged victim] actually

became apprehensive because of any threat that was

made. But you may consider whether or not they were

apprehensive in determining whether the Commonwealth

has proved that the defendant made the threat under

circumstances which could reasonably have caused [alleged

victim] to fear that the defendant had both the intention and

the ability to carry out the threat.

Commonwealth v. Chalifoux, 362 Mass. 811, 816-817 (1973) (victim’s testimony of prior

assault relevant to issue of apprehension); Commonwealth v. Winter, 9 Mass. App. Ct.

512, 528 (1980). The test for victim apprehension is objective: “Whether the threat by its

contents in the circumstances was such as would cause the target of the threat to fear

that the threatened crime and injury might be inflicted.” Commonwealth v. Maiden, 61

Mass. App. Ct. 433, 436 (2004).

2. Threat made indirectly. The Commonwealth is not required to

prove that the threat was communicated directly to [alleged

victim]. This element is satisfied if is proved beyond a

reasonable doubt that the defendant intended the threat to

be conveyed to [alleged victim]. This can be done directly or

indirectly through a third party or by some other means.

See Instruction 2.240 (Direct and Circumstantial Evidence). Commonwealth v. Hughes,

59 Mass. App. Ct. 280, 283 (2003); Commonwealth v. Maiden, 61 Mass. App. Ct. 433,

435 (2004) (“the legal definition of threat requires ‘communication’ of the threat in the

sense that it must be uttered, not idly, but to the target, to one who the defendant intends

to pass it on to the target, or to one who the defendant should know will probably pass it

on to the target”); Commonwealth v. Furst, 56 Mass. App. Ct. 283, 285 (2002);

Commonwealth v. Meier, 56 Mass. App. Ct. 278 (2002); Commonwealth v. Troy T., 54

Mass. App. Ct. 520, 526-527 (2002).

3. Unsuccessful communication. The Commonwealth is not required

to prove that the threat was successfully communicated to

[alleged victim]. It must prove beyond a reasonable doubt that

the defendant made a communication that they intended

would reach [alleged victim], even if the defendant was

unsuccessful in doing so. That proof may be by direct or

circumstantial evidence.

See Instruction 2.240 (Direct and Circumstantial Evidence). Commonwealth v. Kerns,

449 Mass. 641 (2007); Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004)

(actual receipt by victim of threat not a necessary element; intent that threat be conveyed

to target is sufficient, whether or not it was successfully communicated); Commonwealth

v. Hughes, 59 Mass. App. Ct. 280, 283 (2003); Commonwealth v. Furst, 56 Mass. App.

Ct. 283, 285 (2002); Commonwealth v. Meier, 56 Mass. App. Ct. 278, 281-282 (2002).