Instruction 7.600, Criminal Model Jury Instructions for Use in the District Court

OUTSIDE OF HOME OR BUSINESS

POSSESSION OF A (FIREARM) (RIFLE) (SHOTGUN) WITHOUT A

LICENSE OUTSIDE OF HOME OR BUSINESS

G.L. c. 269, § 10(a)

The offense found in G.L. c. 269, § 10(a) was previously referred to as “carrying” a firearm

and required movement of the firearm as an element. “Carrying” has since been removed

from the statutory language and replaced with possession. See St. 1990, c. 511 (effective

January 2, 1991). As such, the title of the instruction has been updated to reflect this

change.

The defendant is charged with knowingly possessing a (firearm)

(rifle) (shotgun) unlawfully.

To prove the defendant guilty of this offense, the

Commonwealth must prove the following (four) (five) things beyond a

reasonable doubt:

First: That the defendant (A: had an item under their control in a

vehicle) (or) (B: possessed an item);

Second: That the item the defendant (A: had under their control

in a vehicle) (B: possessed) met the legal definition of a (firearm)

(rifle) (shotgun);

Third: That the defendant knew that they [A: had a (firearm)

(rifle) (shotgun) under their control in a vehicle] [B: possessed a

(firearm) (rifle) (shotgun)]; and

Fourth: That the defendant did not have a valid license to

possess a (firearm) (rifle) (shotgun); (and)

If there is evidence of one of the statutory exceptions or exemptions, use one of

the following in the final charge:

A. If there is evidence that the place of possession was the defendant’s

residence or place of business.

Fifth: That the defendant possessed the (firearm) (rifle)

(shotgun) outside of their residence or place of business.

A person’s residence or place of business does not

include common areas of an apartment or office building,

but only areas that are under that person’s exclusive

control.

See Commonwealth v. Guardado, 491 Mass. 666, 682-685 (2023); Commonwealth v.

Coren, 437 Mass. 723, 734 (2002); Commonwealth v. Seay, 376 Mass. 735, 743 (1978).

If a defendant's firearm is stored within his or her vehicle, the residence exemption

applies only if the vehicle is located within or on the defendant's residence. See

Commonwealth v. Harris, 481 Mass. 767, 780 (2019).

In Guardado, the Supreme Judicial Court found “no compelling reason” to “upend our

established precedent” that the residence or place of business exemption is an

affirmative defense. Id. at 83. Judges must instruct on the exemption only if there is

“sufficient evidence” that the defendant was in his home or business when the firearm

was discovered. Id. at 683. Because being outside the home or business is what

distinguishes section 10(a) from 10(h), there would certainly be no error by including this

element in 10(a). See Commonwealth v. Powell, 459 Mass. 572, 587-588 (2011).

B. If there is evidence that the defendant was exempt from the licensing

requirement.

Fifth: That the defendant did not qualify for one of the

legal exemptions that allow the defendant to possess a

OUTSIDE OF HOME OR BUSINESS

(firearm) (rifle) (shotgun) outside their home or business

without a license.

General Laws c. 140, § 129C lists a number of exemptions. See also Supplemental

Instruction 5 regarding exemptions.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant (A: had an item under

their control in a vehicle) (or) (B: possessed an item).

A: Item alleged to be “under [the defendant’s] control in a vehicle”.

To establish that a (firearm) (rifle) (shotgun) was under the

defendant’s control in a vehicle, it is not enough for the

Commonwealth to prove that the defendant was present in the same

vehicle as the (firearm) (rifle) (shotgun). The Commonwealth must

also prove that the defendant knew that the (firearm) (rifle) (shotgun)

was there, and that the defendant had both the ability and the

intention to exercise control over the (firearm) (rifle) (shotgun). The

Commonwealth is not required to prove that the defendant had

exclusive control over it.

B: Item to alleged to be in defendant’s “possession”.

What does it mean to possess something? A person obviously

possesses something if they have direct physical control of it at a

given time.

If defendant does not have direct physical control and/or the

Commonwealth alleges constructive possession.

However, the law does not require that someone

necessarily have actual physical custody of an object to

possess it. An object is in a person's possession even

without physical custody if they have:

• knowledge of the object,

• the ability to exercise control over that object,

either directly or through another person, and

• the intent to exercise control over the object.

For example, the law considers you to be in

possession of things which you know are (in your bureau

drawer at home) (in a safe deposit box at your bank).

Whether the defendant possessed an item is

something that you must determine from all the evidence

and any reasonable inferences that you may draw from the

evidence. I caution you to remember that merely being

present in the vicinity of an item, even if one knows that it

OUTSIDE OF HOME OR BUSINESS

is there, does not amount to possession.

Where the issue is constructive possession rather than actual physical possession, the

Commonwealth must prove that “in addition to knowledge and the ability to exercise

control over the firearm, the defendant must have the intention to do so.” Commonwealth

v. Costa, 65 Mass. App. Ct. 227, 234 (2005), citing Commonwealth v. Sann Than, 442

Mass. 748, 755 (2004). See end note 11.

Instruction on guilt by association.

Possession is not proved simply because the

defendant was associated with a person who controlled the

item or the property where it was found.

Mere presence is not enough.

Merely being present where a (firearm) (rifle)

(shotgun) is found is not sufficient by itself to permit an

inference that the person knew about the presence of the

(firearm) (rifle) (shotgun) without other indications of

knowledge. Further, being present where a (firearm) (rifle)

(shotgun) is found, even with evidence that the defendant

knew about the (firearm) (rifle) (shotgun), is not sufficient

to prove possession, without evidence of intent to control

that (firearm) (rifle) (shotgun).

See also Commonwealth v. Romero, 464 Mass. 648, 654 (2013) (presence alone is not

sufficient to establish knowledge, ability and intent to control; instead, presence must be

augmented by additional inculpatory evidence); Commonwealth v. Brown, 401 Mass.

745, 747 (1988) (insufficient evidence to prove personal knowledge where car reported

stolen and two firearms found under passenger seat).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant (A: had under their

control in a vehicle) (B: possessed) an item that qualifies as a

(firearm) (rifle) (shotgun) under the law.

See G.L. c. 140, § 121.

Firearm

A “firearm” is defined in our law as: “a pistol,

revolver or other weapon… from which a shot or bullet can

be discharged and… the length of [its] barrel is less than

sixteen inches… .” That definition can be broken down

into three requirements:

First, it must be a weapon;

Second, it must be capable of discharging a shot or

bullet; and

Third, it must have a barrel length of less than 16

inches.

OUTSIDE OF HOME OR BUSINESS

The term “barrel length” refers to “that portion of a

firearm… through which a shot or bullet is driven, guided

or stabilized, and [includes] the chamber.”

Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985) (jury can determine from inspection

that item is “firearm”; no need for expert testimony); Commonwealth v. Fancy, 349 Mass.

196, 204 (1965) (same); Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977)

(testimony about “revolver” or “handgun” will support inference that barrel was under 16

inches).

Rifle

A “rifle” is a weapon having a rifled bore with a barrel

length equal to or greater than 16 inches and capable of

discharging a shot or bullet for each pull of the trigger.

Shotgun

A “shotgun” is a weapon having a smooth bore with a

barrel length equal to or greater than 18 inches with an

overall length equal to or greater than 26 inches and

capable of discharging a shot or bullet for each pull of the

trigger.

Stun Gun

A “stun gun” is a firearm under the law. It is a

portable device or weapon, from which an electrical

current, impulse, wave or beam that is designed to

incapacitate temporarily, injure or kill may be directed. It

does not matter whether the stun gun passes an electrical

shock by means of a dart or projectile via a wire lead.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knew that they [had a

(firearm) (rifle) (shotgun) under their control in a vehicle] [possessed

a (firearm) (rifle) (shotgun)] and also knew that the item was a

(firearm) (rifle) (shotgun) within the common meaning of that term.

This requires you to make a decision about the defendant’s state of

mind at that time. You may examine the defendant’s actions and

words, all of the surrounding circumstances, and any reasonable

inferences from the evidence, to help you determine the extent of the

defendant’s knowledge at the time. If it was a conventional (firearm)

(rifle) (shotgun), with its obvious dangers, the Commonwealth is not

required to prove that the defendant knew that the item met the legal

definition of a (firearm) (rifle) (shotgun).

See Instruction 3.140 (Knowledge). Commonwealth v. Marrero, 484 Mass. 341, 346-347

(2020), quoting Commonwealth v. Sampson, 383 Mass. 750, 762 (1981) (Commonwealth

only required to prove that defendant had knowledge that the “instrument is a firearm

within the generally accepted meaning of that term”); Commonwealth v. Bacon, 374

OUTSIDE OF HOME OR BUSINESS

Mass. 358, 359 (1978) (knowledge need not be alleged in complaint); Commonwealth v.

Jackson, 369 Mass. 904, 916-917 (1976) (knowledge must be proved); Commonwealth

v. Boone, 356 Mass. 85, 87, (1969) (“control” in vehicle requires knowledge);

Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988 (1984) (defendant need not

know that the firearm met the legal definition).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant did not have a valid

[license to carry a firearm] [firearms identification card or license to

carry a (rifle) (shotgun)].

A. If there is evidence that the place of possession was the defendant’s

residence or place of business.

To prove the fifth element, the Commonwealth must

prove beyond a reasonable doubt that the defendant

possessed the (firearm) (rifle) (shotgun) outside of their

residence or place of business.

A person’s residence or place of business does not

include common areas of an apartment or office building,

but only areas that are under that person’s exclusive

control.

B. If there is evidence that the defendant was exempt.

To prove the fifth element, the Commonwealth must

prove beyond a reasonable doubt that the defendant did

not qualify for the statutory exemption of __________.

See G. L. c. 140, § 129C for the list of statutory exemptions. See Supplemental

Instructions 3 and 4 below.

If the Commonwealth has proved all (four) (five) elements

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

the Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Non-firing firearm, rifle or shotgun. When a weapon that was

originally a (firearm) (rifle) (shotgun) becomes so defective

or damaged that it will no longer fire a projectile, the law no

longer considers it to be a (firearm) (rifle) (shotgun). But a

weapon remains a (firearm) (rifle) (shotgun) within the

meaning of the law when a slight repair, replacement or

adjustment will again make it an effective weapon.

Commonwealth v. Jefferson, 461 Mass. 821, 828 (2012) (evidence sufficient where, with

OUTSIDE OF HOME OR BUSINESS

a “relatively slight repair with a pair of small pliers” gun could be fired); Commonwealth v.

Colton, 333 Mass. 607, 608 (1956) (insertion of ammunition clip); Commonwealth v.

Bartholomew, 326 Mass. 218, 220 (1950) (insertion of firing pin); Commonwealth v.

Raedy, 24 Mass. App. Ct. 648, 652-656 (1987) (jury question whether gun that could be

fired if inverted was “firearm”; judge who distinguishes between “major” and “minor”

repairs need not instruct that Commonwealth must prove that this particular defendant

had ability and knowledge to repair gun); Commonwealth v. Rhodes, 21 Mass. App. Ct.

968, 969-970 (1986) (not a firearm where bent part rendered inoperable until repaired).

2. Firearms identification card. A “firearms identification card” is

not the same thing as a “license to carry a firearm.” When

a person has a valid firearms identification card, that card

gives them the right to possess a firearm within their

residence or place of business. But it does not give them

the right to possess it outside of their home or business.

G.L. c. 140, §§ 129B-129D. A firearms identification card is a defense to a charge of

carrying a rifle or shotgun, but not other firearms. G.L. c. 269, § 10(a)(5).

3. Knowledge of licensing requirement.

This instruction is recommended only when it is necessary to correct the misimpression

that the Commonwealth must prove that the defendant knew that the law requires a

license to carry a firearm.

You have heard some mention that the defendant did

not know that they were required to have a [license before

carrying a firearm] [license to carry or a firearm

identification card before possessing a (rifle) (shotgun)]

under these circumstances. The Commonwealth is not

required to prove that the defendant knew that the law

required them to have a license [or firearms identification

card] before (possessing a firearm outside of their home or

place of business) (or) (having a firearm under their control

in a vehicle). For that reason, the issue of knowledge of

this requirement is not relevant to your deliberations in this

case, and therefore you should put it out of your mind and

do not discuss it at all during your deliberations.

4. If there was some evidence that the defendant was transporting a

firearm through Massachusetts and the defendant was legally permitted to

possess and carry under both the origin and destination state’s laws.

A person may transport a firearm through the

Commonwealth of Massachusetts, so long as they satisfy

four conditions:

1) They are in compliance with the gun laws in the state

they are traveling from;

2) They are in compliance with the gun laws in the state

they are traveling to;

3) The weapon is not loaded; and

4) The weapon and any ammunition is not readily

accessible while being transported.

OUTSIDE OF HOME OR BUSINESS

If there is evidence of the above four conditions, you

must find the defendant not guilty unless the

Commonwealth proves beyond a reasonable doubt that at

least one of those conditions has not been met.

See Commonwealth v. Harris, 481 Mass. 767, 778 (2019) (finding no error in declining to

give instruction regarding this exception; not warranted based on facts at trial). Pursuant

to 18 U.S.C. § 926A, any person who is not prohibited under Federal law

from transporting, shipping, or receiving a firearm, “shall be entitled to transport a firearm

for any lawful purpose from any place where he may lawfully possess and carry

such firearm to any other place where he may lawfully possess and carry such firearm if,

during such transportation the firearm is unloaded, and neither the firearm nor any

ammunition being transported is readily accessible or is directly accessible from the

passenger compartment of such transporting vehicle.”

5. Expired license or firearm identification card. One of the

exemptions to the requirement of a valid (license to carry)

(firearm identification card) provided by law is for certain

persons with an expired (license to carry) (firearm

identification card). This exemption is intended to exempt

from criminal punishment persons whose (license to carry)

(firearm identification card) became invalid inadvertently

but who would otherwise not be disqualified from holding a

valid (license) (firearm identification card).

The defendant is entitled to this exemption if their

(license to carry) (firearm identification card) was expired

and they had not been notified of any revocation or

suspension of the (license) (card), or pending revocation or

suspension of the (license) (card), or denial of a renewal

application. The Commonwealth has the burden to prove

that the exemption does not apply. To do this, the

Commonwealth must prove beyond a reasonable doubt

one of the following things:

One, that the defendant never had a valid (license to

carry) (firearm identification card); or

Two, that the defendant had been notified that the

(license) (card) was revoked or suspended or that

revocation or suspension was pending, and that the

revocation or suspension was due to something other than

a failure to provide a change of address; or

Three, that the defendant had been notified of the

denial of an application to renew their (license to carry)

(firearm identification card).

G.L. c. 140, § 131(m); Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 716-17

(2015). The mere production of an expired license is insufficient to warrant this

instruction, but testimony that the defendant had never applied to renew the license, had

never received notice of denial, and had never received notice of revocation or

suspension entitles a defendant to the instruction. Indrisano, 87 Mass. App. Ct. at 714.

OUTSIDE OF HOME OR BUSINESS