Instruction 7.610A, Criminal Model Jury Instructions for Use in the District Court

POSSESSION OF A LOADED FIREARM WITHOUT A LICENSE OUTSIDE OF HOME OR BUSINESS

G.L. c. 269, § 10(a)

This instruction can be read if the complaint charges a violation of both § 10(a) and § 10(n), as it includes the full charge from Instruction 7.600, with the additional two elements required by G.L. c. 269, § 10(n). A conviction under § 10(n) requires a defendant to also be charged and convicted under G. L. c. 269, § 10 (a). See Commonwealth v. Brown, 479 Mass. 600, 604 (2018), citing Commonwealth v. Loadholt, 456 Mass. 411, 423-424 (2010), S.C., 460 Mass. 723 (2011). Note: This sentencing enhancement does not apply to a conviction under § 10(h) or to a loaded rifle or shotgun.

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 loaded firearm unlawfully.

To prove the defendant guilty of knowingly possessing a firearm, 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) (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;

Third: That the defendant knew that they (A: had a firearm under their control in a vehicle) (B: possessed a firearm);

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

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.

and Fifth: That the defendant possessed the firearm 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 of one’s home or business is what distinguishes 10(a) from 10(h), there would certainly be no error by including this element. See Commonwealth v. Powell, 459 Mass. 572, 587-588 (2011).

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

and Fifth: That the defendant did not qualify for one of the legal exemptions that allow the defendant to possess a firearm outside their home or business without a license.

The issuance of licenses to carry is governed by G.L. c. 140, §§ 131 and 131F. Section 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 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. The Commonwealth must also prove that the defendant knew that the firearm was there, and that the defendant had both the ability and the intention to exercise control over the firearm. 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 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).

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 is found is not sufficient by itself to permit an inference that the person knew about the presence of the firearm without other indications of knowledge. Further, being present where a firearm is found, even with evidence that the defendant knew about the firearm, is not sufficient to prove possession, without evidence of intent to control that firearm.

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 under the law. 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.

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.”

See G.L. c. 140, § 121. 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).

To prove the third element, the Commonwealth must prove beyond a reasonable doubt that the defendant knew that they (A: had a firearm under their control in a vehicle) (B: possessed a firearm) and also knew that the item was a firearm 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, 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.

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 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.

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 of knowingly possessing a firearm. If the Commonwealth has failed to prove one or more of the elements beyond a reasonable doubt, you must find the defendant not guilty.

The defendant is also charged with knowingly possessing a loaded firearm unlawfully.

To prove the defendant guilty of knowingly possessing a loaded firearm unlawfully, the Commonwealth must also prove two additional elements beyond a reasonable doubt. In addition to the (four) (five) elements on which I have already instructed you, the Commonwealth must also prove beyond a reasonable doubt:

First: That the firearm was loaded with ammunition; and

Second: That the defendant knew that the firearm they (A: had under their control in a vehicle) (B: possessed) was loaded with ammunition.

To prove the first element, the Commonwealth must prove beyond a reasonable doubt that the firearm was loaded with ammunition. Ammunition is any cartridge or cartridge case, primer (igniter), bullet or propellant powder designed for use in any firearm, rifle or shotgun. A firearm is loaded if ammunition is contained in the firearm or within a feeding device attached to the firearm.

G.L. c. 269, § 10(o). See also G.L. c. 140, § 121.

To prove the second element, the Commonwealth must prove beyond a reasonable doubt that the defendant knew that the firearm they (had under their control in a vehicle) (possessed) was loaded with ammunition. You may examine the defendant’s actions and words, any external indications about the nature of the weapon, all of the surrounding circumstances, and any reasonable inferences from the evidence, to help you determine whether the defendant knew the firearm was loaded with ammunition.

“’[K]nowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon.’” See Commonwealth v. Brown, 479 Mass. 600, 608 (2018), quoting Staples v. United States, 511 U.S. 600, 615 n.11 (1994) (insufficient evidence to prove defendant knew firearm was loaded; magazine inserted and not visible; no other evidence warranting inference of knowledge); Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 748 (2018) (same). See also Commonwealth v. Silvelo, 486 Mass. 13, 19 (2020) (ammunition would have been clearly visible in chamber given revolver's configuration); Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 774 (2020) (knowledge reasonably inferred where defendant was outside, gun neither holstered nor concealed but drawn and tucked into his armpit area; defendant stated he obtained gun for self-protection after recent homicide); Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 419 (2019) (“reasonable to infer that one who brings a gun to a location knows whether or not it is loaded”); Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200 (2018) (jury reasonably could have inferred knowledge where defendant would have checked to see if firearm was loaded before he put it in his waistband, among other circumstances).

If the Commonwealth has proved these two additional elements beyond a reasonable doubt, you should return a verdict of guilty of knowingly possessing a loaded firearm unlawfully. If the Commonwealth has failed to prove one or more of the elements beyond a reasonable doubt, you must find the defendant not guilty of knowingly possessing a loaded firearm.

SUPPLEMENTAL INSTRUCTIONS

1. Non-firing firearm, rifle or shotgun. When a weapon that was originally a firearm becomes so defective or damaged that it will no longer fire a projectile, the law no longer considers it to be a firearm. But a weapon remains a firearm 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 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. 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 under these circumstances. The Commonwealth is not required to prove that the defendant knew that the law required them to have a license 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.

3. 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.

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.”

4. Expired license or firearm identification card. One of the exemptions to the requirement of a valid license to carry provided by law is for certain persons with an expired license to carry. This exemption is intended to exempt from criminal punishment persons whose license to carry became invalid inadvertently but who would otherwise not be disqualified from holding a valid license to carry.

The defendant is entitled to this exemption if their license to carry was expired and they had not been notified of any revocation or suspension of the license, or pending revocation or suspension of the license, 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; or

Two, that the defendant had been notified that the license 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.

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.