Instruction 7.620, Criminal Model Jury Instructions for Use in the District Court

POSSESSION OF A (FIREARM) (RIFLE) (SHOTGUN)

AT HOME OR BUSINESS1

G.L. c. 269, § 10(h)

The defendant is charged with unlawfully possessing a (firearm)

(rifle) (shotgun). To prove the defendant guilty of this offense, the

Commonwealth must prove (four) (five) things beyond a reasonable

doubt:

First: That the defendant possessed an item;

Second: That the item meets the legal definition of a (firearm)

(rifle) (shotgun);

Third: That the defendant knew that they possessed that

(firearm) (rifle) (shotgun); and

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

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

If there is evidence that the defendant was exempt.

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

1 General Laws c. 269, § 10(h) punishes “own[ing]” or “transfer[ring]” possession as well as possession,

and is applicable to a “rifle, shotgun or ammunition”. In cases with such fact patterns, the model

instruction may be adapted accordingly.

statutory exemptions.

The issuance of firearm identification cards is governed by G.L. c. 140, §§ 129B - D.

Section 129C also lists a number of exemptions from the requirement of a license to

carry or a firearms identification card.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant possessed an item.

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 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 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). See end note 10.

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, 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 of defendant who

was driving car where car was reported stolen and two firearms were found under

passenger seat).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the item meets the legal definition of

a (firearm) (rifle) (shotgun).

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.

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

possessed this item 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, and all of

the surrounding circumstances, 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

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 had neither a valid

license to carry nor a firearm identification card at the time they

possessed the (firearm) (rifle) (shotgun).

Because a rifle or shotgun may be lawfully possessed with either a License to Carry or a

Firearm Identification Card, the Commonwealth must prove that the defendant had

neither the license nor the card. See G.L. c. 140 § 129B-C, § 131.

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 proven all (four) (five) of the elements

of this offense beyond a reasonable doubt, you should return a

verdict of guilty. If the Commonwealth has failed to prove any 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 capable of firing a

projectile.

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 license 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 or firearms identification card.

You have heard some mention that the defendant did

not know that they were required to have a license to carry

or firearms identification card before possessing a

(firearm) (rifle) (shotgun). The Commonwealth is not

required to prove that the defendant knew that the law

required them to have a license to carry or firearm

identification card before possessing a (firearm) (rifle)

(shotgun).

3. 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).

If the Commonwealth has not proven one of those

three things beyond a reasonable doubt, you must find the

defendant not guilty.

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.

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.

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.”