Instruction 7.625, Criminal Model Jury Instructions for Use in the District Court

POSSESSION OF AMMUNITION 1

G.L. c. 269, § 10(h)

The defendant is charged with unlawfully possessing

ammunition. 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 ammunition;

Third: That the defendant knew that they possessed that

ammunition; and

Fourth: That the defendant did not have valid license to

possess ammunition.

If there is evidence that the defendant was exempt.

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

statutory exemptions.

General Laws c. 140, § 129C lists a number of exemptions from the requirement of a

license to carry or a firearms identification card.

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

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

instruction may be adapted accordingly.

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 keep (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 also note 5.

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 ammunition is found is

not sufficient by itself to permit an inference that the

person knew about the presence of the ammunition

without other indications of knowledge. Further, being

present where ammunition is found, even with evidence

that the defendant knew about the ammunition, is not

sufficient to prove possession, without evidence of intent

to control that ammunition.

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

ammunition. Ammunition is defined in our law as cartridges or

cartridge cases, primers (igniters), (tear gas cartridges), bullets or

propellant powder designed for use in any firearm, rifle or shotgun.

G.L. c. 269, § 10(o) (¶ 2).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knew that they

possessed ammunition. 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.

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 ammunition.

Because ammunition 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.

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 of

the elements beyond a reasonable doubt, you must find the

defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Knowledge of license to carry or firearm identification card

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 a firearm identification card before possessing

ammunition. 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 ammunition. For that reason, the issue of

knowledge of the requirement of a license to carry or

firearm identification card 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.