Instruction 7.640, Criminal Model Jury Instructions for Use in the District Court

DEFACING FIREARM SERIAL NUMBER;

RECEIVING FIREARM WITH DEFACED SERIAL NUMBER

I. DEFACING FIREARM SERIAL NUMBER

The defendant is charged with defacing or obliterating the serial or

identification number of a firearm. Section 11C of chapter 269 of our

General Laws provides as follows:

“Whoever

removes, defaces, alters, obliterates or mutilates in any manner

the serial number or identification number of a firearm,

or in any way participates therein,

shall be punished. . . .”

To prove the defendant guilty of this offense, the Commonwealth

must prove three things beyond a reasonable doubt:

First: That the item in question was a firearm;

Second: That defendant knew that it was a firearm; and

Third: That the defendant intentionally removed, defaced, altered,

obliterated or mutilated in some manner a serial or identification number on

the firearm.

Our law provides that every firearm shall bear a serial number

permanently inscribed on a visible metal area of the firearm. You must

determine whether the Commonwealth has proven beyond a reasonable

doubt that a serial or identification number on the firearm was removed,

defaced, altered, obliterated or mutilated by the defendant. The

Commonwealth need not prove that every part of the number was

physically damaged. It must prove that some part of the number was

intentionally removed, defaced, altered, obliterated or mutilated or, to use

other words, damaged, scratched out, or destroyed by the defendant.

The Commonwealth must prove that the damaged

Definition of firearm.

number was on a “firearm.” A firearm is defined in section 121 of chapter

140 of our General Laws as:

“a pistol, revolver or other weapon. . . loaded or unloaded,

from which a shot or bullet can be discharged

and the length of [whose] barrel

is less than sixteen inches. . . .”

For an item to be a firearm, it must:

First: be a weapon;

Second: be capable of discharging a shot or bullet; and

Third: have a barrel length of less than 16 inches. “Barrel length”

refers to “that portion of a firearm. . . through which a shot or bullet is

driven, guided or stabilized, and [includes] the chamber.”

G. L. c. 140 § 121.

The Commonwealth must also prove that defendant knew that the

item was a “firearm,” within the common meaning of that term. If the item

is 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.

SUPPLEMENTAL INSTRUCTION

You have heard some

Possession as prima facie evidence of defacing.

evidence in this case suggesting that the defendant possessed a

firearm with a (defaced) (altered) (obliterated) serial number. If

you find that fact to be proven, you are permitted to accept it

also as sufficient proof that the defendant was the person who

removed, defaced, altered, obliterated or mutilated the serial or

identification number on that firearm.

If there is contrary evidence about whether it was the

defendant who caused the damage, you are to treat this

testimony about possession like any other piece of evidence,

and you should weigh it along with all the rest of the evidence

on the issue of who caused the damage. In the end you must be

satisfied that, on all the evidence, it has been proven beyond a

reasonable doubt that the defendant removed, defaced, altered,

obliterated, or mutilated the serial or identification number on

the firearm.

See Instruction 3.260 (Prima Facie Evidence).

Here the jury must be instructed on specific intent from Instruction 3.120 (Intent).

To summarize, the Commonwealth must prove three things beyond a

reasonable doubt:

First: That the defendant intentionally removed, defaced, altered,

obliterated or mutilated in some manner a serial or identification number;

Second: That the number was on a firearm; and

Third: That the defendant knew it was a firearm.

If you find the Commonwealth has proven each of these elements

beyond a reasonable doubt, you should find defendant guilty on this

charge. If you find the Commonwealth has not proven one or more of these

three elements beyond a reasonable doubt, you must find defendant not

guilty on this charge.

Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 386, 783 N.E.2d 475, 482 (2003).

II. RECEIVING FIREARM WITH DEFACED SERIAL NUMBER

The defendant is charged with receiving a firearm with a defaced or

obliterated serial or identification number. Section 11C of chapter 269 of

our General Laws provides as follows:

“Whoever...

receives a firearm

with knowledge that its serial number or identification number

has been removed, defaced, altered, obliterated or

mutilated in any manner

shall be punished. . . .”

To prove the defendant guilty of this offense, the Commonwealth

must prove five things beyond reasonable doubt:

First: That the item in question was a firearm;

Second: That the defendant received the firearm;

Third: That the defendant knew that the item was a firearm;

Fourth: That the serial number or identification number on the

firearm was removed, defaced, altered, obliterated, or mutilated in some

manner; and

Fifth: That the defendant knew that the serial or identification number

had been removed, defaced, altered, obliterated, or mutilated in some

manner at the time when he (she) received it.

Our law provides that every firearm shall bear a serial number

permanently inscribed on a visible metal area of the firearm. You must

determine whether the Commonwealth has proven beyond a reasonable

doubt that a serial or identification number on the firearm at issue here had

been removed, defaced, altered, obliterated or mutilated. The

Commonwealth need not prove that every part of the number was

physically damaged. It must prove that some part of the number was

removed, defaced, altered, obliterated or mutilated or, to use other words,

damaged, scratched out, or destroyed.

Here the jury must be instructed on the definition of a “Firearm” as set forth in I above.

To prove that the defendant “received” the firearm, the

Commonwealth must prove that he (she) knowingly took custody or control

of it. It is not necessary that the defendant personally possessed the

firearm, as long as it is proved that he (she) knowingly exerted control over

it in some way.

To establish that a firearm was under the defendant’s “control,” it is

not enough for the Commonwealth just to prove that the defendant was

present in the same place as the firearm. The Commonwealth must also

prove that the defendant knew that the firearm was there, and that the

defendant had both the power and intent to exercise control over the

firearm. It is not necessary for the Commonwealth to prove that the

defendant had exclusive control over the firearm.

SUPPLEMENTAL INSTRUCTION

You have

Possession as prima facie evidence of knowledge of defacing.

heard some evidence in this case suggesting that the defendant

knowingly received a firearm whose serial identification number

had been removed, defaced, altered or obliterated, or mutilated

in some manner at the time when he (she) received it. If you find

that fact to be proven, you are permitted to accept it also as

sufficient proof that defendant knew that the serial or

identification number on that firearm had been removed,

defaced, altered, obliterated or mutilated. You are not required

to accept that as proven, but you may. If there is contrary

evidence on that issue you are to treat the testimony about the

defendant’s receipt of the firearm like any other piece of

evidence, and you should weigh it along with all the rest of the

evidence on the issue of whether the defendant knew that the

serial identification number had been removed, defaced, altered

or obliterated, or mutilated in some manner at the time when he

(she) received it.

In the end, you must be satisfied that, on all the evidence, it

has been proven beyond a reasonable doubt that the defendant

knew that the serial or identification number had been removed,

defaced, altered, obliterated, or mutilated in some manner at the

time when he received it.

See Instruction 3.260 (Prima Facie Evidence).

To summarize, the Commonwealth must prove five things beyond

reasonable doubt:

First: That the item in question is a firearm;

Second: That the defendant received the firearm;

Third: That the defendant knew that the item was a firearm;

Fourth: That the serial number or identification number on the

firearm was removed, defaced, altered, obliterated, or mutilated in some

manner; and

Fifth: That the defendant knew that the serial or identification number

had been removed, defaced, altered, obliterated, or mutilated in some

manner at the time when he received it.

If you find that the Commonwealth has proven each of these five

elements beyond reasonable doubt, you should find defendant guilty on

this charge. If you find that the Commonwealth has failed to prove one or

more of these five elements beyond reasonable doubt, you must find

defendant not guilty on this charge.

See Commonwealth v. Alcala, 54 Mass. App. Ct. 49, 52; 763 N.E.2d 516, 519 (2002) as to

circumstances which may evidence “guilty knowledge,” or “ consciousness of guilt” in connection with

receiving items not immediately identifiable as illegal.