Instruction 7.665, Criminal Model Jury Instructions for Use in the District Court

DISCHARGE OF A FIREARM WITHIN 500 FEET OF A BUILDING

G.L. c. 269, § 12E

The defendant is charged with discharging a firearm within 500

feet of a dwelling or other building in use. To prove the defendant

guilty of this offense, the Commonwealth must prove three things

beyond a reasonable doubt:

First: That the defendant discharged a weapon;

Second: That the weapon met the legal definition of a firearm [rifle]

[shotgun]; and

Third: That the discharge occurred within 500 feet of a (dwelling)

(building) in use.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant, whether intentionally

or unintentionally, caused the firearm [rifle] [shotgun] to discharge

when it was capable of firing or shooting a shot or bullet. The

Commonwealth is not required to prove that a shot or bullet was

actually released as a result of the discharge.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the weapon which the defendant

discharged met the legal definition of a firearm [rifle] [shotgun].

Firearm

A firearm is a stun gun or a pistol, revolver or other

weapon of any description, loaded or unloaded, from which a

shot or bullet can be discharged and of which the length of the

barrel or barrels is less than 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.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that a (dwelling) (building) was within 500

feet as measured in a straight line from the defendant’s location at the

time of the discharge. The Commonwealth must also prove that, at

the time of the discharge, the (dwelling) (building) was “in use” in that

it was an active (dwelling) (building) which was being used by one or

more persons. However, the Commonwealth is not required to prove

that the (dwelling) (building) was occupied at the moment when the

weapon was discharged.

If the Commonwealth has proven all three elements beyond a

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

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must return a verdict of not guilty.

SUPPLEMENTAL INSTRUCTIONS

If there is evidence that the owner or legal occupant of

the (dwelling) (building) consented in advance to the defendant’s

discharge of a firearm within 500 feet of the (dwelling) (building), then

the Commonwealth must prove beyond a reasonable doubt that (the

neither the owner nor a legal occupant had consented to the

discharge.

Consent