Instruction 7.667, Criminal Model Jury Instructions for Use in the District Court

DISCHARGE OF A FIREARM AND STRIKING A BUILDING

G.L. c. 269, § 12G

The defendant is charged with discharging a firearm and striking a (dwelling) (building) in use. To prove the defendant guilty of this offense, the Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant discharged a firearm;

Second: That the firearm met the legal definition of a firearm; and

Third: That the defendant discharged the firearm either intentionally or recklessly; and

Fourth: That the object that was discharged struck a (dwelling) (building) in use.

To prove the first element, the Commonwealth must prove beyond a reasonable doubt that the defendant caused a firearm to discharge.

To prove the second element, the Commonwealth must prove beyond a reasonable doubt that the firearm met the legal definition of a firearm.

There are two requirements for an item to be a “firearm” under our law.

First, the item must be a pistol, revolver, rifle, or shotgun.

Second, the item must be designed to expel a shot or bullet, or the item must be able to readily be converted to expel a shot or bullet.

G.L. c. 140, § 121, as amended effective October 2, 2024, defines “firearm” as:

a stun gun, pistol, revolver, rifle, shotgun, sawed-off shotgun, large capacity firearm, assault-style firearm and machine gun, loaded or unloaded, which is designed to or may readily be converted to expel a shot or bullet; the frame or receiver of any such firearm or the unfinished frame or receiver of any such firearm; provided, however, that “firearm” shall not include any antique firearm or permanently inoperable firearm.

Definition of “pistol”

A “pistol” is a handgun with a chamber that is part of the barrel.

Merriam-Webster.com Dictionary (2024).

Definition of “revolver”

A “revolver” is a handgun with a cylinder of several chambers brought successively into line with the barrel and discharged with that barrel’s hammer.

Merriam-Webster.com Dictionary (2024).

Definition of “rifle”

A “rifle” is a firearm 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. The term “barrel length” refers to the portion of a firearm through which a shot or bullet is driven, guided, or stabilized, and includes the chamber.

G.L. c. 140, § 121 (defining “’length of barrel’ or ‘barrel length’” and “rifle”).

Definition of “shotgun”

A “shotgun” is a firearm 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 that is capable of discharging a shot or bullet for each pull of the trigger. The term “barrel length” refers to the portion of a firearm through which a shot or bullet is driven, guided, or stabilized, and includes the chamber.

G.L. c. 140, § 121 (defining “’length of barrel’ or ‘barrel length’” and “shotgun”).

To prove the third element, the Commonwealth must prove beyond a reasonable doubt that the defendant discharged the firearm either intentionally or recklessly.

To prove that the defendant intentionally discharged the firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant consciously and deliberately discharged the firearm and that the discharge was not merely accidental or negligent.

To prove that the defendant recklessly discharged the firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant’s actions went beyond mere negligence or carelessness. The defendant acted recklessly if the defendant knew, or should have known, that their actions were very likely to result in discharge of the firearm, but they acted anyway, despite that risk. The Commonwealth need not prove that the defendant could predict or expect that the firearm discharge would happen, nor does the Commonwealth need to prove that the defendant was conscious or aware that their conduct would lead to the firearm discharge. It is enough if a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were very likely to result in discharge of the firearm. It is not enough for the Commonwealth to prove that the defendant acted negligently – that is, acted in a way that a reasonably careful person would not. Rather, the Commonwealth must prove that the defendant acted recklessly.

To prove the fourth element, the Commonwealth must prove beyond a reasonable doubt that the object discharged by the firearm struck a (dwelling) (building) that was “in use”. This requires the Commonwealth to prove that the (dwelling) (building) 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 firearm was discharged.

See note 2.

If the Commonwealth has proven all four 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

Consent. 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, then the defendant is not guilty unless the Commonwealth has proved beyond a reasonable doubt that neither the owner nor a legal occupant had consented to the discharge.