Instruction 7.750, Criminal Model Jury Instructions for Use in the District Court

POSSESSION, USE, OR PLACEMENT OF HOAX DEVICE

G.L. c. 266, § 102 (b)

The defendant is charged with (possessing) (using) (placing) a

hoax (explosive) (destructive or incendiary device or substance)

(chemical, biological, or nuclear weapon). To prove the defendant

guilty of this offense, the Commonwealth must prove four elements

beyond a reasonable doubt that:

First, the defendant [(possessed) (used) (placed) a device or

item] [caused another person to (possess) (use) (place) a device or

item];

Second, the device or item was a hoax (explosive) (destructive

or incendiary device or substance) (chemical, biological, or nuclear

weapon);

Third, the defendant [(possessed) (used) (placed)] [caused

another person to (possess) (use) (place)] the device or item with the

intent that it cause anxiety, unrest, fear, or personal discomfort to any

person or group of persons; and

Fourth, the defendant did so without lawful authority.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant [(possessed) (used)

(placed) a device or item] [caused another person to (possess) (use)

(place) a device or 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. In that sense, you possess whatever you have in your

pocket, purse, or backpack right now.

However, the law does not require that someone necessarily

have actual physical custody of an item to “possess” it. An item is

considered to be in a person’s possession if they have:

• knowledge of the item,

• the ability to exercise control over that item, either directly or

through another person, and

• the intent to exercise control over the item.

For example, the law considers you to be in possession of

things which you keep in your bureau drawer at home, or in a safe

deposit box at your bank.

Whether the defendant possessed an item is something that you

must determine from all the facts and any reasonable inferences that

you can draw from the facts. However, 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. Additionally, it is not

enough to prove that the defendant was associated with a person who

controlled the item or the property where the item was found.

To show possession, there must be evidence justifying a

conclusion that the defendant had knowledge of the item coupled

with the ability and intent to exercise control over the item. Only then

may the defendant be considered to have possessed the item.

Commonwealth v. Than, 442 Mass. 748, 754-755 (2004); Commonwealth v. Sespedes,

442 Mas. 95, 99 (2004).

Joint possession. A person can also “possess” something even

if they are not its sole owner or holder. For example, a

person is considered to “possess” something which they

own or hold jointly with another person, who is keeping it

for both of them. A person is also considered to “possess”

something which they own or hold jointly with another

person, and which they agreed to deposit somewhere

where both of them will have access to it.

Commonwealth v. Beverly, 389 Mass. 866, 870 (1983) (possession of controlled

substance need not be exclusive; it may be joint and constructive).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the device or item the defendant

possessed was a hoax (explosive) (destructive or incendiary device

or substance) (chemical, biological or nuclear weapon). A “hoax”

device, article, or substance is inoperable, but would appear to a

reasonable person to be (an explosive) (a destructive or incendiary

device or substance) (or) (a chemical, biological or nuclear weapon,

harmful radioactive substance or poison) capable of causing bodily

injury.

See G.L. c. 266, § 101 for further details regarding the following definitions.

Explosive. An “explosive” is defined as any element,

compound or mixture manufactured, designed or used to

produce an explosion that would cause physical harm to

persons or property. An explosive contains an oxidizer,

fuel or other ingredient that when ignited may cause a

sudden generation of highly-heated gases capable of

causing physical harm to persons or property.

See G.L. c. 266, § 101: “Explosive shall not include a pyrotechnic, small-arms

ammunition, small-arms ammunition primers, smokeless powder weighing less than 50

pounds and black powder weighing less than 5 pounds, unless possessed or used for an

illegal purpose.”

Destructive or incendiary device or substance. A destructive

or incendiary device or substance is an explosive, article

or device designed to cause physical harm to persons or

property by means of fire, explosion, or detonation and

consisting of substance capable of being ignited.

Chemical weapon. There are two types of chemical

weapons. One is a toxic chemical or substance, including

the ingredients used to create any toxic chemical or

substance. Another is ammunition or a device designed to

cause death or bodily harm by means of the release of a

toxic chemical or substance.

Biological weapon. A “biological weapon” is a weapon

specifically prepared to cause death, disease or other

biological malfunction in any living organism, deterioration

of food, water, equipment supplies or material of any kind,

or negative alteration of the environment. It includes any

microorganism, virus, infectious substance or biological

product engineered as a result of biotechnology. It also

includes any naturally occurring or bioengineered

component of any such microorganism, virus, infectious

substance or biological product.

Nuclear weapon. A “nuclear weapon” is a device designed

for the purpose of causing bodily injury or death through

the release of radiation or radiological material either

through nuclear fission or any other energy source.

General Laws c. 266, § 101 also defines a nuclear weapon as one designed to cause

“denial of access.” That term is defined as “contamination to an area, including any

structures thereon, which poses a health risk to humans, animals or plants and which

precludes the safe use of such area until the contaminant becomes inactive, decays or is

removed.”

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant [(possessed) (used)

(placed)] [(caused another person to (possess) (use) (place)] the

device with the intent that the device cause anxiety, unrest, fear or

personal discomfort to any person or group of persons. Obviously, it

is impossible to look directly into a person’s mind. But in our

everyday affairs, we often decide from the actions of others what their

state of mind is. In this case, you may examine the defendant’s

actions and words, and all the surrounding circumstances, to help

you determine what their intent or knowledge was at the time in

question.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted without lawful

authority. The Commonwealth must prove that the defendant had no

legal justification for [(possessing) (using) (placing)] [(causing

another to (possess) (use) (place)] the device or item.

Commonwealth v. Aldana, 477 Mass. 790, 799 (2017).

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 the elements

beyond a reasonable doubt, you must find the defendant not guilty.