Instruction 7.800, Criminal Model Jury Instructions for Use in the District Court

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

[DISTRIBUTION] [MANUFACTURING] [CULTIVATING] OF A

CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

G.L. c. 94C, §§ 32-32D

The defendant is charged with unlawfully (distributing)

(manufacturing) (cultivating) a controlled substance, namely

______________.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt.

First: That the substance in question was a controlled

substance, namely ________ ;

See G.L. c. 94C, § 31, for the statutory schedule of controlled substances.

Second: That the defendant (distributed) (manufactured)

(cultivated) some perceptible amount of that substance; and

Third: That the defendant did so knowingly or intentionally.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the substance was in fact a

controlled substance, namely: ___________. I instruct you as a

matter of law that our statutes define ________ as a controlled

substance. In determining whether the material in question was in

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

fact __________, you may consider all the relevant evidence that was

presented.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant (distributed)

(manufactured) (cultivated) some perceptible amount of that

substance.

Distribute The term “distribute” means to transfer, or to assist or

participate in the transfer of a controlled substance to another

person. The Commonwealth is not required to prove that any money

or other compensation was involved.

• If warranted by the evidence, continue with the supplemental instruction “Simultaneous and

Joint Acquisition of a Controlled Substance.

Cultivate The term “cultivate” means the activities related to the

raising, nourishing, or fostering the growth of plants.

Commonwealth v. Palmer, 464 Mass. 773, 778-79 (2013).

Manufacture The term “manufacture” means the production,

preparation, and growing of a controlled substance.

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

Manufacturing includes the compounding, conversion or

processing of a controlled substance.

(Compounding is the mixing of two or more existing parts

together.)

(Conversion is the process of changing something from

one thing to another.)

G.L. c. 94C, § 1.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant engaged in the activity

knowingly or intentionally.

• The judge may use the detailed instruction on “Intent” from instruction 3.120, the detailed

Instruction on “Knowledge” from Instruction 3.140, or the shorter versions below, if

appropriate.

In other words, the defendant must have acted consciously,

voluntarily and purposely, and not because of ignorance, mistake or

accident. The Commonwealth is required to prove that the defendant

knew the substance was a controlled substance, but it is not required

to prove that the defendant knew which particular controlled

substance it was. We often must decide from the actions of others

what they knew or what they intended. You are to decide what the

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

defendant knew or intended from the evidence, together with any

reasonable inferences that you choose to draw from it.

Commonwealth v. Rodriguez, 415 Mass. 447, 454 (1993); Commonwealth v. DePalma, 41

Mass. App. Ct. 798, 801 (1996).

If the Commonwealth proved all the elements beyond a

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

Commonwealth failed to prove any element beyond a reasonable

doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTION

Simultaneous and Joint Acquisition of a Controlled Substance

Where two or more people at the outset simultaneously and

jointly acquire possession of a drug for their own use intending only

to share it together, the crime is possession of a controlled

substance, not distribution of a controlled substance.

Commonwealth v. Carrillo, 483 Mass. 269 (2019); Commonwealth v. Jackson, 464 Mass. 758, 763-63

(2013), citing Commonwealth v. Johnson, 413 Mass. 598, 605 (1992) (distinguishing between

“circumstances where a defendant facilitates a transfer of drugs from a seller to a buyer,” which can

constitute the crime of distribution even if the defendant intends to share some of the drug with the buyer,

and “the passing of a drug between joint possessors who simultaneously acquire possession at the outset

for their own use,” which does not constitute distribution).

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA