Instruction 7.830, Criminal Model Jury Instructions for Use in the District Court

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

POSSESSION WITH INTENT TO DISTRIBUTE

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

G.L. c. 94C, §§ 32-32D

[See Instruction 7.835 for Possession with Intent to Distribute Marijuana]

The defendant is charged with possession of a controlled

substance, namely _________, with the intent to distribute it.

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 knowingly possessed some

perceptible amount of that substance;

Third: That the defendant intended to distribute it to someone

else.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the substance was a controlled

substance, namely: _____________. I instruct you as a matter of law

that our statutes define ________ as a controlled substance. In

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

determining whether or not the material in question was in 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 knowingly possessed

some perceptible amount of that substance. The Commonwealth is

required to prove that the defendant knew they possessed a

controlled substance, but it is not required to prove that they knew

which particular controlled substance it was.

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

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

• The judge may use the detailed instruction 3.140 (Knowledge) or this shorter version, if

appropriate.

A person acts knowingly if they act consciously, voluntarily and

purposely, and not because of ignorance, mistake or accident.

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

• The judge may here use the detailed instruction on “possession” from Instruction 3.220, or the

shorter version below, if appropriate.

A person possesses something when they have direct physical

control or custody of it at a given time (or when they have

constructive possession of it).

• If warranted by the evidence, continue with the supplemental instruction on constructive

possession or joint possession.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant intended to

distribute the substance. The word “distribute” means to transfer

or deliver, or to assist or participate in the transfer or delivery, of a

controlled substance to another person. The Commonwealth is not

required to prove that any money or other compensation was

involved.

G.L. c. 94C, § 1.

The Commonwealth must prove, however, that the defendant

intended to distribute the substance to someone else.

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

version below, if appropriate.

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

We often must decide from the actions of others what they intended.

You are to decide what the defendant intended from the evidence,

together with any reasonable inferences that you choose to draw from

it.

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

A person also possesses something

even without having physical custody of it if they have (1)

knowledge of its existence, (2) the ability to exercise control

over it, either directly or through another person, and (3) the

intent to exercise control over it.

Constructive Possession

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

However, I caution you that merely being present in the

vicinity of controlled substances, even if one knows that it is

there, does not amount to possession.

If relevant: So, too, possession is not proved simply by

evidence that a person was associated with another who

controlled the substance or the place where it was found.

Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 531-32 (2000) (constructive vs.

actual possession are not different theories; simply different ways to prove the same legal

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

v. Santana, 95 Mass. App. Ct. 265 (2019); Commonwealth v. Owens, 414 Mass. 595,

607 (1993) (constructive possession of controlled substance requires proof that

defendant knew location of illegal drugs plus ability and intent to exert dominion and

control). See Than, supra, 442 Mass. 748 at 751 (constructive possession inferable

from defendant’s proximity to gun in motor vehicle, where evidence that, when stopped

by police, defendant “first leaned forward and to the right before complying with the order

to raise his hands[,] . . . [and] [a] loaded handgun was found protruding from under the

passenger seat in the vehicle he was operating”); Alicea v. Commonwealth, 410 Mass.

384, 387 (1991) (defendant’s presence in vehicle with contraband is not itself sufficient);

Commonwealth v. Ramos, 51 Mass. App. Ct. 901, 903 (2001) (constructive possession

not inferable from proximity of gun to defendant’s personal letters that were found in an

envelope “addressed to the defendant, at a different address”); Commonwealth v.

Ramos, 30 Mass. App. Ct. 915 (1991); Commonwealth v. Handy, 30 Mass. App. Ct. 776,

780-781 (1991) (constructive possession supported by proof of ownership or tenancy,

personal effects in proximity to contraband, large amounts of cash, or admissions);

Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), aff’d, 410 Mass. 1005

(1991) (constructive possession inferable from presence in early morning in heavily-

barricaded, sparsely-furnished apartment, in absence of owner or tenant);

Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986) (in shared dwelling,

possession of controlled substance may be inferred from proximity to defendant’s effects

in areas particularly linked to defendant); Commonwealth v. Rodriguez, 16 Mass. App.

Ct. 944, 945-946 (1983) (same); Commonwealth v. Gill, 2 Mass. App. Ct. 653, 656-657

(1974) (same); Commonwealth v. Miller, 4 Mass. App. Ct. 379, 383-384 (1976) (same

rule applicable to van; possession also inferable from attempted flight); Commonwealth v.

Deagle, 10 Mass. App. Ct. 563, 567-568 (1980) (proximity and knowledge do not

establish possession unless they permit inference of control).

A person can “possess” something even if

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

Joint Possession

A CONTROLLED SUBSTANCE OTHER THAN MARIJUANA

considered to “possess” something if it is owned or held jointly

with another person who is keeping it for both of them. A person

is also considered to “possess” something when they have

agreed with another person to put it in a place where both of

them will have access to or control over it.

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

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

Conroy, 333 Mass. 751, 755 (1956) (lookout was in joint possession of accomplice's

burglarious tools); Commonwealth v. Conlin, 188 Mass. 282, 284 (1905) (depositing bag

of burglarious tools with another while retaining key was possession); Commonwealth v.

Gonzalez, 23 Mass. App. Ct. 990, 992 (1987) (possession may be joint and constructive);

Commonwealth v. Ronayne, 8 Mass. App. Ct. 421, 426 (1979) (joint flight from burglary

supported inference of joint possession of, though only one defendant carried, tire iron);

Commonwealth v. Johnson, 7 Mass. App. Ct. 191, 194 (1979) (joint possession of items

in auto trunk inferable against passenger only with other evidence).

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 possession of a controlled

substance with intent to distribute.

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.