Instruction 7.835, Criminal Model Jury Instructions for Use in the District Court

POSSESSION WITH INTENT TO DISTRIBUTE

MARIJUANA

G.L. c. 94C, §§ 32C

as modified by G.L. c. 94G, § 7(a)(4)

This instruction recognizes the exemptions in G.L. c. 94G, § 7(a)(4), which allows gifting up to one ounce

of marijuana. The distribution of marijuana for renumeration still remains unlawful for any amount.

The defendant is charged with possession of marijuana 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 marijuana) (contained

marijuana).

Second: That the defendant knowingly possessed some of that

substance; and

Third: That the defendant:

[The Commonwealth must prove at least one of the following:]

A. [Amount in excess of permissible gifting amount of one ounce] intended to

distribute more than (one ounce of marijuana) (5 grams of

marijuana concentrate) to someone else.

B. [Any amount for remuneration] intended to distribute (a substance

containing) marijuana for money or something of value such as

cash, credit, property, or an agreement to do or not do

something.

C. [Any amount after advertisement or promotion] intended to distribute (a

substance containing) marijuana to another after advertising or

promoting the transfer to the public.

D. [To a person under 21] intended to distribute any (amount of) (type of)

(a substance containing) marijuana to a person under 21 years

of age.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the substance (was) (contained)

marijuana. In determining whether the material in question (was)

(contained) marijuana, 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

that substance.

• The judge may use the detailed instruction on “Knowledge” from Instruction 3.140, or the shorter

version below, if appropriate.

A person acts knowingly if they act consciously, voluntarily and

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

must often decide from the actions of others what they knew. You are

to decide what the defendant knew from the evidence, together with

any reasonable inferences that you choose to draw from it.

• The judge may 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 it1).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant:

[The Commonwealth must prove at least one of the following:]

A. [Amount in excess of permissible gifting amount of one ounce] intended to

distribute more than (one ounce of marijuana) (5 grams of

marijuana concentrate) to someone else. The Commonwealth is

not required to prove that any money or other compensation

was involved.

B. [Any amount for remuneration] intended to distribute (a substance

containing) marijuana for money or something of value such as

1

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

possession.

cash, credit, property, or an agreement to do or not do

something.

C. [Any amount after advertisement or promotion] intended to distribute (a

substance containing) marijuana, after its availability had been

made known to the public by advertisement or promotion.

D. [To a person under 21] intended to distribute any (amount of) (type of)

(a substance containing) marijuana to a person under 21 years

of age. The Commonwealth is not required to prove that any

money or other compensation would be involved.

The term “distribute” means to actually deliver the (marijuana)

(marijuana concentrate) (a marijuana product) to another person.

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

version below, if appropriate.

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 of the elements beyond a

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

Commonwealth failed to prove one or more elements beyond a

reasonable doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

Constructive Possession 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. 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. 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).

Joint Possession A person can “possess” something even if

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

person is 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 deposit 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 only possession of

marijuana, not possession of marijuana with intent to

distribute.

Commonwealth v. Carrillo, 483 Mass. 269 (2019); Commonwealth v. Johnson, 413 Mass. 598,

604 (1992).