Instruction 7.840, Criminal Model Jury Instructions for Use in the District Court

POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA

SALE OF DRUG PARAPHERNALIA;

POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA

The defendant is charged with (selling drug paraphernalia)

(possessing drug paraphernalia with the intent to sell it). Section 32I of

Chapter 94C of our General Laws provides as follows:

“No person shall (sell) (possess with intent to sell). . . drug

paraphernalia,

knowing, or under circumstances where one reasonably should know,

that it will be used to (plant) (propagate) (cultivate) (grow) (harvest)

(manufacture) (compound) (convert) (produce) (process)

(prepare) (test) (analyze) (pack) (repack) (store) (contain)

(conceal) (ingest) (inhale) (or) (otherwise introduce into the

human body)

a controlled substance in violation of [the law].”

In order to prove that the defendant is guilty of this charge, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the item(s) in question is (are) drug paraphernalia. Our

law defines “drug paraphernalia” to include:

POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA

“[A]ll equipment, products, devices, and materials of any kind

which are primarily intended, or designed for use

in (planting) (propagating) (cultivating) (growing) (harvesting)

(manufacturing) (compounding) (converting) (producing)

(processing) (preparing) (testing) (analyzing) (packaging)

(repackaging) (storing) (containing) (concealing)

(ingesting) (inhaling) (or) (otherwise introducing into the

human body)

a controlled substance in violation of [the law].”

Our law also lists a number of factors that you as the jury are to

consider in determining whether a particular item is “drug paraphernalia.”

They include the following:

• “The proximity of the [item], in time and space, to [any] direct

violation of [the law governing controlled substances];

• The proximity of the [item] to [any] controlled substances;

• The existence of any residue of controlled substances on the

[item];

• Instructions, oral or written, provided with the [item]

concerning its use;

POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA

• Descriptive materials accompanying the [item] which explain

or depict its use;

• National and local advertising concerning its use;

• The manner in which the [item] is displayed for sale;

• Whether the owner, or anyone in control of the [item], is a

supplier of [similar] or related [items] to the community,

such as a licensed distributor or dealer of tobacco

products;

• Direct or circumstantial evidence of the ratio of sales of the

[item] to the total sales of the business enterprise;

• The existence and scope of legitimate uses for the [item] in

the community;

• Expert testimony concerning its use;

• [and any other factors you find to be relevant.]”

G.L. c. 94C, § 1, as amended by St. 1998, c. 50, § 1, and St. 2006, c. 172, § 1. Commonwealth v.

Jasmin, 396 Mass. 653, 658, 487 N.E.2d 1383, 1387 (1986) (jury is to determine whether an item is

drug paraphernalia, on instructions that include, among other considerations, reference to the

statutory factors).

Because of the large number of alternatives in the statutory definition of “drug paraphernalia,” it is

recommended that the judge mention only those potentially relevant to the evidence in the case. The

judge may also wish to permit the deliberating jury to have a copy of the statutory definition and list

of relevant factors. See Commonwealth v. Dilone, 385 Mass. 281, 287 n.2, 431 N.E.2d 576, 580 n.2

(1982) (endorsing giving the jury a written copy of all or parts of charge). The appendix (Instruction

POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA

7.841) to this instruction may be used for that purpose.

If the Commonwealth has proved that the item constitutes drug

paraphernalia, then the Second thing the Commonwealth must prove

beyond a reasonable doubt is that the defendant (sold that item) (knowingly

possessed that item with the intent to sell it).

Thirdly: The Commonwealth must prove beyond a reasonable doubt

that when the defendant (sold that item, he [she] knew it to be drug

paraphernalia) (possessed that item with the intent to sell it, he [she] knew

or reasonably should have known that it would be used to [plant]

[propagate] [cultivate] [grow] [harvest] [manufacture] [compound] [convert]

[produce] [process] [prepare] [test] [analyze] [package] [repackage] [store]

[contain] [conceal] [ingest] [inhale] or otherwise introduce into the human

body a controlled substance in violation of the law).

For a definition of “possession,” see Instruction 3.220.

Where it is charged that the violation occurred within 1,000 feet of school property or within 100 feet

of a public park or playground, here give Instruction 7.860.