Instruction 8.240, Criminal Model Jury Instructions for Use in the District Court

UTTERING

G.L. c. 267, § 5

The defendant is charged with uttering a false, forged or altered

(check or order for money) (promissory note) (order for property)1. To

prove the defendant guilty of this offense, the Commonwealth must

prove four things beyond a reasonable doubt:

First: That the defendant offered or passed as true and genuine

(a check or other order for money) (a promissory note) (an order for

property)2;

Second: That the (check or order for money) (promissory note)

(order for property) was (falsely made) (forged) (altered);

Third: That the defendant knew it was (falsely made) (forged)

(altered); and

Fourth: That the defendant offered or passed it with the specific

intent to injure or defraud another.

Commonwealth v. O’Connell, 438 Mass. 658, 664 n.9 (2003), citing Commonwealth v.

Levin, 11 Mass. App. Ct. 482, 496 (1981) (elements of uttering).

To prove the first element, the Commonwealth must prove

1 The District Court also has jurisdiction over the forgery of other documents. See note 1. This instruction

may be adapted accordingly.

2 See n. 1, supra.

beyond a reasonable doubt that the defendant offered or passed a

(check or order for money) (promissory note) (order for property) to

another. The Commonwealth need not prove that it was successfully

passed to someone. Rather, the Commonwealth may prove this

element beyond a reasonable doubt by proving that the defendant

offered it to someone, even if it was not accepted.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the (check or order for money)

(promissory note) (order for property) was (falsely made) (forged)

(altered). The Commonwealth is not required to prove that the whole

item was (falsely made) (forged) (altered), but must prove that at least

one or more significant parts of it were (falsely made) (forged)

(altered).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knew that the (check or

order for money) (promissory note) (order for property) was (falsely

made) (forged) (altered). This requires you to make a decision about

the defendant’s state of mind at the time they offered or passed the

item. You may examine the defendant’s actions and words, all of the

surrounding circumstances, and any reasonable inferences from the

evidence, to help you determine the extent of the defendant’s

knowledge at the time.

See Commonwealth v. Russell, 156 Mass. 196, 196-197 (1861) (prior acts of uttering

may be admissible as to knowledge and intent to defraud).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted with the specific

intent to defraud another. It is not necessary that the defendant

intended to injure or defraud a particular person or entity. To act with

an intent to defraud means to act knowingly with the aim of deceiving

or cheating another. The purpose is often to bring about gain or

benefit either to oneself or to another person or entity. You may

examine the evidence in the case, all of the surrounding

circumstances, and any reasonable inferences you draw from that

evidence, to help you determine whether the defendant intended to

defraud another.

Commonwealth v. Analetto, 326 Mass. 115, 118 (1950) (defendant must have intended to

defraud someone, but not necessarily any particular person); Commonwealth v. Bond, 188

Mass. 91, 92 (1905) (not necessary that intended victim have been misled by forgery). See

also United States v. Leahy, 445 F.3d 634, 644 (3d Cir. 2006) (instruction on intent to

defraud); United States v. Phath, 144 F.3d 146, 149 (1st Cir. 1998) (same).

If the Commonwealth proved each of the four elements beyond a

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

Commonwealth failed to prove any one element beyond a reasonable

doubt, you must return a verdict of not guilty.