District Court Instruction 7.620: Possession of a Firearm/Rifle/Shotgun at Home or Business

Source: Criminal Model Jury Instructions for Use in the District Court
Revised: July 2023
Statute: G.L. c. 269, § 10(h)

Scope note: Section 10(h) also punishes "owning" or "transferring" possession, and applies to rifles, shotguns, and ammunition. The model instruction may be adapted for those fact patterns.

Elements (Post-Guardado)

The Commonwealth must prove four (five) things beyond a reasonable doubt:

• The defendant possessed an item;
• The item meets the legal definition of a (firearm) (rifle) (shotgun);
• The defendant knew they possessed that (firearm) (rifle) (shotgun); and
• The defendant did not have a valid license to possess a (firearm) (rifle) (shotgun).

Fifth element (if evidence of exemption):
5. The defendant did not qualify for one of the statutory exemptions.

Element 1: Possession

Direct physical control: A person possesses something if they have direct physical control of it.

Constructive possession: An object is in a person's possession without physical custody if they have:
- Knowledge of the object;
- The ability to exercise control over it, directly or through another person; and
- The intent to exercise control over it.

Costa, 65 Mass. App. Ct. 227, 234 (2005); Sann Than, 442 Mass. 748, 755 (2004).

Guilt by association: Possession not proved by association with person who controlled item.

Mere presence not enough: Presence alone insufficient; must be augmented by additional inculpatory evidence. Romero, 464 Mass. 648, 654 (2013); Brown, 401 Mass. 745, 747 (1988).

Element 2: Legal Definitions

Firearm: Pistol, revolver or other weapon from which a shot or bullet can be discharged, barrel length less than 16 inches. G.L. c. 140, § 121. Jury can determine from inspection. Tuitt, 393 Mass. 801, 810 (1985); Fancy, 349 Mass. 196, 204 (1965); Sperrazza, 372 Mass. 667, 670 (1977).

Rifle: Weapon having a rifled bore with barrel length 16+ inches, capable of discharging per trigger pull.

Shotgun: Weapon having a smooth bore with barrel 18+ inches, overall length 26+ inches, capable of discharging per trigger pull.

Stun gun: A firearm under the law. Portable device from which electrical current designed to incapacitate may be directed. St. 2018, c. 123, § 4.

Element 3: Knowledge

Defendant must have known they possessed the item and knew it was a (firearm) (rifle) (shotgun) within the common meaning. Commonwealth not required to prove defendant knew item met the legal definition. Marrero, 484 Mass. 341, 346-347 (2020); Sampson, 383 Mass. 750, 762 (1981); Bacon, 374 Mass. 358, 359 (1978); Jackson, 369 Mass. 904, 916-917 (1976); Boone, 356 Mass. 85, 87 (1969); Papa, 17 Mass. App. Ct. 987, 987-988 (1984).

Element 4: Nonlicensure (Post-Guardado)

Commonwealth must prove defendant had neither a valid license to carry nor a firearm identification card at the time of possession.

Because a rifle or shotgun may be lawfully possessed with either an LTC or FID, the Commonwealth must prove the defendant had neither. G.L. c. 140, §§ 129B-C, 131. Guardado, 491 Mass. 666, 668 (2023).

Supplemental Instructions

1. Non-Firing Weapon Same as other instructions. Defective weapon no longer a firearm; slight repair preserves status. Jefferson, 461 Mass. 821, 828 (2012); Colton, 333 Mass. 607, 608 (1956); Bartholomew, 326 Mass. 218, 220 (1950); Raedy, 24 Mass. App. Ct. 648, 652-656 (1987); Rhodes, 21 Mass. App. Ct. 968, 969-970 (1986).

2. Knowledge of License Requirement Commonwealth not required to prove defendant knew the law required an LTC or FID.

3. Expired License/FID Exemption Entitled to exemption if (license) (FID) was expired and defendant not notified of revocation, suspension, pending revocation/suspension, or denial of renewal. Commonwealth must prove one of: (1) never had valid license/FID; (2) notified of revocation/suspension (other than address change failure); (3) notified of denial of renewal. G.L. c. 140, § 131(m); Indrisano, 87 Mass. App. Ct. 709, 716-17 (2015).

4. Interstate Transport Exemption (18 U.S.C. § 926A) Same four conditions as other instructions. Harris, 481 Mass. 767, 778 (2019).

Notes

Section 10(h) as lesser included of 10(a) (Note 1): Prior to 1991, § 10(h) was a lesser included offense of § 10(a). Nessolini, 19 Mass. App. Ct. 1016 (1985). In 1991, Legislature amended § 10(h) to provide it shall not be considered a lesser included offense of § 10(a). Stat. 1990, c. 511. This provision was deleted when the statute was rewritten by St. 1998, c. 180, § 69.

Residence/business scope (Note 9): Guardado, 491 Mass. at 684; Coren, 437 Mass. 723, 734 (2002); Dunphy, 377 Mass. 453, 458-460 (1979); Domingue, 18 Mass. App. Ct. 987, 990 (1984); Morales, 14 Mass. App. Ct. 1034, 1035 (1982); Samaras, 10 Mass. App. Ct. 910, 910 (1980).

Ballistics certificate (Note 2): Constitutional error to admit without cross-examination. Melendez-Diaz, 557 U.S. 305 (2009); Muniz, 456 Mass. 166, 168 (2010).

Flare guns (Note 3): Not a firearm. Sampson, 383 Mass. 750, 753-761 (1981).

Stun guns (Note 4): Included in firearm definition. St. 2018, c. 123, § 4.

Notice of affirmative defenses (Note 5): Mass. R. Crim. P. 14(b)(3) requires advance notice.

License revocation notice (Note 6): Robinson, 47 Mass. App. Ct. 767, 773-774 (1999) (certified mail requires proof of receipt); Hampton, 26 Mass. App. Ct. 938, 940 (1988) (willful evasion = constructive notice).

Key Distinction from § 10(a)

Section 10(h) covers possession at home or business without a license. Section 10(a) covers possession outside of home or business. The residence/business element is what distinguishes the two. Powell, 459 Mass. 572, 587-588 (2011).