Source: Superior Court Model Criminal Jury Instructions
Publication Date: May 13, 2024
Statutes: G.L. c. 269, § 10(a) (outside home/business), § 10(h) (inside home/business), § 10(n) (loaded firearm enhancement)
DFT is charged with unlawfully possessing a firearm [rifle/shotgun] [stun gun] on [DATE].
G.L. c. 269, § 10(a) applies to possession outside one's residence or place of business without a Massachusetts firearm license.
Section 10(a)(1) establishes a "statutory exemption" allowing FID card holders to lawfully possess a firearm within their residence or place of business. Commonwealth v. Harris, 481 Mass. 767, 780 (2019).
Section 10(h) applies to possession within one's residence or place of business without an FID card.
For a firearm, § 10(a) punishes whoever, except as provided or exempted by statute, knowingly possesses or knowingly has under control in a vehicle, a firearm (loaded or unloaded) without either:
1. Being present in or on his residence or place of business; or
2. Having a valid LTC under § 131; or
3. Having a valid LTC under § 131F; or
4. Having complied with §§ 129C and 131G (licensing exemptions); or
5. Having complied with § 12B (air rifle/BB gun, minor under 18).
For a rifle or shotgun, § 10(a) adds a sixth option: having a valid FID card under § 129B.
The Commonwealth must prove four [five/six] elements beyond a reasonable doubt:
If evidence that DFT was exempt from licensing requirements:
5. DFT did not qualify for one of the legal exemptions.
If charged under § 10(a) rather than § 10(h):
5/6. DFT possessed the firearm [rifle/shotgun] outside his residence or place of business.
Critical note (fn. 3): Before Guardado, lack of a license was an affirmative defense. See Commonwealth v. Guardado, 491 Mass. 666, 686-690 (2023), discussing Commonwealth v. Gouse, 461 Mass. 787, 799-808 (2012).
A person can possess an object by having direct physical control over it.
Constructive possession requires:
- Knowledge of the object;
- Ability to exercise control over it (directly or through another person); and
- Intent to exercise control over it.
Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).
Merely being present near an object, being associated with a person who controls it, living in an apartment where it is found, or being in a vehicle where it is present does not amount to possession. Possession does not have to be exclusive; joint possession is sufficient.
Firearm: Any pistol, revolver, or other weapon capable of discharging a shot or bullet with a barrel shorter than 16 inches. Excludes weapons not resembling handguns and weapons not detectable by airport x-ray/metal detectors. G.L. c. 140, § 121.
Stun gun: Any portable device designed to pass or emit an electrical shock to temporarily incapacitate, injure, or kill. G.L. c. 140, § 121.
Rifle: Rifled bore, capable of discharging a shot/bullet per trigger pull, barrel 16 inches or greater. G.L. c. 140, § 121.
Shotgun: Smooth bore, capable of discharging a shot/bullet per trigger pull, barrel 18+ inches, overall length 26+ inches. G.L. c. 140, § 121.
Defective/damaged weapons: If the weapon cannot fire, it is no longer a firearm. But if a "relatively slight repair, replacement, or adjustment" would make it operable, it remains a firearm. Commonwealth v. Housewright, 470 Mass. 665, 679 n.16 (2015).
DFT must have known that the object was a firearm [rifle/shotgun] [stun gun]. The Commonwealth does not have to prove DFT knew it met the legal definition. Commonwealth v. Marrero, 484 Mass. 342, 343-347 (2020).
The Commonwealth must prove DFT did not have a valid license to carry [or FID card]. This is now an element of the offense, not an affirmative defense. Guardado, 491 Mass. at 686-690.
LTC vs. FID: A license to carry allows possession inside or outside the home. An FID card allows possession of a firearm [stun gun] only inside the home or place of business; for rifles/shotguns, an FID card allows possession both inside and outside. Commonwealth v. Powell, 459 Mass. 572, 587 (2011); Phipps v. Police Comm'r of Boston, 94 Mass. App. Ct. 725, 731 n.10 (2019).
The home/business exemption is an affirmative defense. The judge instructs on it only if evidence (viewed in the light most favorable to the defendant) supports it. If the defense is raised, the Commonwealth bears the burden of disproving it beyond a reasonable doubt. Guardado, 491 Mass. at 682-684.
Residence: The exemption applies to a firearm stored in a vehicle only if the vehicle "is located within or on the defendant's residence." Guardado, 491 Mass. at 684.
Place of business: The exemption applies to a firearm in a business's parking lot "only if the parking lot is within the exclusive control of the business." Id. at 684-685. Whether the exemption applies only to the owner/proprietor of the business was not decided. Id. at 686 n.9.
"Residence" and "place of business" mean only areas under the person's or business's exclusive control. Common areas of apartment or office buildings are excluded.
Section 10(n) is a sentencing enhancement, not a standalone offense. Commonwealth v. Brown, 479 Mass. 600, 604 (2018). Conviction under § 10(n) requires conviction under § 10(a) or (c). A violation of § 10(a) is not a lesser included offense of § 10(n). Commonwealth v. Taylor, 96 Mass. App. Ct. 143, 147 (2019).
Additional elements:
1. The firearm was loaded with ammunition (at least one cartridge, cartridge case, bullet, or primer/propellant powder in the weapon or attached feeding device); and
2. DFT knew the firearm was loaded.
"Loaded" means ammunition is contained in the weapon or within a feeding device attached thereto. G.L. c. 269, § 10(o).
Knowledge that the firearm was loaded can be inferred from circumstantial evidence. Brown, 479 Mass. at 608, citing Cassidy, 479 Mass. 527, 537 (2018).