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The Massachusetts Legislature defines Armed assault in a dwelling under Massachusetts General Law Chapter 265, § 18A as follows:
Section 18A. Whoever, being armed with a dangerous weapon, enters a dwelling house and while therein assaults another with intent to commit a felony shall be punished by imprisonment in the state prison for life, or for a term of not less than ten years. No person imprisoned under this paragraph shall be eligible for parole in less than five years.
Whoever, being armed with a dangerous weapon defined as a firearm, shotgun, rifle or assault weapon, enters a dwelling house and while therein assaults another with intent to commit a felony shall be punished by imprisonment in the state prison for a term of not less than ten years. Such person shall not be eligible for parole prior to the expiration of ten years.
The model jury instructions requires the Commonwealth to prove the following in order for the Commonwealth to prove each element of the offense. The Commonwealth must prove each of the following elements beyond a reasonable doubt at trial:
The Commonwealth must prove beyond a reasonable doubt the following four elements:
First: That the premises were not the dwelling house of the defendant.
Second: That the defendant entered the dwelling.
Third: The defendant was armed with a dangerous weapon at the time of the entry; and
Fourth: That the defendant made an actual assault on a person in such house with the intent to commit a felony. I will now further define each of these four (4) elements.
The first element the Commonwealth must prove beyond a reasonable doubt is that the premises were not the dwelling house of the defendant. To prove this element, the Commonwealth must show that the premises was at the time of the offense a place where people lived or resided. Dwelling houses include buildings that may be used as dwellings, such as apartments, houses, tenement houses, hotels, boarding houses, dormitories, sanitoria or other buildings where persons live or reside. The Commonwealth must also prove beyond a reasonable doubt that the defendant had no right of habitation or occupancy at the time of entry and that the defendant was not privileged or licensed to enter the dwelling.
The second element the Commonwealth must prove beyond a reasonable doubt is that the defendant entered the dwelling. It is not necessary that the entry was completed. It is sufficient if any part of the defendant’s body, hand or foot physically entered the dwelling.
The third element the Commonwealth must prove beyond a reasonable doubt is that they was armed with a dangerous weapon at the time of entry. This means the Commonwealth must prove that the defendant had a dangerous weapon in his possession. A dangerous weapon is any instrument that by nature of its construction or manner of its use can cause grievous bodily injury or death or would be perceived by a reasonable person as capable of such injury.
The fourth element the Commonwealth must prove is an assault with intent to commit a felony. An assault is defined as an attempt or offer by one person to do bodily injury to another by force and violence. Alternatively, an assault may consist of putting a person in fear of immediate bodily injury. An assault may be committed in either of two ways. The first type of assault consists of an offer or attempt to commit a battery. In this type of assault, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to batter the Victim. The Commonwealth must also prove that the defendant did an act toward the commission of inflicting physical harm on the victim. “Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.”
Finally, the Commonwealth must prove that the defendant had the actual ability or apparent ability to inflict bodily harm. This means that the Commonwealth need not show the defendant possessed the actual ability to do bodily harm, apparent ability will suffice. However, the Commonwealth does not have to show that the victim was apprehensive or fearful. Fear or apprehension on the part of the victim is not an essential element of this type of assault.
The second type of assault occurs when the defendant, with the intent to cause apprehension of immediate bodily harm, does some act that causes such apprehension.
First, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed the intention to cause apprehension of immediate bodily harm.
Second, the Commonwealth must show that the defendant engaged in conduct of the sort that would raise a reasonable apprehension of bodily harm. For example, pointing an unloaded gun at another person may constitute assault. However, where the defendant utters threatening words to another person, unaccompanied by an act, there is generally not sufficient conduct to constitute assault.
Third, the Commonwealth must demonstrate that, as a result of the threatened conduct, the victim did in fact experience a reasonable fear of immediate physical harm.
Finally, similar to the first type of assault, the Commonwealth need not demonstrate that the defendant had the actual ability at the time of the alleged assault to carry out the threat. Apparent ability will suffice. In order to satisfy the fourth element, the Commonwealth must also prove beyond a reasonable doubt that the defendant specifically intended to commit a felony.
Intent refers to a person’s objectives or purpose. Specific intent, which is required in this case, is the act of concentrating or focusing the mind for some perceptible period. It is a conscious act, with the determination of the mind to do an act. It is contemplation rather than reflex, and it must precede the act. The Commonwealth must prove specific intent on the part of the defendants; this requires you to make a decision about the defendants’ state of mind at the time of the crime. In this case, you may or may not infer the defendants’ intent by considering all of the facts as well as evidence of the defendants’ conduct offered during the trial.
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