Count _____ of the indictment charges defendant with committing the offense of possession of a defaced firearm. In pertinent part, the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is accused of violating states that: Any person who knowingly has in his possession any firearm which has been defaced is guilty of a crime.1
In order to convict defendant of this offense, you must be satisfied that the State has proved beyond a reasonable doubt each of the following four elements:
1. That exhibit S-____ is a firearm;
2. That exhibit S-____ is defaced;
3. That defendant possessed S-____ on (date alleged in the indictment); and
4. That defendant possessed S-____ knowing that it was defaced.
The first element that the State must prove beyond a reasonable doubt is that Exhibit S- is a firearm. The term "firearm" means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances.2 Regarding S-____, the State
1 Note that the statute exempts possession of an "antique firearm" or an "antique handgun" that may be defaced. Where appropriate, the above instruction should be expanded to include the definition of "antique firearm" [N.J.S.A. 2C:39-1a] and/or "antique handgun" [N.J.S.A. 2C:39-1aa]. Also exempted from the prohibition on possession of a defaced firearm are military personnel acting under color of law, regulation or military orders and law enforcement officers acting in the performance of their duties. See N.J.S.A. 2C:39-3g.
2 N.J.S.A. 2C:39-1f. The statutory definition also encompasses air guns, spring guns and other firearms which discharge a bullet or projectile smaller than three-eights of an inch in diameter with force sufficient to cause injury.
POSSESSION OF A DEFACED FIREARM
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is not required to prove that S-____ was operable, i.e., capable of firing a bullet or other projectile, on (date of incident). The statute only requires that S-____ be proven to be a firearm in terms of its original design.3
The second element that the State must prove beyond a reasonable doubt is that Exhibit S-____ is defaced. The term “defaced” means that the name of the maker, model designation, manufacturer's serial number or any other distinguishing identification mark or number on the firearm has been removed, defaced, covered, altered or destroyed.4
The third element that the State must prove beyond a reasonable doubt is that defendant possessed Exhibit S-____ on (the date alleged in the indictment). The term possession means [utilize the model jury charge on actual/joint/constructive possession, as appropriate. If the firearm was found in a vehicle, expand the charge to include instruction on the presumptions (inferences) contained in N.J.S.A. 2C:39-2a., as applicable.]
The fourth element that the State must prove beyond a reasonable doubt is that defendant knew that Exhibit S-____ was defaced. A defendant acts "knowingly" with respect to the nature of his/her conduct or the attendant circumstances if defendant is aware that his/her conduct is of that nature, or that such circumstances exist, or defendant is aware of a high probability of their existence. A defendant acts knowingly with respect to a result of his/her conduct if defendant is aware that it is practically certain that his/her conduct will cause such a result.5 In this case, the State must prove beyond a reasonable doubt that defendant was aware that he/she possessed a firearm that was defaced. Because knowingly is
3 See State v. Gantt, 101 N.J. 573, 589-590 (1986); State v. Orlando, 269 N.J. Super. 116, 129 (App. Div. 1993), certif. den. 136 N.J. 30 (1994). The only exception to this rule is a firearm that has been so mutilated or destroyed that it cannot be called a gun. State v. Gantt, above at 101 N.J. 589.
4 N.J.S.A. 2C:39-1b.
5 N.J.S.A. 2C:2-2b.
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a state of mind that cannot be seen and can only be determined by inference from conduct, words or acts, it is rarely susceptible to direct proof. It is not necessary, therefore, that the State produce witnesses to testify that defendant knowingly possessed a defaced firearm. Defendant's knowledge may be gathered from his/her conduct and/or from all defendant said or did on (date of incident) and from all the surrounding circumstances reflected in the proofs.
If you find that the State had proven all these elements beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
