Count _____ of the indictment charges defendant with committing the offense of possession of a sawed-off shotgun. 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 sawed-off shotgun is guilty of a crime.
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 three elements:
1. That exhibit S-____ is a sawed-off shotgun, or [if no physical exhibit is introduced at trial] that a particular object was a sawed-off shotgun;
2. That defendant possessed the object/exhibit S-____ on [the date alleged in the indictment]; and
3. That defendant possessed the object/exhibit S-____ knowing that what he/she possessed was a sawed-off shotgun.
Regarding the first element that the State must prove beyond a reasonable doubt, the term "shotgun" means any firearm designed to be fired from the shoulder and using the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shots or a single projectile for each pull of the trigger. The term "shotgun" also means any firearm designed to be fired from the shoulder which does not fire fixed ammunition.1 A sawed-off shotgun is any of the following: (1) a shotgun having a barrel(s) of less than 18 inches measured from the breech to the muzzle; (2) a rifle2 having a barrel of less than 16
1 N.J.S.A. 2C:39-1n. Note that fixed ammunition is ammunition encased in an explosive cartridge that propels the round.
2 N.J.S.A. 2C:39-1m defines the term "rifle" to mean any firearm designed to be fired from the shoulder using the energy of the explosive in a fixed metallic cartridge to fire a single projectile through a rifled bore for each single pull of the trigger.
POSSESSION OF A SAWED-OFF SHOTGUN
(N.J.S.A. 2C:39-3b)
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inches in length measured from the breech to the muzzle; or (3) any firearm made from a rifle or shotgun that, as modified, has an overall length of less than 26 inches.3
New Jersey law classifies a sawed-off shotgun as a prohibited weapon. This means that one cannot obtain a permit or license for a sawed-off shotgun and that a sawed-off shotgun cannot lawfully be possessed in this state.4 Regarding the object/S-____, the State is not required to prove that it was operable, i.e., capable of firing a shot or projectile, on (date of incident). The statute only requires that the object/S-____ be proven to be a shotgun in terms of its original design.5
The second element that the State must prove beyond a reasonable doubt is that defendant possessed the object/exhibit S-____ on (the date alleged in the indictment). The term "possession" means [utilize applicable portion of model jury charge on actual/joint/constructive possession].6
The third element that the State must prove beyond a reasonable doubt is that defendant possessed the object/exhibit S-____ knowing that what he/she possessed was a sawed-off shotgun. 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.7 In this case, the State must prove beyond a reasonable doubt that defendant was aware that he/she possessed the object/exhibit S-____ and that defendant knew that what he/she possessed was a sawed-off shotgun. Because knowingly is a state of mind that cannot be seen and can only be
3 N.J.S.A. 2C:39-1o
4 See Miller, New Jersey Practice, Criminal Law, § 535 at 41. Cf., State v. Gaines, 147 N.J. Super. 84, 95-96 (App. Div. 1975), aff'd o.b. sub nom. State v. Powers, 72 N.J. 396 (1977). Note, however, that the prohibited weapons statute contains a narrow exemption for 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.
5 See State v. Gantt, 101 N.J. 573, 589-590 (1986).
6 If the weapon was found in a vehicle, instruct the jury on the presumptions (inferences) contained in N.J.S.A. 2C:39-2a, as applicable.
7 N.J.S.A. 2C:2-2b.
POSSESSION OF A SAWED-OFF SHOTGUN
(N.J.S.A. 2C:39-3b)
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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 sawed-off shotgun. 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.
