ANY OTHER WEAPON IN EDUCATIONAL INSTITUTION
(N.J.S.A.
2C:39-5e(2))[1] model jury charge
Count ______ of the indictment charges
defendant with possession of a weapon in an educational institution. (Read
count of indictment). The statute
upon which this count of the indictment is based states in pertinent part:
Any person who knowingly has in his
possession [any weapon under circumstances not manifestly appropriate for such
lawful use as it may have] in or upon any part of the buildings or grounds of
any school, college, university or other educational institution without the
written authorization of the governing officer of the institution is guilty of
a crime.
In order for you to find the defendant
guilty of this charge, the State must prove each of the following elements
beyond a reasonable doubt:
1. That [exhibit ____ is a weapon] [that
there was a weapon];
2. That defendant knowingly possessed the
weapon;
3. That defendant knowingly possessed the
weapon under circumstances not manifestly appropriate for a lawful use; and
4. That defendant knowingly possessed the
weapon in or upon any part of the buildings or grounds of any school, college,
university or other educational institution without the written authorization
of the governing officer of the institution.
The
first element that the State must prove beyond a reasonable doubt is that
[exhibit ___ is a weapon] [there was a weapon].
Weapon means anything readily capable of lethal use or of inflicting
serious bodily injury.
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed the weapon.
A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances
exist, or he/she
is aware of a high probability of their existence. A person acts knowingly with respect to a
result of his/her conduct if he/she
is aware that it is practically certain that his/her conduct will cause such a result. “Knowing,” “with
knowledge” or equivalent terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from conduct, words or acts. Therefore,
it is not necessary for the State to produce witnesses to testify that a
defendant stated, for example, that he/she
acted with knowledge when he/she
had control over a particular thing. It
is within your power to find that proof of knowledge has been furnished beyond
a reasonable doubt by inference which may arise from the nature of the acts and
the surrounding circumstances.
The
word “possess” means a knowing, intentional control of a designated thing,
accompanied by a knowledge of its character. Thus, the person must know or be aware that he/she
possesses the item (in this case a weapon), and he/she
must know what it is that he/she
possesses or controls, in other words, that it is a weapon.
This
possession cannot merely be a passing control that is fleeting or uncertain in
its nature. In other words, to “possess”
within the meaning of the law, the defendant must knowingly procure or receive
the item possessed or be aware of his/her control thereof for a sufficient period of time to have
been able to relinquish his/her control if he/she
chose to do so.
When
we speak of possession, we mean a conscious, knowing possession, either actual
or constructive.
[CHOOSE
APPROPRIATE]
ACTUAL POSSESSION
A
person is in actual possession of a particular article or thing when he/she
knows what it is: that is, he/she
has knowledge of its character and knowingly has it on his/her person at a given time.
A person who, with knowledge of its character, knowingly has direct
physical control over a thing, at a given time, is in actual possession of it.
CONSTRUCTIVE POSSESSION
Constructive
possession means possession in which the possessor does not physically have the
item on his/her person but is aware that the item is present and is able to
and has the intention to exercise control over it. So, someone who has knowledge of the
character of an item and knowingly has both the power and the intention at a
given time to exercise control over it, either directly or through another
person or persons, is then in constructive possession of that item.
JOINT POSSESSION
Possession
may be sole or joint. If one person
alone has actual or constructive possession of an item, possession is
sole. If two or more persons share
actual or constructive knowing possession of an item, possession is joint.
The
third element that the State must prove beyond a reasonable doubt is that
defendant possessed the weapon under circumstances not manifestly appropriate
for such lawful uses as it may have. The
State has the burden of proving beyond a reasonable doubt that the defendant's
possession of the (name of weapon) was under circumstances not manifestly
appropriate for such lawful uses as it may have. It is not necessary for the State to prove
that defendant formed an intent to use that object as a weapon.[2]
It is,
however, necessary for the State to prove that it was possessed under such
circumstances that a reasonable person would recognize that it was likely to be
used as a weapon; in other words, under circumstances where it posed a likely
threat of harm to others. You may
consider factors such as the surrounding circumstances; size, shape and
condition of the object, the nature of its concealment, the time, place and
actions of the defendant when it was found in his/her possession to determine whether or not the object was
manifestly appropriate for its lawful use.
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed the firearm in or upon any part of the buildings
or grounds of any [choose appropriate] [school] [college] [university]
[other educational institution] without the written authorization of the
governing officer of the institution. I
have already defined knowingly for you.
If you
find that the State has proven every element of the offense beyond a reasonable
doubt, then you must find defendant guilty.
If you find that the State has failed to prove any element of the
offense beyond a reasonable doubt, then you must find defendant not guilty.
