CERTAIN PERSONS NOT TO HAVE FIREARMS
DISORDERLY PERSONS OFFENSE/DOMESTIC
VIOLENCE
(N.J.S.A. 2C:39-7b(2)) model jury charge
NOTE
[The following should be charged before the
beginning of the second trial if this count is tried before the same jury that
decided the possessory charge of a weapon or firearm]
Now there is an additional charge for you
to consider.
Count __________ charges the defendant
with possession of a firearm by a previously convicted person. You must disregard completely your prior
verdict, and consider anew the evidence previously admitted on the possession
of a weapon. The defendant is entitled
to the presumption of innocence. Each
and every material fact that makes up the crime, including the element of
possession, must be proven by the State beyond a reasonable doubt.[1]
[CHARGE IN ALL CASES]
Count _________of the indictment charges
defendant with violating a statute which reads as follows:
A person having been convicted in this
State or elsewhere of [a disorderly persons offense involving domestic violence]
[an enumerated offense] [a predicate offense][2]
. . . who purchases, owns, possesses or controls a firearm is guilty of a
crime.
In order for you to find defendant
guilty, the State must prove each of the following elements beyond a reasonable
doubt:
1. That exhibit ________is a firearm [or
that there was a firearm].
2. That defendant purchased, owned,
possessed or controlled the firearm [on the date alleged in the indictment].
3. That defendant is a person who previously has been convicted
of [a disorderly persons offense involving domestic violence whether or not
armed or in possession of a weapon] [the enumerated offense] [the predicate
offense].
The first element the State must prove
beyond a reasonable doubt is that exhibit ________is a firearm [or that there
was a firearm]. A “firearm”[3]
means any handgun,[4]
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. It shall also include,
without limitation, any firearm which is in the nature of an air gun, spring
gun or pistol or other weapon of a similar nature in which the propelling force
is a spring, elastic band, carbon dioxide, compressed or other gas or vapor,
air or compressed air, or is ignited by compressed air, and ejecting a bullet
or missile smaller than three-
eights of an inch in diameter, with
sufficient force to injure a person.
The second element the State must prove
beyond a reasonable doubt is that defendant knowingly[5]
purchased, owned, possessed or controlled the firearm. A person acts knowingly with respect to the
nature of his/her
conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such
circumstances exist or the person is aware of a high probability of their
existence. A person acts knowingly with
respect to a result of the conduct if he/she is aware that it is practically certain that the conduct
will cause 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 inference from
defendant’s conduct, words or acts. A
state of mind is rarely susceptible of direct proof but must ordinarily be
inferred from the facts. Therefore, it
is not necessary that the State produce witnesses to testify that defendant
said that he/she had a certain state of mind when he/she did a particular thing.
It is within your power to find that such proof has been furnished
beyond a reasonable doubt by inferences which may arise from the nature of his/her
acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
To possess[6]
an item under the law, one must have a knowing intentional control of that item
accompanied by a knowledge of its character.
So, a person who possesses the firearm must know or be aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls, that is, that it is a firearm.
[Where
applicable charge the following:
Possession cannot merely be a passing control, fleeting or uncertain in its
nature.] 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.
A person may possess ________ (an item)
even though it was not physically on his/her
person at the time of the arrest, if he/she had in fact, at some time prior to his/her
arrest, control over it.
Possession means a conscious, knowing
possession, either actual or constructive.
[CHARGE
THE FOLLOWING PARAGRAPHS WHICH APPLY TO CASE]
ACTUAL
POSSESSION
A
person is in actual possession of a particular article or thing when he/she first, knows what it is: that is, he/she has knowledge of its character, and second, knowingly has
it on his/her
person at a given time.
Possession may be constructive instead of
actual. Constructive possession means
possession in which the possessor does not physically have the item on his or
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 a thing, possession is sole. If two or more persons
share actual or constructive knowing possession of an item, possession is
joint.
[Choose the appropriate option from the
following three]
OPTION #1
[If defendant chooses to have the jury
know the nature of the prior conviction(s), use the following]
The third element that the State must
prove beyond a reasonable doubt is that defendant is a person who previously has
been convicted of [a] disorderly persons offense[s] involving domestic violence
whether or not armed with or having in his/her
possession a weapon. A disorderly
persons offense is not a crime within the meaning of this State’s constitution. Convictions of such offenses do not give rise
to any disability or legal disadvantage based on a conviction of a crime.[8] Domestic violence means the occurrence of one
or more acts of [choose appropriate]
[simple assault], [false imprisonment], [lewdness], [criminal mischief],
[criminal trespass][9]
inflicted upon
[CHOOSE APPROPRIATE]
a person who is 18 years of age or older
or who is an emancipated minor and who has been subjected to domestic violence
by a spouse, former spouse, or any other person who is a present or former
household member.[10]
An emancipated minor is [choose appropriate] [someone who is
under 18 years of age but has been married] [someone who has entered military
service] [someone who has a child or is pregnant] [someone who has previously
been declared by a court or an administrative agency to be emancipated].[11]
OR
a person, regardless of age, who has been
subjected to domestic violence by a person with whom the
person has a child in common or with whom
the person anticipates having a child in common if one of the parties is
pregnant.[12]
OR
a person who has been subjected to
domestic violence by a person with whom the person has had a dating
relationship.[13]
The term “convicted of an offense” means
a judgment of conviction entered by a court of competent jurisdiction in New
Jersey, or elsewhere.[14]
[If defendant has been convicted in
another state, territory, commonwealth or other jurisdiction of the United
States, or any country in the world, in a court of competent jurisdiction, of
an offense(s) which in the other jurisdiction or country is comparable to the
offense(s) of a disorderly persons offense involving domestic violence, then
defendant is subject to the provisions of this statute, then read following]:[15]
The offense of_________is comparable to
a disorderly persons offense in New Jersey.[16]
OPTION #2
[If defendant does not stipulate to the
predicate offense, use the following]
The third element the State must prove
beyond a reasonable doubt is that defendant is a person who previously has been
convicted of [an enumerated offense] [a predicate offense]. The term “convicted of an offense” means a
judgment of conviction entered by a court of competent jurisdiction in New
Jersey, or elsewhere. [Read if appropriate: If defendant has
been convicted in another state, territory, commonwealth or other jurisdiction
of the United States, or any country in the world, in a court of competent
jurisdiction, of an offense(s) which in the other jurisdiction or country is
comparable to the offense(s) of a disorderly persons offense involving domestic
violence, then defendant is subject to the provisions of this statute.]
[If
defendant stipulates to the predicate offense, use the following]
OR
The third element the State must prove
beyond a reasonable doubt is that defendant is a person who previously has been
convicted [of the enumerated offense] [of the predicate offense]. In this matter, the parties have stipulated,
or agreed, that defendant has previously been convicted of [an enumerated
offense] [a predicate offense]. With
regard to the stipulation, you should treat these facts as being undisputed,
that is, the parties agree that these facts are true. As with all evidence, undisputed facts can be
accepted or rejected by the jury in reaching a verdict.
[Charge
in case which is based upon defendant’s prior conviction]
Normally evidence [of defendant’s prior
conviction(s)] or [of the predicate offense(s)] is not permitted under our
rules of evidence. This is because our
rules specifically exclude evidence that a defendant who has committed prior
offenses when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore
must be guilty of the present offense. However,
our rules do permit evidence of prior crimes when the evidence is used for some
other purpose.[17]
In this case, the evidence has been
introduced for the specific purpose of establishing an element of the present
offense.[18] You may not use this evidence to decide that
defendant has a tendency to commit crimes or that he/she is a bad person.
That is, you may not decide that, just because the defendant has
committed [a] [prior disorderly persons offense(s) involving domestic violence]
[predicate offense(s)] [enumerated offense(s)], he/she must be guilty of the present crime[s]. The evidence produced by the State concerning
[a] prior conviction[s] is to be considered in determining whether the State
has established its burden of proof beyond a reasonable doubt.[19]
[Charge
if applicable (where the same jury has already convicted the defendant of
another possessory weapons offense or offenses – a bifurcated trial situation)[20]
On the issue of possession, although you
may consider evidence previously introduced, the State must prove beyond a
reasonable doubt that defendant possessed the [firearm] before you may
find the defendant guilty on this charge.
In deciding whether the State has
carried its burden of proof, you must set aside your previous verdict on this
question and begin your deliberations anew.[21]]
[Charge
in all cases]
If you find that the State has proven
every element of the offense beyond a reasonable doubt, then you must find the
defendant 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 find the defendant not guilty.
[1] See State v. Ragland, 105 N.J.
189, 195 (1986).
[2] See
State v. Brown, 180 N.J. 572, 585 (2004) (if defendant stipulates
to the offense, the jury must be instructed only that defendant was convicted
of a predicate offense. If defendant
does not stipulate, then the trial court should sanitize the offense or
offenses and limit the evidence to the date of the judgment). See also State v. Alvarez,
318 N.J. Super. 137, 150-54 (App. Div. 1999) (defendant’s offer to
stipulate that his or her prior convictions meet the status element of N.J.S.A.
2C:39-7 must be granted). Accord State
v. Harvey, 318 N.J. Super. 167, 173 (App. Div. 1999). Defendant also may choose to have the jury
informed of the prior conviction.
[3] N.J.S.A. 2C:39-1f.
[4] Handgun means any pistol, revolver or other
firearm originally designed or manufactured to be fired by the use of a single
hand. N.J.S.A. 2C:39-1k. The handgun need not be presently
operable. State v. Gantt, 101 N.J. 573 (1986).
[5] N.J.S.A. 2C:2-2c(3) applies the
culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to
this statutory crime.
[6] N.J.S.A. 2C:2-1. Additionally, charge
any applicable and appropriate statutory inferences. For example, see N.J.S.A. 2C:39-2
which creates certain statutory inferences when a weapon is
found in a
motor vehicle. See also N.J.R.E.
303.
[7] In State v. Spivey, 179 N.J.
229 (2004), the Supreme Court affirmed a conviction under N.J.S.A.
2C:39-4.1(a), possession of a firearm while committing certain drug offenses,
and noted that the statute suggested a temporal and spatial link between
possession of the firearm and the drugs. The Court ruled that the evidence “must permit
the jury to infer that the firearm was accessible for use in the
commission of the [drug] crime.” In the
appropriate case, the possession charge may be supplemented by this language.
[8] N.J.S.A. 2C:1-4b.
[9] These offenses are the only ones listed in N.J.S.A.
2C:25-19a, defining domestic violence, which are disorderly persons offenses.
[10] N.J.S.A. 2C:25-19d.
[11] N.J.S.A. 2C:25-19e
[12] N.J.S.A. 2C:25-19d.
[13] N.J.S.A. 2C:25-19d.
[14] The judgment of conviction should be redacted
to show only the degree of the offense for which defendant previously was convicted
unless the defendant requests that the un-redacted judgment of conviction be
entered into evidence.
[15] N.J.S.A. 2C:39-7c.
[16] Whether the foreign offense satisfies this
provision is a question for the trial judge. State v. Schumann, 111 N.J.
470, 475 (1988).
[17] See State v. Marrero, 148 N.J.
469, 495-96 (1997); State v. Cusick, 219 N.J. Super. 452, 466-67
(App. Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158
(1993)).
[18] If defendant testifies and has a record which
includes indictable offenses, the court should instruct the jury on the use of
these convictions. See Model
Jury Charges, Criminal, Credibility - Prior Conviction of a
Defendant.
[19] State v. Brown, 180 N.J. at 583 (absence of
information about all of the elements of the crime might cause the jury to
question the criminality of the defendant’s conduct, and in turn influence the
jury when it considers the possession element.)
[20] The defendant may affirmatively request that
this charge not be given. State v. Alvarez, 318 N.J. Super. at
155.
[21] Alvarez, 318 N.J. Super. at
154-55.
