FIREARMS
IN EDUCATIONAL INSTITUTION
(N.J.S.A.
2C:39-5e(1)) model jury charge
Count ____ of the indictment charges
defendant with possession of a firearm 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 firearm 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 firearm] [there was a firearm].
2. That defendant knowingly possessed the
firearm.
3. That defendant knowingly possessed the
firearm 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 firearm] [there was a firearm]. A firearm includes any handgun, rifle,
shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or
instrument in the nature of a weapon 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
also includes, 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-eighths of an inch in diameter, with
sufficient force to injure a person.
In this case the State alleges that defendant
was in possession of (name type of firearm).
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed 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 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 [name firearm]), and he/she
must know what it is that he/she
possesses or controls, in other words, that it is a firearm.
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 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. [CHARGE IF APPROPRIATE] It is not a defense to the charge that
defendant possessed a valid permit to carry the firearm or a valid firearms
purchaser identification card.
[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 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.