POSSESSION OF A FIREARM WITH A PURPOSE TO USE IT
UNLAWFULLY
AGAINST THE PERSON OR PROPERTY OF ANOTHER
(N.J.S.A. 2C:39-4a) model jury charge
The
count of the Indictment charges the defendant,
,
with the crime of possession of a firearm with a purpose to use it unlawfully
against the person or property of another. The statute on which this count of
the Indictment is based reads in pertinent part:
Any person who has in his possession any firearm with
a purpose to use it unlawfully against the person or property of another is
guilty of a crime.
In
order for you to find the defendant guilty of this charge, the State has the
burden of proving beyond a reasonable doubt each of the following four elements
of this crime:
1. Exhibit is a firearm. (or, there was a firearm)
2. Defendant possessed the
firearm.
3. Defendant possessed the
firearm with the purpose to use it against the person or property of another.[1]
4. Defendant's purpose was
to use the firearm unlawfully.
The
first element that the State must prove beyond a reasonable doubt is that
exhibit is a firearm (or, that there was a firearm).
A
"firearm" means any handgun,[2] 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-eighths of an inch in diameter,
with sufficient force to injure a person.
The
second element that the State must prove beyond a reasonable doubt is that
defendant possessed the firearm.
[Charge: Model Jury Charge on Possession. If possession is in a motor vehicle,
also charge model jury charge on Possession of a Firearm, Etc. in a Motor
Vehicle. N.J.S.A. 2C:39-2]
The
third element that the State must prove beyond a reasonable doubt is that
defendant's purpose in possessing the firearm was to use it against the person
or property of another. Purpose is a condition of the mind which cannot be seen
and can only be determined by inferences from conduct, words or acts.
In
determining the defendant's purpose in possessing the firearm, you may consider
that a person acts purposely with respect to the nature of his/her conduct or a result of his/her conduct if it is the person's conscious object to engage in conduct of
that nature or to cause such a result.
That is, a person acts purposely if he/she means to act in a certain way or to cause a certain result. A person
acts purposely with respect to attendant circumstances if the person is aware
of the existence of such circumstances or believes or hopes that they exist.
The
defendant's purpose or conscious objective to use the firearm against another
person or the property of another may be found to exist at any time he/she is in possession of the object and need not have been the defendant's
original intent in possessing the object.[3]
The
fourth element that the State must prove beyond a reasonable doubt is that the
defendant had a purpose to use the firearm in a manner that was prohibited by
law. I have already defined purpose for you.
This element requires that you find that the State has proven beyond a
reasonable doubt that the defendant possessed a firearm with the conscious
objective, design or specific intent to use it against the person or property
of another in an unlawful manner as charged in the indictment, and not for some
other purpose.
In
this case, the State contends that the defendant's unlawful purpose in
possessing the firearm was
You
must not rely upon your own notions of the unlawfulness of some other
undescribed purpose of the defendant; rather, you must consider whether the
State has proven the specific unlawful purpose charged.[5] The unlawful
purpose alleged by the State may be inferred from all that was said or done and
from all of the surrounding circumstances of this case.[6] However, the
State need not prove that defendant accomplished his/her unlawful purpose of using the firearm [or, if appropriate,
specifically define the elements of the crime defendant allegedly intended to
commit with the firearm].[7]
[Charge
if applicable:] The defense on the other hand contends that .
[If the defendant
raises the issue of protective purpose, charge the following paragraphs]
I
have already told you that the State must prove beyond a reasonable doubt that
defendant had an unlawful purpose at the time in question. If you find that the
defendant had a lawful purpose, for example, to use the firearm
to protect himself/herself or another
against the use of unlawful force, or to protect his/her property, or if you have a reasonable doubt as to the defendant’s
purpose, then the State has failed to carry its burden of proof on this element
beyond a reasonable doubt.[8]
I
instruct you that for purposes of this offense, if defendant honestly believed
that he/she needed to use a firearm to protect (himself/herself/another/property),
the law does not require that this belief be reasonable. In other words, if
defendant had an honest though unreasonable belief that he/she needed to use the weapon to protect (himself/herself/another), this
negates the purposeful mental state required for this offense.
[Choose appropriate]
Later
on in the charge, I will instruct you on the concept of self-defense/defense of
another as it applies to the offense(s) of . The concept of self-defense/defense of
another as it applies to those offenses is different than that of protective
purpose that applies to this count of the indictment. When applied to
that/those offense(s), self-defense requires defendant to have both an honest
AND a reasonable belief in the need to use force.
OR
Earlier
in the charge, I instructed you on the concept of self-defense as it applies to
the offense(s) of . The concept of self-defense/defense of
another as it applies to that/those offense(s) is different than that of
protective purpose that applies to this count of the indictment. When applied
to that/those offense(s), self-defense requires a defendant to have an honest
AND a reasonable belief in the need to use force.[9]
[Charge in every case]
If you
are satisfied beyond a reasonable doubt that the State has proven each of the
elements of this offense as I have defined them, then you must find defendant
guilty. However, if you find that the
State has failed to prove beyond a reasonable doubt any of the elements of this
offense as I have defined them, then you must find defendant not guilty.
[1] The person/property distinction is not
an element of the crime and need not be specifically determined by the jury
verdict. State v. Camacho, 153 N.J.
54, 69, 72 (1998). The court, therefore should not inquire of the jury through
a special interrogatory whether its verdict distinguishes between person or
property. Ibid. Rather, the
person/property distinction is relevant for sentencing purposes only, not for
obtaining a conviction. Ibid. If
the State elects to proceed on only one theory, either person or property, then
the court should only instruct the jury on the theory elected throughout the
charge. If both theories are alleged,
then the court should include the phrase “against the person or property of
another” throughout the charge.
[2] 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).
[3] See, State v. Daniels,
231 N.J. Super. 555 (App. Div. 1989); State v. Harmon, 104 N.J.
189 (1986). Indeed, the State is not
required to prove defendant’s original purpose in possessing the firearm. State v. Diaz, 144 N.J. 628,
636 (1996); State v. Petties, 139 N.J. 310, 316 (1995). See State v. Villar, 150 N.J.
503, 512 (1997).