POSSESSION OF AN IMITATION FIREARM FOR UNLAWFUL
PURPOSE
(N.J.S.A. 2C:39-4(e)) model jury charge
The
___________ count of the Indictment charges the defendant, _________________,
with the crime of possession of an imitation firearm under circumstances that
would lead an observer to reasonably believe that it is possessed for an
unlawful purpose. The statute on which
this count of the Indictment is based reads in pertinent part:
Any person who has in his possession an imitation firearm
under circumstances that would lead an observer to reasonably believe that it
is possessed for an unlawful purpose 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 S- is an imitation firearm.
2.
Defendant possessed S- , the alleged imitation firearm.
3.
Defendant possessed the imitation firearm under circumstances that would
lead an
observer to reasonably believe that it is possessed for an unlawful
purpose.
4.
Defendant knew that an observer would reasonably believe that the
imitation firearm
was possessed for an unlawful purpose.
Under
the first element of the offense, an “imitation firearm” means an object or
device reasonably capable of being mistaken for a firearm.[1] A “firearm” means any handgun, rifle,
shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or
instrument in the nature or 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 of 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.[2]
The
second element of the offense is possession.
Charge:
Model Jury Charge on Possession.
The
third element of the offense is that the defendant possessed the imitation
firearm under circumstances that would lead an observer to reasonably believe
that it is possessed for an unlawful purpose.
You must determine whether under the circumstances an objective observer
would reasonably believe that the imitation firearm was possessed for an
unlawful purpose. I instruct you that a
reasonable belief is different than actual knowledge. What is reasonable is not measured by what
the defendant or victim thought was reasonable but rather by what an objective
observer would find as reasonable. Thus,
the reasonableness of the belief for which the imitation firearm was possessed
is based on an objective standard--that is, by how an ordinary reasonable
person with a detached viewpoint would view it.
Moreover,
I instruct you that the belief must be that the imitation firearm was possessed
for an unlawful purpose. Purpose is a
condition of the mind which cannot be seen and can only be determined by
inferences. You must not consider your
own notions of unlawfulness of some other undescribed purpose of the defendant,
but rather you must consider whether the State has proven the specific unlawful
purpose charged.[3] In this case, the State contends that it was
reasonable to believe that the defendant’s unlawful purpose in possessing the
imitation firearm was ___________________________________________________. 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.[4]
The
fourth element of the offense is that the defendant must have known that an
observer would reasonably believe that the imitation firearm was possessed for
an unlawful purpose.[5] A person acts knowingly if he/she is aware of the nature of his/her conduct or the existence of attendant circumstances or is aware of a
high probability of their existence. A
person acts knowingly with respect to a result of his/her conduct if a person is aware that it is practically certain that his/her conduct will cause such a result.
One is said to act knowingly if one acts with knowledge, if one acts
consciously, if he/she comprehends his/her acts.[6]
When
we speak of knowingly and purposely we are speaking of conditions of the mind
that cannot be seen. It is not necessary
for the State to prove the existence of such mental states by direct evidence
such as a statement by the defendant that he/she had particular knowledge or
particular purpose. Knowledge and
purpose as separate propositions of proof do not commonly exist. They must ordinarily be discovered as other
mental states are from circumstantial evidence; that is, by reference to the
defendant’s conduct, words, or acts and all the surrounding circumstances.
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 the
defendant guilty. However, if you find
that the State has failed to prove, beyond a reasonable doubt, any one of the
elements of this offense as I have defined them, then you must find the
defendant not guilty.