POSSESSION OF WEAPON
WITH A PURPOSE
TO USE IT UNLAWFULLY AGAINST
THE PERSON OR PROPERTY OF ANOTHER
(N.J.S.A.
2C:39-4d) model jury charge
The count of the Indictment charges the defendant,
, with the crime of possession of a weapon
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 weapon . . . 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:
1. Exhibit
is a weapon (or, that there was a weapon);
2. Defendant
possessed the weapon;
3. Defendant
possessed the weapon with the purpose to use it against the person or
property of another;[1]
4.
Defendant's
purpose was to use the weapon unlawfully.
The
first element that the State must prove beyond a reasonable doubt is that
exhibit is a weapon (or, that there was a
weapon). A "weapon" is
anything readily capable of lethal use or of inflicting serious bodily injury.[2] "Serious bodily injury" means
bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.[3]
It is
possible that [the weapon alleged] is not normally
considered a weapon. If, however, the
State establishes beyond a reasonable doubt that the object is capable of being
used to inflict serious bodily injury or death, it may be considered a weapon.
The second element that the State must prove beyond a
reasonable doubt is that defendant possessed the weapon alleged.
[Charge: Model Jury Charge on Possession. If possession is in a motor vehicle, also
charge Model Jury Charge on possession of weapon, 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 object was to use it as a weapon against the person
or the 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 weapon, 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 weapon against the person or 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
purpose in possessing the object.[4]
The fourth element that the State must
prove beyond a reasonable doubt is that the defendant had a purpose to use the
weapon 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 weapon 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.
An
object may be possessed for an innocent or lawful purpose. However, an innocent or lawful purpose or
possession of the weapon (or item) may change and become unlawful and a
violation of this statute.[5] The State need not prove defendant’s original
purpose in possessing the weapon; the State need only prove beyond a reasonable
doubt that defendant’s purpose at the specified time he/she
possessed it was to use it unlawfully against the person or property of
another.[6]
In this
case, the State contends that the defendant's unlawful purpose in possessing
the weapon was
[Describe
the unlawful purpose of defendant’s possession of the weapon.[7]].
You
must not rely upon your own notions of the unlawfulness of some other
undescribed purpose of defendant; rather, you must consider whether the State
has proven the specific unlawful purpose charged.[8] 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.[9] However, the State need not prove that
defendant accomplished his unlawful purpose of using the weapon [or, if
appropriate, specifically define the elements of the crime defendant allegedly
intended to commit with the weapon].[10]
[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 (name weapon) 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.[11]
I instruct you that for purposes of this
offense, if defendant honestly believed that he/she needed to use a (name weapon) 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.[12]
[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.
See 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.
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 "the person or property of another"
throughout the charge.
[2] N.J.S.A.
2C:39-1r. If the weapon alleged falls
within one of the enumerated items listed in the definition of a weapon
pursuant to N.J.S.A. 2C:39-1r, then the court should so advise the jury
of this statutory definition of the object as a weapon.
[4] See, State v. Daniels,
231 N.J. Super. 55 (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 weapon. State v. Villar, 150 N.J. 503,
512 (1997) (citing State v. Diaz, 144 N.J. 628, 636 (1996)).
[8] State
v. Villar, supra, 150 N.J. at 511; State v. Jenkins,
234 N.J. Super. 311, 316 (App. Div. 1989).
