UNLAWFUL POSSESSION OF A HANDGUN (N.J.S.A. 2C:39-5b) model jury charge
Defendant(s)
is charged in count with unlawful possession of a handgun. The
statute upon which this count is based reads as follows:
Any person who knowingly has in his possession any
handgun . . . without first having obtained a permit to carry the same . . .
is guilty of a crime.
In
order to convict the defendant, the State must prove each of the following
elements beyond a reasonable doubt:
1. S is a handgun; (OR) There was a handgun;
2. That the defendant
knowingly possessed the handgun; and
3. That the defendant did
not have a permit to possess such a weapon.
The
first element that the State must prove beyond a reasonable doubt is that S (or that there) was a handgun. Under our law,
(CHOOSE ONE)
a
handgun is any pistol, revolver or other firearm originally designed or
manufactured to fire or eject any solid projectile, ball, slug, pellet, missile
or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or
shell or by action of an explosive or the igniting of flammable or explosive
substances by the use of a single hand.[1]
(OR)
a
handgun is any pistol, revolver or other firearm in the nature of an air gun,
spring gun or pistol of 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, which was originally designed
or manufactured to be fired by the use of a single hand and to eject a bullet
or missile smaller than three-eighths of an inch in diameter, with sufficient
force to injure a person.[2]
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knowingly possessed the handgun.
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 if he/she is aware of a high probability of
their existence. A person acts knowingly
with respect to the result of his/her conduct if he/she is aware that it is practically
certain that his/her conduct will cause such a result.
Knowledge
is a condition of the mind that cannot be seen and that can be determined only
by inferences from 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 an accused said that he/she
had a certain state of mind when he/she
engaged in a particular act. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inference, which may arise from the nature of the
defendant’s acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
[CHARGE JOINT, CONSTRUCTIVE
AND ACTUAL POSSESSION AS APPROPRIATE, ALSO CHARGE ANY APPLICABLE AND
APPROPRIATE STATUTORY INFERENCE.]
POSSESSION
The
word “possess” as used in criminal statutes signifies a knowing, intentional
control of a designated thing, accompanied by a knowledge of its character. Thus, the defendant must know or be aware that
he/she possessed the handgun, and the
defendant must know what it is that he/she possesses or controls is a handgun. 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 handgun
possessed or be aware of his/her control thereof for a sufficient
period of time to have been able to relinquish control if he/she chose to do so. A person may possess a handgun even though it
was not physically on his/her person at the time of the arrest, if
the person had in fact, at some time prior to his/her arrest, had control over it. When we speak of possession, we mean a
conscious, knowing possession. The law
recognizes two kinds of possession: they are actual possession and constructive
possession.
ACTUAL POSSESSION
A
person is in actual possession of a handgun when he/she knows what it is; that is, the
person has knowledge of its character and knowingly has it on his/her person at a given time.
CONSTRUCTIVE POSSESSION
The
law recognizes that possession may be constructive instead of actual. Constructive possession means possession in
which the person does not physically have the handgun, but though not physically on one's person, he/she is aware of the presence of the handgun and is able to and has the
intention to exercise control over it. A
person who, although not in actual possession, has knowledge of its character,
knowingly has both the power and the intention at a given time to exercise
control over a handgun, either directly or through another person or persons,
is then in constructive possession if it.
JOINT POSSESSION
The
law recognizes that 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 possession of a thing, possession is joint; that is, if they
knowingly share control over the article.[3]
The
third element that the State must prove beyond a reasonable doubt is that the
defendant did not have a permit to possess such a handgun. If you find that the defendant knowingly
possessed the handgun, and that there is no evidence that defendant had a valid
permit to carry such a handgun, then you may infer, if you think it appropriate
to do so based upon the facts presented, that defendant had no such permit.[4] Note, however, that as with all other
elements, the State bears the burden of showing, beyond a reasonable doubt, the
lack of a valid permit and that you may draw the inference only if you feel it
appropriate to do so under all the facts and circumstances.
If
you find that the State has failed to prove any of the elements of the crime
beyond a reasonable doubt, your verdict must be "not guilty." On the other hand, if you are satisfied that
the State has proven all of the elements of the crime beyond a reasonable
doubt, your verdict must be "guilty."
[1] See
State v. Harmon, 203 N.J. Super. 216, 228 (App. Div. 1985), rev'd
on other grounds, 104 N.J. 189 (1986) as to whether a particular
device possessed or retained the characteristics of a firearm.
[2] Also
see State v. Mieles, 199 N.J. Super. 29 (App. Div.), certif.
denied, 101 N.J. 265 (1985), which held that a BB gun is a firearm
under this statute.
[3] If
appropriate, charge statutory inferences relating to possession of firearms in
a vehicle and the absence of evidence of a permit. See N.J.S.A.
2C:39-2.
[4] If
appropriate, see N.J.R.E. 803(c)(10) and State v. Ingram,
98 N.J. 489 (1985), regarding absence of a permit.