UNLAWFUL POSSESSION OF A MACHINE GUN
(N.J.S.A. 2C:39-5a) model jury charge
Defendant(s)
is charged in count with unlawful possession of a machine gun. The statute upon which this count is based
reads as follows:
Any person who knowingly has in his possession a machine gun or any
instrument or device adaptable for use as a machine gun, without being licensed
to do so 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 machine gun)(an instrument or device
adaptable for use as a machine gun) or (There was a machine gun);
2. That the defendant knowingly possessed (a
machine gun)(an instrument or device adaptable for use as a machine gun); and
3. That the defendant did not have a license
to (possess)(carry) such a weapon.
The
first element that the State must prove beyond a reasonable doubt is that S (is a machine gun)(is an instrument or device
adaptable for use as a machine gun) (OR) (that there was a machine gun.)
A “Machine gun” is defined as any firearm, mechanism or
instrument not requiring that the trigger be pressed for each shot and having a
reservoir, belt or other means of storing and carrying ammunition which can be
loaded into the firearm, mechanism or instrument and fired therefrom.[1]
(CHARGE IF
APPROPRIATE)
An
instrument or device adaptable for use as a machine gun means an instrument or
device which possesses or retains the characteristics of a machine gun as
designed.
A device or instrument possesses or retains
the characteristics of a machine gun unless the object is of innocuous design,
or that the device or instrument has undergone such substantial alteration or
mutilation that the instrument has completely and permanently lost the
characteristics of a real machine gun.[2]
(RESUMPTION OF MAIN CHARGE)
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knowingly possessed (a machine gun)(an instrument or device adaptable
for use as a machine gun).
A person acts knowingly with respect to the nature
of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that
such circumstances exist or the person is aware of a high probability of their
existence. A person acts knowingly with
respect to a result of the conduct if he/she is aware that it is practically certain that the
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
inference from defendant’s 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 did a particular thing. 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 his/her acts and conduct and from all he/she said and did at the particular
time and place and from all surrounding circumstances established by the
evidence.
Thus,
the person must know or be aware that he/she possessed the item, here, (a
machine gun)(an instrument or device adaptable for use as a machine gun). The State is not required to prove that, at
the time that he/she knowingly possessed the firearm,
defendant also knew that it was (a machine gun)(an instrument or device
adaptable for use as a machine gun).[3]
Defendant’s
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. The law recognizes two kinds of possession:
actual possession and constructive 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 means possession in which the person does not physically have the
property, but he/she is aware of the presence of the property 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 thing, either directly or through another person or persons, is
then in constructive possession of it.
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.[4]
The
third element that the State must prove beyond a reasonable doubt is that the
defendant did not have a license to (possess)(carry) a machine gun.[5] If you find that the defendant knowingly
possessed the machine gun, and that there is no evidence that defendant had a
valid license to (possess)(carry) a machine gun, then you may infer, if you
think it appropriate to do so based upon the facts presented, that defendant
had no such license.[6] Note, however, that as with all other
elements, the State bears the burden of showing, beyond a reasonable doubt, the
lack of a valid license 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, then you must find the defendant not guilty. On the other hand, if you are satisfied that
the State has proven each of the elements of the crime beyond a reasonable
doubt, then you must find the defendant guilty.
[1] N.J.S.A.
2C:39-1(i).
[2] See
State v. Gantt, 101 N.J. 573, 590 (1986). There is no burden on the State to prove
operability of a machine gun. See State v. Elrose, 277 N.J.
Super. 548, 557 (App. Div. 1994). However,
please note the State must prove beyond a reasonable doubt that the device or
instrument was adaptable for use as a machine gun if that is the theory of the
case. Any language to the contrary in Gantt has since been abrogated by
Sixth Amendment jurisprudence. See generally Alleyne v. United
States, ____ U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013).
[3] See
State v. Smith, 197 N.J. 325, 338 (2009); State v. Pelleteri,
294 N.J. Super. 330, 333-334 (App. Div. 1996) , certif. den. 148 N.J.
461 (1997).
[4] If the
weapon was found in a vehicle, the jury should be instructed on the permissive
inference of possession allowed by N.J.S.A. 2C:39-2a. See State v. Bolton, 230 N.J.
Super. 476, 480-81 (App. Div. 1989) (construing the statutory presumption
in N.J.S.A. 2C:39-2a to permit only an inference for the jury's
consideration). See also N.J.R.E.
303 (“presumptions against the accused in criminal cases”).
[5] N.J.S.A.
2C:58-5.
[6] See
N.J.R.E. 803(c)(10) and State v. Ingram, 98 N.J. 489
(1985), regarding absence of a permit.
