UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN
N.J.S.A.
2C:39-5c(1) model jury charge
Defendant(s),
, is
charged in count _____ with unlawful possession of a (rifle)(shotgun). The pertinent language of the statute the
defendant is charged with having violated reads as follows:
Any person who knowingly has in his possession any
(rifle)(shotgun) . . . without first having obtained a firearms purchaser
identification card ... is guilty of a crime.
In
order for the State to convict the defendant of this crime, the State must
prove beyond a reasonable doubt these three essential elements:
1. S is a (rifle)(shotgun); (Or there was a
(rifle)(shotgun);
2. The defendant
knowingly possessed the (rifle)(shotgun); and
3. The defendant
did not have a valid firearms purchaser identification card.
The
first element the State must prove beyond a reasonable doubt is that S____ is a
(rifle)(shotgun) (or there was a (rifle)(shotgun)).
A
rifle means "any firearm[1] designed
to be fired from the shoulder and using the energy of the explosive in a fixed
metallic cartridge to fire a single projectile through a rifled bore for each
single pull of the trigger."[2]
[OR]
A
shotgun means “any firearm designed to be fired from the shoulder and using the
energy of the explosive in a fixed shotgun shell to fire through a smooth bore
either a number of ball shots or a single projectile for each pull of the
trigger, or any firearm designed to be fired from the shoulder which does not
fire fixed ammunition.”[3]
A
firearm means “a weapon from which may be fired or ejected any solid
projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other
thing, by means of a cartridge or shell or by the action of an explosive or the
igniting of a flammable or explosive substance.
The
second element the State must prove beyond a reasonable doubt is that the
defendant knowingly possessed the (rifle)(shotgun).
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 he/she is aware of a high probability of
their existence. A person acts knowingly
with respect to a result of his/her conduct if he/she is aware that it is practically
certain that his/her conduct will cause such a
result. "Knowingly,"
"with knowledge" or equivalent terms have the same meaning. A person acts knowingly with respect to his/her conduct if he/she is aware that his/her conduct is of that nature. You must determine whether the defendant was
aware of the nature of his/her conduct in this case. Since knowledge is a state of mind and cannot
be seen and can only be determined by inference from conduct, words or acts, it
can rarely be proved directly.
Therefore, it is not necessary that witnesses be produced by the State
to testify that a defendant said he/she knowingly did
something. His/Her knowledge may be gathered from his/her acts and his/her conduct, and from all the surrounding circumstances reflected in the
evidence you have heard and seen in this case.
That is, you must be convinced beyond a reasonable doubt that the
defendant in this case was aware that he/she had a (rifle)(shotgun)
in his/her 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 person must know or be aware that he/she possesses the item in this case a
(rifle)(shotgun), and he/she must know what it is that he/she possesses or controls that it is a
(rifle)(shotgun).
[Where
applicable charge the following: this possession cannot merely be a passing
control that is fleeting or uncertain in its nature.[4]] 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.
A
person may possess a (rifle)(shotgun) even though it was not
physically on his/her person at the time of the arrest, if he/she had in fact, at some
time prior to his/her arrest, 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 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.
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
property, but though not physically on one's person, 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, and
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.
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.
The
third element that the State must prove beyond a reasonable doubt is the
defendant did not have a valid firearms purchaser identification card. If you find that the defendant knowingly
possessed the (rifle)(shotgun), and that there is no evidence that defendant
had a valid firearm purchaser identification card, then you may infer,[5] if you
think it appropriate to do so based upon the facts presented, that defendant
had no such firearms purchaser identification card. Note, however, that as with
all other elements, the State bears the burden of showing beyond a reasonable
doubt the lack of a valid firearms identification card, and you may apply 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 one of the elements of the crime
beyond a reasonable doubt, your verdict must be "not guilty."
If,
on the other hand, you find that the State has proven all of the elements of
the crime beyond a reasonable doubt all of the elements, 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.
[5] See
N.J.S.A. 2C:39-2b. If issue is possession of a firearm by multiple
occupants of a vehicle, see N.J.S.A. 2C:39-2a. See also State v. Ingram, 98 N.J.
489, 497-500 (1985).
