[WEAPON OTHER THAN A FIREARM]
UNLAWFUL POSSESSION OF WEAPON
WHILE COMMITTING CERTAIN
DRUG CRIMES
(N.J.S.A.
2C:39-4.1c) model jury charge
[Defendant] is charged with possessing a
weapon under circumstances not manifestly appropriate for such lawful uses as
the weapon may have while in the course of committing, attempting to commit, or
conspiring to commit a violation of certain laws.[1]
This charge is based on a statute which
reads:
Any person who has in his possession any weapon under
circumstances not manifestly appropriate for such lawful uses as the weapon may
have, while in the course of committing, attempting to commit, or conspiring to
commit a violation of [certain drug crimes] is guilty of a crime ...
For you to find [defendant] guilty of
this charge, the State must prove beyond a reasonable doubt the following
elements:
1. That
there was a weapon.
2. That
[defendant] possessed the weapon.
3. That he/she possessed the weapon under circumstances not manifestly appropriate
for a lawful use.
4. That, at that time, [defendant] was in the course of committing,
attempting to commit, or conspiring to commit, [the specific drug offense charged].
The first element requires that the State
prove beyond a reasonable doubt that there was a weapon. A "weapon" is anything readily
capable of lethal use or of inflicting serious bodily injury. "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.
Many objects have innocent uses. For example, ordinarily, a knife is neither a
weapon nor is its possession against the law. An otherwise harmless object such as a
baseball bat, however, could inflict serious bodily harm if used to strike
another person. If the State establishes
beyond a reasonable doubt that the object is capable of being used to inflict
serious bodily injury, it may be considered a weapon.
The
second element that the State must prove beyond a reasonable doubt is that
[defendant] possessed the weapon. The
word possess as used in criminal statutes signifies a knowing, intentional
control of a designated thing, accompanied by a knowledge of its character. Therefore, [defendant] must have known or have
been aware that he/she
possessed the weapon, and he/she
must have known that what he/she
possessed was a weapon. The possession
cannot merely be a passing control, fleeting or uncertain in its nature. So, to possess within the meaning of the law,
[defendant] must have knowingly procured or received the weapon or must have
been aware of his/her
control of it for a sufficient period of time to have been able to relinquish
control if he/she
chose to do so. 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 the high probability of their existence. A person acts knowingly as 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. Knowing, with knowledge, or equivalent terms
have the same meaning.
Possession means a conscious, knowing
possession. Someone may possess an
object even though it was not physically on his/her person at the time if he/she had in fact at some time prior to his/her arrest control over it.
Possession may be either actual or
constructive. A person is in actual
possession of an item if 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. Alternatively, possession may be
constructive, instead of actual.
Constructive possession is possession in which the person does not
physically have the property, but although the property is not physically on his/her person, he/she is aware of the presence of the
property and is able to and has the intention to exercise control over it. So, 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.
Similarly, possession can be either
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 over a thing, they possess the thing jointly if they
knowingly share control over it.
[If possession is in a motor
vehicle: charge Model Jury Charge on
Possession of Weapon, etc., in Motor Vehicle, per N.J.S.A. 2C:39-2]
“Knowingly” refers to a condition of
the mind. It cannot be seen. Often, it can be determined only by
inferences drawn from a defendant’s conduct, words or acts as presented in the
evidence you have heard and seen. So, it
is not necessary that the State produce a witness or witnesses to testify that
an accused said, for example, that he/she acted knowingly when he/she engaged in the conduct with which he/she is charged. You may find that
proof of “knowingly” has been furnished beyond a reasonable doubt by inferences
which you may draw from the nature of the acts and the circumstances
surrounding the conduct under investigation as you have heard from the
evidence.
The third element that the State must prove beyond a
reasonable doubt is that [defendant] possessed the weapon under circumstances
not manifestly appropriate for such lawful uses as the weapon may have. It is not necessary for the State to prove
that [defendant] had formed an intent to use [the object] as a weapon. It is, however, necessary for the State to
prove that [the object] was possessed under such circumstances that a
reasonable person would recognize that it was likely to be used as a weapon; in
other words, under circumstances where it posed a likely threat of harm to
others. You may consider such factors as
the surrounding circumstances, the size, shape, and condition of the object,
the nature of its concealment, the time and place involved, and the actions of
[defendant] to determine whether or not the possession of the object was under
circumstances not manifestly appropriate for its lawful use.
The fourth element is that
[defendant] must be shown, beyond a reasonable doubt, to have been in the
course of committing, attempting to commit, or conspiring to commit the crime
of __________________ at the time that he/she possessed the weapon under
circumstances not manifestly appropriate for its lawful use.
The term “in the course of committing” means that, at
the time [defendant] possessed the weapon, he/she was also committing a drug crime, namely .
[IF APPLICABLE, USE MODEL CHARGE FOR ATTEMPT,
CONSPIRACY, OR BOTH]
If the State has proven each element of
this offense beyond a reasonable doubt, you must find [defendant] guilty of
this crime. However, if the State has
failed to prove beyond a reasonable doubt any of the elements of this offense,
you must find him/her
not guilty.
[1] The
citations contained within N.J.S.A. 2C:39-4.1 are: N.J.S.A. 2C:35-3; N.J.S.A.
2C:35-4; N.J.S.A. 2C:35-5; N.J.S.A. 2C:35-5.2; N.J.S.A.
2C:35-5.3, N.J.S.A. 2C:35-6; N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-7.1
or N.J.S.A. 2C:35-11.
