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New Jersey Weapons Charges
Revised 6/16/03
POSSESSION OF WEAPON WITH A PURPOSE
TO USE IT UNLAWFULLY AGAINST THE PERSON OR
PROPERTY OF ANOTHER
(N.J.S.A. 2C:39-4d)
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;
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.
"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.
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.
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.
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.
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.].
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.
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.
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].
[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.
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.
[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.
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.
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.
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)).
State v. Villar, 150 N.J. 503,
511-12 (1997).
State v. Villar, supra, 150
N.J. at 511; State v. Petties, 139 N.J.
310 (1995).
State v. Villar, supra, 150
N.J. at 511; State v. Jenkins, 234 N.J. Super.
311, 316 (App. Div. 1989).
See, State v. Mello, 297 N.J.
Super. 452, 464-67 (App. Div. 1997).
State v. Williams, 168 N.J. 323
(2001).
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