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HARK & HARK
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New Jersey Weapons Charges
Approved 12/8/97
POSSESSION OF AN IMITATION
FIREARM FOR UNLAWFUL PURPOSE
(N.J.S.A. 2C:39-4(e))
The ___________ count of
the Indictment charges the defendant, _________________, with the
crime of possession of an imitation firearm under circumstances that
would lead an observer to reasonably believe that it is possessed
for an unlawful purpose. The statute on which this count of the
Indictment is based reads in pertinent part:
Any person who has in his possession an
imitation firearm under circumstances that would lead an observer to
reasonably believe that it is possessed for an unlawful purpose 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 of this crime:
1. Exhibit S- is an
imitation firearm.
2. Defendant possessed
S- , the alleged imitation firearm.
3. Defendant possessed the imitation
firearm under circumstances that would lead an observer to
reasonably believe that it is possessed for an unlawful purpose.
4. Defendant knew that an observer
would reasonably believe that the imitation firearm was possessed
for an unlawful purpose.
Under the first element
of the offense, an “imitation firearm” means an object or device
reasonably capable of being mistaken for a firearm.
A “firearm” means any handgun, rifle, shotgun, machine gun,
automatic or semi-automatic rifle, or any gun, device or instrument
in the nature or a weapon from which may be fired or ejected any
solid projectable ball, slug, pellet, missile or bullet, or any gas,
vapor or other noxious thing, by means of a cartridge or shell or by
the action of an explosive or the igniting of flammable or explosive
substances. It shall also include, without limitation, any firearm
which is in the nature of an air gun, spring gun or pistol or other
weapon of a similar nature in which the propelling force is a
spring, elastic band, carbon dioxide, compressed or other gas of
vapor, air or compressed air, or is ignited by compressed air, and
ejecting a bullet or missile smaller than three-eighths of an inch
in diameter, with sufficient force to injure a person.
The second element of the
offense is possession.
Charge:
Model Jury Charge on possession.
The third element of the
offense is that the defendant possessed the imitation firearm under
circumstances that would lead an observer to reasonably believe that
it is possessed for an unlawful purpose. You must determine whether
under the circumstances an objective observer would reasonably
believe that the imitation firearm was possessed for an unlawful
purpose. I instruct you that a reasonable belief is different than
actual knowledge. What is reasonable is not measured by what the
defendant or victim thought was reasonable but rather by what an
objective observer would find as reasonable. Thus, the
reasonableness of the belief for which the imitation firearm was
possessed is based on an objective standard--that is, by how an
ordinary reasonable person with a detached viewpoint would view it.
Moreover, I instruct you
that the belief must be that the imitation firearm was possessed for
an unlawful purpose. Purpose is a condition of the mind which
cannot be seen and can only be determined by inferences. You must
not consider your own notions of unlawfulness of some other
undescribed purpose of the defendant, but rather you must consider
whether the State has proven the specific unlawful purpose charged.
In this case, the State contends that it was reasonable to believe
that the defendant’s unlawful purpose in possessing the imitation
firearm was ___________________________________________________.
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.
The fourth element of the
offense is that the defendant must have known that an observer would
reasonably believe that the imitation firearm was possessed for an
unlawful purpose.
A person acts knowingly if (he\she) is aware of the nature of
(his\her) conduct or the existence of attendant circumstances or is
aware of a high probability of their existence. A person acts
knowingly with respect to a result of (his/her) conduct if a person
is aware that it is practically certain that (his/her) conduct will
cause such a result. One is said to act knowingly if one acts with
knowledge, if one acts consciously, if (he/she) comprehends
(his/her) acts.
When we speak of
knowingly and purposely we are speaking of conditions of the mind
that cannot be seen. It is not necessary for the State to prove the
existence of such mental states by direct evidence such as a
statement by the defendant that (he/she) had particular knowledge or
particular purpose. Knowledge and purpose as separate propositions
of proof do not commonly exist. They must ordinarily be discovered
as other mental states are from circumstantial evidence; that is, by
reference to the defendant’s conduct, words, or acts and all the
surrounding circumstances.
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
the defendant guilty. However, if you find that the State has
failed to prove, beyond a reasonable doubt, any one of the elements
of this offense as I have defined them, then you must find the
defendant not guilty.
State v. Jenkins, 234
N.J.Super. 311, 316 (App. Div. 1989).
State v, Petties, 139
N.J. 310 (1995).
N.J.S.A. 2C:39-4(e)
advisory comments.
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