N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-4d

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 st atute 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 Stat e 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 th e purpose to use it against the person or

property of another; 1

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 "w eapon" is anything readily capable of lethal use

or of inflicting serious bodily injury. 2 "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.3

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

1 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, eith er 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.

2 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.

3 N.J.S.A. 2C:11-1b.

Possession Of A Weapon

With A Purpose To Use It Unlawfully

Against The Person Or Property Of Another

(N.J.S.A. 2C:39-4d)

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 purposel y 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 existe nce of such circumstances or believes or hopes

that they exist. The defendant's purpose or co nscious objective to use the weapon against the

person or property of another may be found to exis t 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.4

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 re quires that you find that the State has proven

beyond a reasonable doubt that the defendant po ssessed a weapon with th e 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

4 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)).

Possession Of A Weapon

With A Purpose To Use It Unlawfully

Against The Person Or Property Of Another

(N.J.S.A. 2C:39-4d)

violation of this statute. 5 The State need not prove defenda nt’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.6

In this case, the State contends that th e defendant's unlawful purpose in possessing the

weapon was

[Describe the unlawful purpose of defendant’s possession of the weapon.7].

You must not rely upon your ow n 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.8 The unlawful purpose alleged by the State may be inferred from all

that was said or done and from all of th e surrounding circumstances of this case. 9 However, the

State need not prove that defendant accomplishe d 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].10

[If applicable] The defense on the other hand contends that

[If the defendant raises the issue of protective purpose, ch arge the following

paragraphs]

I have already told you that the State must prove beyond a reasonab le doubt that

defendant had an unlawful purpos e at the time in question. If you find that the defendant had a

lawful purpose, for example, to use the (name weapon) to protect hims elf/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.11

I instruct you that for purposes of this offens e, if defendant honestly believed that he/she

5 State v. Villar, 150 N.J. 503, 511-12 (1997).

6 State v. Villar, ibid.

7 State v. Villar, supra, 150 N.J. at 511; State v. Petties, 139 N.J. 310 (1995).

8 State v. Villar, supra, 150 N.J. at 511; State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989).

9 State v. Petties, supra.

10 See, State v. Mello, 297 N.J. Super. 452, 464-67 (App. Div. 1997).

11 State v. Harmon, supra.

Possession Of A Weapon

With A Purpose To Use It Unlawfully

Against The Person Or Property Of Another

(N.J.S.A. 2C:39-4d)

needed to use a (name weapon) to protect (himself/h erself/another/property), the law does not

require that this belief be reasonable. In ot her words, if defendant had an honest though

unreasonable belief that he/she needed to use the weapon to protect (h imself/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 coun t of the indictment. When applie d to that/those offense(s), self-defense requires defendant to have both an hone st AND a reasonable belief in the need to use

force.

OR

Earlier in the charge, I instru cted 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 appl ied to that/those offense(s), se lf-defense requires a defendant

to have an honest AND a reasonable belief in the need to use force.12

[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.

12 State v. Williams, 168 N.J. 323 (2001).