Approved 12/8/97
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:
- Exhibit S- is an imitation firearm.
- Defendant possessed S- , the alleged imitation firearm.
- Defendant possessed the imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose.
- Defendant knew that an observer would reasonably believe that the imitation firearm was possessed for an unlawful purpose.
The second element of the offense is 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.
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.
[1] N.J.S.A. 2C:39-1(v).
[2] N.J.S.A. 2C:39-1(f).
[3] State v. Jenkins, 234 N.J.Super. 311, 316 (App. Div. 1989).
[4] State v, Petties, 139 N.J. 310 (1995).
[5] N.J.S.A. 2C:39-4(e) advisory comments.
[6] N.J.S.A. 2C:2-2(b) (2).