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 VOLUME 5 - CHAPTER 56
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56.3 Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession

     56.3.2 Innocent Possession

    56.3.2.1 Possession For The Purpose Of Lawfully Disposing Of The Contraband
    56.3.2.2 Innocent Possession: For The Purpose Of Defending Self Or Others
    56.3.2.3 Innocent Intent Relevant Even If Not Required

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RATIONALE: The defendant should not be convicted of unlawful possession if the purpose of the possession was innocent (e.g., to give the contraband to the police).

POINTS AND AUTHORITIES: Even if momentary possession is considered sufficient to establish dominion and control, criminal intent may be negated if the possession was for the purpose of giving the contraband to the police. (See e.g., People v. Coffey (MI 1986) 395 NW2d 250, 252 [brief possession of weapon after disarming wrongful possessor held to be valid defense against carrying a concealed weapon charge if possessor intended to deliver weapon to police at earliest possible time]; People v. Hurtado (CA 1996) 47 CA4th 805, 813-15 [54 CR2d 853]; People v. Cole (CA 1988) 202 CA3d 1439, 1444-45 [249 CR 601]; Worthy v. U.S. (DC 1980) 420 A2d 1216, 1218 [in order to assert defense of innocent or momentary possession of weapon to charge of carrying concealed weapon, accused must show not only absence of criminal purpose but also that his possession was excused and justified as stemming from effort to aid and enhance social policy underlying law enforcement].)

    "The innocent nature of the possession negates both the criminal act of possession and the intent with which the act is undertaken..." (People v. Almodovar (NY 1984) 464 NE2d 463, 465; People v. Pendergraft (NY 1975) 374 NYS2d 669, 672 [sua sponte duty to instruct on temporary innocent possession of weapon]; People v. Messado (NY 1975) 370 NYS2d 616, 617 [same]; but see U.S. v. Scarborough (10th Cir. 1997) 128 F3d 1373, 1377 [momentary possession adequately covered by other instructions].)

    See also FORECITE National™ 56.3.3 [Necessary Or Justified Possession].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    To convict a person of unlawfully [carrying] [possessing] a [weapon] [__________ (other item)] the prosecution must prove beyond a reasonable doubt that the person [carried] [possessed] the [weapon] [__________ (other item)] for a criminal purpose.  A person does not [carry] [possess] a [weapon] [__________ (other item)] for a criminal purpose if he or she [intended to take it as soon and as directly as possible to law enforcement] [picked it up or obtained it to protect himself or herself or others from immediate harm] and held it only so long as was necessary to protect against that harm].

    Any juror who has a reasonable doubt that the accused [carried] [possessed] a [weapon] [__________ (other item)] for a criminal purpose you must give [him] [her] the benefit of that doubt and vote not guilty.

[See People v. Coffey (MI 1986) 395 NW2d 250; People v. Almodovar (NY 1984) 464 NE2d 463; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.71(B) [Carrying A Concealed Weapon Or Pistol Without A License- Defense] (Bar Association of the District of Columbia, 4th ed. 1993).]

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 VOLUME 5 - CHAPTER 56

RATIONALE: The defendant should not be convicted of unlawful possession if the purpose of the possession was innocent (e.g., to give the contraband to the police).

POINTS AND AUTHORITIES: It may be a defense theory to criminal possession of a firearm or weapon that the possession was for purposes of defending one's self or others. (See e.g., U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1135-36 [defense of justification instruction required where defendant charged with exfelon in possession of gun contended that the gun was grabbed from a person who was assaulting a third party]; U.S. v. Wolak (6th Cir. 1991) 923 F2d 1193, 1198 [temporary innocent possession defense to charge of possession of firearm by exfelon]; State v. Crawford (MD 1987) 521 A2d 1193, 1200-1201 [no criminal liability for possession of handgun when weapon was wrestled from attacker and used to ward off other assailants]; People v. Almodovar (NY 1984) 464 NE2d 463, 465.)

    See also FORECITE National™ 56.3.3 [Necessary Or Justified Possession].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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 VOLUME 5 - CHAPTER 56

PRACTICE NOTE: It may be argued that an intent to turn the subject weapon over to the lawful authorities is not a necessary element of the defense of temporary and lawful possession. (See People v. Whitehead (NY 1986) 507 NYS2d 672, 673; see also FORECITE National™ 56.3.1.1 [Momentary Possession: Possession Insufficient To Establish Dominion And Control].) On the other hand, intent to turn over the weapon to the police may be considered as evidence in support of the defense of "innocent possession." (See People v. Legett (NY 1988) 531 NYS2d 559, 560.)

    See also FORECITE National™ 56.3.2.1 [Possession For The Purpose Of Lawfully Disposing Of The Contraband].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].