THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Weapons Crimes

    1.    Commission Of Crime While In Possession Of Dangerous Weapon: Defendant 
           Must Use Weapon To Facilitate Crime
    2.    Carrying Concealed Weapon: Elements
    3.    Carrying Concealed Weapon: Jury Must Not Be Influenced In Any Way By 
           Any Personal Feelings Concerning Handgun Possession Or Ownership
    4.    Carrying Concealed Weapon: Weapon Inadvertently Concealed Insufficient
    5.    Possession Of Firearm By Felon: Intoxication Defense
    6.    Possession Of Firearm By Felon: Momentary Possession

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

    1.    Commission Of Crime While In Possession Of Dangerous Weapon: Defendant Must Use Weapon To Facilitate Crime

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See NCJIC 106.4 [Weapons Or Firearms Possession: Defenses And Defense Theories].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Carrying Concealed Weapon: Elements

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Carrying a concealed weapon, as defined by ________ (statute) of the criminal code of ________ (state), is committed by any person except a peace officer who goes armed with a concealed and dangerous weapon. There is no claim here that the defendant was a peace officer.

    Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

    First, that the defendant went armed with a dangerous weapon.

    Second, that the weapon was concealed.

    Third, that the defendant acted intentionally.

    The first element of this offense requires that the defendant went armed with a dangerous weapon.

    The phrase "went armed" means that the weapon must have been either on the defendant's person or that the weapon must have been within the defendant's reach.

    The first element also requires that the weapon be dangerous. The criminal code provides that a "dangerous weapon" means any firearm, whether loaded or unloaded.

    The second element requires that the weapon was concealed. "Concealed" means hidden from ordinary observation. [The weapon does not have to be completely hidden.]

    The third element requires that the defendant acted intentionally.

    This requires that the defendant knew that (he/she) was armed with a dangerous weapon and intended to conceal the weapon.

    If you are satisfied beyond a reasonable doubt that the defendant went armed with a dangerous weapon, that the weapon was concealed, and that the defendant knew that (he/she) was armed with a weapon and intended to conceal the weapon, you should find the defendant guilty.

    If you are not so satisfied, you must find the defendant not guilty.

Wis. Stat. §941.23; State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529, 539 (1977) ("If the jury thought the gun was placed under the seat inadvertently, it presumably would not have convicted. Concealing or hiding a weapon precludes inadvertence."); State v. Jordan, 495 S.W.2d 717, 720 (Mo. App. 1973) (holding under statute substantially identical to Wisconsin's that "there must be an intent to carry the weapon concealed").

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC 106.4.5 [Concealed Weapon: Defense Theory That Weapon Was Not Concealed].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Jury Must Not Be Influenced In Any Way By Any Personal Feelings Concerning Handgun Possession Or Ownership

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    ___________ (state) law permits our citizens to own handguns and also permits ________ (business owner, e.g., tavern owners) to possess handguns in their business. Accordingly, it was lawful for __________ (name of defendant) to possess a handgun in (his/her) business and you must not be influenced in any way by any personal feelings you may have concerning handgun possession or ownership in deciding whether __________ (name of defendant) is guilty of the charged offense.

Wis. Stat. §941.237; State v. Mata, 544 N.W.2d 578 (Ct. App. 1996).

State v. Myron Keith Johnson, Case No. F-954865 (Milwaukee County Circuit Court 1996).

    __________ (state) and federal law authorize our citizens to own handguns and also to possess handguns in their homes. Therefore, you must not be influenced in any way by any personal feelings you may have concerning handgun possession or ownership, as these are perfectly lawful activities.

State v. Johnson, Case No. F-954865 (Milwaukee County Circuit Court, 1996).

See NCJIC 16.2.2 [Duty Of Jurors To Be Unbiased].

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Weapon Inadvertently Concealed Insufficient

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

State v. Asfoor, 75 Wis.2d 411, 249 N.W.2d 529, 539 (1977).

    ___________’s (name of defendant) theory of defense is that (he/she) did not conceal the handgun and, if (his/her) jacket did temporarily conceal the pistol, (he/she) did not intend to conceal the gun from view in this fashion. A gun is not concealed if it is only inadvertently hidden from observation. Accordingly, if you find that __________ (name of defendant) only inadvertently concealed the gun, or did not conceal the gun at all, you must find (him/her) not guilty.

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC 106.4.5 [Concealed Weapon: Defense Theory That Weapon Was Not Concealed].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin 

5.     Possession Of Firearm By Felon: Intoxication Defense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    __________’s (name of defendant) contention is that (he/she) is not guilty of the charge in Count ___, possession of a firearm by a felon, because (he/she) was too intoxicated to know at the time (hes/eh) was stopped by the police that (he/she) had a firearm in (his/her) possession. If after considering all of the evidence, you have a reasonable doubt about whether __________ (name of defendant) knew at the time (he/she) was stopped that (he /she)was in possession of a firearm, that doubt alone would mean that you must find __________ (name of defendant) not guilty of that offense. The state must prove each element of an offense beyond a reasonable doubt to permit a guilty verdict for such offense.

State v. Davidson, 44 Wis. 2d 177, 191-92, 170 N.W.2d 755 (1969) (discusses theory of defense instructions); Wis. Stat. §939.42(2) (even voluntary intoxication is a defense if it negatives the existence of the state of mind necessary to the offense).

See also THE SHELLOW COLLECTION: Firearm Violations (18 USC 921-930).

RELATED NCJIC MATERIALS:

See NCJIC 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

See NCJIC Chapter 107: Weapons Or Firearms: Ex-Felon In Possession Of Firearm.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.     Possession Of Firearm By Felon: Momentary Possession

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In considering whether the defendant was a felon who knowingly possessed a firearm, as charged in Count ____, you are instructed that the law does not impose guilt upon a person who possesses a firearm just momentarily, accidentally, or for the purpose of immediately transferring that firearm to another who lawfully may possess it. If you find that __________ (name of defendant) was a convicted felon who did knowingly possess a firearm, but are not satisfied beyond a reasonable doubt that (his/her) possession was more than momentary, accidental, or for the purpose of immediately transferring the firearm to another who lawfully could possess it, you should find __________ (name of defendant) not guilty on Count ____.

Mere transitory possession ordinarily should not be enough to establish a possessory offense. Such possession, which is mistaken, accidental, or practically unavoidable, and very brief, is not the harm that the legislature plainly sought to punish. Lenear Sanders has found no case directly on point, but federal courts have recognized that brief mistaken possession of a gun may be "innocent possession," and also that there is a narrow self-defense or necessity justification for temporary possession of a firearm by a felon. See United States v. Elder, 16 F.3d 733, 738 (7th Cir. 1994) [18 USC 922(g)(1)]; United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991); United States v. Ali, 63 F.3d 710, 716 n.7 (8th Cir. 1995); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982); United States v. Clark, 741 F.2d 699, 704-05 (5th Cir. 1984).

    In considering whether the defendant was a felon who knowingly possessed a firearm, as charged in Count ____, you are instructed that the law does not impose guilt upon a person who possesses a firearm just momentarily, accidentally, or for the purpose of immediately transferring that firearm to another who lawfully may possess it. If you find that __________ (name of defendant) was a convicted felon who did knowingly possess a firearm, but also find that (his/her) possession was momentary, accidental, or for the purpose of immediately transferring the firearm to another who lawfully could possess it, you should find __________ (name of defendant) not guilty on Count ____.

Mere transitory possession ordinarily should not be enough to establish a possessory offense. Such possession, which is mistaken, accidental, or practically unavoidable, and very brief, is not the harm that the legislature plainly sought to punish. Lenear Sanders has found no case directly on point, but federal courts have recognized that brief mistaken possession of a gun may be "innocent possession," and also that there is a narrow self-defense or necessity justification for temporary possession of a firearm by a felon. See United States v. Elder, 16 F.3d 733, 738 (7th Cir. 1994); United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991); United States v. Ali, 63 F.3d 710, 716 n.7 (8th Cir. 1995); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982); United States v. Clark, 741 F.2d 699, 704-05 (5th Cir. 1984).

See also THE SHELLOW COLLECTION: Firearm Violations (18 USC 921-930).

See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

See NCJIC Chapter 107: Weapons Or Firearms: Ex-Felon In Possession Of Firearm.