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Criminal Jury Instructions

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8.2-28  Affirmative Defense to Possession of Assault Weapon -- § 53-202o

Revised to December 1, 2007

The defendant has raised the affirmative defense that the possession of an assault weapon was not illegal and was authorized by law.  The statute that authorizes possession of an assault weapon, provides in pertinent part as follows: 

In any prosecution based on the possession by the defendant of a specified assault weapon, it shall be an affirmative defense that the defendant (1) in good faith purchased or otherwise obtained title to such specified assault weapon on or after October 1, 1993, and prior to May 8, 2002, in compliance with any state and federal laws concerning the purchase or transfer of firearms, (2) is not otherwise disqualified or prohibited from possessing such specified assault weapon, and (3) has possessed such specified assault weapon in compliance with subsection (d) of section 53-202d.

<Insert Affirmative Defense, Instruction 2.9-1.>

To establish this affirmative defense, the defendant must prove the following elements by a preponderance of the evidence:

Element 1 - Good faith acquisition
The first element is that on or after October 1, 1993 and prior to May 8, 2002, the defendant, in good faith, purchased or acquired title to the specified assault weapon.

Element 2 - Acquisition complied with state and federal laws
The second element is that the purchase or obtaining of title to the specified assault weapon was in compliance with any state and federal laws concerning the purchase and transfer of firearms.

Element 3 - Not disqualified from possession
The third element is that the defendant is not otherwise disqualified or prohibited from possessing the specified assault weapon.

Element 4 - Possession in compliance with state law
The fourth element is that (he/she) has possessed such weapon in compliance with state law.  State law authorizes a person to possess an assault weapon provided that the person has been issued a certificate of possession by the department of public safety, and further provided that the person possesses the assault weapon under the following conditions:  <insert as appropriate:>

  • at that person's residence, place of business or other property owned by that person, or on property owned by another with the owner's express permission.

  • while on the premises of a target range of a public or private club or organization organized for the purposes of practicing shooting at targets.

  • while on a target range which holds a regulatory or business license for the purpose of practicing shooting at that target range.

  • while on the premises of a licensed shooting club.

  • while attending any exhibition, display or educational project which is about firearms and which is sponsored by, conducted under the auspices of, or approved by a law enforcement agency or a nationally or state recognized entity that fosters proficiency in or promotes education about firearms.

  • while transporting the assault weapon between any of the places mentioned or to a licensed gun dealer for servicing or repair provided the assault weapon is transported as required by law.

Conclusion

<Substitute for the concluding paragraph in the offense instruction.>  If you unanimously find that the state has failed to prove beyond a reasonable doubt any element of the crime of possession of an assault weapon, you shall find the defendant not guilty and not consider (his/her) affirmative defense.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved this affirmative defense by a preponderance of the evidence, you shall find the defendant not guilty.  On the other hand, if you find that the defendant has not proved this affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.
 


 

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