T.P.I. -- CRIM. 36.01

WEAPONS:  POSSESSING, MANUFACTURING, TRANSPORTING, REPAIRING OR SELLING PROHIBITED

            Any person who unlawfully [possesses] [manufactures] [transports] [repairs] [sells] a prohibited weapon is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

            (1)  that the defendant [possessed] [manufactured] [transported] [repaired]

                   [sold] a/an [explosive] [explosive weapon] [device principally

                   designed, made or adapted for delivering or shooting an explosive

                   weapon] [machine gun] [short-barrel rifle] [short -barrel shotgun]

                   [firearm silencer] [switchblade knife] [knuckles] [hoax device] [any                     implement for infliction of serious bodily injury or death which has no                    common lawful purpose];

and

            (2)  that the defendant acted intentionally or knowingly.

            ["Explosive weapon" means any explosive, incendiary, or poisonous gas:

            (A)  bomb;

            (B)  grenade;

            (C)  rocket;

            (D)  mine; or

            (E)  shell, missile, or projectile that is designed, made, or adapted for the


purpose of inflicting serious bodily injury, death, or substantial property damage.] [“Explosive weapon” means any breakable container which contains a flammable liquid with a flashpoint of one hundred fifty (150) degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for purposes of illumination.]  [“Explosive weapon” means any sealed device containing dry ice or other chemically reactive substances for the purposes of causing an explosion by a chemical reaction.]2

            ["Firearm silencer"  means any device designed, made, or adapted to muffle the report of a firearm.]3

            ["Machine gun" means any firearm that is capable of shooting more than two (2) shots automatically, without manual reloading, by a single function of the trigger.]4

            ["Rifle" means any firearm designed, made, or adapted to be fired from the shoulder and to use the energy of the explosive in a fixed metallic cartridge to fire a projectile through a rifled bore by a single function of the trigger.]5 ["Short barrel" means a barrel length of less than sixteen inches (16") for a rifle and eighteen inches (18") for a shotgun, or an overall firearm length of less than twenty-six inches (26").]6

            ["Shotgun" means any firearm designed, made, or adapted to be fired from the shoulder and to use the energy of the explosive in a fixed shotgun shell to fire through a smooth-bore barrel either a number of ball shot or a single projectile by a single function of the trigger.]7

            ["Switchblade knife" means any knife that has a blade which opens automatically by:

            (A)  hand pressure applied to a button or other device in the handle;

 or

            (B)  operation of gravity or inertia.]8

            ["Knuckles" means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.]9

            [“Hoax device” means any device that reasonably appears to be or is purported to be an explosive or incendiary device and is intended to cause alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.]10

                     "Knowingly" means that a person acts knowingly with respect to the conduct or  to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.11

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.12

            ["Serious bodily injury" means bodily injury which involves a substantial risk of death; protracted or obvious disfigurement or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.]13

FOOTNOTES

 1.  Tenn. Code Ann. § 39-17-1302(a).

 2.  Tenn. Code Ann. § 39-17-1301(3).

 3.  Tenn. Code Ann. § 39-17-1301(4).

 4.  Tenn. Code Ann. § 39-17-1301(7).

 5.  Tenn. Code Ann. § 39-17-1301(9).

 6.  Tenn. Code Ann. § 39-17-1301(10).

 7.  Tenn. Code Ann. § 39-17-1301(11).

 8.  Tenn. Code Ann. § 39-17-1301(12).

 9.  Tenn. Code Ann. § 39-17-1301(6).

10.  Tenn. Code Ann. § 39-17-1301.

11.  Tenn. Code Ann. § 39-11-106(a)(20).

12.  Tenn. Code Ann. § 39-11-106(a)(18).

13. Tenn. Code Ann. § 39-11-106(a)(34).  Some trial judges are of the opinion

       that the definition of "bodily injury", Tenn. Code Ann. § 39-11-106(a)(2),

       should be given in connection with the definition of "serious bodily injury".

COMMENTS

            1.  Possession, manufacture, transportation, repair or sale of a prohibited weapon is a Class E felony under Tenn. Code Ann. § 39-17-1302(a)(1)-(5) and is a Class A misdemeanor under Tenn. Code Ann. § 39-17-1302(a)(6) or (7).  The penalties for these offenses were re-classified by Tenn. Pub. Acts 2002, ch. 849, effective July 4, 2002.  The new penalties are: a Class B felony under Tenn. Code Ann. δ39-17-1302(a)(1); a Class E felony under Tenn. Code Ann. δ39-17-1302(a)(2)-(5); a Class C felony under Tenn. Code Ann. δ39-17-1302(a)(6); and a Class A misdemeanor under Tenn. Code Ann. δ39-17-1302(a)(7)-(8).

            2.  See Tenn. Code Ann. § 39-17-1302(b) for the defenses to this offense.  If fairly raised by the proof, the issue of the existence of a defense must be submitted to the jury.  Tenn. Code Ann. § 39-11-203(c).  The state must prove beyond a reasonable doubt that the defense does not apply.  Tenn. Code Ann. § 39-11-201(a)(3).  The trial judge must instruct the jury that any reasonable doubt on the issue requires the defendant to be acquitted.  Tenn. Code Ann. § 39-11-203(d).

            3.  See Tenn. Code Ann. § 39-17-1302(c) for affirmative defenses.

The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised by the proof and notice has been provided according to Tenn. Code Ann. § 39-11-204(c).  If the issue of the existence of an affirmative defense is submitted to the jury, the court must instruct the jury that the affirmative defense must be established by a preponderance of the evidence.  Tenn. Code Ann. § 39-11-204.  The Committee suggests the following language:  "It is an exception to this offense that __________.  If the defendant proves this exception by a preponderance of the evidence, you must find [him] [her] not guilty."  The trial judge should then utilize T.P.I. -- CRIM. 42.01 (Preponderance of the Evidence).