T.P.I. -- CRIM. 36.05

UNLAWFUL POSSESSION OF A HANDGUN

BY A CONVICTED FELON

            Any person, having been convicted of one of certain specified felonies, who possesses a handgun 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 had been convicted of __________________

                                                                                                (name prior alleged

                   __________________;2

                        felony conviction)

and

            (2)  that the defendant, after such felony conviction, possessed a

                   handgun;

and

            (3)  that the defendant acted either intentionally, knowingly, or recklessly.3

            "Handgun" means any firearm with a barrel length of less than twelve (12) inches that is designed, made, or adapted to be fired with one hand.4

            "Firearm" means any weapon designed, made, or adapted to expel a projectile by the action of an explosive, or any device readily convertible to that use.5


            ["Possession" may be actual or constructive.  A person who knowingly has direct physical control over an object at a given time is then in actual possession of it.  A person who, although not in actual possession, knowingly has both the power and intention at any given time to exercise dominion and control over an object is then in constructive possession of it.]6

            [Possession may also be sole or joint.  If a person alone has actual or constructive possession of a thing, possession is sole.  If two (2) or more persons have actual or constructive possession of a thing, their possession is joint.]7

            "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.8

            "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 the result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.9

            "Recklessly" means that a person acts recklessly with respect to the circumstances surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.10


            If you find from the proof that the defendant has been convicted of another crime or crimes than that for which [he] [she] is presently on trial, you may not consider such evidence as proof of [his] [her] disposition to commit the crime for which [he] [she] is on trial.11

FOOTNOTES

  1.  Tenn. Code Ann. § 39-17-1307(b).

  2.  Includes convictions for felonies involving the use or attempted use of force,

       violence, or a deadly weapon, and convictions for felony drug offenses, and

       convictions in another jurisdiction for acts which would constitute those

       offenses under Tennessee law.  Tenn. Code Ann. § 39-17-1307(b)(1)(A)

       and (B).

  3.  Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing

       Commission Comment.

  4.  Tenn. Code Ann. § 39-11-106(a)(16).

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

  6.  State v. Williams, 623 S.W.2d 121 (Tenn. Crim. App. 1981).

  7.  State v. Copeland, 677 S.W.2d 471 (Tenn. Crim. App. 1984).

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

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

10.  Tenn. Code Ann. § 39-11-106(a)(31).

11.  See T.P.I. -- CRIM. 42.10 (Evidence of Other Crimes).

COMMENTS

            1.  Unlawful possession of a handgun by a convicted felon is a Class E felony.  Tenn. Code Ann. § 39-17-1307(b)(2).

            2.  The "possession" definition is not based on a specific statutory provision or case law relating to offenses involving weapons, but is adapted from former T.P.I. -- CRIM. 33.02 (Possession of Controlled Substance with Intent to Sell or Deliver) and the cases footnoted therein.  The definition appears to state the general law in Tennessee as to possession, and should apply to this offense.  It should be noted that Tenn. Code Ann. § 39-17-1307(b) prohibits "possession" of the weapon rather than "carrying" the weapon in question as prohibited by Tenn. Code Ann. § 39-17-1307(a) and other weapon offenses.  This distinction between the offenses necessitates the defining of possession as part of the instruction in order to clearly state the conduct relating to the weapon that is prohibited by Tenn. Code Ann. § 39-17-1307(b).

            3.  The reference in footnote 2 to convictions in other jurisdictions for acts which would constitute offenses under Tennessee law is retained from former T.P.I. -- CRIM. 30.03 (Convicted Felon Carrying a Firearm) since the new statute, Tenn. Code Ann. § 39-17-1307(b) does not limit the prior convictions to those occurring in Tennessee.

            4.  Tenn. Code Ann. § 39-17-1301(2) defines "crime of violence" to include any degree of murder, voluntary manslaughter, aggravated rape, rape, especially aggravated robbery, aggravated robbery, burglary, aggravated assault, or aggravated kidnapping.  However, this statute is not offered as part of the proposed instruction or as an all inclusive definition of the felony convictions necessary to constitute a violation of Tenn. Code Ann. § 39-17-1307(b)(1).  Tenn. Code Ann. § 39-17-1307(b)(1)(A) refers to felonies involving the use or attempted use of force or a deadly weapon in addition to those involving the use or attempted use of violence, thus appearing to be broader in scope than the definition found in Tenn. Code Ann. § 39-17-1301(2).  For example, the offenses of robbery, aggravated sexual battery, and sexual battery involve or can involve the use of force and should qualify under Tenn. Code Ann. § 39-17-1307(b)(1)(A) though these offenses are not listed in Tenn. Code Ann. § 39-17-1301(2).  Also, these same offenses by definition are crimes of violence but paradoxically did not make the list found in Tenn. Code Ann. § 39-17-1301(2).

            5.  Felony drug offenses applicable to Tenn. Code Ann. § 39-17-1307(b)(1)(B) may be found in the Tennessee Drug Control Act of 1989, Tenn. Code Ann. § § 39-17-401 through 39-17-427, 53-11-301 through 53-11-308, and 53-11-401 through 53-11-414.  The Committee is of the opinion that felony drug convictions as well as felony convictions for offenses involving the use  of or attempted use of force, violence, or a deadly weapon occurring under Tennessee criminal statutes existing prior to November 1, 1989 should also be applicable since there is not a time limitation as to the said convictions in Tenn. Code Ann. § 39-17-1307(b)(1)(A) and (B).

            6.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. § 39-11-301(c).  The Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" should all be charged for this offense.