T.P.I. -- CRIM. 36.06

UNLAWFUL POSSESSION OF A DEADLY WEAPON WITH INTENT

TO EMPLOY IT IN THE COMMISSION OF OR ESCAPE FROM AN

OFFENSE

            Any person who possess a deadly weapon with intent to employ it in the commission of or escape from an offense 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 a deadly weapon;

and

(2)  that the defendant possessed said deadly weapon with the

       intent to employ it in the [commission of] [escape from]

       ________________________________________;²                                  (list the offense)

and

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

       recklessly.³

            ["Possession" may be actual or constructive.  A person who knowingly had 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 had both the power and intention at any given time to exercise dominion and control over an object is then in constructive possession of it.]⁴

            ["Possession" may also be sole or joint.  If a person has actual or constructive possession of a thing, possession is sole.  It two (2) or more persons have actual or constructive possession of a thing, then possession is joint.]⁵

            "Deadly weapon" means a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.⁶

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

FOOTNOTES

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

  2.  Includes conduct that is defined as an offense by statute, municipal

       ordinance, or rule authorized by and lawfully adopted under a statute.  Tenn.

       Code Ann. § 39-11-102.  The specific offense should also be defined as part

       of this charge unless said offense is being tried jointly and is already part of

       the jury instructions.

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

       Commission Comment.  The Committee is of the opinion that the definitions

       of "knowingly" and "recklessly", although statutorily required, are in conflict

       with element (2) of this offense.  Because element (2) includes the "intent to

       employ" the deadly weapon, some judges believe that only "intentionally"  

       should be charged for this offense.

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

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

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

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

  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).

COMMENTS

            1.  Unlawful possession of a deadly weapon with intent to employ it in the commission of or escape from an offense is a Class E Felony.  Tenn. Code Ann.  § 39-17-1307(c)(2).

            2.  The term "offense" apparently encompasses misdemeanors as well as felonies defined as offenses by statute.

            3.  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 case footnoted therein.  The definition appears to state the general law in Tennessee and should apply to this offense.  It should be noted that Tenn. Code Ann. § 39-17-1307(c) prohibits "possession" of the weapon rather than "carrying" as prohibited by other weapons offenses.  This distinction 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(c).

            4.  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.  See also footnote 2 above.