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Can The State Prove You Guilty On A Gun Charge? Check Out This Info On Elements & Defenses

Can the Prosecution Prove You Guilty of a Gun Charge?  Or is There a Defense that Will Help Your Case?

If you’ve been charged with a crime, the Prosecution has the burden to prove you guilty.  If they don’t have enough evidence, or the right kind of evidence, they may not be able to prove you guilty!

Elements of a Crime

All crimes have certain “Elements” that must be met in order for the prosecution to be able to prove you guilty.  If we can prevent them from being able to prove even one element, you are going to have a much better chance of getting the outcome you want!

So what is an Element of a crime?  The best way to explain it is to just show the elements for a Gun/Firearm Charge.  Elements are different for every crime, but all gun related crimes will have similar elements.

TWO TYPES OF GUN CHARGES

Most Firearms Charges fall into one of two separate categories: 

  1. Illegal Possession: usually because you are a convicted felon, adjudicated delinquent (juvenile conviction), you are on probation, or you are charged with having a firearm while committing another felony (for example you are charged with Trafficking in Drugs and you had a gun in the car with you); or
  2. Illegal Use of a Firearm: 
    1. assault related charge: where you are charged with using the gun to threaten (pointing a firearm), harm, shoot, facilitate a drive by shooting, or assault a person; or
    2. theft related charge: where you are charged with using a gun in the process of a theft (robbery or burglary)

This page addresses Gun Charges that are based on Illegal Possession.  See the Assault Page or the Theft Page for More Information on those type of Charges.

POSSESSION OF A FIREARM AFCF (AFTER FORMER CONVICTION OF A FELONY)

The Oklahoma Uniform Jury Instructions states that:

No person may be convicted of possessing a firearm after conviction of a felony unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly and willfully;

Secondpossessing/(having under one’s immediate control)/(having in any vehicle one operates)/(having in any vehicle in which one is riding as a passenger)/(having at the place where the defendant resides);

Third, any pistol/(imitation/homemade pistol)/(machine gun)/(sawed-off shotgun/rifle)/(dangerous/deadly firearm);

Fourth, the defendant was convicted of a felony by the [Name of Court] Court of [Name of Jurisdiction] on [Date].

This means that, in order for the prosecution to be able to prove you guilty of Possession of a Firearm AFCF, they have to prove that you: knowingly and willfully possessed a firearm after having been convicted of a felony.

POSSESSION OF A FIREARM IN THE COMMISSION OF A FELONY

If you were charged with a different Firearm charge, for example, Possession of a Firearm in the Commission of a Felony, the elements would be similar, but different.

The Oklahoma Uniform Jury Instructions states that:

No person may be convicted of possessing a weapon while committing a felony unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowing;

Second, willful;

Third, possession of;

Fourtha/an pistol/shotgun/rifle/(Specify Offensive Weapon Listed in 21 O.S. Supp. 1996, § 1287)/(offensive weapon);

Fifth, while committing/(attempting to commit) the felony of [Specify Underlying Felony];

Sixth, the elements of the felony of [Specify Underlying Felony] are: [Specify Elements];

Seventh, the possession of the weapon was connected to the commission of or attempt to commit the felony.

This means that, in order for the prosecution to be able to prove you guilty of Possession of a Firearm in the Commission of a Felony, they have to prove that you: knowingly and willfully possessed a firearm while you were committing another felony, and they must prove the elements of that other felony, and they must prove that the possession of the firearm was connected to the other felony. 

DEFENSES TO GUN/FIREARM POSSESSION CHARGES

As you can see, the elements for the various charges of possession of a firearm are similar.  So the Defenses that we would explore would involve looking at potential weaknesses in any of these elements.

  • You did not know the gun was in the house, car, etc.,
  • It was not your gun and you had no access or control over the gun,
  • You have not been convicted of a felony,
  • You are not on probation,
  • You were not guilty of the related felony that you are charged with,
  • There was no connection between the gun and the related felony, etc.

 

If you have been charged with Unlawful Possession of a Firearm, contact Fassio Law today by phone or e-mail so that we can help you!  405-593-8444 or clientrelations@fassiolaw.com

Serving the OKC Metro Area: Oklahoma County (Oklahoma City, Edmond), Cleveland County (Norman, Moore) and Canadian County (El Reno, Yukon, Mustang)