POSSESSING A WEAPON WHILE COMMITTING
OR ATTEMPTING TO COMMIT A FELONY - ELEMENTS
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:
Third, possession of;
Fourth, a/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.
Among the factors you may consider in determining whether the possession of the weapon was connected to the felony are: 1) the weapon was used to actually facilitate the commission of the felony; 2) the weapon was possessed or strategically located for use during the commission of the felony; 3) the weapon was intended to be used if a contingency arose or to make an escape; and 4) the weapon was to be used either offensively or defensively in a manner which would constitute a threat of harm.
Statutory Authority: 21 O.S. Supp. 1996, § 1287.
Notes on Use
If the offensive weapon is not specifically listed in 21 O.S. Supp. 1996, § 1287, the determination of whether the implement used by the defendant was an "offensive weapon" is a question for the jury.
In Pebworth v. State, 855 P.2d 605, 607 (Okl. Cr. 1993), the Oklahoma Court of Criminal Appeals required a nexus between the possession and the felony. The factors listed in the last paragraph are taken from the Pebworth decision.