OUJI-CR 6-39

POSSESSING A FIREARM AFTER

A FELONY CONVICTION - ELEMENTS

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;

Second, possessing/(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].

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Statutory Authority: 21 O.S. Supp. 2005, § 1283.

Committee Comments

Section 1283 was amended by the Legislature in 1981 to change the crime from that of carrying a firearm to one of possessing a firearm. The language of the statute now reads "to have in his possession or under his or her immediate control...." The elements of this crime have been changed accordingly. It is the opinion of the Commission that this amendment prohibits a felon from knowingly and wilfully possessing firearms.

Section 1283, criminalizing the possession of designated firearms by persons adjudged guilty of a felony, has withstood numerous constitutional attacks based on due process and equal protection grounds.

Roberson v. State, 1972 OK CR 278, 502 P.2d 351; Brown v. State, 1969 OK CR 159, 456 P.2d 604; Davis v. State, 1962 OK CR 155, 377 P.2d 266. The prohibition extends to the possession of a specified firearm in one's own home. Roark v. State, 1970 OK CR 3, 465 P.2d 480. As long as the firearm is in a vehicle operated by the defendant, the ownership of the vehicle is immaterial. Jones v. State, 1978 OK CR 92, 584 P.2d 224. The Court of Criminal Appeals has articulated its position with respect to the constitutionality of section 1283 as follows:

We not only do not believe provisions of ... § 1283 are unconstitutional, but to the contrary are of the opinion that it is a protective measure, beneficial to society. It is designed to prevent people of demonstrated irresponsibility from possessing instruments of death, or as device [sic] of aggressive law violation.

Renfro v. State, 1962 OK CR 58, ¶ 20, 372 P.2d 45, 50.

In several early cases, the court held, with little discussion, that former conviction of a felony is part of the substantive evidence that the State is required to demonstrate in order to establish the elements of the crime charged. Thus, a one-stage proceeding was deemed appropriate. Brown v. State, 1969 OK CR 159, 456 P.2d 604; Anderson v. State, 1963 OK CR 52, 381 P.2d 892. However, the court subsequently established the rule that any reference whatsoever to the defendant's prior conviction, whether by way of prosecutorial allegation or by reading the language of the information, constituted reversible error. Berry v. State, 1970 OK CR 89, 476 P.2d 390, overruled, Chapple v. State, 1993 OK CR 38, ¶ 18, 866 P.2d 1213, 1217. More recently, though, the Oklahoma Court of Criminal Appeals overruled a number of prior cases and held in Chapple v. State, 1993 OK CR 28, ¶ 17, 866 P.2d 1213, 1216-17, that if "a defendant is charged with one count and a prior conviction is an element of the crime charged, the prior conviction shall be introduced in the guilt stage." The court also held that bifurcation is required when a defendant is charged with multiple counts, one or more of which require a prior conviction as an element of the crime, and one or more of which do not; the court prescribed that the counts which contain an element of prior conviction shall be tried to guilt or innocence and punishment in the second stage. Id at ¶ 18, 866 P.2d at 1217.

The Oklahoma Firearms and Oklahoma Self-Defense Acts, 21 O.S. 2001 & Supp. 2005, §§ 1289.1-1289.17, 1290.1-1290.25, specifically permit the carrying of firearms in many circumstances; thus, the fact of a prior felony conviction must be pleaded and proved during a one-stage proceeding when the defendant is tried for unlawful possession of a firearm after a felony conviction. Prock v. State, 1975 OK CR 213, ¶¶ 15-16, 542 P.2d 522, 525; Marr v. State, 1973 OK CR 342, ¶ 5, 513 P.2d 324, 326, overruled on other grounds, Chapple v. State, 1993 OK CR 38, ¶ 18, 866 P.2d 1213, 1217, and Williams v. State, 1990 OK CR 39, ¶ 6, 794 P.2d 759, 762.

The requirements that a dangerous or deadly firearm must be easily concealed was removed from section 1283 in 2005. 2005 Okla. Sess. Laws ch. 190 § 2. Possession of a carbon dioxide gas-powered air pistol is not prohibited under the statute, because it is neither a firearm nor dangerous or deadly. Thompson v. State, 1971 OK CR 328, ¶¶ 13-14, 488 P. 2d 944, 947-48.

(2006 Supplemental)