OUJI-CR 6-40



The defendant has presented evidence that he/she had no knowledge of the presence of a firearm (under his/her immediate control)/(in the vehicle which he/she operated)/(in the vehicle in which he/she was a passenger). The question of whether the defendant knew of the presence of the firearm is a question of fact to be determined by the jury. Where there is a conflict in the evidence, it is the exclusive function of the jurors to weigh the evidence and determine the defendant's guilt or innocence. In determining whether the defendant had knowledge of the presence of the firearm you may consider circumstantial evidence.

Committee Comments

The literal terms of section 1283 encompass neither criminal intent nor knowledge of the presence of the firearm. It is settled beyond doubt that the statute does not intend to impose strict liability on former felons who are detected in the presence of a firearm. Rather, the mens rea elements of willfullness and knowledge are integral components; the State must demonstrate that the defendant was cognizant of the presence of the firearm and willfully performed conduct forbidden by the statute regardless of that knowledge, and the jury must be so instructed. Williams v. State, 565 P.2d 46, 49 (Okl. Cr. 1977), overruled on other grounds, Chapple v. State, 866 P.2d 1213, 1217 (Okl.Cr. 1993), Williams v. State, 794 P.2d 759, 763 (Okl.Cr. 1990), and Lenion v. State, 763 P.2d 381, 383 (Okl.Cr. 1988); Rodgers v. State, 517 P.2d 1138 (Okl. Cr. 1974); Ware v. State, 497 P.2d 775 (Okl. Cr. 1972); Sessions v. State, 494 P.2d 351 (Okl. Cr. 1972); Thompson v. State, 488 P.2d 944, 947 (Okl. Cr. 1971), overruled on other grounds, Dolph v. State, 520 P.2d 378, 380-81 (Okl. Cr. 1974). Thus, the elements of willfullness and knowledge are incorporated in the elemental instructions.

The prosecution's burden was stated by the court as follows:

It is not necessary that the State prove that the defendant had possession of the gun with a specific intent to go to do an unlawful act but rather the State must prove that the defendant had a previous conviction of a felony and that the defendant carried the pistol on his person.

Sessions v. State, supra, 494 P.2d, at 354.

Where the defendant presents evidence demonstrating the absence of requisite cognizance, however slight, the jurors should be instructed with respect to this defense upon proper request from the defendant.