Can I be convicted for possessing weapon that is not mine?
Under Utah criminal law, it is illegal to possess weapons under
circumstances that include: possession of a
concealed dangerous weapon
(without a concealed carry permit); and possession of a weapon by a
restricted person. The statutes prohibiting weapon possession do not
require any element of ownership. Thus, if the other elements of the
charge are met, a person can still be convicted of possessing a weapon
without any proof of ownership.
If you are facing
weapon possession charges, the consequences can be
serious. An
experienced criminal defense attorney can help give you the
best chance of success.
Contact us to arrange for an initial
confidential consultation with Salt Lake
criminal defense attorney
Stephen Howard.
Constructive Possession and Actual Possession of a Weapon
A key element in many weapon possession cases involves the concept of
"possession" of the
weapon. The issue of ownership is not a required element of a criminal
charge for possession of a weapon. Whether the weapon belongs to you or
someone else, you can be convicted if you are in possession of a weapon
under circumstances that constitute a crime. Under Utah law, a
prosecutor can satisfy the possession element of a criminal charge with
proof of either "actual" possession or "constructive" possession.

The concept of actual possession is relatively straightforward. A
person can be considered to be in actual possession of a weapon if the
weapon is in the person's hand, being carried in a holster, inside the
pocket of a jacket worn by the person, etc.
Constructive possession is sometimes more ambiguous, and can be more
difficult for a prosecutor to prove. In some constructive possession
cases, the weapon may not be immediately accessible to the
defendant. The weapon may not even be visible to the defendant at the
time of the crime. But constructive possession does require proof that
the defendant had knowledge of the weapon's presence, and had both the
ability and the intent to exercise control over the weapon.
Consider the following hypothetical example:
Albert is a convicted
felon, and is therefore considered a "restricted person" who is not
lawfully permitted to possess firearms. He is a front-seat passenger in
a car. Police pull the car over for a minor traffic violation, and end
up arresting the driver. During a search of the vehicle, police find a
handgun under the seat where Albert was sitting. Both Albert and the
driver of the car invoke their Fifth Amendment right to remain silent,
and say nothing to the police. Police suspect that Albert knew about
the gun, but are able to obtain no further evidence.
In this hypothetical scenario, Albert should not be found to be in
constructive possession of the weapon. It is possible that Albert
could have
exercised control over the weapon if he had known about the weapon and
had wanted to exercise control over the weapon. But there is no
evidence to show that he knew of the weapon's presence, or that he
intended to exercise any control over the weapon. Thus, he should not
be found to be in constructive possession of the weapon.
Finding a Criminal Attorney in Utah

If you are
facing weapons charges or are being prosecuted for other
criminal offenses in Utah, you deserve to have an experienced
criminal
defense attorney on
your side. Stephen Howard has spent his career defending the rights of
the accused in criminal cases. His
track
record includes not guilty verdicts, dismissals, and
appellate reversals for some of the most serious charges on the books
in Utah. He has successfully protected his clients' rights in cases
ranging from homicide to DUI, and virtually everything in between.
Based in
Salt
Lake City,
Stephen
Howard
provides legal services to clients throughout Utah.
Contact us to
schedule an initial consultation for your case.
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