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.

RELATED CRIMINAL DEFENSE TOPICS

Is a knife considered a dangerous weapon in Utah?
How can I restore my right to carry a gun in Utah?