2.215 — POSSESSION OF A FIREARM WHILE IN COMMISSION OF A CRIME

Violations of "Statute 2.215" results in a Class B Felony

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(a) Definitions

"Possession of a firearm while in commission of a crime" shall mean the possession of a firearm, either on one's person or within immediate access, during the commission of a criminal offense.

(b) Elements

To establish the offense of possession of a firearm while in the commission of a crime, the prosecution must prove beyond a reasonable doubt the following elements:

1. The defendant committed or attempted to commit a criminal offense (e.g., robbery, assault, drug trafficking, etc.).

2. The defendant was in possession of a firearm during the commission of the offense.

3. The possession of the firearm was not incidental to the crime, but involved either the use or intended use of the weapon in furtherance of the criminal activity.

(c) Defenses

A defendant may raise the following defenses against a charge of possession of a firearm while in commission of a crime:

• Lack of Knowledge: The defendant did not know that they were in possession of a firearm during the commission of the crime.

• No Intent to Use the Firearm: The defendant had the firearm in their possession but did not use, display, or intend to use it in the commission of the crime.

• Lawful Possession: The firearm was lawfully possessed, and its presence was unrelated to the criminal offense.

• Self-Defense: The firearm was carried for self-defense, and its possession was not related to the commission of the crime.

(d) Aggravating Factors

The court shall impose enhanced penalties if the possession of the firearm occurred under aggravating circumstances, including but not limited to:

• The firearm was used or threatened to be used in the commission of the crime, increasing the severity of the offense (e.g., using the firearm to threaten or harm a victim).

• The defendant had a prior criminal history, particularly involving violence or firearms.

• The defendant was in possession of a particularly dangerous or illegal firearm (e.g., automatic weapons, firearms with altered serial numbers, firearms in prohibited locations).

• The defendant’s possession of the firearm caused or contributed to additional harm or danger to victims or others during the commission of the crime.

• The crime occurred in a highly populated or public area, heightening the risk to public safety.