Firearm with Obliterated Serial Number Dismissed for Lack of Evidence

K.I. was charged with Possession of a Firearm with an Obliterated Serial Number, a felony of the second degree. This offense makes it illegal to possess a firearm with a serial number that has been removed, altered, or scratched off.

One of the first steps in the criminal process is the preliminary hearing, which is to determine whether there is enough evidence to proceed to trial. The burden of proof is very low, as the government must only prove that it is more likely than not (51%) that the defendant committed the crimes charged. As a result, most charges are “held for court” (proceed towards trial).

At K.I.’s preliminary hearing, the police officer testified that, while executing a warrant at K.I.’s house, he recovered a firearm with a serial number that was scratched off. The gun was found inside of a purse, next to K.I., along with bulk marijuana and K.I.’s driver’s license.

At first glance, the evidence seemed more than sufficient for the court to find that it was more likely than not that K.I. had “constructive possession” of the firearm. Constructive possession is where the defendant has dominion and control over the gun but does not actually possess it (the defendant knows where the gun is and has the ability to exercise control over the gun). Commonly, it is sufficient to establish constructive possession when the gun is found in the defendant’s house or is near the defendant. Here, the government argued that K.I. had constructive possession of the gun as it was found in K.I.’s purse, next to her, and inside of her house.

However, in a stunning example of creativity, Attorney Joseph Coleman established an alternate explanation for the location of the gun inside of K.I.’s purse. Through cross-examination, Mr. Coleman showed that the police were executing an arrest warrant for a gunpoint robbery committed by a male. That male was was inside of the room with K.I., and was also next to the purse. Furthermore, the male admitted to police that the marijuana was his, but denied ownership of the firearm. Conversely, K.I. admitted that the purse was hers, but denied ownership of the marijuana or the gun.

Mr. Coleman made a motion to discharge the case for lack of evidence. He argued that it was more likely that the gun belonged to the male. Specifically, the male was wanted for gunpoint robbery; was next to K.I.’s purse and could have placed the gun there; and K.I. denied that the gun was hers. The court agreed and discharged the Possession of a Firearm with an Obliterated Serial Number for lack of evidence. Mr. Coleman beat the case before it ever went to trial. Refuse to Lose! Read here to learn more about gun charges.