Knowing possession may be either actual or constructive. Constructive possession is established where (1) the defendant had knowledge of the presence of the weapon; and (2) the defendant exercised immediate and exclusive control over the area where the weapon was found. Knowledge of existence of a firearm within the defendant's possession may be proved through circumstantial evidence.
Although knowledge may be proved by circumstantial evidence, it is incumbent upon the State to present such evidence. A defendant's mere presence in a car, without more, is not evidence that he knows a weapon is in the car. Factors from which knowledge could be inferred include: (1) the visibility of the weapon from defendant's position in the car, (2) the period of time in which the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon. Courts should also consider any other relevant circumstantial evidence of knowledge, including whether the defendant had a possessory or ownership interest in the weapon or in the automobile in which the weapon was found.
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