KIDNAPPING
(N.J.S.A.
2C:13-1a)
The defendant is charged with the crime
of kidnapping. The indictment reads in
pertinent part as follows:
(Read Indictment)
The pertinent part of the statute on
which this indictment is based reads as follows:
A person is guilty of kidnapping if he
unlawfully removes another from the place where he is found or if he unlawfully
confines another with the purpose of holding that person for ransom or reward
or as a shield or hostage.
(Select appropriate section)
In order for you to find the defendant
guilty of kidnapping, the State is required to prove each of the following
elements to you beyond a reasonable doubt:
1. That
the defendant __________, unlawfully removed __________, from _________.
and/or
That the defendant __________, unlawfully
confined __________, at __________.
2. That the removal.....confinement was for the
purpose of holding __________, for
ransom.... or reward....or as a shield or hostage.
You will note that I have used the terms
"unlawfully removed....unlawfully confined."
(IF
THE PERSON ALLEGED TO HAVE BEEN REMOVED OR CONFINED IS OVER THE AGE OF 14 AND
NOT INCOMPETENT USE THE FOLLOWING)
The term "unlawful" means to
accomplish the removal or confinement by force, threat, or deception....[1]
(IF THE PERSON REMOVED OR CONFINED IS
UNDER THE AGE OF 14 OR INCOMPETENT USE THE FOLLOWING)
The term "unlawful" means to
accomplish the removal or confinement without the consent of the parent,
guardian, or other person responsible for the general supervision of his/her welfare.[2]
I have also used the term
"purpose." A person acts
purposely with respect to the nature of his/her conduct or a result of his/her conduct if it is his/her conscious object to engage in conduct of that nature or to
cause such a result, that is, if the person means to do what he/she does or to cause such a result. A person acts purposely with respect to the
attendant circumstances if he/she is aware of the existence of such circumstances, or he/she believes or hopes that they exist. "With purpose,"
"designed," "with design" or equivalent terms have the same
meaning.[3]
The nature of the purpose with which the
defendant acted towards the victim is a question of fact for the jury to
decide. Purpose is a condition of the
mind which cannot be seen, and can only be determined by inference drawn from
the defendant's conduct, words or acts as they have been presented in the
evidence you have heard and seen in this case.
It is not necessary that the State produce a witness or witnesses to
testify or the defendant stated, for example, that his/her purpose in ... removing __________, (and/or) confining
__________ was for ransom or reward or as a shield or hostage.
(Select appropriate section)
It is within the power of the jury to
find that the proof of purpose has been furnished beyond a reasonable doubt by inferences which you may
draw from the nature of the acts and the circumstances surrounding the conduct
under investigation as they have been presented in the evidence you have heard
and seen in this case.
The statute defines the crime of
kidnapping in part by using the words "unlawfully removing a person from
where (he/she) is found." First you
must understand that the unlawfulness of removing a person from where (he/she)
is found, that is, where the victim happened to be at the moment of the
unlawful removal, does not depend upon the distance a victim is moved.
In other words, the unlawful removal to
any specific location or of a specific distance is not necessary to the offense
so long as the removal was unlawful, that is, ....accomplished by force,
threat, or deception, ...accomplished without the consent of parent, guardian
or other person responsible for the general supervision of his welfare ... and
for the purpose of gaining ransom or reward or using the victim as a shield or
hostage.
The statute further defines the crime of
kidnapping as the unlawful confinement of a person.
The confinement need not be for a
specific period of time so long as the confinement was unlawful, that is, ...
accomplished by force, threat, or deception, ... accomplished without the
consent of a parent, guardian, or other person responsible for the general
supervision of (his/her) welfare ... and for the purpose of gaining ransom or
reward or using the victim as a shield or hostage.
(Select appropriate section)
You will note that I have also used the
words ransom, reward, shield and hostage.
Ransom is defined as the money, price, or
consideration paid or demanded for redemption of a captive person, that is, a
payment to secure the release of the captive person.[4]
Reward under the circumstances of this
case is not limited to a thing of monetary value, but can include a benefit to
the kidnapper.
One used another person as a shield when
by force he/she places that person in a position of danger in order to
protect himself/herself.[5]
Hostage implies the unlawful taking,
restraining, or confining of a person with the intent that the person confined
be held as security to ensure that a third person either performs some action
or refrains from performing some action.[6]
[CHARGE
WHEN FIRST DEGREE KIDNAPPING ALLEGED]
If you find
that the State has proven beyond a reasonable doubt that the defendant
committed the crime of kidnapping, you must go on to determine whether the
State has also proven beyond a reasonable doubt that he/she knowingly
harmed ________ or knowingly did not release ________ in a safe place prior to his/her apprehension.[7] The "harm" component can include physical,
emotional or psychological harm.[8] In this case,
the State alleges that defendant [describe conduct allegedly constituting harm[9] or release in an unsafe place]. [INCLUDE WHEN
APPROPRIATE: On the other hand, defendant contends that ________.]
In order to determine whether the victim
was released in a safe place, you must examine the totality of the
circumstances and evaluate the evidence presented at trial in its entirety. You
may consider the following:
(1)
age of the victim and any other physical or mental condition of the victim; [10]
(2)
the location, the conditions of the area, and the time of the release;
(3) the circumstances surrounding the
release; and
(4)
any other circumstances that
occurred or existed surrounding the release.
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that his/her conduct is of
that nature, or that such circumstances exist, or he/she is aware of a
high probability of their existence. A
person acts knowingly with respect to a result of his/her conduct if he/she is aware that
it is practically certain that his/her conduct will
cause such a result.
"Knowingly," "with knowledge," or equivalent terms
have the same meaning.
Knowledge is a
condition of the mind which cannot be seen and can only be determined by
inferences from conduct, words or acts.
A state of mind is rarely susceptible of direct proof, but must
ordinarily be inferred from the facts.
Therefore, it is not necessary, members of the jury, that the State
produce witnesses to testify that an accused said he/she had a certain
state of mind when he/she engaged in a
particular act. It is within your power
to find that such proof has been furnished beyond a reasonable doubt by
inference which may arise from the nature of his/her acts and his/her conduct, and
from all he/she said and did
at the particular time and place, and from all of the surrounding
circumstances.
[CHARGE
IN ALL CASES]
If you find that the State has not proven
any element of the crime of kidnapping beyond a reasonable doubt, then you must
find the defendant not guilty. If you
find that the State has proven every element beyond a reasonable doubt, then
you must find defendant guilty of kidnapping.
[CHARGE
WHEN FIRST DEGREE KIDNAPPING IS ALLEGED]
If you find that the State has proven
beyond a reasonable doubt that the defendant is guilty of kidnapping, but you
have reasonable doubt as to whether the State
has proven beyond a reasonable doubt that he/she knowingly
harmed __________ or knowingly did not release ________ in a safe place prior to his/her apprehension you must then find the defendant guilty of
kidnapping in the second degree.
If you find beyond a reasonable doubt
that the defendant is guilty of kidnapping and that he/she knowingly harmed _________
or knowingly did not release ________ in a safe place prior to his/her apprehension, you must then find the defendant guilty of kidnapping
in the first degree.
[6] State
v. Littlefield,
389 A.2d 16 (Me. 1978); State v. Lee, 234 S.E. 2d 482
(N.C. App. 1977); State v. Crump, 484 P2d 329 (N.M. 1971).
[7] State v. Sherman, 367 N.J.
Super. 324, 330-331 (App. Div. 2004), certif. denied, 180 N.J. 356 (2004).
[9] “We conclude that the 'harm' component of the unharmed release provision
contained in N.J.S.A. 2C:13-1c[1] focuses on the conduct of the
kidnapper during the purposeful removal and holding or confining of the victim,
as distinguished from the type of harm inherent in every kidnapping." Sherman, 367 N.J. Super. at
330.
[10] In
State v. Johnson, 309 N.J. Super. 237, 265 (App. Div.), certif.
denied, 156 N.J. 387 (1998), the defendant carjacked a mother and
her three-year-old daughter, then put the daughter out of the car before
driving off with and subsequently robbing, raping, and killing the mother. The
Appellate Division held that the jury properly found “that separating an upset,
crying three year old child from her distraught mother and leaving her near the
bushes of a closed day care center after 9 p.m. on a rainy November night
hardly constitutes leaving her in a ‘safe place.’”
