SIMPLE ASSAULT (Deadly Weapon)
(N.J.S.A. 2C:12-1a(2))[1]
The law requires that the Court instruct the jury with
respect to possible (lesser) included offenses, even if they are not contained
in the indictment. Just because the Court is instructing you concerning these
offenses does not mean that the Court has any opinion one way or another about
whether the defendant committed these, or any, offenses. You should consider
these offenses along with those for which the defendant is indicted. However,
you are not to render a verdict on these offenses or answer the questions on
the verdict sheet unless you find that the State has failed to meet its burden
with regard to the offense(s) in the indictment.
Simple assault is a lesser-included offense to count _____
of this indictment. The statute which defines simple assault provides that:
A person commits a simple assault if he negligently
causes bodily injury to another with a deadly weapon.
In
order for you to convict the defendant of this offense, the State must prove
the following elements beyond a reasonable doubt:
1. that the defendant caused
bodily injury to NAME OF VICTIM (or another);[2]
2. that
the defendant caused the bodily injury by use of a deadly weapon;
3. that
the defendant acted negligently.
The first element the State must prove beyond a reasonable doubt
is the defendant caused bodily injury to another.
Bodily Injury is defined as physical pain, illness, or any
impairment of the physical condition of another.[3]
The second element the State must prove beyond a reasonable doubt
is the defendant caused the bodily injury by use of a deadly weapon.
Deadly Weapon is defined as any firearm or other weapon, device,
instrument, material or substance, whether animate or inanimate, which in the
manner it is used or is intended to be used is known to be capable of producing
death or serious bodily injury.[4]
The
third element the State must prove beyond a reasonable doubt is the defendant
acted negligently.
A person acts negligently with respect to causing bodily injury
when he/she should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his/her conduct. The risk must be of such a nature and degree that the
actor's failure to perceive it, considering the nature and purpose of his/her conduct and the circumstance known to him/her, involves a gross deviation
from the standard of care that a reasonable person would observe in the actor's
situation. A person is said to act negligently if the person acts with
carelessness, when compared to how a reasonable person should act under the
circumstances as they exist at the time of the assault.[5]
If
you find that the State has proved each element of the offense beyond a
reasonable doubt, then you must find the defendant guilty. If, however, you
find that the State has failed to prove any element of the offense beyond a
reasonable doubt, then you must find the defendant not guilty.[6]
[1] Note that one
cannot be guilty of committing an attempt of this offense. State v. Clarke, 198 N.J.Super.
219 (App. Div. 1985). The jury should be so instructed if the facts of a case
warrant it.
[2] A person can
violate the provisions of the statute under a theory of transferred intent. See
N.J.S.A. 2C:2-3(d).
[3] N.J.S.A.
2C:11-1(a).
[4] N.J.S.A.
2C:11-3(c).
[6] Simple
Assault is a disorderly persons offense. It is a petty disorderly persons
offense if the assault was committed in a fight or in a scuffle entered into by
mutual consent. See N.J.S.A. 2C:12-1(a). If a reasonable view of the evidence
supports a view that such circumstances may exist, the jury should be
instructed that the State bears the burden of proving the absence of such
circumstances beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466 (2000); State v.
Johnson, 166 N.J. 523 (2001). See also State v. Jordon,
86 N.J.Super. 585 (App. Div. 1965), interpreting predecessor fighting
statute, N.J.S.A. 2A:170-27.
