AGGRAVATED ASSAULT - BODILY INJURY WITH DEADLY WEAPON (RECKLESSLY) (N.J.S.A. 2C:12-1b(3)) model jury charge

AGGRAVATED ASSAULT - BODILY INJURY WITH DEADLY WEAPON^[1]

(RECKLESSLY)

(N.J.S.A. 2C:12-1b(3))

Count _____ of the indictment charges defendant with aggravated assault in that he/she allegedly

(Read appropriate count of Indictment)

Defendant is accused of violating a section of our law that reads as follows:

A person is guilty of aggravated assault if he recklessly causes bodily injury to another with a deadly weapon.

To find the defendant guilty of recklessly causing bodily injury to another with a deadly weapon, the State must prove beyond a reasonable doubt the following elements:

1.  that the defendant caused bodily injury to another; and

2.  that the defendant caused the bodily injury by use of a deadly weapon; and

3. that the defendant acted recklessly.

The first element that the State must prove beyond a reasonable doubt is that defendant caused bodily injury to another.

Bodily injury is defined as physical pain, illness, or any impairment of the physical condition of another.^[2]

The second element that the State must prove beyond a reasonable doubt is that the

defendant caused the bodily injury by use of a deadly weapon.

Causation has a special meaning under the law.  To establish causation, the State must prove two elements, each beyond a reasonable doubt:

First, that but for the defendant's conduct, (name of victim) would not have sustained bodily injury.

Second, the bodily injury sustained by (name of victim) must have been within the design or contemplation of the defendant.  If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his/her offense.  In other words, the State must prove beyond a reasonable doubt that the bodily injury sustained by (name of victim) was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated assault.

A deadly weapon is 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.  Serious bodily injury means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The third element that the State must prove beyond a reasonable doubt is that the defendant acted recklessly.  A person acts recklessly when he/she is aware of and consciously disregards a substantial and unjustifiable risk.  The risk must be of such a nature and degree that, considering the nature and purpose of defendant's conduct and the circumstances known to defendant, his/her disregard of that risk involves a gross deviation from the standard of conduct that a reasonable person would follow in the actor’s situation.  One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, foolhardily.

Reckless is a condition of the mind that cannot be seen and that can be determined only from inferences from conduct, words or acts.  It is not necessary for the State to produce a witness to testify that the defendant stated that he/she acted with a particular state of mind.  It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.

[CHARGE WHERE APPROPRIATE]

[When the actual victim was one other than the intended victim, add:

It is immaterial that (name the victim) was or was not the intended victim.]^[3]

[CHARGE IN ALL CASES]

If you find that the State has proved each element beyond a reasonable doubt, then you must find defendant guilty.  If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find defendant not guilty.

---

^[1]  This charge is inapplicable to assaults involving a motor vehicle.  See State v. Parker, 198 N.J. Super. 272, 282-83 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985).  Utilize the Model Jury Charges for assault by auto, N.J.S.A. 2C:12-1c(1) for cases involving reckless conduct and a motor vehicle.

[2] N.J.S.A. 2C:11-1a.

^[3]   N.J.S.A. 2C:2-3d.

AGGRAVATED ASSAULT - Bodily injury with deadly weapon (Purposely or knowingly) (N.J.S.A. 2C:12-1b(2)) model jury charge

AGGRAVATED ASSAULT - BODILY INJURY WITH DEADLY WEAPON

               (PURPOSELY OR KNOWINGLY)(N.J.S.A. 2C:12-1b(2))

Count _____ of the indictment charges defendant with aggravated assault in that he/she allegedly

(Read appropriate count of Indictment)

Defendant is accused of violating a section of our law that reads as follows:

A person is guilty of aggravated assault if he attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.

Under this statute, the defendant can be found guilty if he/she EITHER caused bodily injury to another with a deadly weapon OR attempted to cause bodily injury to another with a deadly weapon.

To find the defendant guilty of causing bodily injury to another with a deadly weapon, the State must prove beyond a reasonable doubt the following elements:

1.  that the defendant caused bodily injury to another; and

2.  that the defendant caused the bodily injury by use of a deadly weapon; and

3. that the defendant acted purposely or knowingly.

The first element that the State must prove beyond a reasonable doubt is that defendant caused bodily injury to another.

Bodily injury is defined as physical pain, illness, or any impairment of the physical

condition of another.^[1]

The second element that the State must prove beyond a reasonable doubt is that the defendant caused the bodily injury by use of a deadly weapon.

Causation has a special meaning under the law.  To establish causation, the State must prove two elements, each beyond a reasonable doubt:

First, that but for the defendant's conduct, (name of victim) would not have sustained bodily injury.

Second, that the bodily injury sustained by (name of victim) was within the design or contemplation of the defendant.  If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his offense.  In other words, the State must prove beyond a reasonable doubt that the bodily injury sustained by (name of victim) was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated assault.

A deadly weapon is 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.  Serious bodily injury means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The third element that the State must prove beyond a reasonable doubt is that the defendant acted purposely or knowingly.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result.  A person acts purposely with respect to 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.

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 the person is aware of a high probability of their existence.  A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that his/her  conduct will cause such a result.   “Knowing,” “with knowledge,” or equivalent terms have the same meaning.

Purpose and knowledge are conditions of the mind that cannot be seen and that can be determined only from inferences from conduct, words or acts.  It is not necessary for the State to produce a witness to testify that the defendant stated that he/she acted with a particular state of mind.  It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.

[CHARGE WHERE APPROPRIATE]

[When the actual victim was one other than the intended victim, add:

It is immaterial that (name the victim) was or was not the intended victim.]

[CHARGE IN ALL CASES]

If you find that the State has proved each element beyond a reasonable doubt, then you must find defendant guilty.  If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find defendant not guilty of the charge of aggravated assault by causing bodily injury with a deadly weapon.^[2]

As I previously instructed you, the defendant can be found guilty if he/she EITHER caused bodily injury to another with a deadly weapon OR attempted to cause bodily injury to another with a deadly weapon.  If you find beyond a reasonable doubt that defendant attempted to cause bodily injury to another with a deadly weapon, it does not matter whether such injury actually resulted.

The law provides that a person is guilty of attempt if, acting purposefully, he/she:

(select appropriate section)

1.  Engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be;

(or)

2.  Did (or omitted to do) anything with the purpose of causing bodily injury to another with a deadly weapon without further conduct on his/her part.  This means that the defendant(s) did something designed to cause bodily injury to another with a deadly weapon without having to take any further action.

(or)

  3.  Did (or omitted to do) anything that, under the circumstances as a reasonable person would believe them to be, was an act (or omission) constituting a substantial step in a course of conduct planned to culminate in his/her commission of the crime.  The step taken must be one that is strongly corroborative of the defendant’s criminal purpose.  The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/she had already taken.  These preparatory steps must be substantial and not just very remote preparatory acts.^[3]

Bodily injury is defined as physical pain, illness, or any impairment of the physical condition of another.

A deadly weapon is 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.  Serious bodily injury means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is the person's conscious object to engage in conduct of that nature or to cause such a result.  A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose or if he/she means to do what he/she does (e.g., “I did it on purpose”).

If you find that the State has proved beyond a reasonable doubt that the defendant attempted to cause bodily injury to another with a deadly weapon, then you must find defendant guilty.

If you find that the State has failed to prove beyond a reasonable doubt that the defendant attempted to cause bodily injury to another with a deadly weapon, then you must find defendant not guilty.

AGGRAVATED ASSAULT - Serious Bodily Injury N.J.S.A. 2C:12-1b(1) model jury charge

AGGRAVATED ASSAULT - SERIOUS BODILY INJURY

N.J.S.A. 2C:12-1b(1)

In Count    ________of the indictment, the defendant(s) is (are) charged with the crime

of aggravated assault in that (he/she/they) allegedly on   ________ in the  _________

                                                                                           (Date)             (Municipality)

(READ PERTINENT LANGUAGE OF INDICTMENT)

The defendant(s) is (are) accused of violating a section of our State statutes that reads as follows:

A person is guilty of aggravated assault if he . . . (a)ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.

Under this statute, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another.

To find the defendant(s) guilty of aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements:

            1.            That the defendant(s) caused serious bodily injury to another; and

2. That the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life.

The first element that the State must prove beyond a reasonable doubt is that the defendant(s) caused serious bodily injury to another.

Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The second element that the State must prove beyond a reasonable doubt is that the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life.

A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., “I did it on purpose”).

  A person acts knowingly with respect to the result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result.

A person acts recklessly with respect to the result of his/her conduct if he/she consciously disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, fool-hardily.

The phrase “under circumstances manifesting extreme indifference to the value of human life” does not focus on the state of mind of the actor, but rather on the circumstances under which you find that he/she acted.  If, in light of all the evidence, you find that the conduct of the defendant(s) resulted in a probability as opposed to a mere possibility of serious bodily injury, then you may find that (he/she/they) acted under circumstances manifesting extreme indifference to the value of human life.[1]

In determining whether the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the act(s) itself(themselves) and the severity of the resulting injury (injuries).

(NOTE: When the actual victim is one other than the intended victim, the jury should be instructed that it is immaterial that the actual victim was not the intended victim).

If you find that the State has proved each element beyond a reasonable doubt, then you must find the defendant(s) guilty. All jurors do not have to agree unanimously concerning which form of serious bodily injury aggravated assault is present so long as all believe that it was one form of serious bodily injury or the other. However, for a defendant to be guilty of serious bodily injury aggravated assault, all jurors must agree that the defendant either knowingly or purposely or recklessly under circumstances manifesting extreme indifference to the value of human life caused serious bodily injury to (insert victim’s name).

If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant(s) not guilty of the charge of aggravated assault in that (he/she/they) caused serious bodily injury to another.

As I previously instructed you, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another.

To find the defendant(s) guilty of attempting to cause serious bodily injury to another, the State must prove beyond a reasonable doubt that the defendant(s) purposely[2] attempted to cause serious bodily injury to another.  If you find beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury, it does not matter whether such injury actually resulted.

The law provides that a person is guilty of attempt if, acting purposefully, he/she:

(select appropriate section)

1.  Engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be;

(or)

2.  Did (or omitted to do) anything with the purpose of causing serious bodily injury to another without further conduct on his/her part. This means that the defendant(s) did something designed to cause serious bodily injury without having to take any further action.

(or)

3.  Did (or omitted to do) anything that, under the circumstances as a reasonable person would believe them to be, was an act (or omission) constituting as substantial step in a course of conduct planned to culminate in his/her commission of the crime. The step taken must be one that is strongly corroborative of the defendant’s criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/she had already taken. These preparatory steps must be substantial and not just very remote preparatory acts.[3]

Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., “I did it on purpose”).

If you find that the State has proved beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) guilty.[4]

If you find that the State has failed to prove beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) not guilty.[5]

---

[1] In State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div. 1984), certif. den., 99 N.J. 212 (1984), the Court found, in the context of aggravated manslaughter, that the difference between recklessness under circumstances manifesting extreme indifference to human life and mere recklessness is the difference between the probability as opposed to the possibility that a certain result will occur.  The Supreme Court endorsed Curtis in State v. Breakiron, 108 N.J. 591, 605 (1987).  The case law has applied the Curtis probability standard to the aggravated-assault statute.  State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. den., 140 N.J. 276 (1995); State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990).  Please note that in the aggravated-assault statute the Legislature has used the term “extreme indifference to the value of human life” while the aggravated-manslaughter statute speaks in terms of “extreme indifference to human life.”  Therefore, the indifference referred to in the aggravated-assault statute would appear not to relate to whether the victim lives or dies but rather to the value of the victim’s life.

[2] When a person actually causes serious bodily injury, it does not matter whether his mental state is purposeful, knowing or reckless (under circumstances manifesting extreme indifference to the value of human life).  When, however, the person attempts to cause, but does not cause, serious bodily injury, he must act purposefully.  Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986).

[3] State v. Fornino, 223 N.J. 531, 538 (App. Div. 1988), certif, den., 111 N.J. 570 (1988); cert. den., 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed. 2d 123 (1988).

[4] Where appropriate, renunciation should be charged.  N.J.S.A. 2C:5-1(d).

[5] In second degree aggravated assault cases involving the use of a deadly weapon, it may be appropriate to instruct the jury on the following lesser offenses: third degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3); and simple assault, N.J.S.A. 2C:12-1a(1) and (2). State v. Villar, 292 N.J. Super. 320, 326-330 (App. Div. 1996), rev’d. o.g., 150 N.J. 503, 517 n. 4 (1997). See also, State v. Sloane, 111 N.J. 293, 301 (1988). These offenses may be charged as lesser offenses even though third degree aggravated assault, fourth degree aggravated assault and a(2) disorderly persons simple assault contain an element (a deadly weapon) that is not an element of second degree aggravated assault. State v. Villar, supra; State v. Sloane, supra. When these lesser offenses are to be charged, the trial court and counsel should construct a sequence of the lesser offenses to be charged. State v. Villar, 150 N.J. at 517 n. 4.

SIMPLE ASSAULT (Physical Menace/Substantial Step) (Lesser Included) (N.J.S.A. 2C:12-1a(3)) model jury charge

SIMPLE ASSAULT (Physical Menace/Substantial Step)(Lesser Included)[1]

(N.J.S.A. 2C:12-1a(3))

[1] This charge is applicable to an attempt under a "substantial step" theory. N.J.S.A. 2C:5-1(a)(3). If the facts of the case warrant, the charge should be tailored to address the appropriate attempt theory. See N.J.S.A. 2C:5-1(a).

[1] This charge is applicable to an attempt under a "substantial step" theory. N.J.S.A. 2C:5-1(a)(3). If the facts of the case warrant, the charge should be tailored to address the appropriate attempt theory. See N.J.S.A. 2C:5-1(a).

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 attempts, by physical menace, to put another in fear of imminent serious bodily injury.

In order for you to find the defendant committed a simple assault, the State must prove, beyond a reasonable doubt:

1. that the defendant purposely attempted to put (NAME OF VICTIM) in fear of imminent serious bodily injury.

2. that the defendant did so by physical menace.

The first element that the State must prove is that the defendant purposely attempted to put (NAME OF VICTIM) in fear of imminent serious bodily injury.

Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.[1]

Imminent means likely to happen without delay.[2]

In order to find that the defendant attempted to put another in fear of imminent serious bodily injury, you must find that he/she did so purposely.

A defendant acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes or hopes that they exist.

Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that his/her purpose was to put the victim in fear of imminent bodily injury. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances.

  An attempt occurs, in the context of this charge, if the defendant purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his/her putting the victim in imminent fear of serious bodily injury.

To find the that the defendant committed a simple assault by attempting to put (NAME OF VICTIM) in imminent fear of serious bodily injury by physical menace, the State must prove beyond a reasonable doubt that the defendant had the purpose to put the victim in imminent fear of serious bodily injury. The State must also prove beyond a reasonable doubt that the defendant purposely did or omitted to do anything, which, under the circumstances as a reasonable person would believe them to be, is an act or omission that is a substantial step in the course of conduct planned to culminate in his/her putting the victim in fear of imminent serious bodily injury. However, the step taken must strongly show the defendant’s criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act, and must show that the accused has a firmness of criminal purpose.[3]

The second element the State must prove beyond a reasonable doubt is the defendant attempted to put NAME OF VICTIM in fear of imminent serious bodily injury by physical menace.

The State must prove beyond a reasonable doubt that the defendant attempted to put the victim in imminent fear of serious bodily injury by means of physical menace.  Physical menace is accomplished through an act or acts which are physically threatening acts.[4] Words alone are insufficient to constitute physical menace.

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.