(PHYSICAL MENACE)
(N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e),
(f), (g)[1] Model Jury charge
Count of this indictment charges the defendant with
aggravated assault.
(Read appropriate count of indictment).
The defendant is accused of violating a law that provides
in pertinent part:
A person is guilty of aggravated assault if he . . .
(a)ttempts by physical menace to put . . . (a)ny law enforcement officer acting
in the performance of his duties while in uniform or exhibiting evidence of his
authority or because of his status as a law enforcement officer . . . in fear
of imminent serious bodily injury.
For you
to find the defendant guilty of this offense, the State must prove each of the
following elements beyond a reasonable doubt:
1. that the defendant purposely attempted
by physical menace to put (insert name of victim) in fear of imminent
serious bodily injury;
2. that (insert name of victim) was
a law-enforcement officer; and
3a. that the defendant knew that (insert
name of victim) was a law-enforcement officer[2] acting
in the performance of (his/her) duties or while in uniform or exhibiting
evidence of (his/her) authority;[3] or
3b. that the defendant knew that (insert
name of victim) was a law-
enforcement officer[4] and
purposely committed the act against (him/her) because of (his/her) status as a
law-enforcement officer.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant purposely attempted by
physical menace to put (insert name of victim) in fear of imminent
serious bodily injury.
Serious
bodily injury means bodily injury that 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.[5]
Imminent means likely to happen
without delay.[6]
Physical
menace means a threatening of harm by physical conduct, and not merely by
words.
A person
acts purposely with respect to the nature of his/her conduct or a result thereof if it is a person's 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 a person is aware of the
existence of such circumstances or a person believes or hopes that they exist.
One can be deemed to be acting purposely if one acts with design, with a
purpose, with a particular object, if one really means to do what he/she does.[7]
Purpose
is a condition of the mind that cannot be seen and that can often 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 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.
The
second element that the State must prove beyond a reasonable doubt is that (insert
name of victim) was a law-enforcement officer.
A
law-enforcement officer is any person who is employed as a permanent full-time
member of any State, county or municipal law-enforcement agency, department or
division of those governments and who is statutorily empowered to act for the
detection, investigation, arrest, conviction, detention or rehabilitation of
persons violating the criminal laws of this state.[8]
The third element that the State
must prove beyond a reasonable doubt is:
a. that the defendant knew that (insert name
of victim) was a law-enforcement officer acting in the performance of (his/her)
duties or while in uniform or exhibiting evidence of (his/her) authority; or
b. that the defendant knew that (insert name
of victim) was a law-enforcement officer and purposely committed the act
against (him/her) because of (his/her) status as a law-enforcement officer.
I
have already instructed you on the meaning of a purposeful state of mind. That
definition also applies to this element.
A
person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if a person is aware that his/her conduct is of that nature, or that such circumstances exist or a
person is aware of a high probability of their existence. A person acts
knowingly with respect to a result of his/her conduct if a person is aware that it is practically certain that his/her conduct will cause such a result. One is said to act knowingly if one
acts with knowledge, if one acts consciously, if he/she comprehends his/her acts.[9]
Like
purpose, knowledge is a condition of the mind that cannot be seen and that can
often be determined only from inferences from conduct, words or acts.
If
you find that the State has proven every element beyond a reasonable doubt,
then you must find the defendant guilty. If, however, the State has failed to
prove any element beyond a reasonable doubt, then you must find him/her not guilty.
(Where
appropriate charge simple assault as a lesser offense.)[10]
[1] This
charge is drafted for the most common situation, where a defendant is charged
with aggravated assault upon a law enforcement officer under N.J.S.A.
2C:12-1b(5)(a). Other sections of the statute apply, with differing language,
to aggravated assault upon paid and volunteer firemen; emergency first-aid and
medical personnel; school board members, school administrators, teachers and
other employees of a school board; employees of the Division of Youth and
Family Services; the judiciary; and bus drivers and railroad employees. N.J.S.A.
2C:12-1b(5)(b) to (g). As always, the Model Charge must be adapted to fit the
facts of each case.
[2] State
v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff’d o.b.,
163 N.J. 140 (2000) (the defendant must know that the victim is a
law-enforcement officer).
[3] If
transferred intent is an issue, the charge should be modified accordingly. State
in the Interest of S.B., 333 N.J. Super. 236, 243 (App. Div. 2000).