(N.J.S.A. 2C:29-2a) model jury charge
[Count of T]he indictment charges the defendant with
committing the crime of resisting arrest by [using or threatening to use force
or physical violence against ] AND/OR [using any (other) means to create a
substantial risk of causing physical injury to ________]. The indictment reads as follows:
(Read
Indictment)
The statute on which this
charge is based reads as follows:
A person is guilty of an offense if he purposely prevents or attempts to
prevent a law enforcement officer from effecting an arrest . . . [and uses or
threatens to use physical force or violence against the law enforcement officer
or another] AND/OR [uses any (other) means to create a substantial risk of
causing physical injury to the public servant or another].[1]
In order
to convict the defendant of this charge, the State first must prove beyond a
reasonable doubt that defendant committed the basic offense[2]
of resisting arrest. The four elements
of that offense are:
1. That was a law enforcement officer.
2. That was effecting an arrest.
3. That defendant knew or
had reason to know that was a law enforcement officer effecting an
arrest.
4. That defendant purposely
prevented or attempted to prevent from effecting the arrest.
The first
element that the State must prove beyond a reasonable doubt is that was a law enforcement officer. A law enforcement officer is a person whose
public duties include the power to act as an officer for the detection,
apprehension, arrest and conviction of offenders against the laws of this
State.[3]
The
second element that the State must prove beyond a reasonable doubt is that _____
was effecting an arrest. It is not a defense to a prosecution under this subsection
that the law enforcement officer was acting unlawfully in making the arrest,
provided (he/she) was acting under color of (his/her) official authority and
provided the law enforcement officer announces (his/her) intention to arrest
prior to the resistance.[4]
The third
element that the State must prove beyond a reasonable doubt is that the
defendant knew or had reason to know that was a law enforcement officer effecting an
arrest.[5] 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. "Knowing," "with
knowledge" or equivalent terms have the same meaning.[6]
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant purposely prevented or attempted to prevent from effecting the arrest. 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, a person acts purposely if he/she means to act in a certain way or to cause a certain
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.[7]
Purpose
and knowledge are conditions of the mind which cannot be seen and can only be
determined by inference 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 that 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 the surrounding circumstances.
If you
find that the State has failed to prove any one of these elements beyond a
reasonable doubt, then you must find the defendant not guilty.
If you
find that the State has proven the basic offense of resisting arrest beyond a
reasonable doubt, you must continue your deliberations to consider the offense
charged in the indictment, which is the most serious form of the crime of
resisting arrest: namely,
[CHOOSE APPROPRIATE ALTERNATIVE]
whether
the State has proven beyond a reasonable doubt that, in resisting arrest, the
defendant used or threatened to use physical force or violence against a law
enforcement officer or another.[8]
“Another” against whom physical force or violence is used or threatened does
not include defendant himself/herself.[9] Physical force means the exercise of strength
or power against the victim. That force
need not entail pain or bodily harm and need not leave any mark.[10] Physical violence means dynamic power showing
great strength, power, intensity, fury, and destructiveness.[11]
[OR]
whether
the State has proven beyond a reasonable doubt that, in resisting arrest, the
defendant used any (other) means to create a substantial risk of causing physical
injury to a public servant or another.[12] “Another” against whom any (other) means of
creating a substantial risk of causing physical injury is used does not include
defendant himself/herself.[13] Physical Injury means physical
pain, illness, or any impairment of physical condition.[14] A substantial risk is one that is of such a
nature and degree that, considering the nature and purpose of the defendant’s
conduct and the circumstances known to him/her,
its disregard involves a gross deviation from the standard of conduct that a
reasonable-person would observe in the defendant’s situation. In other words, the State must prove beyond a
reasonable doubt that defendant knew that it was very likely that his/her conduct would create a risk of causing physical
injury to ,
but that he/she went ahead
anyway, where a reasonable person would not. I have already defined knowing for you.
If you
find that the State has proven beyond a reasonable doubt all five elements of
the offense then you must find the defendant guilty of resisting arrest by
[choose applicable provision(s) of N.J.S.A. 2C:29-2a(3)], the offense
charged in the indictment, the most serious form of the crime of resisting
arrest. If the State has failed to
prove the fifth element beyond a reasonable doubt, you must find the defendant
guilty of the basic offense of resisting arrest.[15]
[1] N.J.S.A.
2C:29-2a(1) and (3).
[2] In State
v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004), the Court
reversed a conviction for third degree resisting arrest because, “although the
jury was told which elements had to be found in order for defendant to be
guilty of some crime, that is, resisting, resisting by flight, or resisting by physical
force, it was not made aware of the significance of its findings in terms of
the seriousness, i.e., the grading, of the offense. It should have been clearly apprised of that
consequence of its various findings.”
This language, however, appears to depart from numerous appellate
decisions holding that juries should not be instructed as to the sentencing
consequences of their decisions in order not to distract them from their
essential fact-finding function. Since
this portion of Simms was intended to provide the “context that we
consider defendant’s plain-error argument that the jury should have been
charged on self-defense” (id. at 472), the Committee has decided not to
specify the degree of each form of resisting arrest in this model charge. Rather, in describing the various elements of
the offense, as well as in the final paragraphs that describe the various
verdicts that the jury can arrive at, the charge uses the terms “basic offense”
(disorderly persons resisting), “more serious offense” (fourth degree resisting
with flight), and “the most serious offense charged in the indictment, which is
the most serious form of the crime” (third degree resisting pursuant to N.J.S.A.
2C: 29-2a(1)(a) or (b)).
[3] See
N.J.S.A. 2C:25-19c.
[4] Where
the issue arises, the jury should also be instructed that the State must prove
beyond a reasonable doubt that the law enforcement officer was, in fact, acting
under color of law and did announce (his/her) intention to arrest. See State
v. Kane, 303 N.J. Super. 167, 181-182 (App. Div. 1997).
[5] State
v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994).
[6] N.J.S.A.
2C:2-2b(2).
[7] N.J.S.A.
2C:2-2b(1).
[8] N.J.S.A.
2C:29-2a(3)(a).
[10] State
v. Brannon, 178 N.J. 500, 504 and 510 (2004).
[11] Id.
at 510.
[12] N.J.S.A.
2C:29-2a(3)(b). Although the broad
definition of “public servant” in N.J.S.A. 2C:27-1g is applicable to
Chapter 29 offenses, there is no need to define that term any differently than
“law enforcement officer” in the context of resisting arrest. “[N.J.S.A. 2C:29-2] was altered before
enactment…to limit the broad category of ‘public servant’ to ‘law enforcement
officer’…” Cannel, Criminal Code Annotated, Comment 1, N.J.S.A.
2C:29-2 (2006 Ed.).
[14] N.J.S.A.
2C:11-1a. See State v. Wallace, 158 N.J. 552, 558 (1999).
[15] N.J.S.A.
2C:1-13a and State v. Ragland, 105 N.J. 189 (1986). The jury should be provided with a verdict
form which will allow them to record which verdict they have entered.