SHOPLIFTING [CARRYING AWAY]
(N.J.S.A. 2C: 20-11b(1))
[Count
______ of] [T]he indictment charges the defendant with shoplifting.
[READ
INDICTMENT OR APPLICABLE COUNT]
That
statute provides in pertinent part that it is a crime for:
Any person to
purposely take possession of, carry away, transfer or cause to be carried away
or transferred, any merchandise displayed, held, stored or offered for sale by
any store or other retail mercantile establishment with the intention of
depriving the merchant of the possession, use or benefit of such merchandise or
converting the same to the use of such person without paying to the merchant
the full retail value thereof.
In
order for you to find the defendant guilty of shoplifting, the State must prove
each of the following elements beyond a reasonable doubt:
1. that defendant purposely
[took possession of] [carried away]
[caused to be carried away] [transferred] [caused to be transferred] any
merchandise displayed, held, stored or offered for sale by [name of commercial
establishment];
2. that [name of commercial
establishment] was a store or other retail mercantile establishment; and
3. that defendant did so with
the purpose of depriving the merchant of the possession, use, or benefit of
such merchandise [OR of converting such merchandise to his/her
use] without paying the merchant the full retail value thereof.
The
first element that the State must prove beyond a reasonable doubt is that
defendant purposely [took possession of] [carried away] [caused to be carried
away] [transferred] [caused to be transferred] any merchandise displayed, held,
stored or offered for sale by [name commercial establishment]. The term “merchandise” means any goods,
chattels, foodstuffs or wares of any type and description, regardless of the
value thereof.[1]
A
person acts purposely with respect to the nature of his/her
conduct or a result of his 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 believes or
hopes that they exist.[2]
To
“possess” an item under the law, one must have a knowing, intentional control
of that item accompanied by a knowledge
of its character. So, a person who
possesses an item such as (IDENTIFY RELEVANT ITEM(S)) must know or be
aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls. [WHERE
APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or
uncertain in its nature.] In other
words, to “possess” an item, one must knowingly procure or receive an item or
be aware of his/her
control thereof for a sufficient period of time to have been able to relinquish
his/her
control if he/she chose to do so.
The
State must prove beyond a reasonable doubt that a possessor acted knowingly in
possessing the item. 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 the high probability of their existence. A person acts knowingly as 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.
A
person may possess (an item) even though it was not physically on his/her
person at the time of the arrest, if he/she had in fact, at some time prior to his/her
arrest, had control over it. Possession means a conscious, knowing
possession, either actual or constructive.
[CHARGE
THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE]
ACTUAL POSSESSION
A
person is in actual possession of an item when he/she
first, knows what it is: that is, he/she
has knowledge of its character, and second, knowingly has it on his/her
person at a given time.
CONSTRUCTIVE POSSESSION
Possession
may be constructive instead of actual. Constructive possession means possession in
which the possessor does not physically have the item on his/her
person but is aware that the item is present and is able to and has the
intention to exercise control over it. So,
someone who has knowledge of the character of an item and knowingly has both
the power and the intention at a given time to exercise control over it, either
directly or through another person or persons, is then in constructive
possession of that item.
JOINT POSSESSION
Possession
may be sole or joint. If one person
alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or
constructive knowing possession of an item, possession is joint.
The
second element that the State must prove beyond a reasonable doubt is that
[name of commercial establishment] was a store or other retail mercantile
establishment. The term “store or other
retail mercantile establishment” means a place where merchandise is displayed,
held, stored, or sold or offered to the public for sale.[3]
The
third element that the State must prove beyond a reasonable doubt is that
defendant acted with the purpose of depriving the merchant of the possession,
use or benefit of such merchandise [OR converting such merchandise to his/her
use] without paying the merchant the full retail value of the merchandise. I have already defined "purpose"
for you earlier in these instructions.
The
term “deprive” means to withhold property permanently or for so extended a
period as to appropriate a substantial portion of its economic value.[5]
[OR: The term "converting" or
"conversion" means to exercise wrongful control over property owned
by another in a manner inconsistent with the owner's rights].[6]
The
term “merchant” means any owner or operator of any store or other retail
mercantile establishment, or any agent, servant, employee, lessee, consignee,
officer, director, franchisee, or independent contractor of such owner or
proprietor.[7]
Purpose
and knowledge are states of mind. 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 defendant 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 defendant’s
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.
PERMISSIVE
INFERENCE [WHERE APPROPRIATE][8]
(N.J.S.A.
2C:20-11d)
If
you find that defendant purposely concealed unpurchased merchandise of any
store either on the premises or outside the premises of such store or other
retail mercantile establishment, you may infer that defendant so concealed such
merchandise for the purpose of depriving the merchant of the possession, use or
benefit of such merchandise without paying the full retail value thereof. The term “conceal” means to conceal
merchandise so that, although there may be some notice of its presence, it is
not visible through ordinary observation.[9]
If
you find that defendant concealed or caused to be concealed such merchandise
upon his/her
person or among his/her
belongings, or upon the person or among the belongings of another, you may
infer that defendant did so purposely. An
inference is a deduction of fact that may be drawn logically and reasonably
from another fact or group of facts established by the evidence. Whether or not an inference should be drawn is
for you to decide using your own common sense, knowledge and everyday
experience. Ask yourselves is it
probable, logical and reasonable. However,
you are never required or compelled to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case, keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
[IN
ALL CASES]
To
summarize, in order for you to find defendant guilty of shoplifting, the State
must prove these elements beyond a reasonable doubt:
1. that
defendant purposely [took possession of] [carried away] [caused to be carried
away] [transferred] [caused to be transferred] any merchandise displayed, held,
stored or offered for sale by [name of commercial establishment];
2. that
[name of commercial establishment] was a store or other retail mercantile
establishment; and
3. that defendant did so with
the purpose of depriving the merchant of the possession, use, or benefit of
such merchandise [OR of converting such merchandise to his/her
use] without paying the merchant the full retail value thereof.
If
you find that the State has proven all of these elements beyond a reasonable
doubt, then you must find the defendant guilty.
If the State has failed to prove any of these elements, you must find
defendant not guilty.
VALUE
OF MERCHANDISE (N.J.S.A. 2C:20-11c)
If
you find the State has proven all of the previous elements beyond a reasonable
doubt, you must then determine whether the State has proven beyond a reasonable
doubt that the full retail value of the merchandise involved
[CHOOSE
APPROPRIATE ALTERNATIVES]
(1) is $75,000 or more; or
(2) exceeds $500 but is less than $75,000; or
(3) is at least $200, but does
not exceed $500; or
(4) is less than $200.
I
have already defined "full retail value" for you earlier in these
instructions.
[1] N.J.S.A.
2C:20-11a(3).
[2] N.J.S.A.
2C:2-2(b)(1).
[3] N.J.S.A.
2C:20-11a(2).
[4] N.J.S.A.
2C:20-11a(7).
[5] N.J.S.A.
2C:20-1a(1).
[6] Port-O-San Corporation v. Teamsters,
363 N.J. Super. 431, 440 (App. Div. 2003), quoting Commercial
Insurance Company of Newark v. Apgar, 111 N.J. Super. 108, 114-15
(Law Div. 1970). See also Black's Law Dictionary 333 (7th
Ed. 1999).
[7] N.J.S.A.
2C:20-11a(4).
[8] A court should exercise care in deciding if
the factual scenario presented at trial requires instruction on the
presumption. See generally Cannel, New Jersey Criminal Code Annotated
(2005 ed.), Comment 6 to N.J.S.A.
2C:20-11 and Comment 6, N.J.S.A.
2C:1-13e. Before the statutory
presumption is used, it must also be determined that its use would satisfy constitutional
requirements of due process to make sure its use does not improperly shift the
burden of proof by directing a verdict on an essential element of the
crime. County Court of Ulster County,
New York v. Allen, 442 U.S. 140 (1979) and State v. Ingram,
98 N.J. 489 (1985).
The statutory language
contained in N.J.S.A. 2C:20-11d has been interpreted to be
constitutional in Carollo v.
Supermarkets General Corp., 251 N.J. Super. 264, 268-69 and n. 1
(App. Div. 1991). See also State
v. Fitzmaurice, 126 N.J. Super. 361 (App Div), certif. den. 65 N.J. 562 (1974) (assessing the
precursor statutory language of N.J.S.A.
2A:170-99).
[9] N.J.S.A.
2C:20-11a(6). In Henry v. Shopper's World, 200 N.J. Super. 14, 18 (App.
Div. 1985), the Court held that 'the term "concealed unpurchased
merchandise" ... may be construed as applying to items in plain view but
worn or carried as though they had been purchased.' However, the phrase that the Court was
construing is found in N.J.S.A. 2C:20-11e, which provides civil and
criminal immunity to merchants or others under certain circumstances, and the
opinion does not refer to the term 'conceal' in subsection a(6). See also State v. Evans, 340 N.J.
Super. 244, 251 (App. Div. 2001).
