SHOPLIFTING [CONCEALMENT]
(N.J.S.A. 2C: 20-11b(2)) model jury charge
[READ INDICTMENT OR APPLICABLE COUNT]
The statute
provides in pertinent part that it is a crime for:
Any person
purposely to conceal upon his person or otherwise any merchandise offered for
sale by any store or other retail mercantile establishment with the intention
of depriving the merchant of the processes, use or benefit of such merchandise
or converting the same to the use of such person without paying to the merchant
the 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 concealed upon his/her
person or otherwise any merchandise 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 processes, use, or benefit of such merchandise
[OR of converting such merchandise to his/her
use] without paying the merchant the value thereof.
The
first element that the State must prove beyond a reasonable doubt is that
defendant purposely concealed upon his/her
person or otherwise any merchandise offered for sale by any store or other
retail establishment. 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.[1] The term “merchandise” means any goods,
chattels, foodstuffs or wares of any type and description, regardless of the
value thereof.[2]
A
person acts purposely with respect to the nature of his/her
conduct or a result of his/her
conduct if it is the person's 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 the person is aware of the existence of such
circumstances or believes or hopes that they exist.[3]
Purpose
is a state 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 an
accused 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 his/her
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.
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.[4]
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 processes,
use or benefit of such merchandise [OR converting such merchandise to his/her
use] without paying the merchant the value of the merchandise. I have already defined "purpose"
for you earlier in these instructions.
The
term “value” means the fair market value at the time and place of the alleged
purposeful concealment.[5]
The
term “deprive” means to withhold property permanently or for so extended a
period as to appropriate a substantial portion of its economic value.[6]
[OR:
The term "converting" or "conversion" means to exercise
wrongful dominion and control over property owned by another in a manner
inconsistent with the owner's rights].[7]
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.[8]
PERMISSIVE
INFERENCE [WHERE APPROPRIATE][9]
(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.[10]
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 concealed upon his person or otherwise any merchandise
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 processes,
use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the 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 property 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.
The
term "full retail value" means the merchant’s stated or advertised
price of the merchandise.[11]
[1] 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 refers to the term 'conceal' in subsection a(6). See also State v. Evans, 340 N.J.
Super. 244, 251 (App. Div. 2001).
[2] N.J.S.A.
2C:20-11a(3).
[3] N.J.S.A.
2C:2-2(b)(1).
[4] N.J.S.A.
2C:20-11a(2).
[5] N.J.S.A.
2C:1-14m.
[6] N.J.S.A.
2C:20-1a(1).
[7] 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, 114-115 (Law Div. 1970).
See also Black's Law Dictionary 333 (7th Ed. 1999).
[8] N.J.S.A. 2C:20-11a(4).
[9] 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, 269-269 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).
[10] 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 refers to the term 'conceal' in subsection a(6). See also State v. Evans, 340 N.J.
Super. 244, 251 (App. Div. 2001).
[11] N.J.S.A. 2C:20-11a(7).