SUPPLEMENTAL CHARGE ON THEFT
USED IF DEFENDANT IS FOUND TO BE IN
POSSESSION OF STOLEN PROPERTY WITHIN A SHORT TIME AFTER THE THEFT[1]model jury charge
If you find that defendant was in
possession of (property stolen), within a reasonably short period of time after
the theft, you may infer that defendant is the thief.
Although possession of stolen property
within a short period of time from the theft is not in and of itself a crime,
since it is possible under our law innocently to possess such goods, such
possession within a reasonably short time after the theft may be found
sufficient by you to infer that the possessor is the thief unless the evidence
shows to your satisfaction that the property was acquired by defendant by legal
means.
Exclusive possession of stolen property
shortly after the theft is ordinarily a circumstance from which you may
reasonably draw the inference and find, in light of the surrounding
circumstances shown by the evidence in the case, that the possessor is the
thief.
An
inference is a deduction of fact that may logically and reasonably be drawn
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
experiences. 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. The
term, "recently," is a relative term and has no fixed meaning. Whether property may be considered as
recently stolen depends upon the nature of the property, and all the facts and
circumstances shown by the evidence in the case. The shorter the period between the theft and
the possession, the stronger the inference becomes. Conversely, the longer the period of time
since the theft, the more doubtful becomes the inference which may reasonably
be drawn from the possession.
[IF
DEFENDANT DOES NOT TESTIFY AND ELECTS TO HAVE THE JURY CHARGED ON HIS/HER DECISION NOT TO TESTIFY, CHARGE FOLLOWING]
You must
remember that a defendant has the constitutional right to decline to testify
and to remain silent. You must not
consider for any purpose or in any manner, in arriving at your verdict, that defendant
did not testify. However, you may
consider the possession of recently stolen property, along with other circumstances
and other evidence, independent of any testimony of the accused in determining
whether the State has met its burden of proof.
[CHARGE
IN ALL CASES]
If you
find that the State has proven beyond a reasonable doubt that the defendant was
in exclusive possession of the property and that the property had been recently
stolen, you may find the defendant guilty of theft in the absence of evidence
as to the circumstances surrounding the possession of the property. I have already defined possession for you.
As I
have previously mentioned, possession of the stolen property by a person
shortly after the theft raises a permissible inference that the possessor is in
fact the thief. However, you may accept
or reject such an inference after considering all the other evidence in the
case. If you find the inference, you
should weigh it in connection with all the other evidence, keeping in mind that
the State must prove defendant’s guilt beyond a reasonable doubt, and that the
inference does not shift the burden of proof to the defendant to prove his/her
innocence.
[1] This charge may be given even if the
defendant testifies. See State
v. Ippolito, 287 N.J.Super. 375, 384 n. 2 (App. Div.), certif.
denied, 144 N.J. 585 (1996). However, if the defendant raises a
claim of right, the charge should
not be given. Id.
