THEFT OF MOVABLE
PROPERTY (N.J.S.A. 2C:20-3a) model jury charge
[Count ____ of T]he Indictment charges
defendant with theft by unlawful taking or disposition of movable
property. The indictment reads as
follows: [read the appropriate portion of the indictment].
The statute upon which the indictment is
based provides in pertinent part that:
A
person is guilty of theft if he unlawfully takes, or exercises unlawful control
over, movable property of another with purpose to deprive him thereof.
The State must prove each of the
following elements beyond a reasonable doubt:
(1) that defendant knowingly took or
unlawfully exercised control over movable property;
(2) that the movable property was property of
another;
(3) that defendant’s purpose was to deprive
the other person of the movable property.
The first element which the State must
prove beyond a reasonable doubt is that defendant knowingly took or exercised
unlawful control over movable property.
Property means anything of value, including [select appropriate phrases: tangible and intangible personal
property, trade secrets, contract rights, choses in action and other interests
in or claims to wealth, admission or transportation tickets, captured or
domestic animals, food and drink, electric, gas, steam or other power, financial
instruments, information, data, and computer software, in either human readable
or computer readable form, copies or originals.[1]]
Movable property means property the
location of which can be changed, including things growing on, affixed to, or
found in land, or documents, although the rights represented thereby have no
physical location.[2] For comparison purposes, “immovable property”
is all other property.[3]
Defendant must knowingly take or exercise
unlawful control over movable property.
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. Knowingly
is a state of mind and cannot be seen and can only be determined by inference
from conduct, words or acts. Therefore,
it is not necessary that witnesses be produced by the State to testify that a
defendant said that he/she knowingly did something.
His/Her
knowledge may be gathered from 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 reflected in the testimony [and evidence adduced
at trial].
In this case, the State alleges that the
movable property taken, or over which control was unlawfully exercised, is the
following: [describe property listed in
the indictment]. [Read if appropriate: It should be noted that the
definition of “movable property” is broad, including the kind of property which
has no real location.[4]] The State need not prove that the property
was carried out of the place in which it was kept, but only that it was moved
or taken from its original location or that defendant exercised unlawful
control over it, whether or not he/she was able to actually move or remove the property.
[Read the Supplemental Charge on Theft if
appropriate]
The second element that the State must
prove beyond a reasonable doubt is that the movable property is property of
another. [Choose appropriate language:
Property of another includes property in which any person other than the
defendant has an interest which the defendant is not privileged to infringe,
regardless of the fact that the defendant also has an interest in the property
and regardless of the fact that the other person might be precluded from civil recovery
because the property was used in an unlawful transaction or was subject to
forfeiture as contraband.[5] Property in the possession of the actor shall
not be deemed property of another who has only a security interest therein,
even if legal title is in the creditor pursuant to a conditional sales contract
or other security agreement.[6]] The term property of another is broadly
defined so as to include services and intangibles, anything of value.[7] Anything of value is defined as any direct or
indirect gain or advantage to any person.[8]
The third element which the State must
prove beyond a reasonable doubt is that defendant’s purpose was to deprive the
other person of the movable property.
For the purpose of this statute, the term “deprive” specifically
means: (1) to withhold or cause to be
withheld property of another permanently or for so extended a period as to
appropriate a substantial portion of its economic value, or with purpose to
restore only upon payment of reward or other compensation; or (2) to dispose or
cause disposal of the property so as to make it unlikely that the owner will
recover it.
A person acts purposely with respect to
the nature of his/her conduct or a result thereof if it is his/her 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 he/she believes or hopes that they exist. A person acts purposely if he/she acts with design, with a specific intent, with a particular
object or purpose, or if he/she means to do what he/she does.
Purpose is a condition of the mind that
cannot be seen and that can be determined only by inferences 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
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 defendant’s
acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
If you find that the State has proven all
three elements beyond a reasonable doubt, then you must find defendant
guilty. If you find that the State has
failed to prove any of the elements beyond a reasonable doubt, then you must
find defendant not guilty.
Since the value of the movable property
[or specific type of property] determines the degree or severity of the crime,
the State must prove its value beyond a reasonable doubt [or the movable
property taken beyond a reasonable doubt].
If you find defendant guilty, then you must indicate the value of the
property (or whether the movable property is a specifically enumerated item).
[Read to the jury the gradation theft offenses charge, N.J.S.A.
2C:20-2b].