THEFT OF SERVICES
(N.J.S.A. 2C:20-8b) model jury charge
The
defendant is charged with theft of services in violation of N.J.S.A.
2C:20-8b. That section of our statute reads in pertinent part:
A person commits theft if,
having control over the disposition of services of another, to which he is not
entitled, he knowingly diverts such services to his own benefit or to the
benefit of another not entitled hereto.
The
State must prove, beyond a reasonable doubt, each of the following elements of
the crime:
(1) that defendant had control over the
disposition of the services;
(2) that defendant was not entitled to the
services (nor was the recipient if other than defendant);
(3) that defendant diverted services of
another to his/her own benefit or to the benefit of another; and
(4) that defendant did so knowingly.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant had control over the disposition of the services.
Services
include labor, professional service, transportation, telephone (including
using, selling, or possessing a computer to deprive a telephone company of its
charges), or other public service, accommodations in hotels, restaurants or
elsewhere, entertainment, admission to exhibitions, use of vehicles or other
movable property.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant was not entitled to the services (nor was the recipient of the
services, if other than the defendant).
The
third element that the State must prove beyond a reasonable doubt is that the
defendant diverted services of another to his/her own benefit or to the benefit of
another.
The
fourth element that the State must prove beyond a reasonable doubt is that the
defendant did so knowingly.
A
person acts knowingly with respect to the nature of his/her
conduct or the attendant circumstances if a person is aware that his/her
conduct is of that nature, or that such circumstances exist or a person is
aware of a high probability of their existence. A person acts knowingly with
respect to a result of his/her
conduct if a person is aware that it is practically certain that his/her
conduct will cause such a result. One is said to act knowingly if one acts with
knowledge, if one acts consciously, if he/she comprehends his/her
acts.
Knowledge
is a condition of the mind which cannot be seen and can only be determined 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, members of the jury, that the State produce witnesses to testify that the 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 inferences[1] 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.
If
the defendant knowingly diverted the services in question it does not matter
whether he/she diverted them to his/her own benefit or to the benefit of
another person who was not entitled to the services.
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,
however, you find that the State has proved each element beyond a reasonable
doubt, then you must find defendant guilty of theft of services.
(If affirmative defense of Claim of
Right is raised, charge here.
(N.J.S.A. 2C:20‑2(c))
(If applicable, charge here on
Gradation of Theft Offenses.
(N.J.S.A. 2C:20‑2(b))
[CHARGE WHERE APPROPRIATE]
An inference is a deduction of
fact that may be drawn logically and reasonably from another fact or group or
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.