THEFT OF SERVICES (N.J.S.A. 2C:20‑8a)
That
section of our statute reads in pertinent part:
A person is guilty of theft if he purposely obtains
services which he knows are available only for compensation, by deception or
threat, or by false token, slug, or other means, including but not limited to
mechanical or electronic devices or through fraudulent statements, to avoid
payment for the service.
The
State must prove, beyond a reasonable doubt, each of the following elements of
the crime:
(1) that defendant purposely obtained a
service;
(2) that defendant knew the services were
available only for compensation;
(3) that defendant obtained the services by
deception (or threat, or by a false token,
etc.);
(4) that defendant’s purpose was to avoid
payment.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant purposely obtained a service. “Obtain” means to secure the
performance of the service, whether for one's own benefit or for the benefit of
another.
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 is aware of the existence of such circumstances or he/she believes or hopes that they exist.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knew the services were available only for compensation.
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.
Purpose
and knowledge are conditions 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
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.
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, accommodation in hotels, restaurants or
elsewhere, entertainment, admissions to exhibitions and use of vehicles or
other movable property.
The
third element that the State must prove beyond a reasonable doubt is that the
defendant obtained the services by deception. A person “deceives” if he/she “purposely creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind; but deception
as to a person’s intention to perform a promise shall not be inferred
from the fact alone that he/she did not subsequently perform the promise.”[1] A person
also deceives when he/she “prevents another from acquiring information which would affect (his/her)
judgment of a transaction; or fails to correct a false impression which the
deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he/she stands in a fiduciary or confidential relationship.”[2]
“Threat”
means a communicated intent to inflict physical or other harm on any person or
on property.[3]
“By
a false token” means a false document or sign of the existence of a fact, in
general, used for the purposes of fraud. It is a device used to obtain money by
false pretenses.[4]
For example, the use of a slug is use “by a false token.” A slug is an object
or article which by virtue of its size, shape, or any other quality is capable
of being inserted or deposited in a coin, currency, or credit card activated
machine as an improper substitute for money.[5]
The
fourth element that the State must prove beyond a reasonable doubt is that the
defendant’s purpose was to avoid payment.
[CHARGE WHERE APPROPRIATE]
Where
compensation for service is ordinarily paid immediately upon the rendering of
such service, as, for example, in hotels or restaurants, where a person
absconds without payment or offer to pay, you may infer that absconding without
payment or offer to pay gives rise to an inference that service was obtained by
deception as to intention to pay.[6]
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.[7]
[CHARGE IN ALL CASES]
In
conclusion:
If
you find that the State has failed to prove any one of the elements beyond a
reasonable doubt, then you must find the defendant not guilty.
However,
if the State has proven each element beyond a reasonable doubt, then you must
find the defendant guilty of theft 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))
